The State through Prosecutor General Balochistan vs Muhammad Ashfaq
The instant criminal appeal was filed by the State under Section 417 of the Code of Criminal Procedure 1898 against the acquittal of the private respondent by the trial court under Section 13(d) of the Arms Ordinance, 1965. The core legal question revolved around whether the prosecution had established the recovery of the crime weapon beyond a reasonable doubt to warrant a conviction. The Balochistan High Court held that the prosecution failed to prove the recovery, citing an unexplained delay in sending the weapon to the firearms expert, the implausibility of recovering a lightweight bullet empty from a running water drain after twenty-five days, the failure to associate independent private witnesses from a populated area, and the fact that the accused had already been acquitted in the main murder case. The court laid down the principle that a single circumstance creating a reasonable dent in the prosecution's case entitles the accused to the benefit of doubt, and that an acquittal reinforces the double presumption of innocence which cannot be disturbed without strong and cogent evidence.
- Can an accused earn the benefit of doubt based on a single circumstance that creates a reasonable dent in the prosecution's case?
- Whether an unexplained delay in sending a recovered weapon to a firearms expert affects the credibility of the prosecution's case?
- Is an accused entitled to acquittal in an arms recovery case when the evidence in the connected main murder case has already been disbelieved?
- What quantum of evidence is required to disturb the findings of an acquittal which carries a double presumption of innocence?
- Section 417, Code of Criminal Procedure 1898
- Section 13, Arms Ordinance, 1965
- Section 302, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
ROZI KHAN BARRECH, J.---The instant appeal has been filed by the State through the Prosecutor General Balochistan under section 417, Cr.P.C. against the judgment dated 12.02.2018 (hereinafter the "impugned judgment") passed by learned Additional Sessions Judge-I, Quetta ("trial court") in Arms Case No.14/2016, whereby private respondent was acquitted of the charge under sections 13(d) of the Arms. Ordinance, 1965 in FIR.
No. 85/2016 of PS Industrial Area Quetta.
2. Relevant facts for disposal of the instant appeal are that the aforesaid FIR was lodged at PS Industrial Area Quetta on the report of complainant Khalid Mehmood IP under Section 13-d of the Arms Ordinance, 1965 with the allegation that in connected case bearing FIR No. 74 of 2016 lodged under sections 302 and 34, P.P.C. with the same police station on pointation of private respondent/accused a T.T pistol along with magazine and two live rounds were recovered, for which the accused failed to produce any valid license/permit. Thus, the crime report.
After completion of the investigation, the challan was submitted before the trial court whereby after full dressed trial vide impugned judgment dated 25.03.2019 private respondent was acquitted of the charge.
3. We have heard the learned counsel for the parties and have also gone through the available record.
4. It may be observed that the accused/respondent was booked for an offence under section 13-d of the Arms Ordinance, 1965 with the allegation that a T.T pistol was recovered on his pointation while in custody in connected FIR. To substantiate the charge against the accused/respondent, prosecution produced Khalid Mehmood IP as PW-1. According to this witness on 28.07.2016 during investigation in FIR No. 74 of 2016 of PS Industrial Area Quetta the accused/respondent made disclosure that he can affect recovery of crime weapon, which he allegedly used to murder one Muhammad Afzal. Thereafter the accused/respondent was taken to the place of recovery i.e. Pakistan Lane Street in an of ficial vehicle, where the accused from a drain af fected recovery of T.T pistol.
5. Record transpires that the alleged murder of the deceased Muhammad Afzal in FIR No. 74 of 2016 took place on 03.07.2016 and the pistol was recovered along with empty on 28.07.2016 after the delay of twenty five days from a drain with running water on the pointation of accused Muhammad Ishfaq. It has also come on record that the said drain is a running water drain, in such state of affairs how was it possible that the empty which was otherwise weighing very little remained in a drain of running water and was recovered after twenty five days of the occurrence. It does not appeal to the prudent mind that the accused after allege d commission of offence would through the crime weapon in the drain, which would remain in the drain, which is admittedly a running water drain.
Moreover , the place of recovery is a popu lated area wherefrom private witnesses could have been picked up and associated with the prosecution's case but the prosecution case is totally silent in this respect. This fact has also been admitted by the complainant and the investigation officer of the case that they did not make any attempt to record statements of any private witness es at the time of alleged recovery . Moreover , the said recovery was not effected from exclusive possession of the accused and the place of recovery was also not in custody of the accused. It has also come on record that the bullet led was recovered on the day of occurrence from the place of occurrence and the same was taken into possession through recovery memo and was sealed in a parcel No.1, the said bullet led was not sent to Firearms Expert along with recovered pistol. Record further reveals that the alleged recovery was effected on 28.07.2016 and pistol and one bullet empty were sent to Firearms Expert for opinion on 27.12.2016 after delay of five months without any explanation.
6. It is an established principle of law that for extending benefit of doubt in favor of the accused so many circumstances are not required rather one circumstance, which creates reasonable dent in the veracity of the prosecution version can be taken into consideration for the purpose not as a matter of grace rather as a matter of right. There are also other major contradictions in the statements of witnesses.
Even otherwise the accused/respondent was acquitted from the charge in the main case under sections 302 and 34, P.P.C. and the instant case is offshoo t of the main case i.e. FIR No. 74 of 2016 registered with same police station wherein the evidence produced by the prosecution has been disbelieved and benefit of doubt has been extended to the appellant, therefore the appellant is also entitled to benefit of doubt in the instant case.
Even otherwise after the acquittal, the accused/respondent No.1 earned double presumption of innocence in his favour , therefore, to disturb such findings , strong and cogent evidence is required, which is lacking in the present case.
Thus, for the foregoing reasons this appeal is accordingly dismissed.