ABDUL MAALIK GADDI, J.---By consent, urgent application is allowed and matter is taken up today for hearing of main appeal, as such, parties' counsel have been heard at length.
2. Appellant Yameen was tried by the Court of learned IIIrd Additional Sessions Judge, Karachi (East), under Section 23(1)(a) of Sindh Arms Act, 2013 in Sessions Case No,2301 of 2015 (Re: The State v. Yameen), arising out of Crime No,377 of 2015 registered at Police Station Jamshed Quarters, Karachi. By judgment dated 28.11.2017, the Appellant was convicted under Section 265-H(2), Cr.P.C. and sentenced him to suffer S.I. for one year with fine of Rs,5,000/-, in case of default in payment of fine, it was further ordered that appellant shall undergo S.I. for fifteen days more. Benefit of Section 382B, Cr.P.C. was also extended to the accused.
3. The brief facts of the prosecution case leading to the filing of this appeal are that on 12.11.2015, police party headed by S.I Rana Muhammad Aslam was busy on patrolling along with his subordinate staff namely PC Syed Farooq Hussain Zaidi buckle No,17224, PC Saghir Ahmed buckle No,9702 and Driver PC Shafiq ur Rahman buckle No,2146 and at about 18.45 hours when they reached at Nishtar Road opposite Hussaini Yateem Khana, saw two persons on motorcycle bearing registration No,MNN-1403 were coming from Lasbella side. Police party signaled them to stop and inquired about their names, and person sitting on the rear seat disclosed his name as Yameen son of Roshan Khan while the person who was riding the motorcycle disclosed his name as Muneeb son of Faisal Rehman. Police conducted personal search of both persons and recovered one .30 bore T.T. pistol loaded with magazine containing one live round from right side of belt of wearing pant of accused Yameen. On personal search of accused Muneeb, police recovered one 30 bore T.T. pistol having description i,e, CAL 30 Mauser made China by Norinco, loaded with magazine containing two live rounds from right side of belt of his wearing pant. The dasta of pistol recovered from accused Muneeb was black which was broken at two sides from bottom. Accused did not produce license of weapons, as such they have arrested by the police in presence of mashirs and after completing all formalities, they were brought to police station, where separate FIRs were registered under above referred sections.
4. It also appears from the record that after registration of FIR, the investigation was carried out by SIP Muhammad Ashraf Tanoli, who after recording the statements of PWs under Section 161, Cr.P.C. and after completing all the formalities, submitted the final report against the appellant in the Court of law.
5. The charge was framed on 31.12.2015 against the accused by the learned trial Court, to which appellant/accused pleaded not guilty and claimed to be tried.
6. At trial, in order to establish accusation against appellant/accused, prosecution had examined PW1 /complainant SIP Rana Muhammad Aslam at Ex.3, who produced memo of arrest and recovery, arrival entry, FIR and memo of site inspection at Ex.3/A to Ex.3/D respectively; PW-2 SI Muhammad Ashraf Tanoli at Ex.4, who produced entries Nos,33 and 36, letter for sending the case property to FSL and FSL report at Ex.4/A to Ex.4/D respectively and PW-3 PC Syed Farooq Hussain at Ex.5. These witnesses were cross-examined by the counsel for accused. Thereafter, learned ADPP closed the prosecution side vide Statement at Ex.6.
7. Statement of accused was recorded under Section 342, Cr.P.C. at Ex.7, in which he has denied the allegations as levelled by the prosecution by stating that he is innocent and nothing was recovered from him. He further stated that he was going to college and near the place of incident, police party of Police Station Jamshed Quarters stopped him. Since he has no documents of motorcycle, police demanded illegal gratification from him, upon failure, they implicated him in this false case.
However, accused neither examined himself on Oath nor led any evidence in his defence.
8. Learned counsel for the appellant has argued that the appellant is innocent and has been falsely involved in the present case by police due to non-payment of illegal gratification to the police; that the alleged recovery of pistol and bullets have been foisted upon him and despite availability of public, no independent person has been cited as witness while the alleged place of incident i,e, Nishtar road opposite Hussaini Yateem Khatana, Karachi, is a thickly populated area.
Per learned counsel, the evidence so brought on record by the prosecution witnesses in this case is contradictory in nature to each other on material particulars of the case. During the course of arguments, learned counsel for appellant has taken to me towards the evidence of prosecution witnesses and highlighted the number of contradictions in between them, therefore, according to him, on the basis of contradictory evidence, conviction could not be maintained, but the learned trial Court did not appreciate the contradictions and convicted the appellant in a haste manner.
Hence, he prayed for acquittal of the appellant by allowing the appeal.
9. Conversely, learned Deputy Prosecutor General for the State has supported the impugned judgment passed by the trial Court and contended that the appellant was arrested on spot and one 30 bore T.T. pistol loaded magazine with live bullets were recovered from his possession, which was in working condition. He further contended that provisions of Section 103, Cr.P.C. are not applicable during search made under Sindh Arms Act, 2013, therefore, appellant could not take the benefit of non-association of private mashirs during the course of recovery. Per learned Deputy Prosecutor General, offence committed by the appellant is serious and heinous in nature, thus, appellant is not entitled for any relief.
10. I have carefully heard the learned counsel for the parties and scanned the entire evidence available on record.
11. After careful consideration and meticulous examination of the available record, suffice to say that mere heinous nature of offence is not sufficient to A 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.
12. I have come to the conclusion that the prosecution has failed to prove its' case against the appellant for the reasons that all the pieces of evidence produced by the prosecution in this case are weak in nature. As per police papers, it reveals that on relevant date, police party headed by complainant SIP Rana Muhammad Aslam were on patrolling duty and during patrolling, when they reached at Nishtar road opposite Hussaini Yateem Khana, Karachi, present appellant/ accused was found in suspected condition, as such, he was arrested and police recovered one 30 bore T.T. pistol loaded magazine with one live bullet from his possession, in presence of mashirs namely PC Syed Farooq Hussain Zaidi and PC Saghir Ahmed. It has also been brought in evidence that incident took place in evening time and place of incident is a thickly populated area, which is surrounded by houses and shops, despite this fact, police did not bother to associate any independent/private person of the locality to witness the recovery proceedings. Provisions of Section 103, Cr.P.C. are mandatory in nature and cannot be ignored without any proper justification.
The prime object of the above provisions 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.
13. It is significant to mention that Section 34 of Sindh Arms Act, has not expressly excluded the provisions 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 to 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-association 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 is a thickly populated area. Therefore, on this ground false implication of the appellant in this case could not be ruled out.
14. I have also gone through the evidence of prosecution witnesses so made available on record and found 'the same is contradictory on material particulars of the case to each other. For instance, in the mashirnama of arrest and recovery available on record at Ex.3/A, it reveals that one 30 bore T.T. pistol without number loaded magazine with one live bullet was recovered from the possession of appellant in presence of mashirs, whereas, on perusal of FSL report available on record at Ex.4/D, it reveals that the said pistol was rubbed number. Not only this, the FIR of incident was registered on 12.11.2015 at 1955 hours, while investigating officer SIP Muhammad Ashraf Tanoli in his cross-examination at Ex.4 deposed that he had received the investigation on 12.11.2015 at 08:00 a.m., under the circumstances, it does not appeal to a prudent mind that how the investigation paper was received by the investigating officer much prior to the incident. Hence, on this ground alone, false implication of the appellant in this case could not be ruled out, but the learned trial Court has utterly failed to consider this important aspects of the case. When all these aspects confronted with learned Deputy Prosecutor General, he has not replied satisfactory. Nothing on record that appellant is previously convict or he had remained indulged in such like cases.
15. In the instant case, there are alio 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 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."
16. 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 28.11.2017 are set-aside. Appellant is in jail, he shall be released forthwith, if he is not required in any custody case. Since the appeal is allowed, therefore, miscellaneous application listed at serial No,2 has become infructuous, as such, the same is disposed of accordingly.