KHADIM HUSSAIN TUNIO , ---Through instant Criminal Appeal, the appellant has challenged the judgment dated 08.07.2017, passed by the learned Additional Sessions Judge, Hata, in Sessions Case No,53 of 2016 (Re: The State v. Waris), emanated from Crime No, 61 of 2016, registered at Police Statio n Saeedabad, for offence under Section 23(i) of Sindh Arms Act, 2013, whereby the appellant has been convicted under Section 23(i) of Sindh Arms Act, 2013 and sentenced to suf fer R.I. for ten years.
2. Precisely , the facts of the instant appeal are that on 06.06.2016, when complainant was posted as SHO Police Station Saeedabad, he received the police file of Crime No,49 of 2016 and lathi recovered from the place of incident. He initiated the investigation of the case. On 23.06.2016, he was present in his office, he recorded further statement of the complainant, in which, he disclosed that accused Waris Qabil, Ashraf alias Faizu and one unknown person have murdered the deceased. On 24.06.2016, he along with his subordinate staff vide Entry No,17 of 2016 at about 1530 hours, left police station for patrolling in the area. While patrolling from different places, when he reached near Zaibuddin Mori, received spy information that accused Peer Bux Peeru Unar and Munawar Unar , who are coming from village Bachal Unar on motorcycle. On such information, they proceeded towards village Bachal Unar through katcha road. On seeing the police party , they tried to turn their motorcycle and started firing upon the police party , the police party in their defence also opened fires upon the accused persons and accused fell down from the motorcycle, two persons escaped away on their motorcycles while remaining two persons succeeded to escape away without motorcycles towards jungle side. They apprehended one person, who disclosed his name to be Waris Unar and from his possession 7MM rifle was secured. He also disclosed that the said rifle is unlicensed and failed to produce the documents of the motorcycle. On his personal search, five notes of Rs,10/- and one note of Rs,50/- from front side pocket of the appellant were also secured. Besides, three empties of pistols, four cartridges of repeater and five cartridges of 7MM rifle and six cartridges of SMG and 11 cartridges of G-3 were secured. Such mashirnama of recovery and arrest was prepared. Thereafter , the complainant lodged the FIR against the accused on behalf of the State. After completing usual investigation, the challan was submitted against the accused before the Court of law .
3. On completion of all the formalities, a formal charge was framed against the appellant at Ex.2, to which, he pleaded not guilty and claimed trial.
4. At the trial, prosecution examined two witnesses namely SIP Adam Khan at Ex.3, who produced FIR, mashirnama of arrest, recovery and ballistic expert report at Ex.03/A to 03/C and PW-2 ASI Ghulam Muhammad Qaburo at Ex.04 and thereafter the learned DDA for the State closed the side of the prosecution vide statement at Ex.05.
5. Statement of the appellant accused under Section 342, Cr.P.C. was recorded at Ex.6. in which, he denied the allegations levelled against him and pleaded his innocence. However , did not examine himself on Oath as required under Section 340(2), Cr .P.C., nor led any evidence in his defence.
6. On conclusion of the trial, learned trial Court after hearing the learned Counsel for the parties convicted and sentenced the appellant as discussed in paragraph-1 (supra).
7. Learned Counsel for appellant has argued that the appellant is innocent and he has been falsely implicated by the complainant in this case; that departure and arrival entries are not produced in evidence by the complainant; that there is six days delay in sending the weapon to the ballistic expert; that no explanation with regard to the safe custody of the weapon during intervening period has been furnished by the prosecution; that there are material contradictions in the evidence of PWs; that the appellant was earlier involved in a murder case in which he was acquitted. He, therefore, prays that the appellant may be acquitted extending him benefit of doubt. In support of his contention, he has relied upon the cases of Shahid lqbal v. State (2016 MLD 230) and Moinuddin alias Waseem v.
State (2016 YLR 523 ).
8. Conversely , learned A.P.G. has suppor ted the impugned judgment while stating that the prosecution has proved its case by examining two PWs named above, and, per him, they have supported the prosecution case.
9. I have heard the learned Counsel for appellant and learned A.P.G. and have perused the material available on the record.
10. The prosecution in order to prove the apprehension of accused and alleged recovery of 7MM rifle, has examined complainant SIP Adam Khan and PW-2 Mashi/ASI Ghulam Muhammad Qaburo. No doubt, the evidence of police witnesses is admissible, but same does not mean that they are reliable also and every case is to be seen in the light of the facts of its own. Both the complainant and mashir have given stereotype statements in the line of FIR, while there are material contradictions in their evidence, which have created reasonable doubt in the prosecution story . Before commenting on the evidence of the prosecution witnesses, one aspect of the case is important to be referred here that throughout memo of arrest and recovery (Ex.3/A and B), statement of complainant SIP Adam Khan and Roznamcha entry , through which the police party left the police station for patrolling, have not been mentioned nor the same have been produced during evidence of the witnesses. Further , the arrival entry , through which, the police party came back at police station from the place of incident, has also not been produced in evidence. This aspect of the case on part of the prosecution has cut the very root of the case, hence, the entire prosecution story is shrouded by doubt. Reliance in this respe ct may be made to the case of Abdul Sattar and others v. State (2002 PCr.LJ 51). Moreso, there was an advance information to the police party but none of the independent / private persons has been picked by the complainant from the place of departure or place of occurrence in order to make him Mashir to witness the authenticity of the incident. The appellant / accused in his statement recorded under Section 342, Cr.P.C. has pleaded that the recovery has been foisted upon him and this defence plea was rejected by the learned trial Court without assigning any reasons and dealt with by trial Court in a very casual manner . The proper mode of appraisal of evidence in this case for the trial Court was to consider the reliability of each witness separately , then to examine the case as a whole and also to examine the credibility of the prosecution witnesses in juxtaposition with each other . Mere fact, that the Mashir of recovery had no apparent reason to depose falsely against the accused, is not sufficient to hold him trustwort hy and/or he had no enmity with the appellant to implicate him falsely . Not only this, the learned trial Court has not invited the intention of the appellant / accused towards the report of ballistic expert while recording his statement under Section 342, Cr.P.C., which is also fatal to the prosecution case . In this respect, reliance is made to the case of Qaddan and others v.
State (2017 SCMR 148). Truth and falsity of the evidence of the prosecution witnesses depends upon the circumstances to accept the prosecution evidence without considering the aspect of the case is totally inconsistent with the safe administration of justice. There is also another aspect of the case to the extent that 7MM rifle was recovered from the possession of the appellant but the same was sent with inordin ate delay of six days, which has not been plausibly explained by the prosecution, therefore, possibility cannot be ruled out that the same has been foisted upon the appellant by the police. Under such circumstances, the positive report of expert, if any, would not improve the prosecution case. It is well settled law that if the circumstances in the prosecution evidence create doubt, the benefit whereof must go to the accused. In this regard, reference may be made to the case law reported as Muhammad Nawaz and another v. State (PLD 2005 SC 40). In the reported case, there are several circumstances, which create serious doubt in the prosecution case and the benefit of which was extended to the accused. It has been held in the case of Muhammad Mansha v. State (2018 SCMR 772); it has also been settled principle of law that the rule of safe administration of criminal justice is; the harsher the sentence the stricter the standard of proof. Therefore, for the purposes of safe administration of criminal justice, some minimum standards of safety are to be laid down so as to strike a balance between the prosecution and the defence in order to obviate chances of miscarriage of justice on account of exaggeration by the Investi gating Agency . Such minimum standards of safety are even otherwise necessary for safeguarding the fundamenta l rights of the citizens regarding life and liberty , which cannot be left at the mercy of police of ficers without production of independent evidence.
11. Keeping in view the above discussion and circumstances. I am of the considered opinion that the case against the appellant is doubtful, therefore, while extending benefit of doubt to the appellant, I acquit him from the charge and set aside the conviction and sentence recorded by the learned trial Court vide impugned judgment dated 08.07.2017. These are the reasons of my short order dated 18.02.2019 announced in open Court, whereby this appeal was allowed.