MUHAMMAD SALEEM JESSAR, J.---- Through this appeal Appellant has assailed Judgment dated 29.08.2016, handed down by learned 2nd Additional Sessions Judge, Tando Muhammad Khan in Sessions Case No.23 of 2016 (re: The State v. Dost Muhammad Dosoo), being outcome of FIR No.161/2016 registered at Police Station Tando Muhammad Khan, under Section 23-1(a) of Sindh Arms Act, 2013, whereby he convicted the accused / appellant for the offence punishable under Section 23-1(a) of Sindh Arms Act, 2013, and sentenced him to undergo R.I. for three (3) years and to pay fine of Rs.5,000/- (Rupees Five thousand only) and in case of non-payment of fine to undergo R.I. for one month more. However , the appellant was extended benefit of Section 382-B, Cr .P.C.
2. Concisely , the, facts of the prosecution case are that the complainant, ASI Asghar Ali, SHO P.S. Tando Muhammad Khan, got registered above mentioned FIR on behalf of State, stating therein that he was posted as ASI at CIA Center Tando Muhammad Khan. On the day of incident i.e. 11-06-2016 he- along with his subordinate staff, PC Dildar Ali, PC Abdul Sattar and PC Bashir Ahmed left CIA Center vide entry No. 4 at about 0900 hours in Government Mobile for patrolling purpose. During patrolling different places when he reached at LAKHA T RAIL WAY Crossing, he received spy information that a wanted accused of PS. Khudabad District Dadu in various crimes mentioned in the FIR, namely , Dost Muhammad alias Dosoo Khoso was standing there waiting for conveyance at Lakhat Road. After receiving such information, the police party immediately moved towards the pointed place where they saw one person standing on the left side of the road, who after seeing government vehicle coming towards him, tried to run away . However , police party after stopping their mobile, encircled him and caught hold of him. On his personal inquiry , he disclosed his name as Dost Muhammad alias Dosoo son of Muhammad Khan alias Wahid Bux, resident of Village Chak Taluka and District Dadu. After taking him in custody , from his personal search the complainant secured one .7mm Pistol along with magazine so also two hundred rupees. Besides, five cartridges of 7mm pistol were also recovered which were sealed for analysis purposes vide Mashirnama of recovery and arrest prepared in presence of Mashirs. Due to non-availability of private Mashirs, complainant got associated his subordinates as Mashirs and thereafter , he brought the accused and case property and registered the FIR.
3. After completing usual investigation, Challan was submitted which was sent by the concerned Magistrate to the Court of Sessions Judge, Tando Muhamm ad Khan who was pleased to transfer / assign the same to the Court of 2nd Additional Sessions Judge, Tando Muhammad Khan for adjudication according to law .
4. A formal Charge was framed against the accused to which he pleaded not guilty and claimed to be tried.
5. In order to prove its case, prosecution examined ASI Asghar Ali Sathio as PW-1 at Ex.4, who produced FIR of this case, memo. of arrest and recovery and carbon copy of entry No. 4-7 and entry No. 16 as Ex.4/A to Ex:4/D.
PW-2 PC Mashir Dildar Ali Panhwar was examined at Ex. 5, whereas PW-3 SIP Qamar Zaman Khoso was examined at Ex.6, who produced FSL report dated 20-06-2016 as Ex. 6/A. Thereafter , learned ADPP closed the prosecution side vide statement dated 15-08-2016 Ex.07.
6. Statement of accused Dost Muhammad alias Dosoo provided under Section 342, Cr.P.C., was recorded vide Ex.
08, in which he denied prosecution allegations and claimed to be innocent. However , neither he examined himself on oath, nor produced any witness in his defence.
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 A.P.G. appearing for the State and perused the material available on the record.
9. Learned counsel for the appellant submitted that the appellant is innocent and has been falsely involved in instant case. He contended that despite having prior spy information, the complainant did not associate any private persons of the locality to act as mashirs and all the witnesses / mashirs are police officials. According to him, mandatory provisions of Section 103 ,Cr.P.C. have been violated. He further submitted that the trial Court has not properly appreciated the evidence brought on record and has ignored material admission made by the prosecution witnesses in their cross-examination. According to him, due to such discrepancie s and infirmities, serious doubts have been created in the prosecution case, benefit whereof must be given to the accused. He prayed for allowing instant appeal, setting aside the impugned judgment and acquitting the accused / appellant of the charge.
10. Conversely , learned A.P.G. opposed the appeal and submitted that learned trial Court after considering each and every point involved in instant case, has given its findings for which sound and cogent reasons have been assigned. According to her, it is now well settled that evidence of police officials is as good as the evidence of any other independent witness from public and their evidence cannot be discarded merely on the ground that they are police of ficials. She prayed for dismissal of the appeal and maintaining the impugned judgment.
11. In my humble opinion, in the cases relating to the offence of possessing unlicensed firearm weapon by the accused and such like cases, the most important piece of evidence is the recovery of such firearm weapon from the accused, therefore, in such type of cases compliance of the provisions of Section 103, Cr.P.C. is required -to be made in letter and spirit.
12. In instant case, according to complainant ASI Ashgar Ali, the alleged recovery of 9mm pistol with magazine from possession of accused / appellant was made from Lakhat Road. The complainant in his cross-examination admitted," it is correct to suggest that lakhat phatak remain busy .............. it is correct to suggest from place of information to the place of arrest of accused there is huge population...."
13. It is an admitted position that compl ainant had received prior spy information about presence of accused / appellant who was required in various cases. In such a case, when prior spy information was conveyed to the complainant coupled with the fact that the place of arrest of the accused and recovery of firearm weapon from his possession was a busy and populated area, then as to why complainant did not arrange any private witness from the locality to act as mashir .' Besides, he has also not deposed that at least he made any efforts to procure private / independent persons for acting as witnesses / mashirs in the case.
14. 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 the 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. Only cursory efforts are not enough merely in order to fulfill casual formality , rather serious and genuine attempts should be made to associate private persons of the locality in the recovery process.
15. In this connection, it would be advant ageous to refer to the case of Shan v. The State reported in 2015 PCr.LJ 747 [Sindh] wherein reference was also made to a letter bearing No. J.P.32-R(S)/88-SCJ, dated 20th August, 1990 duly sent by learned Registrar of honourable Supreme Court of Pakistan to Inspectors General of Police of all the four provinces of Pakistan on the point of association of private witnesses in the process of recovery in criminal cases. It would be advantageous to reproduce hereunder the relevant portion from the said letter of honourable Supreme Court: "It has come to the notice of this Court that in a large number of criminal cases, the witnesses of recovery are from the police force and that the Police Officers concerned when appearing before the Court are often unable to give satisfactory explanation, why they failed to associate witnesses of the public in a case where the raid/recovery was planned well in advance. This Court has, therefore, directed that the requirem ent of associating non-officials witnesses in such cases should be impressed upon all concerned.
(2) The Court has also directed in this context that the Courts should also examine two aspects of the issue in such cases. Is there a plausible explanation for not associating witnesses from the public; and whether some features of the cases in addition to ocular account given by the Police Officials support the prosecution version when denied by the defence.
(3) It is suggested that the above orders of this Court should be brought to all concerned for strict compliance."
16. 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 circu mstances of a particular case it was not possible to have two Mashirs from the public."
17. 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 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 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 made 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 ."
18. In view of aforesaid factual and legal position, the recovery of the alleged firearm weapon from the accused/appellant has lost its evidentiary value.
19. Another discrepancy / legal flaw in the prosecution case is that although the complainant ASI Asghar Ali in his evidence deposed that after arrest of the accused and recovery of .9mm pistol from his possession, he brought the accused as well as case property at P.S. Tando Muhammad Khan and handed over the same to SIP Qamar Zaman Khoso, Investigating Officer of the case. The said I.O. in his cross-examination admitted, "....the property was sent for FSL within 6 days from lodging FIR, pistol and 5 bullets were sent to FSL only." In the FSL Report also the date of receiving the said firearm weapon has been shown as 17.06.2016, whereas the same was allegedly recovered from the accused / appellant on 11.06.2016. No plausible explanation has come forward from prosecution side for such delay which creates doubt in the veracity and credibility of such recovery , so also about the report of the ballistic expert, more particularly when the I.O. does not claim that he had deposited the alleged recovered weapon in the Malkhana during the intervening period. 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."
20. 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, report of the ballistic expert, even might be in positive, would lose its sanctity .
21. It is also note-worthy that in the FSL Report while describing the weapons, it has been mentioned, "One 9mm bore Pistol No. Rubbed, with magazine and five 9mm bore live cartridges as exhibits, now butt/body signed. "
However , neither in the FIR, nor in the evidence of complainant or mashir and even nor in the Charge framed by the trial Court against the accused, there is any mention that the allegedly recovered pistol was having rubbed number . This also creates suspicion as to whether , the pistol allegedly sent to FSL by the 1.0. was, in fact, the same pistol which was allegedly recovered from the possession of the accused or not?
22. Another significant point in this case is that complainant ASI Asghar Ali in his cross-examination admitted, "..it is correct to suggest that the handle which is tagged with black colour plate which is broken, the trigger is out of order ..." It is not understandable that when complainant deposed that trigger of the pistol was out of order , then as to how in FSL report it has been opined that the said pistol was in working condition.
23. It is also noteworthy that learned trial Court in paras 16 and 17 of the impugned judgment has observed that the accused has not given any reason for his false involvement in the case. In this context, suffice it to observe 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 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."
24. 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."
25. The accumulative effect of the abovesaid infirmities/legal flaws in the prosecution case is that serious dents have been put and. doubts have been created in the prosecution case. 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."
26. Accordingly , by a short order dated 13.04.2020, instant criminal appeal was allowed. Consequently , impugned judgment dated 29.08.2016, handed down by learned 2nd Additional Sessions Judge, Tando Muhammad Khan in Sessions Case No.23 of 2016 (re: The State v. Dost Muhammad alias Dosoo ), being outcome of FIR No.161/2016 registered at Police Station Tando Muham mad Khan, under Section 23-1(a) of Sindh Arms Act, 2013, was set aside and appellant Dost Muhammad alias Dosoo was acquitted of the charge. He was ordered to be released forthwith, if his custody was no longer required by jail authorities in any other custody case. He was produced in custody; therefore, his custody was remanded to District Prison, Dadu.
27. Above are the reasons for the said short order .