MUHAMMAD SALEEM JESSAR. J. Through this appeal, Appellant Muhammad Hashim son of Muhammad Ibrahim, by caste Pathan, has assailed the Judgment dated 25.11.2023, handed down by learned 1st Assistant Sessions Judge, Jacobabad, in Sessions Case No. 401 of 2023 (re: The State v. Muhammad Hashim Pathan), being outcome of FIR No. 192/2023, registered at Police Station Saddar, Jacobabad), whereby the appellant was convicted for offence under Section 23(i)(a), Sindh Arms Act, 2013 and sentenced to undergo R.I. for five (05) years, and to pay fine of Rs.
10,000/-, in case of default, the appellant was directed to undergo S.I. for three months more. The appellant, however, were extended benefit of Section 382-B, Cr.P.C.
2. According to the case of prosecution, on 05.8.2023, a police party of PS Saddar Jacobabad, headed by HC Muneer Ahmed apprehended the appellant/accused, who was standing alongside of road near Jacobabad Bypass at Herbiayar Hotel road and recovered an unlicensed T.T. Pistol of 30-bore loaded with five live bullets in its magazine, together with another magazine containing four live bullets; whereas the black shopper was also found containing Afghani currency amounting to Rs. 875000/- in different denomination notes of Rs. 500/-and Rs. 1000/-, three currency notes of Rs. 1000/-, one Oppo Mobile Phone and CNIC.
3. A formal charge was framed against the accused, to which he pleaded 'not guilty' and claimed to be tried.
4. In order to prove its case, prosecution examined and relied upon the evidence of PW-1 complainant HC Muneer Ahmed, PW-2 PC Babal, PW-3 PC Waqar Ali and PW-4 IO/ASI Khadim Hussain Kohiri.
5. In his statement under section 342, Cr.P.C, the appellant/accused denied the prosecution allegations and claimed to be innocent. However, neither he examined himself on oath nor produced any witness, in his defence.
6. After formulating the points for determination, recording evidence of the prosecution witnesses and hearing counsel for the parties, trial Court convicted and sentenced the appellant/accused vide impugned judgment dated 25.11.2023, as stated above. Against said judgment, the appellant has preferred instant criminal appeal.
7. Learned Counsel for the appellant submitted that in fact the appellant, who is Vice Chairman of UC Naasirabad, District Loralai (Balochistan), had visited Jacobabad City for his personal work, as District Jacobabad is adjacent to District Loralai at the border area, where the Rangers had apprehended him along with huge quantity of Afghan currency of Rs. 875,000/-; however, the currency was not sealed at the spot nor its description viz, denomination numbers were noted down by the recovery officer at the relevant time. He further submitted that the appellant had specifically stated before the trial Court in his statement recorded under section 342, Cr.P.C regarding his arrest by the Rangers; however, it was not noted down and the truth paved its way itself, therefore, the author of impugned judgment himself mentioned this fact in paragraph-15 of the impugned judgment, in the following terms: "15. On assessment of material brought on record as above, it is established that prosecution has successfully proved its case against the accused beyond any reasonable shadow of doubt by producing reliable, trustworthy and confidence inspiring evidence. Even, no material contradiction has been floated on record during evidence of all PWs, though, some minor discrepancies may be there in prosecution case, but, those are ignorable and are not detrimental to prosecution case.
Moreover, statement of accused under section 342, Cr.P.C was recorded, wherein, he took plea that, at bypass Jacobabad, Sindh Rangers arrested him and handed over to Police, but accused could not bring any cogent evidence in support of his defensive plea so that it be assuned that he has been falsely implicated in this case at the hands of Police officials. Further, Police officials are as good witnesses as other citizens, unless any mala fide is established against them. Reliance, in this regard, is placed on case law cited as 1995 SCMR 1793 (Zakir Khan v. State) as afore-noted.
Consequential upon, point No.1 is replied accordingly."
He, therefore, submitted that the specific plea which the appellant had taken was not noted down by the Presiding Officer at the time of recording 342, Cr.P.C statement of the accused/appellant or was kept in juxtaposition. He further submitted that a person who occupies office of Union Council might be the man of means and being vigilant cannot commit such a crime by keeping an unlicensed low quality weapon in his possession. He submitted that though the appellant was shown to have been found along with unlicensed weapon, whereas the offence has not been committed in the manner as reported and it is all job of Pakistan Rangers who had handed over his custody to police, so that he may not raise any complaint against them; hence, submitted that the plea though was not noted down by the trial Court in his 342, Cr.P.C statement, yet has come out in the impugned judgment, which carries much weight and creates doubt, therefore, by following the dictum laid down by the Apex Court in its numerous verdicts that even the slightest doubt may be extended in favour of the accused, the appeal may be accepted and the appellant may be acquitted by extending him benefit of doubt. In support of his contentions, he placed reliance upon the cases reported as Liaquat and another v. The State (2014 YLR 484), Bhutto v. The State (2017 PCr.LJ Note 60), Nazeer Ali v. The State (2011 YLR 403), Abdul Hameed v. Muhammad Abdullah and others (1999 SCMR 2589) and Mustansar Ali v. Tariq Mahmood (2011 YLR 2393[2)].
8. Learned DPG opposed the appeal, on the ground(s) that no ill-will or animosity has been proved against the police for false implication or foisting the weapon as alleged, therefore, the prosecution has successfully established the charge against the appellant; hence, the impugned judgment does not suffer from any illegality or infirmity, which may warrant interference by this Court. He prayed for dismissal of the appeal and maintaining of the impugned judgment. Learned DPG however admitted that as per mashirnama huge foreign currency was recovered, yet it was not sealed nor its description was noted down by the complainant, though in his evidence before the Court he specifically deposed in his examination-in-chief that he had sealed entire property; however, at the time of his examination before the trial court the property produced before the Court was in unsealed condition. Still he was arrogant to oppose the appeal.
9. Heard learned Counsel for the parties and perused the material available on record.
10. The contention of learned Counsel for the appellant that specific plea regarding his arrest by the Rangers though taken by the appellant at the time of recording his 342, Cr.P.C, was not noted down by the Presiding Officer nor was kept in juxtaposition with the material brought on record, appears to be correct and gets support from the record, as in paragraph No. 15 of the impugned judgment such fact finds mention, however, it was not incorporated in the 342, Cr.P.C statement of accused. "It is also an admitted position on record that the foreign (Afghan) currency allegedly recovered from the appellant was not sealed at the spot nor its description viz., denomination numbers were noted down by the recovery officer at the relevant time. Moreover, the alleged incident is shown to have taken place in the broad daylight and that too near a hotel, where availability of people from general public cannot be denied, yet the complainant did not associate or cite any independent person to witness and/or attest the alleged recovery proceedings. Hence, such glaring features on the part of prosecution have dented its own case, which create lot of doubts. It is settled law as held in the case of Tariq Parvez v. The State (1995 SCMR 1345) that even if a slightest doubt arises in the prosecution case, its benefit must be extended in favour of the accused.
11. Keeping in view above factual as well as legal position, I am of the opinion that the prosecution miserably failed to establish the charge against the appellant beyond shadow of reasonable doubt; as such, the impugned judgment suffers from illegalities and infirmities and cannot be sustained.
12. For what has been discussed above, instant Criminal Appeal was allowed by a short order dated 29.02.2024, whereby the impugned judgment dated 25.11.2023, handed down by learned 1st Assistant Sessions Judge, Jacobabad, in Sessions Case No. 401 of 2023 (re: The State v.
Muhammad Hashim Pathan), being outcome of FIR No. 192/2023 registered at Police Station Saddar, Jacobabad, was set aside and the appellant was acquitted of the charge. Above are the detailed reasons for such short order.