1. MUHAMMAD SALEEM JESSAR, J.---Through this Cr. Misc. Application the applicants have prayed for setting aside / expunging the stricture / observation made against them by Respondent No.1 viz. 1st Additional District and Sessions Judge, Karachi (Central) while passing Order dated 28.11.2015 whereby he allowed application under section 265-K, Cr.P.C. moved by accused Nizamuddin in Sessions Case No.250 of 2014 (re: State v. Nizamuddin son of Aminuddin ) and acquitted the accused.
2. Precisely , the relevant facts giving rise to the filing of instant Criminal Misc. Application are that on 18.01.2014, ASI Ahmed Bux Leghari, applicant No.2 herein, of Police Station Taimoria along with his police staff while patrolling reached at service road near Al-Habib Restaurant, Sector 15-A/4, Buffer Zone, Karachi, where he got arrested accused namely Nizamuddin in Crime No.19/2014 under Sections 392/ 397/34, P.P.C. at 1.30 P.M. From the personal search of accused he recovered an unlicensed .30 bore pistol loaded with two live bullets magazine under proper memo in presence of two private mashirs namely Kashif Abdul Waheed, who was the complainant in the main Crime No.19/2014, and Kamran Aftab, hence FIR was lodged against the accused under the above said sections by ASI Ahmed Bux Leghari on behalf of State. Thereafter , investigation of the case was entrusted to SIP Abdul Kalam of same police station and after completing necessary formalities he submitted Challan against the above-named accused in the Court of XIth Judicial Magistrate, Karachi Central. After taking cognizance in the matter he sent the R&Ps of the case to the Court of District and Sessions Judge, Karachi Central, wherefrom the same was sent to the trial Court for disposal in accordance with law .
3. A formal charge was framed against the accused vide Ex.2 and his plea was recorded vide Ex.2/A wherein he pleaded not guilty and claimed to be tried.
4. Thereafter , P.Ws were called for their evidence and one of the recovery mashirs namely Kamran Akhter appeared and his deposition was recorded vide Ex.3.
5. Meanwhile, accused Nizamuddin moved an application under Section 265-K, Cr.P.C. for his acquittal. Notice of the said application was served upon ADPP for the State. After hearing counsel for theaccused as well as ADPP appearing for the State, trial Court allowed the said application vide order dated 28.11.2015 and acquitted the accused Nizamuddin. However , in the same order learned Ist Additional Sessions Judge, Karachi Central passed following stricture against the applicants namely , SIP Irfanullah Khan Asif and ASI Ahmed Bukhsh Leghari: "Before parting with this order , keeping in view the reasons discussed above I declare the seizing officer who is also the complainant and the scriber of the FIR of this case namely ASI Ahmed Buksh Leghari responsible for fake and vexatious recovery , seizer and arres t under section 26 of Sindh Arms Act, 2013, as such, direct the Senior Superintendent of Police, (Operation), District Karachi Central to initiate legal and departmental proceedings against ASI Ahmed Buksh Leghari for foisting fake arm and ammunitions upon Nazimuddin Qureshi son of Ameenuddin Qureshi so also arresting him in false FIR under section 23(i)-A of Sindh Arms Act, 2013 at the behest of the then SHO P.S. Azizabad namely S.I.P Irfan Asif. It is also expected that the higher police authority shall also probed into the matter particularly against the then S.H.O. P.S. Azizabad namely S.I.P. Irfan Asif for his such highhandedness, with written intimation in this behalf to this court within one week from the date of receiving this court Order . Let copies of this order under covering letters be sent to the IGP, Sindh, Karachi, DIG West Zone, Karachi for information and necessary action and SSP (Operation), District Karachi Central for information/action/compliance report."
6. The applicants having become aggrieved by such structure/ observations passed by the trial Court have moved instant Criminal Miscellaneous Application.
7. I have heard learned counsel for the parties and have gone through the material available on the record.
8. Mr. Samiullah Soomro learned counsel for the applicant submitted that the impugned order to the extent of passing of stricture against present applicants is illegal and the 1st Additional Sessions Judge, Karachi (Central) was not justified in declaring the applicant(s) to be guilty of section 26 of Sindh Arms. Act, 2013 as he is star witness of the case and was not examined by the trial court; even the trial court did not bother to summon him for examination.
9. He further submitted that unless the applicant could have been examined, the conclusions recorded by the trial court could not be said to be justified: He therefore, prayed for allowing the applic ation as well as setting aside of the impugned order to the extent of adverse remarks against the applicant. Lastly , learned counsel for the applicant submits that P.W. 1 Kamran Akhtar has not denied his signatures; however , has stated that his signatures west-. obtained at some written papers meaning thereby he has resiled from the statement under coelcion or influence of the accused, therefore, he being a won-over witness, his such improved statement does not bring the case of applicant within the parameters of section 26 of the Act.
10. Conversely , Ms. Rubina Qadir , A.P.G for the State opposed the application and submitted that the applicants, in view of the deposition of P.W. Kamran' Akhtar , are responsible for vexatious recovery , thus according to her, trial court has rightly passed the adverse remarks against him. She therefore, opposed the application and prayed for maintaining the impugned order .
11. Before touching the merits of the case, it would be advantageous to reproduce hereunder the contents of Section 26 of the Sindh Arms Act, 2013 on the basis whereof the impugned stricture has been passed by the trial Court: "26. If any police officer or seizer or witness is declared responsible for fake vexatious recovery , seizers and arrest under this Act by the court or competent authority after detailed enquiry shall be punishable with imprisonment for a term which may extend to three years and with fine Provided that the sanction of Government shall be required in the case of police personnel."
12. From the perusal of above provision of law, it is apparent that for taking action and declaring responsible any police officer or seizer or witness for fake, vexatious recovery , seizers and arrest, holding of detailed enquiry is necessary and such declaration cannot be made without holding. Needless to observe that when any enquiry proceedings are initiated against any person, it is his vested right toobe given ample opportunity of hearing and placing his explanation / view point in relation to the allegations levelled against such person. It is only after undertaking such exercise that any adverse action could be taken against him. Even otherwise, the principles of natural justice and rule of audi alteram partem, particularly the provisions of Section 24-A of the General Clauses Act, demand that before taking any adverse action against any person, he must be afforded sufficient opportunity of hearing if any adverse order is proposed to be passed or action to be taken against such person. From the perusal of the impugned order , it seems that neither any notice was issued to the present applica nts, nor they were afforded any opportunity of hearing to explain their position. It is also an admitted position that the applicants being star witnesses of the case have not been examined, therefore, they were not subjected to cross-examination beside their version was not brought on record. As far as acquittal of accused Nizamuddin is concerned, the statement of hostile witness has created sufficient doubt in the prosecution evidence. Therefore, the impugned order to the extent of acquittal of the accused Nizamuddin need not be interfered with. It is settled principle of law if any slightest doubt is arises out of the prosecution's case, the benefit of same must be extended in favour of the accused.
13. In view of aforesaid factual and legal position, it seems that the learned 1st Additional District and Sessions Judge, Karachi Central while 'passing the strictu re against the present applicants in the impugned order , acted in a hasty and mechanical manner without taking into consideration the relevant law and the principles laid down by the Superior Courts in that regard. With the result, the impugned order , to the extent of passing stricture against the applicants, cannot be said to have been passed in accordance with the law, thus cannot be sustained in the eye of law.
14. Consequently , without touching the merits of the case, the impugned order dated 28.11.2015 is hereby set aside only to the extent of stricture passed in para 10 of the impugned order , and the case is remanded back to the trial Court with the direction to hold an enquiry as contemplated under Section 26 of the Sindh Arms Act, 2013 in its letter and spirit and then decide the matter after providing proper opportunity of hearing to the applicants. It is expected that such exercise would be completed within a period of six (6) months from the date of receipt of this Order . It is clarified that the impugned order to the extent of acquittal of accused Nizamuddin under section 265-K, Cr.P.C. would remain intact.
15. Instant Criminal Miscellaneous Application along with pending application bearing M.A. No.298 of 2016 stand disposed of in the above terms. The interim order dated 1 1.01.2016 is also hereby recalled.