1. MUHAMMAD SALEEM JESSAR, J.---Through this appeal Appellant has assailed Judgment dated . 07.09.2017, handed down by learned Assistant Sessions Judge, Thatta in Sessions Case No.80/2017 (re: The State v.
2. Mohammad Ramzan alias Chotu ), being outcome of FIR No.11/2017 registered at Police Station Malki under Sections 23(i)A and 25 Sindh Arms Act, 2013 whereby he convicted the accused appellant Mohammad Ramzan for the offence punishable under Section 23(1)(a) of Sindh Arms Act, 2013 and sentenced him to suffer R.I. for four (4) years and to pay fine of Rs.5000/- (Rupe es Five thousand only) or in default to under R.I. for six months more.
3. However , the appellant was extended benefit of Section 382-B, Cr .P.C.
4. Concisely , the facts of the prosecution case, as narrated in the FIR, are that on 28.1.2017 complainant S.I. Muneer Ahmed Dawach along with his subordinate staff namely , ASI Muhammad Bux Babar and PCs Faqir Muhammad, Abdul Majeed, Ali Akber and DPC Ghulam Mustafa duly armed with.of ficial weapons left Police Station Makli for patrolling vide roznamcha entry No.13 at 1345 hours and during patrolling encounter took place with the criminals in which one culprit was injured, while two made their escape good. From injured accused namely , Muhammad Ramzan alias Lakh alias Chotu son of Bishak by caste Rindh resident of Saifal Bungalow , Taluka Kanhdkot, District Kashmore presently residing at Noor Shah Mohalla Hub Rover Road, Karachi, recovered crime weapon being 30 bore TT pistol along with four live, bullets in its magazine in working condition for which the accused failed to produce valid license therefore the accused was arrested and such FIR was lodged against him.
5. After completing usual investigation, challan of the case was presented in the concerned court and the accused was sent up to face trial.
6. A formal charge was framed against the accused vide Exh:2 and his plea was recorded vide Ex.3 in which accused did not plead guilty and claimed to be tried.
7. In order to prove its case, prosecution, examined SIP Munir Ahmed Dawach at Exh.4, who produced departure entry No.13 as Ex.4/A, memo of arrest of accused and recovery as Ex.41/B. roznamcha entry No.17 at 1750 hours ad Ex.4/C, FIR No.11/2017 as Ex.4/D, letter addressed to ballistic expert for examination of weapon as Ex.4/E, ballistic examination report as Ex.4/F , various FIRs registered against the accused/appellant as Exs. 4/G to 4/K.
8. Mashir ASI Mohammad Bux was examined at Ex:5. Thereafter , learned ADPP for the Stale closed prosecution side vide statement at Ex.6.
9. Statement of the accused was recorded vide Ex.7, wherein he claimed his innocence and stated that the police had arrested him outside of court building and foisted weapon upon him and has involved him in false case. However , he declined to examine himself on oath under section 340(2), Cr .P.C. and to produce any witness in his defense.
10. After formulating the points for determinat ion, recording evidence of the prosecution witnesses and hearing counsel for the parties, trial Court vide impugned judgment convicted and sentenced the appellant accused, as stated above. Against the said judgment the appellant has preferred instant appeal.
11. I have heard learned counsel for the appellant as well as learned Additional P.G. appearing for the State and perused the material available on the record.
12. Learned counsel for the appellant conten ded that the appellant has been falsely involved in the present case. He further contended that appellant was taken away by the police from the Court of Additional Sessions Judge, Thatta and then he was asked to grease the palms of complainant, SIP Muneer Ahmed Dawach and on his refusal he was falsely involved in the instant case: He further contended that the appellant was fired from a close distance and he was kept in injured condition without providing any medical first aid treatment, however when his injury became severe and chronological then they shifted him to hospital on 31.01.2017. In support of his contention, he has placed a photocopy of medico legal certificate issued by Dr. Mohammad Yousuf Memon, Senior Medical Officer, Civil Surgeon, Civil Hospital, Thatta which was taken on record. He further contended that although the allegation against the appellant is that he and his two companions fired from their respective weapons upon the police party with the intention to commit their qatl-i-amd, so also to deter them from performing their lawful duties; however none of the police officials sustained even any scratch on their body but the present appellant, who was fired at by the police party , was found in injured condition. Learned Counsel further submitted that the alleged weapon in respect of which instant case was registered against the appellant was not secured from his physical possession, but it has come in evidence that the same was lying by his side. He further submitted that though recovery of weapon was effected on 28.01.2017; however , it was sent to laboratory for forensic report on 01.02.2017 i.e. after a delay of about four days without any plausible explanation. He, therefore, submitted that, in fact, the case is of highhandedness of the police and an innocent citizen was half fried only for the reasons that he failed to grease their palms. In the end, learned counsel submitted that since there are two F?Rs but joint Mushirnama of recovery and arrest has been prepared by the police, besides the police has also not produc ed entries before the trial Court regarding their departure from P.S. for the purpose mentioned in the FIR. In supp ort of his contention, he placed reliance. upon the cases of Shahid lqbal v. The State (2016 MLD 230), Rab Nawaz v. Sikandar Zulqarnain and 7 others (1998 SCMR 25), Yameen Kumhar v. The State (PLD 1990 Karachi 275), Muhammad Khalid v. The State (1998 PCr .LJ 808), Moinuddin W aseem v . The State (2016 YLR 523 ) and 2017 PCr .LJ 992 (Peshawar).
13. On the other hand, Ms. Rahat Ehsan, Additional Prosecutor General, Sindh, appearing for the State, opposed the appeal and submitted that the appellant, while making encounter with the police, had sustained injury on his person and was arrested from the spot along with offensive weapon. She submitted that per CRO, available at page-67 of the paper book, he is involved in series of cases and cannot be termed to be innocent. According to her, in order to blame the police, he has taken the plea of innocence. She, with regard to contentio n of defence Counsel in respect of sending the offensive weapon Ballistic Expert/FSL after a delay of four days, argued that the reasons for such delay has been specifically explained by the prosecution. In support of her contentions, she placed reliance on the case of Hameer v. The State (2003 PCr.LJ 1452) and 1987 PCr.LJ 1783. She, therefore, submitted that appeal merits no consideration and prayed for its dismissal.
14. It seems that the allegation against the present appellant is that he and two absconding co-accused had allegedly fired from their respective weapons upon the police party with the aim to cause their qatl-i-amd as well as to deter them from their lawful duties; however , present appellant was arrested in injured condition while two co-accused made their escape good. An unlicensed 30 bore pistol was recovered from the appellant, therefore, instant case was registered against him, whereas separate case vide FIR No.10/2017 under sections 324, 353 and 401 P.P.C. was also registered against the accused. Admittedly none of the police officials sustained any injury . It has also been admitted that even there is no bullet mark on the police mobile, thus clearly it seems to be a case of ineffective firing.
15. It is also an admitted position that complainant SIP Muneer Ahmed himself investigated the case instead of handing over the same to any other police official and no explanation has been furnished by the prosecution for such lapse. Such practice has not been appreciated by the Superior Courts, as in such an event he cannot be expected to carry out impartial and fair investigation of the case, besides if such practice is allowed to continue, it would give a license to the police to involve innocent persons in false and fake cases according to their whims. In this respect reference may be made to the cases reported as Abdul Khalique Shah v. The State (SBLR 2019 Sindh 197), Mohammad Altaf v. The State (1996 PCr.LJ 440) Qaloo v. The State (1996 PCr.LJ 496) and Mohammad Khalid v . The State (1998 PCr .LJ 808).
16. It may also be observed that in the cases under the Arms Law most important piece of evidence would be; the recovery of the alleged unlicensed weap on. In the instant case the alleged recovery of the crime weapon i.e. 30 bore pistol loaded with four live bullets from the accused/appellant as well as five empties from the spot has been effected in presence of mashirs ASI Mohanamad Bux and PC Faqir Mohammad. As per memo of Arrest, the place of arrest of the accused is near Burababad Link Road and the time is 03.15 p.m. Strong presumption would be there at such broad day light time vehicles must have been plying on the Burababad Link Road and that on the signal of the police the persons driving the vehicles would have certainly stopped their respective vehicles; however , there is no explanation by the complainant/I.O. as to why they did not stop any such vehicle in order to get the persons sitting in such vehicles to be attesting witness of the arrest and recovery . Needless to emphasize that under the relevant law/rules it was incumbent upon the police party making the search, arrest and recovery to associate independent person(s) as mashir(s). Needless to emphasize that in view of 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 presence of 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.
17. In the case reported as State v. Bashir and others (PLD 1997 SC 408) Honourable Supreme Court held as under: "As regards above second submission of Mr. M.M. 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."
18. In the case of Umed Ali v. The State (2018 MLD 131 1), it was held as under: "10. We have come to the conclusion that prosecution has failed to establish its case for the reasons that it was case of spy information and the police had plenty of time to call independent mashirs in this thickly populated area which they completely failed to do despite having plenty of time to do so which would have given much greater credibility to their case; ..."
19. In the instant case too, the complainant had got prior spy information . Yet in another case reported as Yameen Kumhar v . The State (PLD 1990 Kar . 275 ) this Court after discussing various case-law on this point held as under: "A perusal of the aforestated authorities and a catena of judgments of various High Courts which we have not quoted here clearly lay down that Section 103, Cr.P.C. is to be applied to recovery , search and arrest made during investigation of a crime. It has been termed as mandatory but not absolute and its non-compliance in certain circumstances will not render search and recovery illegal.
20. However , where during investigation of a crime recovery is made from any inhabited locality compliance with section 103 must be made. It cannot be ignored or brushed aside on the whims and caprices of the Investigating Officer except on well-founded grounds and in exceptional cases. If recovery has been made in contravention of section 103, it is the duty of the prosecution to explain it and give valid and reasonable explanation for such digression. Recovery is an important piece of evidence which is to be proved by disinterested, independent and respectable witnesses. Such witnesses should be of the locality if the circumstances of the case permit . Section 103 embodies rule of prudence and justice. It is intended to eliminate and guard against 'chicanery' and 'concoction' to minimize manipulation and false implication. It is for these reasons that there is a consensus in the Superior Courts that compliance with section 103 should not be bypassed nor that its applicability be restricted to proceedings under Chapter VII only. The principles of section 103 have been applied and practiced during investigation in crimes for so long and with such regularity and force that any attempt to restrict it to proceedings under Chapter VII only will unsettle the settled law .
21. The provisions of Chapter VII make it clear that they relate to the search of any place but it cannot be restricted only to house or a closed place, it can be an open place, open area, a playground, field or garden from where recovery can be nude for which search is conducted. Although in strict sense the provisions of section 103 are restricted to searches under Chapter VII of Cr.P.C. it has become a practice to apply it to all recoveries made by the Police Officers while investigating any crime. The rules of justice enunciated by section 103 are so embedded in our criminal, jurisprudence and so universally accepted that in all criminal cases two mashirs are always cited for recovery and reliance is placed on these witnesses in the ordinary course provided they are independent, respectable and inhabitants of the locality . The residence of the mashirs becomes relevant depending on the facts of the case. The emphasis should be on respectability ."
22. It has also been admitted by the comp lainant/I.O. as well as mashir ASI Mohammad Bux that the accused/ appellant had sustained injury at the hands of police. Complainant in his evidence deposed, "We stopped our mobile and inspected the injured person and found that the blood was oozing from his right knee... Then I lifted the injured accused to Civil Hospital Makli, where I handed over a letter for treatment to M.L.O. I left two police officials namely P.C. Faqir Mohamm ad and P.C. Abdul Majeed at Civil Hospital Makli for the custody/care of the accused."
23. Learned counsel for the appellant has vehemently argued that there is contradiction in the medicolegal certificate, copy whereof has been produced by the learned counsel for the appellant in this appeal as Annexure "D" to the Memo of Appeal, and the ocular evidence, inasmuch as; according to the witness, the appellant sustained injury on the right knee whereas medical certificate shows the injury on his left leg and further that according to medical certificate blackening and charring was found on the wound sustained by the appellant which confirms that the fire shot was made from a very close range whereas according to P.Ws the appellant sustained injury from a distance of about 200 paces which is glaring contradiction in the medical and ocular evidence. Of course, there is no evidentiary value of the medical report/certificate produced by the appellant's counsel in the instant appeal, however , it is also significant to point out that despite such admission by the compla inant / I.O. regarding sustaining injury by the appellant and lifting him at Civil Hospital Makli for medical treatment, as to why the prosecution did not examine the Medical Officer who had medically checked up the appellant at the Civil Hospital and as to why any Medical Certificate / Report was not produced before the trial Court. This is also fatal to the prosecution case and creates doubts in the prosecution story .
24. Besides, there are also certain contradictions in the evidence of the prosecution witnesses. The complainant in his cross-examination, admitted, "The accused were taking motorcycle approximately at the speed of 40 KMs per hour.
25. The accused continued firing for about half a kilometer , while escaping on motorcycle." However , he himself contradicted such statement by further admitting, "Encounter lasted for 2 to 3 minutes" . Obviously the distance of half Kilometer could not be covered with the span of only 2/3 minutes. Besides, he further admitted, "About 25 minutes were consumed at the place of incident." Likewise, P.W. ASI Mohammad Bux also deposed, "About 20 to 25 minutes were consumed at place of incident. " However , such fact is belied by Mashirnama of Arrest and Recovery Ex 4-B which shows the time of preparation of such Mashirnama as "1515 hours to 1800 hours" meaning thereby the police party consumed 2 hours and 45 minutes in completing the formalities at the place of incident.
26. Another significant point in this case which also adversely affects the prosecution case is the delay in sending the case property i.e. 30 bore pistol etc. for ballistic examination report. Admittedly , recovery of the weapon was made from the accused on 28.01.2017 whereas the same was received in the office of Ballistic Expert/FSL on 01.02.2017 as is evident from the Ballistic Examination Report Ex. 4/F . In his evidence the complainant/I.O. has tried to justify such delay by deposing, "The case property remained at P.S. from 28.01.2017 to 30.01.2017, as 09.01.2017 was Sunday and on 30.01.2017 PDSP was not present in his office."
27. This apparently appears to be a lame excuse. If, for the sake of arguments, the excuse in respect of 28th and 29th January , 2017 is accepted as on 28th, as per mashirnma of arrest and recovery , police party remained at the place of incident till 6.00 p.m. and 29th was Sunday , but the reasoning in respect of 30th January , 2017 that PDSP was not present in his office is totally vague as he does not claim that on the said date PDSP was on leave even such reasoning should have been supported by a proper/valid document. If PDSP was absent from his duty on the said date, prosecution should suffer and not the accused for such lapse, on his part. Furthermore, no explanation has, at all, been submitted by the complainant/I.O. about 31st January , 2017 as to why case property was not sent on 31.01.2017 which was a working day .
28. In the case reported as Samandar alias Qurban and others v. The State reported in 2017 MLD 539 Karachi , while dealing with the point of delay in sending the weapon to Ballistic Expert, this Court held as under: "Apart from above sending of crime weapon to ballistic expert for forensic report with delay of 20 days of their recovery also added further doubt into the prosecution case, thus in view of above, coupled with non-compliance of section 103. Cr.P.C., it can safely be presumed that alleged recovery of crime weapon was not made from the possession of the appellants as alleged by the prosecution."
29. In the case reported as Yaqoob Shah v. The State (1995 SCMR 1293 ) Honourable Supreme Court held that the report of the Fire Arm Expert was of no avail to the prosecution as the crime empties and the fire-arms allegedly recovered from the accused were sent to Forensic Science Laboratory after delay . Reference in this respect may also be made to the decision reported as Ghulam Hussain and 2 others v. State (1998 PCr.LJ 779). In the circumstances, such reports of the ballistic expert might be in positive, would lose its sanctity .
30. Needless to emphasize that it is a well settled principle of law that the prosecution is bound under the law to prove its case against the accused beyond any shadow of reasonable doubt, but no such duty is cast upon the accused to prove his innocence. It has also been held by the Superior Courts that conviction must be based and founded on unimpeachable evidence and certainty of J guilt, and any doubt arising in the prosecution case must be resolved in favour of the accused. In the case reported as Wazir Mohammad v. The State (1992 SCMR 1134) it was held by Honourable Supreme Court as under: "In the criminal trial whereas it is the duty of the prosecution to prove its case against the accused to the hilt, but no such duty is cast upon the accused, he has only to create doubt in the case of the prosecution."
31. In another case reported as Shamoon alias Shamma v. The State (1995 SCMR 1377 ) it was held by Honourable Supreme Court as under: "The prosecution must prove its case against the accused beyond reasonable doubts irrespective of any plea raised by the accused in his defence. Failure of prosecution to prove the case against the accused, entitles the accused to an acquittal . The prosecution cannot fall back on the plea of an accused to prove its case ... ... Before, the case is established against the accused by prosecution, the question of burden of proof on the accused to establish his plea in defence does not arise ."
32. The accumulative effect of the above said contradictions, infirmities/legal flaws in the prosecution case is that serious dents have been put and doubts created in the prosecution case. It is well settled principle of law that the prosecution is bound under the law to prove its case against the accused beyond any shadow of reasonable doubt.
33. In view of aforesaid defects and lacunas, it can safely be held that the prosecution has not succeeded in discharging such obligation on its part. Needless to emphasize the well settled principle of law that the accused is entitled to be extended benefit of doubt as a matter of right. In the present case, there are many circumstances which create doubts in the prosecution case. Even an accused cannot be deprived of benefit of doubt merely because there is only one circumstance which creates doubt in the prosecution story . In the case reported as Tariq Pervaiz v . The State 1995 SCMR 1345 the Honourable Supreme Court held 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."
34. For the foregoing reasons, by short order dated 27.08.2019 instant appeal was allowed and the impugned Judgment dated 07.09.2017, handed down by learned Assistant Sessions Judge, Thatta in Sessions Case No. 80/2017 (re: The State v. Mohammad Ramzan alias Chotu ), being outcome of FIR No.11/2017 registered at Police Station Makli under Sections 23(i)A and 25 Sindh Arms Act, 2013 was set aside. Consequently , the appellant Mohammad Ramzan alias Chotu was acquitted from the charge. He was present in court on bail, his bail bonds stood cancelled and the surety furnished by him was also discharged.
35. Above are the reasons for the said short order .