1. MUHAMMAD SALEEM JESSAR, J.---Through this Criminal Appeal appellant Samiullah son of Abdul Sattar has assailed judgment dated 26.06.2018 handed down by learned IIIrd Additional Sessions Judge, Hyderabad in Sessions Case No.173 of 2014 (re: The State v. Sarni Ullah ) being outcome of FIR No.07/2014 under section 23(1)(a) of Sindh Arms Act, 2013, registered at Police Station Site Hyderabad, whereby appellant has been convicted for offence punishable under above said Section and sentenced to suffer R.I. for four (4) years and to pay fine of Rs.20,000/- (Rupees Twenty thousand only) and in case of default in payment of fine, to suffer S.I. for one month more. However , appellant was extended benefit of section 382-B, Cr. P. C. Concisely , the facts prosecution case are that complainant namely SIP Abdul Momin Shaikh of Police Station Site Hyderabad lodged FIR on 13.01.2014 on behalf of the State, stating therein that accused Sami Ullah son of Abdul Sattar by caste Yousuf Zai Pathan, resident of Zeal Pak Colony , Site Area. Hyderabad arrested in Crime No.05/. 2014 under Sections 324, 353, 147, 148, 149, P.P.C. was found in -possession of 74 rods and two pieces of charas, which on weighing found to be of 1100 grams. Out of them four rods and one piece of charas weighing 200 grams were separated and sealed for chemical analysis, whereas remaining 900 grams charas was separately . sealed. During search of the accused, one unlicensed .30 bore TT pistol along with empty magaz ine was also recovered from his possession along with cash amount of Rs. 300/-. Hence, separate FIR under Section 23(1)(a) Sindh Arms Act, 2013 was registered against the accused.
2. After usual investigation, challan was submitted against the present accused in the Court of District and Sessions Judge, Hyderabad where a formal charge was framed vide Ex.02 against the accused to which he pleaded not guilty and claimed trial vide his Plea at Ex.
3. Subsequently , the case was transferred to the trial Court for its disposal in accordance with law .
3. In order to prove its case, prosecution examined PW SIP Irshad Ali, mashir , at Ex.04, who produced memo of arrest and recovery as Ex. 07/A. PW-02 complainant SIP Abdul Momin Shaikh was examined at Ex. 08, who produced FIR and entry of Register No. 19 as Ex. 08/A and Ex. 08,B respectively . Complainant also produced case property in open court during his evidence. PW-03 Inspector Tahir Ayoub, I.O. of the case, was examined AL Ex.
4. 09, who produced FSL report as Ex. 09/A. Thereafter , learned DDPP for State closed prosecution side vide his Statement Ex. 10.
5. Statement of accused under Section 342, Cr.P.C. was recorded vide Ex.11 wherein accused denied the allegations levelled against him. However , neither he examined himself on oath, nor produced any witness in his defence.
6. After formulating the points for determination, recording evidence of prosecution witnesses and hearing counsel for the parties, learned trial Court vide impugned judgment convicted and sentenced the accused / appellant, as stated above. Against the said judgment instant appeal has been preferred by the convicted accused.
7. I have heard learned counsel for the appellant as well as learned D.P.G. appearing for the State and also perused the material available on the record.
8. Learned counsel for the appellant submit ted that appellant was booked in 03 crimes viz. Crime No. 5 of 2014 PS Site Hyderabad; under Sections 324, 353, 147, 148, 149, P.P.C., Crime No. 8 of 2014 Police Station Site Hyderabad under Section 9(c) Control of Narcotic Substances Act, 1999 and the present case being outcome of FIR No.07 of 2014 Police Station Site Hyderabad under Section 23(1)(a) of Sindh Arms Act, 2013. According to him, in all three cases a joint mashirnama of arrest and recovery was handed down by police officer which itself is defective and is not permissible under the law. He further submitted that in earlier Crime No.05/2014, appellant has been acquitted of the charge by trial Court, i.e. 7th 'Additional Sessions Judge, Hyderabad in Sessions Case No.41 1 of 2014. In support of his contention he referred to the photocopy of Order dated 15.08.2018 whereby appellant has been shown to have been acquitted from the charge under Section 265-K, Cr.P.C. which was produced by him vide his statement dated 17.08.2018. He further submitted that in another main case appellant has also been acquitted by this Court vide Criminal Appeal No.D-65 of 2018 by judgment dated 18.09.2018. In support of this contention, he referred to photocopy of said judgment which was filed by him along with his Statement dated 12.09.2019. Lastly , he submitted that present case is the outcome and offshoot of the aforesaid main cases in which same set of evidence produced against the accused has already been disbelieved by trial Court as well as by this Court, hence propriety of law demands that same treatment be meted out in favour of the accused in the instant case too.
9. Learned D.P.G. appearing for the State, could not controvert the above submissions made by learned counsel for the appellant and has candidly recorded his no objection to the grant of instant appeal and acquittal of the accused/ appellant.
10. Needless to emphasize the well settled principle of law that if an accused has been acquitted in the main case then he is also entitled to be acquitted in the case which is offshoot of the main case. In the case reported as Yasir Chaudhry v . The State reported in 2012 MLD 1315 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.
11. Same is the position here, as the present 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 ."
12. Keeping in view above legal position, it can safely be held that when the accused/applicant has been acquitted in the main cases and instant case being off shoot of those cases, the accused appellant deserves to be acquitted in this case also.
13. Apart from above, there are also other discrepancies / legal flaws in the prosecuti on case which also put dents in the prosecution case and go in favour of the accused. Most important amongst those discrepancies, is the violation of the provisions of section 103, Cr.P.C. as the alleged recovery of the T.T. pistol was B made from the accused in day light) hours from a busy area, but no efforts seem to have been made to associate independent persons of the locality to witness the arrest and recovery proceedings.
14. The purpose of associating independent 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 presence of private persons is admitted, more particularly when there is prior information regarding effecting any recovery from a specific place, like the case in hand, 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.
15. 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 circumsta nces of a particular case it was not possible to have two Mashirs from the public."
16. 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 against 'chicanery' and 'conc oction', 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. 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 ."
17. In view of aforesaid factual and legal position, the recovery of the alleged weapon from the accused/appellant has lost its evidentiary value.
18. It has 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 resol ved 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."
19. 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 accus ed 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."
20. For the foregoing reasons by a short order passed on 18.11.2019, instant appeal was allowed. Consequently , impugned judgment dated 26.06.2018 handed down by learned IIIrd Additional Sessions Judge, Hyderabad in Sessions Case No.173 of 2014 (re: The State v. Sami Ullah ) being outcome of FIR No.07/2014 under section 23(1)(a) of Sindh Arms Act, 2013, registered at P.S. Site Hyderabad, was, set aside and appellant Samiullah was acquitted of all the charges. He was prese nt on bail and his bail bonds were cancelled and surety furnished by him stood discharged.
21. Above are the reasons for the said short order .