MUHAMMAD SALEEM JESSAR, J.---Through this appeal Appellant has assai led Judgment dated 25.09.2019, handed down by learned Sessions Judg e, Tharparkar alias Mithi in Sessions Case No.27 of 2019 (re: State v.
Abdul Aziz son of Urs), being outcome of FIR No.44/2019, registered at Police Station Kaloi, under section 23(1)
(a) of Sindh Arms Act, 2013, whereby he convicted the accused/appellant for said offence and sentenced him to undergo R.I. for five (5) years and to pay fine of Rs.10,000/- and in default to further undergo S.I. for one month.
2. The crux of prosecution case, as disclosed in the above FIR lodged on 14.06.2019 at Police Station Kaloi by ASI Prem on behalf of the State, are that on same day i.e. 14.06.2019, he along with his subordinate staff, PC Asghar and PC Mukhtar Ali left police station vide Roznamcha entry No.16 at 1600 hours, in an official vehicle bearing No.SPF-277 driven by PC Nabi Bux with official ammunition for the purpose of arrest of accused Abdul Aziz Lund and Ali Gul Lund required in Crime No.43/2019 under sections 379 and 34, P.P.C. of Police Station Diplo. When at about 1830 hours. they reached near Chhin Farm linked from Naukot-Kaloi Road, where they started checking vehicles At about 1835 hours, present accused was found coming on a motorcycle being involved in above FIR No.43/2019 and he was apprehended accordingly . On his personal search, complainant recovered one 30 bore pistol from his possession with four live bullets (cartridges). The accused failed to produce license for the said weapon, so also the documents of the motorcycle. The said property was sealed for forensic test. Such memo of arrest and recovery was prepared in presence of Mashirs PC Asghar Ali and PC Mukhtar Ali. It was further alleged that since the accused was possessing said unlicensed weapon, therefore, he had committed an offence under section 23-A(i) Sindh Arms Act, 2013, as such, he was brought at P.S. along with recovered case property where FIR was lodged against him on behalf of the State.
3. After usual investigation, challan was submitted before the court of Civil Judge and Judicial Magistrate, Diplo, who after supplying copies of relevant documents to the accused vide receipt at Ex:1, sent up the case papers to the Court of Sessions, as the of fence was exclusively triable by it (Court of Sessions).
4. A formal charge was framed against the accused vide Ex:3 to which he pleaded not guilty and claimed to be tried, vide his Plea Ex:4.
5. In order to prove its case, prosecution examined P.W.1 complainant ASI Prem at Ex:5, who produced Mashirnama of arrest and recovery as Ex:5-A, FIR as Ex:5-B, attested copy of departure and arrival Roznamcha entries Nos.16 and 23(on - one leaf) as Ex:5-C. P.W.2, Mashir PC Asghar Ali was examined at Ex:6, who produced Mashirnama of Sarzamin as Ex:6-A. P.W.3, I.O. of the case, ASI Pato Mal was examined at Ex:7, who produced attested copy of Roznamcha entry (of book No.19) as Ex:7-A, attested copies of Roznamcha Entries Nos.15, 20, 25 and 10 as Ex:7-B to 7-E and Forensic Science Laboratory report as Ex:7-F . Then learned DPP for the State closed prosecution side, vide his Statement Ex : 8.
6. The accused has been examined under section 342 Cr.P.C. at Ex:9; wherein he denied the allegations of prosecution levelled against him. However , neither he examined himself on oath nor led any evidence in his defence. He; however , claimed that he is innocent and has been falsely implicated in this case and further that nothing was recovered from his possession.
7. After formulating the points for determination, 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.
8. I have heard learned counsel for the appellant as well as learned D.P.G appearing for the State and perused the material available on the record.
9. Learned counsel for appellant as well as learned D.P.G has been heard. At the very outset learned counsel for the appellant submitted that instant case is offshoot of main case bearing Crime No.43 of 2019 registered under section 379/34, P.P.C. at Polio Station Diplo in which the appellant and another accused were tried by Court of Civil Judge/ Judicial Magistrate Diplo. He further submitted that after hearing the parties and assessing the evidence adduced by the prosecution before trial Court, appellant was not found guilty of the charge and therefore has been acquitted from the charge in the main case in terms of judgment dated 21.09.2019. In support of his contention he has filed copy of said judgment which affirms his contention. Besides, he submitted that this being offshoot of main case thus appellant may be acquitted in instant case also, in view of dictum laid down by this Court in the case of Manjhi v. The State (PLD 1996 Karachi 345). So far as merits of the case are concerned, learned counsel submits that complainant and PWs are police officials beside the complainant himself has acted as investigating officer of the case; therefore, PWs being subordinate to him were under his influence and thus they being interested and inimical as well as bias, their testimony cannot be safely relied upon to maintain conviction against the appellant. He further submitted that there are many discrepancies and contradictions which are sufficient to disbelieve the evidence adduced by the prosecution. In support of his contention, he placed reliance upon the cases reported as Zaffar v. The State (2019 PCr.LJ Note 164) and Abdul Rehman v. The State (2019 PCr.LJ 875). He lastly prayed for acquittal of appellant.
10. On the other hand, Mr. Shahid Ahme d Shaikh, Deputy Prosecutor General, Sindh, opposed the appeal on the pretext that no enmity or ill will has been pointed out by the defence counsel and it is now well settled that police officials are good witnesses as good any other independent witness(es) hence, their evidence cannot be disbelieved merely because of their asso ciation with police department. He; howe ver, admitted that appellant has been acquitted of the charge in main case and in view of the dictum laid down in cases of Zaffar v. The State (2019 PCr.LJ Notes 164) and Abdul Rehman v. The State (2019 PCr.LJ 875). as well as Manjhi v. The State reported in PLD 1996 Karachi 345 , he could not controvert the legal position of the case.
11. As stated above, the main contention of learned counsel for the appellant is that instant case is offshoot of main Criminal Case No.76/201.9 emanating from FIR No.43/2019 registered at Police Station Kolai under sections 379/34, P.P.C. in which present appellant and co-accused Ali Gul have already been acquitted of the charge, therefore appellant deserves to be acquitted in the instant case also.
12. It seems that the legal position in such a situation, as enunciated by the Superior Courts, is that when an accused has been acquitted in the main case, he would be entitled to be acquitte d in a case which is offshoot of the main case. In this connection, reference may be made to the case of Yasir Chaudhry v. The State reported in 2012 MLD 1315 , wherein it was held by honourable Lahore High Court as under: "In the case reported as Manjhi v. The State (PLD 1996 Karachi 345) it has been held that when the accused has been acquitted in the main case, he would become entitled to acquittal in a case which is offshoot of the said case.
Same is the position here, as the presen t lis is an offshoot of the main murder case, so, respectfully following the dictum laid down in the judgment supra, this petition is allowed and the application of the petitioner under section 249-A, Cr. P. C. is accepted and the petitioner is acquitted from the charge in case FIR No . 17 of 2003 dated 12.1.2003 registered under section 7 of the Surrender of Illicit Arms Act No.XXI of 1991 with Police Station Civil Lines, Bahawalpur ."
13. Keeping in view above legal position, it can safely be held that when the accused/appellant has been acquitted in the main case and instant case being offshoot of the said main case, the accused/appellant deserves to be acquitted in this case also.
14. It seems that there is flaw/lacuna in the investigation which is fatal to the prosecution case. P.W. ASI Pato Mal, Investigating Officer, in his deposition stated that on 14.06.2019 he was posted as Duty Officer at Police Station Kolai when at about 1930 hours, complainant ASI Prem along with other police officials reached police station along with accused and case property . On the report of ASI Prem, FIR was registered and the case property was got kept in Maalkhana vide entry No.19 (Ex.7/A). Thereafter , on 15.06.2019, he wrote letter to S.P. for according permission to send the case property to FSL. Thereafter , he handed over the case property to PC Kewal Ram for depositing the same in the office of FSL vide roznamcha entry No.25, dated 20.06.2019 (Ex.7/D). Thereafter , on 21.06.2019, PC Kewal Ram came along with case property and such entry No.10 was entered and produced as Ex.7/E.
15. It has not been explained by the I.O. of the case that when he had received the case property viz. firearm weapon on 14.06.2019, then as to why he sent the same to FSL on 20.06.2019 through PC Kewal Ram vide roznamcha entry No.25 (Ex.7/D). However , if this fact is taken into consideration, as has been deposed by him, that on 15.06.2019 he had written a letter to S.P. for obtaining permission to send the case property to FSL and supposing, for the sake of arguments, he had sent the case property to FSL on 20.06.2019. after receiving such permission from S.P. concerned, even then the chain is incomplete because neithe r he has produced/exhibited the letter whereby he had sought 'such permission from the S.P., nor has he produced/exhibited such permission of the S.P. granting permission for sending the case property to FSL. In absence of such permission, it cannot be ascertained as to when the S.P. had accorded permission for the aforesaid purpose. In his cross-examination this witness has made following admissions: "It is correct that I have not produced the letter seeking permission from S.P. before this court. It is also incorrect
(sic) to suggest that I have not produced such permission letter before this court granted by S.P. Tharparkar It is also correct that no entry was kept in the Roznamcha regarding obtaining permission from S. P. for sending the case property ."
16. It seems that in the second admission the word, "incorrect" has been written due to typographical mistake as prior to this word, the word "also" has been mentioned which denotes that this sentence is in continuation of previous sentence wherein the witness has stated that it is correct that he has not produced the letter seeking permission from S.P., as such in the next sentence also due to word "also" the following word must have been "correct" and not "incorrect" and the entire admission would have been, "It is also correct to suggest that I have not produced such permission letter before this court granted by S.P. Tharparkar". This position also get strength from the fact that in the entire record of the trial Court no such letter seeking permission, so also the alleged permission granted by S.P . is available or exhibited by the trial Court.
17. Now, in absence of such letter seekin g permission of the S.P. for seeking perm ission to send the case property to FSL and the alleged permission of the S.P. for the said purpose, it can safely be held that the Investigating Officer had sent the case property i.e. firearm weapon to the Ballistic Expert with a delay of about 6 days which is also fatal to the prosecution case, as it creates doubt in the veracity and credibility of such recovery , so also the report of the ballistic expert. 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 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."
18. 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 .
19. As regards the contention of learned counsel for the appellant that the complainant himself conducted entire investigation of the case, it may be observed that, of course, such conduct of the police official has not been appreciated by the Superior Courts, because in such an eventuality , such Investiga ting Officer cannot be expected to perform his duties as an impartial and fair investigating officer, and moreover other prosecution witnesses, also being police officials and his subordinates, also cannot be expected to give evidence like an independent -witness and they might be under influence of his superior(s). However , I am afraid the said contention of learned counsel is not in consonance with the material available on the record. In fact, from the evidence brought on the record, it is clear that complainant Prem after alleged incident brought the accused and case property at police station where FIR was registered by ASI Pato Mal, who was Duty Officer at the relevant time. Thereafter , it was ASI Pato Mal who conducted the investigation and his evidence has also been recorded at Ex.07.
20. Besides, from the perusal of the contents of FIR it appears that against the column 'name of informant/complainant', name of ASI Prem has been mentioned, whereas at the bottom of FIR beneath 'POLICE ACTION' it has, inter alia, been mentioned that the FIR and other papers have been handed over to ASI Patol Mal for conducting investigation. In this view of the matter , the aforesaid contention of the learned counsel for the appellant is not tenable.
21. Needless to emphasize the well settled principle 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 guilt, and any doubt arising in the prosecution case must be resolved in favour of the accused. In the case reported as Wazir Muhammad 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."
22. 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."
It is 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 Taria Pervaiz v. The State 1995 SCMR 1345 the Honourable Supreme Court held as under:- "The concept of benefit of doubt to an accused 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."
24. Accordingly , by a short order dated 06.04.2020, instant criminal appeal was allowed. Consequently , impugned Judgment dated 25.09.2019, handed down by learned Sessions Judge, Tharparkar alias Mithi in Sessions Case No.27 of 2019 (re: State v. Abdul Aziz son of Urs), being outcome of FIR No.44/2019 registered at Police Station Kaloi, under section 23(1)(a) of Sindh Arms Act, 2013, was set aside and appellant Abdul Aziz son of Urs was acquitted of the charge. He was ordered to be released forthwith, if his custody was no longer required in any other custody case.
25. Above are the reasons for said short order .