MUHAMMAD SALEEM JESSAR, J.---Through this Criminal Appeal, the appellant has challenged the Judgment dated 18.06.2016 passed by the learned IIIrd Additional Sessions Judge, Larkana in Sessions Case No.212 of 2012 (Re: The State v. Fahmeed Ali son of Hubdar Ali Jeho), arising out of FIR No.53 of 2012, registered at Police Station Naudero, whereby he convicted the appellant for offence punishable under Section 13(d) of Arms Ordinance, 1965, and sentenced him to suffer R.I. for 03(three) years.
2. Succinctly, the facts of the prosecution case are that on 25.05.2012 at about 1900 hours, the present accused was arrested near from Sallar bridge in Crime No.32 of 2012 of Police Station Naudero for offence punishable under Section 302, 34, P.P.C. and was found in possession of an unlicensed Kalashnikov type Rifle with magazine containing ten live bullets of 7.62 bore by the police party of Police Station Naudero headed by ASI Niaz Hussain Kolachi. Hence, the accused committed an offence punishable under Section 13(d) Arms Ordinance, 1965, for which the present FIR was lodged at P.S. Naudero against him.
3. The charge against the accused / appellant was framed under Section 265(d), Cr.P.C. as Ex.2, to which he pleaded not guilty and claimed to be tried vide his plea as Ex.3.
4. In order to prove the charge against the accused, prosecution examined complainant ASI Niaz Hussain vide Exh. 05, who produced attested copy of mashirnarna of arrest and recovery vide Exh.5/A and copy of FIR vide Ex.5/B respectively. P.W mashir Liauqat Ali Ghanghro was examined vide Exh.7. Thereafter, prosecution side was closed vide statement at Ex.8.
5. Statement of the accused under Section 342, Cr.P.C. was recorded as Ex.10, wherein he denied the prosecution allegations and professed his innocence. However, neither the accused examined himself on oath under Section 340(2), Cr.P.C, nor produced any witness in his defence.
6. After formulating the points for determination, recording evidence of the prosecution witnesses and hearing the learned counsel for the parties, the learned trial Court, vide impugned judgment, convicted and sentenced the appellant as stated above. Against the said judgment, appellant has preferred the instant appeal.
7. Mr. Habibullah G. Ghouri, learned counsel for the appellant has contended that though the police have advance information but they did not collect or associate independent persons of the locality to witness the recovery proceedings rather the I.O. had chosen to associate the mashirs at the choice of the complainant of main case. He next submitted that there was joint mashirnama of recoveries as well as arrest, pertaining to three FIRs including the main case and such practice has time and again been deprecated by this Court as well as the Honourable Supreme Court of Pakistan. His further submission was that the place of recovery is far away from the place of information and even the village of the complainant was also at some distance from both places yet the 1.0., in order to strengthen the rope of main case, has shown to have recovered the alleged weapon from the appellant in presence of the complainant of main case and so-called witnesses.
His next submission was that though the complainant was available throughout the proceedings yet he was not cited as witness of the recovery proceedings nor his statement was recorded by the I.O. in terms of Section 161, Cr.P.C. He further criticized upon the impugned judgment that though the complainant, who was police officer, has acted himself to be the Investigating Officer, who even was not aware of the fact that on which date and when he sent the alleged weapon to the laboratory for it's examination. He further has focused upon the cross-examination of P.W / Complainant Niaz Hussain (Ex-5), which reveals that one W.P.C. has written mashirnama on his dictation but he does not remember his name, even that W.P.C., was not made the witness of the recovery proceedings. The cross of this prosecution witness further shows that the FIR of this case as well as statements recorded under Section 161, Cr.P.C. and other documents were also handed down by that W.P.C. on his dictation. He further submitted that P.W Liaquat Ali Ghanghro (Ex.7) was not subjected to cross-examination as on the same date, little bit late he appeared but the Presiding Officer after recording his examination-in-chief directed the Prosecutor to close the side of, the prosecution, who filed such statement dated 24.12.2013 at Ex.8. He, therefore, had moved an application under section 540,. Cr.P.C. (Ex.9), which by order dated 18.02.2014, was allowed. He next submitted that after grant of above application, the prosecution witness remained absent from the trial court even on many occasions, B.Ws as well as N.B.Ws were ordered to be issued against him.
However, due to continuous absence of P.W Liaquat Ali from the court proceedings, he appeared on 05.06.2014 when he was busy before other Courts. Learned Counsel next contended that on 05.06.2014, P. W Liaquat Ali was made available before the Court, however, due to little bit late appearance of the counsel, the trial court did not wait for him and no chance of cross was given to him. He further pointed out that no entries were produced by the I.O, hence the movement shown by the complainant in the FIR could not be ascertained and subsequent outcome of the said proceedings, in fact, according to him, have not been proved yet the learned trial court has convicted the appellant. He, therefore, has prayed for acquittal of the :appellant and setting aside of the impugned judgment. In support of his contention, he has placed reliance upon the cases reported as 2011 PCr.LJ 1669, 2004 PCr.LJ 290, 2002 PCr.LJ 51, 2003 PCr.LJ 359, 1999 PCr.LJ 555, 2007 PCr.LJ 935, and the case of Nadeem Ramzan v. The Stare (2018 SCMR 149).
8. On the other hand, Mr. Raja Imtiaz Ali Solangi, learned A.P.G appearing for the State has vehemently opposed the appeal and supported the impugned judgment on the ground that the appellant was found in possession of the offensive weapon in presence of the private mashirs. He next submitted that the appellant has failed to establish his defense as P.W Liaquat Ali was not subjected to cross-examination and it only occurred due to non-appearance of .his Counsel, hence, the version advanced by P.W Liaquat Ali Ghanghro remained unchallenged, which itself is sufficient to maintain the conviction against the appellant. He, however, could not controvert the fact that the said P.W and other one are the caste-fellows of the complainant of main case and being inimical towards the appellant, how their testimony could safely be relied upon to sustain conviction against the appellant. Learned A.P.G has also failed to respond the query to the effect and extent of non-production of the Daily Diary entries coupled with the fact that the complainant himself has acted as Investigating Officer of the case. Learned A.P.G has also failed to justify non- production of the Chemical Examiner's / Expert's opinion as to whether the weapon allegedly recovered from the appellant was in working condition or otherwise.
9. I have heard learned counsel for the appellant as well as learned A.P.G appearing for the State and perused the material available on the record.
10. It appears that the complainant left P.S under Daily Diary Entry No.26 dated 25.05.2012 in connection with the investigation of Crime No.32 of 2012 under Section 302, P.P.C. of P.S Naudero and while they were on the way, they had an information on phone that the nominated accused of main crime namely, Fahmeed Ali (appellant) and co-accused Muhammad Paryal Jeho, duly armed with weapons, are wandering near Sallar. Bhutto Bridge. However, he has not produced the said entry before the trial court. The departure entry by which they had left the Police Station for investigation of main crime and subsequently after having information regarding presence of appellant and co-accused Muhammad Paryal on certain point had not been produced, therefore, without production of the said document, it could not be established that the police had left the Police Station for the purpose mentioned in the FIR Per their case, the complainant has categorically mentioned in the A memo. of recovery and arrest (Ex.5/A) as well as FIR No.53/2012 (Ex.5/B) that they had prepared a joint memo. of recoveries and arrest, which is not permissible under the Police rules, even such practice on the part of police has time and again been deprecated by this Court. The main document viz. Roznamcha Entry has not been adduced in evidence, therefore, the entire movement as well as proceedings initiated thereupon are not much of the consequence. Due to such apathy on the part of complainant, the plea taken by the defence that nothing was recovered from the appellant, nor he was arrested from the place as shown in the F.I.R. and entire proceedings were completed at Police Station, carries much weight. Besides, the complainant himself has admitted that entire papers, which were tallied before the trial court, were written by one W.P.C, whose name has not been mentioned in the calendar of witnesses, nor the complainant was in a position to disclose his name. Such conduct of the complainant on this score itself shows that he had not conducted the investigation properly or entire proceedings were completed at the Police Station without his direction and knowledge. If, as deposed, the said W.P.C. had written down the documents on his dictation and he being his subordinate, he would have never forgotten his name.
11. The alleged weapon as shown in the case was allegedly used in the commission of main offence but the complainant, who at the moment is recovery officer, was unable to depose as to on which date he sent the said weapon to laboratory for it's opinion. Even the person, through whom he had sent the weapon and Road Certificate, which is also necessary to be accompanied with a person carrying parcel or property of the Police Station belonging to any criminal case, has ever been produced before the trial court, which leaves the reflection of some doubts in the prosecution story.
12. Apart from the above, P.W Liaquat Ali, for which learned A.P.G was confident to say that being independent and private person his evidence was sufficient to maintain the conviction against the appellant, has deposed in his Examination-in-Chief that ASI Niaz Hussain/ Complainant sealed the weapon at the spot and prepared such mashirnama in his presence and co-mashir Nizamuddin.
He further deposed in his Chief that the complainant had also recorded his statement under Section 161, Cr.P.C. Such deposition of P.W Liaquat Ali is totally belied with the statement/deposition of the complainant, who has categorically deposed before the trial court that the memo. of recovery (Ex.5/A) as well as FIR and other proceedings were handed down by W.P.C. (not known) on his dictation. Such major contradiction cannot be overlooked or left untouched.
13. Now reverting back to the impugned judgment, whereby the learned trial court has observed that the defence has failed to cross-examine the mashir P.W Liaquat Ali, hence, his statement has gone unchallenged, therefore, the trial court has presumed that it was admission on the part of the accused. I am afraid that such observation of the trial court is beyond the settled principle of Law. It is settled principle of criminal administration of justice system that the criminal case is to be decided on the basis of totality of impressions gathered from the circumstances of the case and not on the narrow ground of cross-examination or otherwise of a witness on a particular fact stated by him and the principle that a fact would be deemed to be proved if the witness stating such fact had not been cross-examined regarding the same was a principle applicable to civil cases and not to criminal cases. In the case of Nadeem Raman v. The State (supra), the Honourable Supreme Court of Pakistan, while deciding the criminal appeal has observed and held as under:-- "While discussing the motive part of the case the High Court had observed that both the eye- witnesses had stated about the alleged motive and they had not been cross-examined by the defence on that aspect of the case and, thus, the alleged motive stood proved. This approach adopted by the High Court has been found by us to be fallacious inasmuch as it had been clarified by this Court in the case of S. Mahmood Alam Shah v. The State (PLD 1987 SC 250) that the principle that a fact would be deem to be proved if the witness stating such fact had not been cross-examined regarding the same was a principle applicable to civil cases and not to criminal cases. It was held that a criminal case is to be decided on the basis of totality of impressions gathered from the circumstances of the case and not on the narrow ground of cross-examination or otherwise of a witness on a particular fact stated by him. A similar view had already been expressed by this Court in the case of State v. Rab Nawaz and another (PLD 1974 SC 87) wherein it had been observed that a criminal case is to be decided on the basis of totality of circumstances and not on the basis of a single element."
14. Since, after leaving the Police Station for investigation of main crime as well as having information regarding presence of the appellant at a particular place, the police party had to cross populated areas / villages but they (Police) had miserably failed to associate any independent person rather had chosen to associate mashirs, who are caste-fellows of the complainant of main case. Needless to emphasize that in view of the provisions of Section 103, Cr.P.C. the officials making searches, recoveries and arrests, are reasonably required to associate private persons, more particularly in those cases in which the presence of the private persons is admitted so as to lend credence to such actions, and to restore public confidence. This aspect of the matter must not be lost sight of indiscriminately and without exception. In the case reported as The State v. Bashir and others (PLD 1997 SC 408), the Honourable Supreme Court has held as under:-- "As regards above second submission of Mr.MM Aqil, it may be observed that it has been repeatedly held that the requirements of section 103, Cr.P.C. namely, that two Members of the public of the locality should be Mashirs of the recovery, is mandatory unless it is shown by the prosecution that in the circumstances of a particular case it was not possible to have two Mashirs from the public."
15. It is also of worth-importance that in the instant case, complainant namely, ASI Niaz Hussain himself conducted the investigation of the case without offering any explanation / justification as to why he did not handover the case papers to any other police officer for conducting the investigation. In the case of Nazeer Ahmed v. The State reported in PLD 2009 Karachi 191, this Court did not appreciate such conduct on the part of a police officer and held that Police Officer, who himself is the complainant cannot be expected to collect and preserve the evidence, which goes against his case and that such Investigating Officer cannot properly perform the duties like an independent and fair Investigating Officer. Reference in this connection can also be made to the cases reported Mohammad Siddique v. The State (2011 YLR 2261 (Karachi) and Mohammad Akram v. The State (1995 MLD 1532 (Peshawar)).
16. In view of the aforesaid contradictions in the evidence of the prosecution witnesses, so also admissions made by them coupled with the legal flaws and lacunas in the prosecution case, as pointed out above, it can safely be held that the prosecution has not succeeded in proving its case against the accused/appellant beyond reasonable shadow of doubt. It is settled principal of law that if there creates a single circumstance in the case of any accused, then the benefit thereof is to be extended to the accused as a matter of right but not as a matter of grace or concession. In the present case, there are various circumstances in the shape of contradictions and infirmities in the evidence of the prosecution witnesses, which have created reasonable doubts in the prosecution version and the benefit whereof is rightly extended to the accused. Even an accused cannot be deprived of benefit of doubt merely because there is only single circumstance, which creates doubt in the prosecution story as is observed by the Honourable Supreme Court of Pakistan in the case reported as Tariq Pervaiz v. The State (1995 SCMR 1345), wherein it was maintained as under:- - "The concept of benefit of doubt to an accused person is deep-rooted in our country. 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."
17. In view of what has been discussed hereinabove, it can safely be held that the prosecution has miserably failed to prove its case beyond reasonable shadow of doubt and this Court in absence of the prosecution version cannot take the steps forward in upholding the impugned judgment, hence, the same needs to be interfered in presence of the reasonable doubts in the prosecution story as well as keeping in view the observance of the Apex Court as referred to above, therefore, by a short order dated 20.08.2018, the instant Criminal Appeal was allowed and consequently the impugned judgment dated 18.06.2016, handed down by the learned IIIrd Additional Sessions Judge, Larkana, was set aside and the appellant accused was acquitted of the charge. These are the reasons for the said short order.