ZULFIQAR ALI SANGI, J.---Through the instant criminal appeal, the appellant Abdul Samad son of Rahim Bux Brohi has assailed the Judgment dated 26.03.2022, passed by the learned V-Additional Sessions Judge, Shikarpur in Sessions Case No. 94/2021, re: State v. Abdul Samad, being an outcome of Crime No.03/2021 of P.S. Abad Mailanai At Aamil, for the offence under section 23(i)A, Sindh Arms Act, whereby the learned trial court has convicted the appellant under section 23(i)A, Sindh Arms Act to suffer rigorous imprisonment for 10 years and to pay a fine of Rs.20,000/-, in case of default in payment of a fine amount, he shall suffer R.I. for six months more. The benefit of section 382(b), Cr.P.C. was extended to the convict.
2. Brief facts of the prosecution case are that the complainant ASI Aijaz Ali Panhwar lodged FIR at P.S. Abad Mailani at Aamil on 12.02.2021 at 1800 hours alleging therein that on the day of the incident he along with P.C. Irfan Ahmed Mahar, PC Ghulam Rasool left PS by private motorcycles under roznamcha entry No.13 at 1600 hours for patrolling. During patrolling, when reached Wagon Stand Muhammada Bagh they received spy information that the accused namely Abdul Samad son of Rahim Bux by caste Brohi resident of near Chak Taluka Lakhi Ghulam Shah required in Crime No.1/ 2021 under sections 402, 399, 324, 353, 148, 149, P.P.C. of P.S. Abad Mailani, having gun is available at Bell Pull Mehmooda Bagh link road leading towards Aamil. The complainant party went to the pointed place where they reached at 1700 hours, saw and identified above named accused, who on seeing the police party tried to slip but the police party informed him and captured him along with the gun. The gun was checked and found empty. Due to the non-availability of private mashirs, the complainant deputed PC Irfan Ahmed and P.C. Ghulam Rasool as mashirs, interrogated the accused who disclosed his true name and during his search five live cartridges of 12 bore were also recovered from his rightside pocket. For the weapon, the accused disclosed to be unlicensed. The complainant then sealed the recovered property, prepared mashimama of arrest/recovery and brought the accused and property to PS where he lodged an FIR against the accused on behalf of the State.
3. After the usual investigation, the police submitted the challan against the present accused before the court. After completing legal formalities, police papers were supplied to the accused.
The formal charge was framed against him, who pleaded not guilty and claimed to be tried.
4. The prosecution to prove its case, examined PW-1 complainant ASI Aijaz Ali at Ex.5, who produced entry No.13 at Ex.5/A, mashirnama of arrest/recovery at Ex.5/B, FIR at Ex.5/C. PW-2 PC Irfan Ahmed examined at Ex.6. PW-3 SIP Muhammad Siddique Domki examined at Ex.7, entries Nos. 23, 24, 25 at Ex.7/A, memo of inspection of wardat at Ex.7/B, road certificate at Ex.7/C, report of FSL at Ex.7/D. PW- 4 PC Saifullah was examined at Ex.8. PW-5 WPC Zubair Ahmed was examined at Ex.9. Thereafter learned ADPP for the State closed the prosecution side vide his statement at Ex.10.
5. The trial Court recorded the statement of the accused under section 342, Cr.P.C., wherein he claimed his innocence and stated that he is innocent and has falsely been implicated in this case.
Accused neither examined himself on oath nor produced any witness in his defence.
6. After the assessm ent of evidence, the learned trial court passed the above-impugned judgment and awarded the sentence to the present appellant/accused as mentioned above. Being aggrieved by and dissatisfied with the said judgment, the appellant/accused above-named has preferred this criminal appeal.
7. Learned counsel for the appellant has contended that the appellant is innocent and has falsely been implicated in this case by the complainant; that the evidence of complainant/I.O. and Mashir being contradictory have no credibility and thus cannot be relied upon without independent corroboration; that the recovery of alleged crime weapon has been foisted against the appellant/accused just to strengthen main case wherein he has already been acquitted; that the impugned judgment of the trial court is contrary to law, facts and equity. He further submits that the trial court acquitted the appellant in main case Crime No.01/2021, offence under sections 324, 353, 337-H(2), 34, P.P.C. vide judgment dated 07.03.2022 based on evidence of prosecution witnesses. He further submits that the learned trial court has miserably failed to properly appreciate and assess the evidence of the prosecution witnesses, whose evidence is insufficient and full of major contradictions and the judgment has been passed in violation of guiding principles laid down by the superior courts. He also submits that PC Saifullah who carried the case property and deposited the same with the office of FSL deposed that on 16.02.2021 he received the case property, from I0 but deposited the same with the office of Ballistic Expert on 17.02.2021 but has failed to explain as to where this property was kept for the whole day and why it was deposited with the delay of one day. He has lastly prayed that the appellant be acquitted of the charge.
8. Learned Deputy Prosecutor General has supported the impugned judgment and has submitted that the complainant and P. Ws have fully supported the case of the prosecution, no major contradictions have been found in their evidence, that the recovery of crime weapon on analysis has substantiated the involvement of present appellant/accused in the commission of the offence; that the FSL report has fully supported the case of the prosecution. Lastly, he submitted that the learned trial Court found the appellant/accused guilty of the offence has rightly convicted and sentenced him by way of impugned judgment which calls for no interference by this Court, therefore, the appeal filed by him being devoid of merits is liable to be dismissed.
9. I have heard learned counsel for the appellant and learned Deputy Prosecutor General and have gone through the material available on the record with their able assistance.
10. The meticulous re-appraisal of evidence brought on record is entailing that all the prosecution witnesses have tried to support the case of prosecution but their evidence on scrutiny was found coupled with material defects. The broad features involved in the present case surfaced from the evidence of the complainant that a gun and five live cartridges of 12 bore were recovered from the appellant which was sealed at the spot under such mashirnama prepared in the presence of the mashirs who have signed the same but when this piece of evidence was being confronted with the evidence of mashir, who did not depose even a single word in respect of signature of other mashir Ghulam Rasool Soomro. This singular infirmity in the case itself is sufficient to hold that the prosecution has not proved the case against the appellant beyond the shadow of reasonable doubt. Moreover, the present appellant has already been acquitted by the learned trial Court in the main injuries case vide, judgment. dated 07.03.2022.
11. The prosecution witnesses in their evidence deposed that when they saw the accused he tried to escape from there but the first document prepared at the spot (Mashirnama of arrest and recovery) and the FIR are silent about the escape of the appellant however it is mentioned in the mashirnama and the FIR that accused avoided. All the witnesses of arrest and recovery are police officials and no efforts were made to join the private witnesses in the recovery proceedings though police have sufficient time after the information. The PW-2 PC Irfan Ahmed deposed that complainant handed over the investigation to I.O. Muhammad Siddique Domki and kept recovered property in Malkhana and thereafter nothing was done and he (mashir) did not put his signature anywhere whereas the complainant has not deposed a single word that he either handed over the gun to the Investigation Officer or deposited it in the Malkhana. The Investigation Officer also not deposed a single word in his examination-in-chief that he received the gun. from the complainant and deposited the same in the Malkhana or that the complainant deposited the gun in the Malkhana such fact alone is sufficient to disbelieve the evidence of prosecution witnesses.
12. WPC Zubair Ahmed the P.W. 5 who deposited the gun for the FSL report has not produced the entry of the roznamcha register showing his receiving the case property by him. In his examination-in-chief, he has deposed that I.O. Muhammad Siddique has handed over to him one parcel of case property, while in his cross-examination; he has pointed out from his statement under section 161, Cr.P.C. that he had received the parcel of gun and empties separately which is not the case of prosecution. The perusal of RC reflects that the property of the main case and this case were sent together. It does not reflect from the RC that the gun and the cartages so recovered from the appellant were sent for FSL only the crime number is mentioned. The PC Saifullah who carried the case property and deposited the same with the office of FSL, deposed that on 16.02.2021 he received the case property from the Investigation Officer but deposited the same with the office of Ballistic Expert on 17.02.2021, he had not explained as to where the property was for one day such failure create very serious doubt in the safe transmission of the alleged recovered gun and make the recovery doubtful.
13. It is well-settled law that a piece of evidence which has not been confronted to the accused in his statement under section 342, Cr.P.C. cannot be used against him the ballistic expert report was not confronted to the appellant in his statement under section 342, Cr.P.C. and if it is excluded from the consideration then there remains nothing available with the prosecution to establish that the alleged gun was in working condition.
14. The rule of benefit of the doubt is essentially a rule of prudence which cannot be ignored while dispensing justice following the law. The conviction must be based on unimpeachable evidence and certainty of guilt and doubt arising in the prosecution case must be resolved in favour of the accused. The said rule is based on the maxim. ##TE## It is better that ten guilty persons be acquitted rather than one innocent be convicted" which occupied a pivotal place in Islamic Law and is enforced strictly because of the saying of the Holy Prophet (Peace Be Upon Him) that the "mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent". The prosecution is bound 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 the 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 of Wazir Mohammad v. The State (1992 SCMR 1134), it was held by Supreme Court that "In the criminal trial the prosecution must 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 prosecution". The Supreme Court in another case of Shamoon alias Shamma v. The State (1995 SCMR 1377), held that "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 him/them 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 the prosecution, the question of burden of proof on the accused to establish his plea in defence does not arise." Reliance is also placed on the case of Naveed Asghar and 2 others v. The State (PLD 2021 SC 600).
15. The overall discussion concluded that the prosecution has miserably failed to prove the guilt against the present appellant beyond the shadow of any reasonable doubt and it is a well-settled principle of law that for creating the shadow of a doubt, there should not be many circumstances.
If a single circumstance creates reasonable doubt in the prudent mind, then its benefit is always extended in favour of the accused not as a matter of grace or concession, but as a matter of right.
In this respect, reliance is placed on the case of Muhammad Masha v. The State (2018 SCMR 772), wherein the Hon'ble Supreme Court of Pakistan has held that:-- "4. Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then accused would be entitled to the benefit of such doubt, not as a matter of grace and concession but as a matter of right. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR 1345), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), Muhammad Akram v. The State (2009 SCMR 230) and Muhammad Zaman v. The State (2014 SCMR 749)".
16. Resulting of the above discussion, I am of the judicious view that the learned trial Court has not evaluated the evidence in its true perspectives and thus arrived at an erroneous conclusion by holding the present appellant as guilty of the offence. Thus, the conviction and sentence recorded against him by way of impugned judgment could not be sustained, it is set aside, consequently, the instant criminal appeal was allowed and the appellant was acquitted of the charged offence.
17. Above are the reasons for my short order dated 27.03.2023, whereby the instant criminal appeal was disposed of accordingly.