MUHAMMAD SALEEM JESSAR, J.--Through this appeal Appellant has assailed Judgment dated 11.12.2014, handed down by learned Vth Additional District and Sessions Judge, Hyderabad in Sessions Case No.481 of 2014 (re: The State v. Bashir Ahmed), being outcome of FIR No.68/2014 registered at P.S. "A" Section, Latifabad, Hyderabad under section 23-A Sindh Arms Act, 2013, whereby he convicted the accused/appellant for the offence punishable under section 23-A, Sindh Arms Act, 2013, and sentenced him to undergo R.I. for five (5) years and to pay fine of Rs.20,000/- (Rupees Twenty thousand only) and in default to further undergo S.I. for two months.
However , the appellant was extended benefit of section 382-B, Cr .P.C.
2. The brief facts of the prosecution case as narrated in the FIR bearing No. 68 of 2013 registered at Police Station "A" Section Latifabad, Hyderabad lodged by the complainant ASI Deen Muhamm ad, are that on 01.04.2014, a police party headed by ASI Deen Muhammad during checking of suspected person s and vehicles at 2215 hours at Chungi Naka Auto Bhan Road, Unit No. 12, Latifabad, Hyderabad found two riders of motorcycle, who seeing police party attempted to turn back the motorcycle but were captured and from the possession of accused/appellant one unlicensed pistol of .30 bore with magazine containing three live bullets was secured. The police also seized motorcycle under section 550, Cr.P.C. Thereafter , present case was registered against the accused.
3, After completion of usual investigation of the case, challan was submitted against'the accused. A formal charge was framed against the accused vide Ex. 02 to which he pleaded not guilty and claimed trial.
4. In order to prove its case, prosecution examined in all three witnesses. Evidence of PW ASI Deen Muhammad was recorded at Ex. 4, who produced roznamcha entry as Ex.4/A and 4/B, FIR as Ex. 4/C and mashirnama of arrest and recovery is Ex. 4/D. Evidence of PW-02 Muhammad Shahid was recorded at Ex. 5, while evidence of PW-03 Fahad Anwar Arbani was recorded at Ex.6, who produced letter , FSL report and receipt as Ex. 6/A to Ex.6/C. Thereafter , learned ADPP appearing for the State closed the side of prosecution vide Ex.07.
5. Statement of accused under section 342, Cr.P.C. was recorded wherein he denied the allegations of prosecution and claimed to be innocent.
6. 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.
7. I have heard learned counsel for the appellant as well as learned A.P.G. appearing for the State and perused the material available on the record.
8. Learned counsel for the appellant contended that the accused/appellant has been falsely involved in the present case. He further contended that the appellant and co-accused Mohammad Saleh were arrested by the police under joint memo of arrest and from each of the accused unlicensed firearm weapon was recovered; however , co- accused Mohammad Saleh has been acquitted of the charge, whereas present appellant has been convicted which is contrary to rule of consistency . In support of his contention, he focused upon the judgment of acquittal passed in S.C. No.480 of 2014 available at page 21 of the Court file. He further contended that there is violation of section 103, Cr.P.C. as no private person from the locality has been associated as mashir and both the mashirs are police officials. According to him, no independent person has been cited as a mashir although alleged recovery was made from the main chowk and busy road wher e public is available 24 hours. He further contended that there is delay of 22 days in sending the allegedly recovered pistol to ballistic expert. He further contended that impugned order cannot be termed as 'speaking order' as only examination-in-chief of the prosecution witnesses has been discussed and their cross-examination has, at all, not been touched. He further contended that a joint mashirnama for arrest of both the accused as well as recovery was made which is not perm issible under the law. Learned counsel lastly prayed for setting aside the impugned judgment and acquittal of the appellant/accused.
9. Learned A.P.G. appearing for the State submitted that though the alleged recovery was effected from appellant on 09.04.2014 but the weapon was sent to Ballistic Expert for examination and report on 23.04.2014. She further submitted that there was joint memo regarding the arrest and recovery of both accused, therefore she did not oppose the appeal.
10. It seems that learned counsel for the appellant has laid much stress on his contention that although from each of the accused i.e. present appellant as well as co-accused Mohammad Saleh unlicensed firearm weapon was recovered; however , co-accused has been acquitted of the charge, whereas present appellant has been convicted which is against the well settled 'rule of consistency' . It seems that 'rule of consistency' applies only in those cases where both, the acquitted accused as well as convicted accused, have been assigned similar role. In the instant case the only offence alleged against both the accused was that they possessed unlicensed firearm weapon, except this no other offence was alleged to have been committed by them. It has come in the evidence that the report of Ballistic Expert with regard to the firearm weapon allegedly recovered from the present appellant was positive i.e. the weapon was reported to be in working condition whereas such report in respect of the firearm weapon allegedly recovered from co-accused Mohammad Salah was negative i.e. it was certified not to be in proper condition. Needless to emphasize that the firearm weapon, which is not in working condition, is nothing but an iron / metal piece and the same cannot, at all, be used for committing any offence. In the circumstances, it is crystal clear that the cases of both the accused are quite different and distinguishable from each other and they cannot be said to be similar and, in fact, co-accused Mohammad Salah was acquitted mainly on the ground that the firearm weapon allegedly recovered from his possession was not in working condition. In this view of the matter , this contention of the learned counsel for the appellant is not tenable.
11. However , upon scrutiny of the evidence / material available on record, I have found certain material discrepancies / legal flaws in the prosecution case which put severe dents in the prosecution case. For instance, despite the fact that the place of arrest and alleged recovery of firearm weapon was a chowk situated on a busy road, no private/ independent person of the locality was associated to act as mashir of arrest and recovery . It has been admitted by complainant ASI Din Mohammad, "Bungalows are situated near the place of incident. Vehicles are coming and going on the road I had not knocked the door of bungalows ." Likewise, mashir PC Mohammad Shahid admitted, "It is correct to suggest that shops of milk, Macdonald's, energy juice, cloth market are situated at Auto bhan road The place of incident is 1/2 kilometer from Giddu Chowk ." Although the complainant and mashir have deposed that complainant tried to associate private person as mashir but there was no private person available at the place and time of alleged incident. Once having admitted that bungalows were situated near the place of incident and that vehicles were coming and going on the road and further that shops of different items were situated at nearby road, so also that at a distance of only half kilometer Guddu chowk was situated, then it was incumbent upon the police to make efforts to find private persons from such places, inside the vehicles plying on the road, so also inside the bungalow s, rather the complainant categorically admitted that he had not knocked the door of the bungalows.
12. The purpose of associating independ ent mashirs of the locality is to ensure the transparency of the recovery process. 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 C 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. Only cursory efforts are not enough merely in order to fulfill casual formality , rather serious and genuine attempts should be made to associate private mashirs of the locality .
13. 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."
14. Yet in another case reported as Yameen Kumhar v. The State (PLD 1990 Karachi 275) this Court after discussing various case-laws 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. 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 again st 'chicanery' and 'concoction', to minimise 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 applic ability be restricted to proceedings under Chapter VII only. The principles of section 103 have been applied and practised 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 .
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 ."
15. In view of aforesaid factual and legal position, the recovery of the alleged firearm weapon from the accused/appellant has lost its evidentiary value.
16. Another legal flaw in the investigation is that 1.0. of the case namely , ASI Fahad Anwar Arbani in his evidence admitted that he had received the case property i.e. .30 bore T.T. pistol along with FIR and other documents on 01.04.2014; however , he sent the allegedly recovered firearm weapon on 22.04.2014 as is evident from the FSL Report Ex.6/A, available at page 19 of the Paper Book i.e. after a delay of 21 days. This is also fatal to the prosecution case.
17. 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."
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. Although the I.O. has tried to fulfill this lacuna by deposing, "The case property lying in malkhana before sending it to ballistic expert" ; however , neither any roznamcha entry/document to substantiate such assertion has been produced by him, nor the WPC, whom he allegedly handed over the case property and who allegedly sent the same to ballistic expert, has been examined before the trial Court. In this regard reliance may be placed on the case of Mohammad Imran Afridi v. The State reported in 2018 YLR 2394 wherein a Division Bench of this Court acquitted the accused while holding as under; "We have also observed that description/number of hand grenade has not been mentioned in the mashirnama of arrest and recovery but clearance report produced before the trial Court reflects the number of hand grenade as ARGE-69. Prosecution has also failed to bring on record the evidence with regard to safe custody of the hand grenade at police station till its inspection by the Expert....."
20. In another case reported as Umed Ali v. The State (2018 MLD 131 1), it was held as under; "12. More significantly there was no evidence that the recovered narcotics were kept in safe custody between 10th and 11th May, 2007 when the recovered narcotics were taken by ED Allah Warayo to the chemical examiner . No malkhana entry was produced and the keeper of the malkhana was not examined nor was ED Allah Warayo concerning the safe custody and safe transit of the chemical which could have been interfered with after its recovery and thus the chemical report cannot in our view be safely relied upon. In this respect reliance is placed on the case of Ikramullah and others v . The State ( 2015 SCMR 1002 )..."
21. 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 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."
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 accuse d 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."
23. The accumulative effect of the abovesaid 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 princip le of law that the prosecution is bound under the law to prove its case against the accused beyond any shadow of reasonable doubt. 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."
24. For the foregoing reasons, by short order dated 10.12.2019 instant appeal was allowed and the impugned Judgment dated 11.12.2014, handed down by learned Vth Additional District and Sessions Judge, Hyderabad in Sessions Case No.481 of 2014 (re: The State v. Bashir Ahmed), being outcome of FIR No.08/2014 registered at Police Station "A" Section, Latifabad, Hyderabad under section 23-A, Sindh Arms Act, 2013, was set aside and the appellant was acquitted of the charge. He was present on bail, his bail bonds were cancelled and surety was discharged.
25. Above are the reasons for the said short order .
26. Approved for reporting.