ABDUL MAALIK GADDI, J.---Appellant Abdul Rehman was tried by the Court of learned Sessions Judge, Malir Karachi, in Sessions Case No,842 of 2017, re. The State v. Abdul Rehman, arising out of Crime No,226 of 2017 registered at police station Ibrahim Hyderi, Karachi, under section 23(1)(a) of Sindh Arms Act, 2013. By judgment dated 23.04.2018, the appellant was convicted under section 265-H(2), Cr.P.C. and sentenced him to suffer R.I. for three years with fine of Rs,10,000/-; in default of payment of fine, it was further ordered that appellant shall suffer undergo S.I. for one month more. However , the benefit of section 382-B, Cr.P.C. was also extended to the appellant.
2. The brief facts of the prosecution case leading to the filing of this appeal are that on 15.11.2017 at about 1100 hours, complainant/SIP Amanat Feroz lodged FIR bearing Crime No,226 of 2017 at Police Station Ibrahim Hyderi, Karachi, stating therein that on the relevant date and time, he along with his subor dinate staff left PP Bhitai Colony of Ibrahim Hyderi on private vehicle under roznamcha entry No,3 at 0830 hours for patrolling duty and at about 1000 hours, when they reached at Jumma Bazar ground near Jamia Masjid, Bhittai Colony , Sector-A, Karachi, they saw two persons, to whom they suspected and tried to apprehend them, but one person fled away , while they apprehended other , who on enquiry , disclosed his name as Abdul Rehman. Upon search of accused, police recovered one .30 bore pistol along with magazine containing two live bullets, body of which, PAK 2000 AAR Pes CAL-30 was written, from left side of his pant. Police also recovered five cell phones, one white colored Samsung, two Q-mobile phones and two Nokia cell phones from the possession of appellant. As the appellant failed to produce the license, he was arrested on spot and police prepared memo of arrest and recovery in presence of mashirs namely PC Sadaruddin and PC Asif Ali. Thereafter , case property along with accused were brought to police station. Hence this case.
3. The charge was framed on 18.12.2017 at. Ex.2 against the accused by the learned trial Court, to which the accused pleaded not guilty and claimed to be tried.
4. At trial, in order to establish accusa tion against appellant/ accused, prosecution had examined following witnesses:-
(i) PW-1/complainant SIP Amanat Feroz at Ex.3, who produced departure entry , memo of arrest and recovery , FIR and arrival entry at Exs.3/A to 3/D respectively;
(ii) PW -2 Mashir/PC Asif Ali at Ex.4, who produced mashirnama of place of incident at Ex.4/A;
(iii) PW-3 I.O./ASI Mushtaque Ali at Ex.5, who produced departure and arrival entries and report of Ballastic Expert at Exs.5/A to 5/C respectively .
These witnesses were cross-examined by the counsel for the appellant. Thereafter , learned ADPP closed the prosecution side vide Statement at Ex.6.
5. Statement of appellant was recorded under section 342, Cr.P.C. at Ex.7, in which he has denied the prosecution allegations, claimed his innocence. He further stated that on 13.11.2017, some other police officials arrested him from a Burger Shop at 2:00 p.m. and detained him in police lock-up and demanded bribe of Rs,50,000/- for his release, but he could not fulfill their demand, due to which they managed this false case against him and foisted recovery upon him. Nothing illegal was recovered from his possession. Howe ver, accused neither examined himself on Oath nor led any evidence in his defence.
6. Mr. Muhammad Jamil, learned counsel for the appellant has argued that the appellant is innocent and has been falsely implicated by the police. He further argued that on 13.11.2017, some other police officials arrested the appellant from a Burger Shop at 2:00 p.m. and detained him in police lock-up and demanded bribe of Rs,50,000/- for his release, but he could not fulfill their demand, due to which they managed this false case against him and foisted recovery upon him; that there are material contradictions in the evidence of complainant and mashir , which renders the recovery as doubtful. He added that accused is victim of police highh andedness and whole case has been cooked-up by the police at police station, as such, the prosecution has not been able to prove the charge against the accused beyond the shadow of reasonable doubt. Therefore, he prayed that accused may be acquitted by extending him benefit of doubt. In support of his contentions, learned counsel for the appellant has relied upon the following case laws:-
(i) Basharat Ali v. Muhammad Safdar and another reported as 2017 SCMR 1601 ;
(ii) Moinuddin alias W aseem v . The State reported as 2016 YLR 523 ;
(iii) Shah v . The State reported as 2015 PCr .LJ 747;
(iv) Siyar Muhammad v . The State reported as 2014 PCr .LJ 354;
(v) Shahid Iqbal v . The State reported as 2016 MLD 230 ;
(vi) Fiyyaz Ahmad arid others v . The State and others reported as 2007 PCr .LJ 868;
7. Conversely , Mr. Sagheer Abbasi, learned Assistant Prosecutor General, Sindh for the State has supported the impugned judgment passed by the trial Court and contended that all the prosecution witnesses fully supported the case of prosecution and the ocular testimony is further corroborated by the report of Ballastic Expert. He added that prosecution has successfully proved the charge against the accused beyond any shadow of reasonable doubt, therefore, he prayed for maintaining the conviction awarded by the trial Court.
8. I have given my anxious thoughts to the contentions raised by the bar and have gone through the case papers so made available before me.
9. After careful consideration and meticulous examination of the available record, suffice to say that mere heinous nature of offence is not sufficient to convict the accused because the accused continues with presumption of innocence until found otherwise at the end of the trial. It is the settled principle of law that burden is always upon the prosecution to prove the case beyond shadow of doubt. Keeping in view of this basic touchstone of criminal administration of justice, I have examined the ocular evidence as well as circumstantial evidence, along with impugned judgment.
10. From the perusal of record, I have come to the conclusion that the prosecution has failed to prove its' case against the appellant for the reasons that it was the case of prosecution that on 15.11.2017 at about 0830 hours, complainant along with his subordinate staff left police station for patrolling to eliminate the crime vide entry No,3 of 2017 and during patrolling at about 1000 hours, when they reached at Jumma Bazar ground near Jamia Masjid, Bhittai Colony , Sector-A, they saw two accused persons in suspected conditions, out of them, one accused was apprehended by the police, while the other was fled away , but it is surprising to note that police party were with sophisticated weapons despite of this fact, why and how the second accused was fled away easily from the spot and police party remained calm. This fact creates doubt in the prosecution case. Not only this, as per memo of arrest and recovery and FIR at Ex.3/B and Ex.3/C respectively , on the relevant date and time, the present appellant was apprehended and from his personal search, police recovered one .30 bore T.T. pistol along with magazine containing 02 live bullets, body of which, PAK2000 AAR Pes CAL-30 was written and five cell phones, one white colored Samsung, two Q-mobile phones and two Nokia cell phones, from the possession of appellant in presence of mashirs namely PC Sadaruddin and PC Asif Ali. Prosecution in order to prove this fact examined PW-1 complainant/SIP Amanat Feroz at Ex.3, PW-2 PC Asif Ali at Ex.4 and PW-3/ investigating officer ASI Mushtaque Ali at Ex.5. It has been brought in evidence of the prosecution witnesses that the place of incident from where the accused was arrested was thickly popula ted area surrounded by houses and shops, despite this fact, complainant did not bother to associate with him any independent person of the locality to witness the event. No plausible explanation was offered by the prosecution why police did not associate any independent person from the place of incident to witness the arrest and recovery proceedings. In my view, provision of section 103, Cr.P.C. is mandatory in nature and cannot be ignored without any proper justification. The prime object of the above provision is to ensure the transparency and fairness on the part of police during the course of recovery , curb the false implication and minimize the scope of foisting of fake recovery upon the accused.
11. It is significant to mention that section 34 of Sindh Arms Act, has not expressly excluded the provision of section 103, Cr.P.C. but on the contrary , section 34 has provided a legal cover that police officials also can act as witnesses of recovery besides the private persons. The proviso of section 34 of Sindh Arms Act, provides that any police officer or person present on the spot can be witnessed of search and recovery , therefore, it was prime duty of the police to prefer a private witness if available at the spot to maintain transparency and fairness of the alleged recovery . It is the prime duty of Courts to ensure during the course of the administration of justice that there must be a plausible explanation for non-associa tion of witnesses from public. Adverting to the merits of the case in hand, no valid reason or plausible explanation has been furnished by the prosecution for non-association of independent witnesses by the police when independent people were available at the place of recovery , which was a thickly populated area. Therefore, on this ground false implication of the appellant in this case could not be ruled out.
12. I have also gone through the eviden ce of prosecution witnesses so made available on record and found the same is contradictory on material particu lars of the case to each other . For instance, PW-1/ complainant in his evidence at Ex.3 produced entry No,3 at Ex.3/A, alleging therein that police party left police station for patrolling vide entry No,3 in private vehicle, while contradicting this fact, PW-1/ complainant and PW-2 Asif Ali, in their evidence at Exs.3 and 4 respectively , deposed that they left police station in two private motorcycle. Not only this, PW-1/complainant Amanat Feroz in his cross examination deposed that he himself apprehended present accused after covering the distance of 5/6 paces, while contradicting this fact, PW-2 Asif Ali in his cross examination deposed that they apprehended present accused after covering the distance of about 300/400 paces in street.
Furthermore, it has also been admitted by the PW-1/complainant Amanat Feroz at Ex.3 in his evidence at Ex.3 deposed that place of incident was situated at thickly populated area and he asked 2/3 private persons of the locality to act as mashir , but they refused. This version has been belied by the PW-2 Asif Ali in his evidence at Ex.4 to the effect that complainant has not asked any private person to act as mashir . All these contradictions are not minor in nature, but are serious in nature, which changed the entire complexion of the case. Therefore, under the circumstances, no reliance could safely be placed on the contradictory evidence for maintaining the conviction.
Apart from that, as per record, the alleged weapon allegedly recovered from the appellant on 15.11.2017, but the same was received to the Office of the Assistant Inspector General of Police, Forensic Division, Sindh, Karachi, on 17.11.2017 after the delay of about two (2) days for which no explanation has been furnished by the prosecution.
Moreover , the pistol and bullets were retained by whom during this intervening period has also not been explained by the prosecution that after its recoveries under whose custody , it were lying. For the sake of arguments, if it is assumed that the case property was lying in the Malkhana then no report/entry of the Malkhana has been produced to corroborate the version of prosecution. No official from Forensic Division has been examined in this case.
Furthermore, in the mashirnama of arrest and recovery at Ex.3/B and FIR at Ex.3/C, it reveals that one 30 bore pistol along with magazine containing two live bullets, body of which, PAK2000 AAR Pes CAL-30 was written, allegedly recovered from the appellant, but in the FSL report available on record at Ex.5/C showing the description of alleged weapon as one .30 bore pistol No,PK2000 with magazine marked/signed and two .30 bore live cartridges, which is incomplete number and quite different. Therefore, under these circumstances, no reliance could safely be placed on FSL report for maintaining the conviction of the appellant on the basis of contradictory evidence.
13. Admittedly , in this case, there are number of infirmities/lacunas, which have created serious doubt in the prosecution case. It is settled principle of law that for extending benefit of doubt, it is not necessary that there should be multiple circumstances creating doubt. If a single circumstance, which creates reasonable doubt in a prudent mind about the guilt of accused, then he will be entitled to such benefit not as a matter of grace and concession, but as a matter of right, as has been held in the case of Tariq Pervez v. The State reported as 1993 SCMR 1345, wherein the Hon'ble Supreme Court has held as under:- "The concept of benefit of doubt to an accused persons is deep-rooted in our county for giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right."
14. In view of above, I have considered the version of both the parties put forward by them through evidence and put the same in juxtaposition then I found that the version of the appellant seems to be more plausible and convincing while the version of the prosecution appears to be doubtful.
5. For the above stated reasons, while respectfully relying upon the above cited case law, I have no hesitation to hold that prosecution has failed to prove its case against the appellant beyond any shadow of reasonable doubt.
Consequently , Appeal is allowed, conviction and sentence awarded by the trial Court vide judgment dated 23.04.2018 are set aside. Appellant is in jail, therefore, jail authorities are directed to release the appellant forthwith, if he is not required in any other custody case.