ZULFIQAR ALI SANGI, J. Through this appeal, appellant Badar Zaman has challenged the judgment dated 02.07.2018 passed by learned IInd Additional Sessions Judge, Badin in S.C. No. 128 of 2016 re- The State v. Badar Zaman, emanated from Crime No. 12 of 2016 registered at Police Station Khorwah under section 23(1)(a) Sindh Arms Act whereby he was convicted under section 23(1)(a)
Sindh Arms Act and sentenced to suffer R.I for 10 years. It was further observed that this case is offshoot of main case bearing Sessions Case No. 128 of 2016 (Crime No.11 of 2016 Police Station Khorwah) State v. Badar Zaman under section 302, P.P.C. in which the accused has been convicted for life imprisonment, therefore, the, sentence of instant case shall run concurrently with the sentences of main case. The benefit of section 382-B, Cr.P.C. was extended to accused.
2. It was the case of prosecution that on 17.5.2016 ASI Abdul Rasheed of Police Station Rahu left police station along with P.C. Manzoor Ali, P.C. Amjad Ali for investigation of Crime No.11 of 2016 under section 324, P.P.C. vide entry No. 6 at 1420 hours in poleis mobile. During patrolling he received spy information that nominated accused of above crime was available at Karo Goongro Bus Stop and was waiting for conveyance. On receipt of such information, ASI arranged mashirs namely Ali Ahmed and Mumtaz and rushed to the pointed place and reached there at 1500 hours and arrested the accused person in presence of mashirs Ali Ahmed and Mumtaz and prepared such memo in their presence, obtained their signatures. He then brought the accused at police check post Khorwah and interrogated the accused and during interrogation disclosed that after commission of above crime, he concealed the pistol used by him in above crime in Devi jungle near bank of Sher Wah Pacca Link Road and then accused led the police and mashirs to the pointed place and took out one pistol of 30 bore having magazine in running condition and produced the same before police. On the barrel of pistol the words in English "Made in China by Nomeco" were written. The pistol was checked and found two live bullets of .30 bore containing in the magazine. The pistol was sealed at spot. ASI prepared such memo of recovery at 1600 hours in presence of above named mashirs. ASI then took the accused and recovery pistol at P.S where ASI registered the FIR for offences under sections 23(1)(a) of Sindh Arms Act against accused. After completing investigation challan was submitted before competent court of law.
3. After registering FIR, police conducted investigation and on completion of investigation submitted challan against him in the concerned court.
4. After completing all the legal formalities, the trial court initiated trial by supplying copies to the accused as required under section 265-C, Cr.P.C. The charge was framed against the accused to which charge, he pleaded not guilty and claimed trial.
5. The prosecution in support of its case examined P.W.1 mashir All Ahmed at Exh.05, he produced the memo of arrest of accused at Exh.5-A and memo of recovery at Exh.5-B and P.W.2 complainant ASI Abdul Rasheed at Exh.6, he produced the FIR at Exh.6-A, departure and arrival entry at Exh.6-B and the report of Ballistic examiner at Exh.6-C. Thereafter the learned State counsel closed the side of prosecution vide statement at Exh.7.
6. Statement of accused was recorded under section 342, Cr.P.C. at Exh.8. In his statement, the accused has denied the allegations of the prosecution and claimed his innocence. However, the accused neither examined himself on oath, nor lead defence evidence.
7. After recording evidence and hearing the parties, learned trial court convicted the accused as stated above, hence the instant appeal.
8. Learned counsel for the appellant has contended that the persecution has not been proved the case against the appellant beyond a reasonable doubt; that the very movement of the police is doubtful as entry No. 06 has not been produced; that the witnesses gave contradictory evidence which creates very serious doubt in the case of prosecution and lastly he prayed that the appeal may be allowed and the appellant may be acquitted by extending him the benefit of the doubt.
9. Learned DPG has contended that the prosecution has proved the case against the appellant beyond a reasonable doubt; that prosecution witnesses fully supported the case; that recovery was effected from the appellant in presence of private mashirs; that no enmity or is suggested against the police witnesses. Lastly he prayed that the appeal filed by the appellant may be dismissed.
10. I have heard counsel for the parties and have gone through the material available on the record with their able assistance.
11. On reassessm ent of the entire evidence produced by the prosecution I am of the view that the prosecution has failed to prove its case against the appellant beyond a reasonable doubt by producing reliable, trustworthy and confidence inspiring evidence.
12. In the FIR complainant mentioned that on information about the availability of accused he along with police officials and the private persons namely Ali Ahmed and Mumtaz went there and arrested the accused/appellant. However the mashir PW-1 Ali Ahmed during cross-examination stated that he went to Khor Wah Chowk on motorcycle where police party also came there which suggest that the was not with the police and went at the place of arrest separately.
13. The complainant in his examination-in-chief deposed that accused stated them that he concealed the pistol'in Devi Jungle near bank of Sher Wah Pacca Link road and then accused led them and the mashirs and produced the pistol, whereas the mashir Ali Ahmed during cross- examination stated that accused produced the weapon from zamindari water. Both the witnesses gave contradictory evidence in respect of place of recovery which creates very serious doubt in the case of prosecution.
14. It is also a well settled principle of law that the prosecution has to prove its case beyond a reasonable doubt and where even a single circumstance which creates reasonable doubt in the mind of a prudent man comes in the evidence of the prosecution the benefit must go to accused not as a matter of grace or concession but as a matter of right. In this regard reliance is placed on the case of Tariq Pervez v. The State (1995 SCMR 1345).
15. Based on the above discussion and on reassessment of the evidence on record, I am of the view that the prosecution has failed to prove its case against the appellant beyond any reasonable doubt, therefore, I allow the instant appeal and set-aside the conviction and sentences handed down by the trial court vide judgment dated 02.07.2018 and acquit the appellant by extending him the benefit of the doubt, appellant Badar Zaman son of Mamoon Jamali be released forthwith unless wanted in any other custody case.
16. The above Cr. Appeal is disposed of in the above terms.