DEEDAR AHMED vs STATE

1. Anwar Hussain, J.--Appellant has filed this Appeal, challenging the conviction and sentence awarded to him by learned 2nd Additional Sessions Judge, Shikarpur/Special Judge for STA, Taluka Khanpur at Shikarpur, under his judgment dated 27.8.2004, in Special Case No. 6012000, bearing F.I.R. No. 20/2000, under Section 13 (d) of Arms Ordinance, 1965, registered at P.S: Khanpur. Appellant was convicted and awarded sentence to undergo R.I. for five years and to pay fine of Rs.50,0001- and in default of payment of fine shall suffer R.I. for six months more. However, Appellant was extended benefit of Section 382-B, Cr.P.C.

2. Brief facts of the prosecution case are that on 18.2.2000, Complainant/SHO, Fida Hussain Lahori of P.S: Khanpur, along with his Subordinate Staff left their Police Station, for Investigation of Crime No. 19/2000, under Sections 302, 324, P.P.C., registered against the Appellant and others, the SHO came to know that Appellant and other accused involved in the said crime are available at their houses, so Police party proceeded towards the pointed place, when they reached near Village Baggan Brohi, Police saw two persons passing along with the Darogo Wah, one person was armed with Kalashnikov and another was carrying Gun, on seeing the Police, they tried to run away, but Police caught hold both of them; took the Kalashnikov and Gun in their possession and found that Kalashnikov along with Magazine containing seven live bullets, while Gun was .empty. On inquiry, accused who was armed with Kalashnikov disclosed his name to be Deedar Ahmed Brohi (Appellant), while an-other person, who was armed with Gun, disclosed his name to be Ali Jan alias Lakhu Brohi, the Police also recovered four cartridges from his right side pocket. The accused persons further disclosed that the weapons are unlicensed, hence Police sealed the same on the spot and then prepared such Mashirnama of Arrest and Recovery in presence of Mashirs namely ASI, Muhammad Malook and H.C, Kehar Khan, and brought the accused persons and recovered property at Police Station, where separate cases under Section 13(d) of Arms Ordinance, 1965, were registered against both of them on behalf of the State.

3. On completion of usual Investigation the Police filed Challan against the Appellant and the learned Special judge for STA, after observing the required formalities framed the charge against the Appellant/accused at Exh.2, to which he pleaded not guilty and claimed to be tried vide his plea Exh.3. Whereas case against the said other accused was challaned before the Judicial Magistrate, Khanpur.

4. Prosecution in support of its case against the Appellant examined P.W-1, Complainant SIP, Fida Hussain Lahori at Exh.4, he produced memo. of Arrest and Recovery at Exh.4-A; F.I.R. at Exh.4-B and Roznamcha Entry at Exh.4-C. The Prosecution also examined PW2, Mashir/ASI, Muhammad Malook at Exh.7 and then Prosecution closed its side vide Statement at Exh.8.

5. Thereafter, Statement of Appellant/accused was recorded under Section 342, Cr.P.C. at Exh.9, in which he denied the allegations of the Prosecution; stated that P.Ws. are Police Officials and interested witnesses and claimed his innocence. However, did not examine himself on oath under Section 340 (2), Cr.P.C., but opted to examine D.Ws. namely Muhammad Ayoub and Muhammad Shard, but only D.W. Muhammad Ayoub, was examined at Exh.10, who deposed that the Appellant was arrested empty handed from Bus Stop at Habal Sethar by the Police, who were accompanied by private persons. The Appellant's Counsel closed the defence vide Statement at Exh.11.

6. Learned counsel for the Appellant, contended that the Police in collusion with Complainant of main murder case viz. Crime No. 19/2000, has foisted the Kalashnikov upon the Appellant to strengthen the said main case; though the Police apprehended the Appellant on the basis of information, yet no private person was associated to act as mashir of the alleged recovery; which shown to have recovered near the Brohi Village, but even then no independent persons from the said Village was cited as a witness of alleged recovery; that Complainant and Mashir, who are Police Officials examined at trial have contradicted each other on material aspects of the case and the Complainant and Investigating Officer is the same person, but learned trial Court while passing the Impugned Judgment did not consider the same. Moreover, submitted that in separate case the other Accused in connected crime on joint Memo of Recovery, has been acquitted by learned Judicial Magistrate. The Counsel relied on 1999 P.Cr.LJ. 222 (DB-Karachi), 1994 P.Cr.L.J. 158 and 552 (DBs-Kar.), 1994 P.Cr.L.J. 1109, 938 and 475 (DBs-Lah.), 1993 P.Cr.L.J. 1338 (Lah.) and 2012 M LD 1315 (Lah.).

7. Learned A.P.G. contended that both the prosecution witnesses examined during trial have fully supported the prosecution case, therefore, the Judgment passed by the learned trial Court is based on sound reasons and does not call for interference by this Court.

8. After hearing the arguments of learned Counsel for Appellant, learned A.P.G. and going through the evidence and citations, we observed that in cross-examination the Complainant/I.O. P.W-1, who is signatory of Memo of Arrest, search and Recovery has stated/admitted that there was no need, so he did not take any private Mashir, inspite of earlier receipt of spy information before the arrest and recovery, and there was no village of Brohi or Jafferi near Darogo Wah, which is situated on Highway, whereas the Mashir/ASI, P.W-2, in his cross-examination deposed that Villages of Brohi and Jafferi are situated at call distance from Darogo Wah, which is situated on Indus Highway, which is busy road, so in view of such contradiction their evidence does not inspire confidence.

9. Reference is made to the case of Khalid Mahmood v. The State (1994 P.Cr.LJ. 552, DB-Kar.).

10. Even otherwise no public/independent witness was associated in the recovery proceedings, inspite of the fact that earlier information and Villages, at the call distance from the place of recovery and when the recovery itself is offence, then evidence of Police Official need independent corroboration, but in this case there is non-compliance of Section 103 of, Cr.P.C. , on the part of prosecution, which makes the recovery of indiscriminate articles doubtful and conviction and sentence in such circumstances would not be legal and proper.

11. Reference is made to case of Arif Khan v. The State (P.L.J 1998 Cr.C. 1410, DB-Kar.) and Rehmat Ali v.

12. The State (1994 P.Cr.LJ. 475, DBLah.)

13. That, there is joint Memo of Recovery and Arrest (Exh.4-A) in the matter, against the Appellant and another accused viz. Ali Jan alias Lakhu Brohi, in respect of Kalashnikov and Gun, respectively, of two separate cases and in the case of said Accused Ali Jan, the Prosecution on the basis of the same Memo, has failed to prove its case beyond reasonable doubt and he has been acquitted by the learned Judicial Magistrate, Khanpur, in Cr. Case No. 64/2004, bearing Crime/F.I.R. No. 21/2000, under Section 13 (d) of Arms Ordinance, P.S: Khanpur, vide Judgment dated 30.8.2004, copy of which has been produced and the Prosecution has not been able to show that the same has been impugned.

14. So the benefit of acquittal in the connected case on same joint Memo of Recovery is extended to the Appellant also in the instant case, particularly when the Complainant/ I.0, in his cross- examination has admitted that he has not produced the Certificate of District Armor, but stated that case property was sent to the Ballistic Expert in murder case for Report, which was positive, but the Prosecution has failed to produce the same in the instant case, which also create doubt as to the alleged recovery. Reference is made to the case of Mukhtar Ahmed v. The State (1999 P.Cr.L.J.

15. 222, DB-Kar.), Sajjan v. The State (1998 P.Cr.L.J. 1399-DB-Kar.), Abdul Sattar v. The State (2002 P.Cr.L.J.

16. 51, DB-Kar.) and case of Sobho v. The State (1994 P.Cr.L.J. 158- DB-Kar.).

17. Moreover, neither the case Property i.e. Kalashnikov, Magazine, and seven Live Bullets were produced in Court and nor the same were shown to the Appellant at the time of his Statement under Section 342, Cr.P.C. in the matter. Reference is made to case of Sarwar Khan v. The State (2000 P.Cr.L.J. 779, DB-Kar.) and Abdul Sattar v. The State (2002 P.Cr.L.J. 51, DB-Kar.).

18. The circumstances as appearing in this matter create doubt as to the truthfulness of the prosecution case. It is settled principle of law that benefit of doubt always goes to an accused and for that purpose it is not necessary that there must always be multiple circumstances to create doubt, but a single circumstance creating a reasonable doubt as to the guilt of an accused entitles him to such benefit, not as a matter of grace and concession; but as matter of right. In this regard Reference is made to the case of Tariq Parvez v. The State reported in 1995 SCMR 1435. In view of the above, we are of the view that the Prosecution has failed to prove its case beyond reasonable doubt against the Appellant, as such conviction and sentences awarded to Appellant by 61 way of Impugned Judgment are not sustainable in law and facts.. Hence, we allow this Appeal, set-aside the conviction and sentences awarded to the Appellant, who is present on bail, is acquitted by extending benefit of doubt from the charge, his bail stands cancelled and surety discharged.