Muhammad Riaz alias Kala Versus State

Tariq Mehmood Jahangiri, J .--- This Criminal Appeal is filed under section 410 of the Code of Criminal Procedure, 1898 ('Cr.P.C.') against the impugned judgment dated 18.01.2023, passed by the Additional Sessions Judge, Islamabad (West), whereby appellant has been convicted and sentenced in case FIR No. 9/22, dated 25.05.2022, offence under sections 13/20/65 of the Arms Ordinance, registered at police station CTD, Islamabad, under sections 13/20/65 of the Pakistan Arms Ordinance, 1965, to rigorous imprisonment for 1-year and imposed fine of Rs. 20,000 and in case of default in payment of fine, he shall further undergo 3 months simple imprisonment and benefit of section 382-B of Cr.P.C. extended to him and all sentences awarded to him shall run concurrently.

2. Brief facts of the case, according to prosecution, are that on 25.05.2022 the appellant-accused made a disclosure during physical remand in the case FIR No. 8/22, dated 20.04.2022, offences under sections 302, 353, 186, 34 of the P.P.C. and section 7 of Anti-Terrorism Act, 1997, registered at Police Station CTD, Islamabad, that he had concealed .30 bore pistol in the graveyard of Tarlai Kalan which was used to fire upon police in the occurrence of aforementioned case i.e. FIR 8/22 and it could be recovered on his pointation. On such disclosure 'the 'appellant-accused was taken to the Mohallah Chaudhrian Tarlai Kalan graveyard near Paaniwali Tanky at about 2:15 pm on 25.5.2022 by the Investigating Officer ('IO') Shams-ul-Akbar along with Khalid Khan ASI, Muhmmad Naeem ASI, Azhar Mehmood ASI, Asad Iqbal HC/3283, Araib Haider C/8965 on a government vehicle bearing No. GAC-696 which was driven by Muhammad Ayub C/3077. The appellant-accused then entered the said graveyard and, he led the police to place of recovery and, got recovered .30 bore pistol of black colour from the bushes underneath stones which was wrapped in blue envelope, and it was handed over and upon unloading three live rounds were found in a magazine. The appellant-accused failed to produce any license or permit in respect of the said pistol. Consequently, the instant case was registered.

3. After completion of investigation, the police submitted report under section 173 of the Cr.P.C. Subsequently, on 14.11.2022 the appellant was indicted for commission of an offence under sections 13 and 20 of the Pakistan Arms Ordinance, 1965 ('AO'). The charges were read to the appellant to which he pleaded not guilty and claimed trial. During trial the prosecution produced following witnesses: i. Muhammad Naeem ASI, PW-1

He was posted at CTD on 25.05.2022 and he was present when appellant made a disclosure during custody. He accompanied police party along with the appellant to the place of recovery. He was also one of the witnesses of recovery memo. ii. Shams-ul-Akbar Inspector, PW-2

On 25.05.2022 he was posted at CTD as inspector. The investigation of the connected case, i.e. FIR No. 8/22, was assigned to him when the main investigating officer went on leave, and in his presence the appellant made a disclosure during custody in that case. He headed the police party to the place of recovery and conducted entire investigation of this. He prepared parcel of case property i.e. .30 bore pistol (P-1), recovery memo, un-scaled site-plan (Ex. PA) of the place of reco very, complaint and recorded statements of witnesses. The complaint was sent to PS CTD for registration of FIR through constable Asad. After completion of recovery proceedings, he went back to the PS CTD along with other officials and handed over the case property to Mohrir Malkhana. iii, Muhammad Asghar ASI; PW-3

He chalked out the FIR of this case.

Moreover, the prosecution, during trial, produced un-scaled site-plan of place of recovery (Ex. PA) and closed its evidence on 10.01.2023.

4. After the conclusion of prosecution's evidence, the statement of appellant under section 342 of Cr.P.C. was recorded on 17.01.2023 wherein the incriminating evidence which surfaced during trial was put to him. He asserted his innocence and maintained that he was falsely implicated in the instant case and the police foisted fake recovery of pistol on him. He denied any disclosure and pointation regarding recovery to police officials. He neither opted to produce evidence in his defense nor appeared as witness under section 340(2) of Cr.P.C. Subsequently, the trial court convicted and sentenced him as mentioned above. Hence, this Appeal.

5. The learned counsel for the appellant, inter alia, contends that the appellant is falsely implicated in this case; there are material contradictions in the statements of witnesses regarding time of occurrence and colour of the article in which the pistol was wrapped; the prosecution did not produce the carrier of complaint as witness during trial; to prove the safe custody of case property the Mohrir Malkhana was not produced as witness during trial; all the witnesses of prosecution were police officials and no independent witness was taken from public; alleged recovery was effected from a graveyard which is an open place; no statement of watchmen or caretakers of place of recovery i.e. graveyard was recorded; the complaint, FIR and recovery memo. of the instant: case were not exhibited during trial; the prosecution failed to produce reliable, coherent and confidence inspiring evidence; and lastly prays that by extending benefit of doubt to the appellant his conviction and sentence should be set aside.

6. On the other hand, the learned State Counsel submitted that the prosecution adduced sufficient evidence to establish the criminal culpability of the appellant; the pistol, at the pointation of appellant, was effected from the place of recovery; there is no previous enmity of witnesses to falsely depose against the appellant; no major contradictions in the testimonies of witnesses; the trial court appreciated every aspect of evidence and finally submitted that the appellant is rightly convicted and sentenced vide impugned judgment and prayed for dismissal of the instant Appeal.

7. The arguments of learned counsel for the parties have been heard and the record of case is examined with their able assistance.

8. The case of prosecution primarily hinged upon the recovery of .30 bore pistol (Ex. P1) from a graveyard on the pointation of appellant, the testimony of police officials Muhammad Naeem ASI (PW-1), Shams-ul-Akbar Inspector (PW-2) and Muhammad Asghar ASI (PW-3) and unscaled site-plan of place of recovery (Ex. PA).

9. Perusal of the record reveals that the place of recovery, i.e. bushes in the graveyard of Tarlai Kalan, was an open place and it cannot be said with certitude that the public had no access to it. It is nowhere in the prosecution's evidence that the appellant had exclusive access to the said premises and no one else had control over it. Further, Shams-ul-Akbar Inspector (IO/PW-2), during cross-examination, deposed that he neither called the caretaker nor any chowkidar (watchman) of aforesaid graveyard. Moreover, the recovery was purportedly effected from appellant on 25.05.2022 whereas the occurrence in which the pistol (Ex. P1) was used took place on 20.04.2022. It is quite clear that the recovery was made after a delay of more than 30 days and that too from a place which was not exclusively accessible to the appellant. According to un-scaled site-plan (Ex. PA) the Mohallah Chaudhrian was situated in front of the place of recovery whereas the Muhammad Naeem ASI (PW-1) and IO/PW-2, in their cross-examination, admitted that no private/independent person from the public or nearby locality was associated as witness during the recovery proceedings. The Supreme Court in a case titled as State through Advocate-General, Sindh v. Bashir and others (PLD 1997 SC 408) held that two witnesses from the public of locality must be associated with recovery proceedings as mandated by section 103 of the Cr.P.C. unless it becomes impossible to have such witnesses and its relevant passages are reproduced below for ready reference:

"9. As regards the above second submission of Mr. M.M. Aqil, it may be observed that it has been repeatedly held that the requirement of section 103, Cr.P.C., namely, that two members of the public of the locality should be Mashirs to the recovery, is mandatory unless it is shown by the prosecution that in the circumstances of a particular case it was not possible to have two Mashirs from the public. In this regard, it will suffice to refer to a recent judgment of this Court in the case of Mushtaq Ahmad v. The State PLD 1996 SC 574. In the case in hand, SIP Muhammad Rafique has not been able to give any cogent explanation as to why he was unable to Secure two Mashirs from the public....no efforts were made by him to secure two Mashirs from the public. In this view of the matter, the recoveries are doubtful.

10. Reverting to the third submission that since in support of the case under section 13-D of the Arms Ordinance the recovery witnesses were the police personnel, no implicit reliance can be placed on their evidence, it may be stated that he has relied upon the following observation from the judgment of this Court in the case of Mushtaq Ahmad v. The State (supra):--

"(v) That likewise there is a marked distinction between a case in which the offence charged with is the recovery of the article itself like recovery of an unlicensed Klashnikov and a case in which the article recovered e.g. a crime weapon is to be used as a corroborative piece of evidence. In the former case if the witnesses to the recovery were police personnel though it was possible to have two Mashirs from the locality where recovery was made, their testimony in the absence of other reliable pieces of evidence would not warrant conviction, whereas in the latter case, if other pieces of evidence on record are free from doubt, the testimony of the police personnel if otherwise free from any legal infirmity may be accepted;

The above extract from the above judgment of this Court lends support to Mr. Aqil's above submission. Therefore, on this account also the conviction under section 13-D of the Arms Ordinance cannot be sustained."

The Supreme Court in a prior seminal judgment of Mushtaq Ahmad v. The State (PLD 1996 SC 574) enunciated section 103 of Cr.P.C. with reference to relevant precedents and it settled the following principles:

"13. From the above provisions of Cr.P.C. and the case law, the following principles are deducible: --

(i) That section 103, Cr.P.C. relates to a search of a place situate in a locality and not to a search of a person;

(ii) That the requirement of section 103, Cr.P.C. that the officer or the other person who is about to make search of a place under Chapter VII of the Cr.P.C. to call von two or more respectable inhabitants of the locality in which the place to be searched is situate to attend and witness search though is procedural but is of mandatory in nature. It is designed and intended to guard against any possible chicanery and concoction;

(iii) That if in spite of the best efforts on the part of the officer or the other person who made the search, two or more respectable inhabitants had not attended and witnessed the search and if there was nothing on record to cast doubt about the bona fide of the officer or the other person, the above search would not be vitiated and the testimony of the officer concerned could be relied upon.

(iv) That there is a marked distinction between a case in which compliance of section 103, Cr.P. C. is made and a case in which no efforts to comply with the same were made and the police personnel were made Mashirs to the recovery. In the former case, failure to produce two respectable inhabitants as witnesses on the Court for a justifiable reason free from any doubt would justify the acceptance of his or their testimony, whereas the latter case, the search would lose its credibility particularly when the testimony of such Mashirs is challenged by the defence in the cross -examination;

(v) That likewise there is a marked distinction between a case in which the offence charged with is the recovery of the article itself like recovery of an unlicensed Klashnikov and a case in which the article recovered e.g. a crime weapon is to be used as a corroborative piece of evidence. In the former case if the witnesses to the recovery were police personnel though it was possible to have two Mashirs from the locality where recovery was made, their testimony in the absence of other reliable pieces of evidence would not warrant conviction, whereas in the latter case, if other pieces or evidence on record are free from doubt, the testimony of the police personnel if otherwise free from any legal infirmity may be accepted;

(vi) That there is also a marked distinction between a case in which a police officer is an eye -witness to the commission of an offence like a murder on a road where he is on duty and a case in which he is an investigating officer and as such becomes a Mashir to the recovery of a crime weapon. In the former case, his testimony is as good as of any other witness from the public, but in the latter case in the absence of any justifiable reason not to make two or more respectable inhabitants of the locality as witnesses to the recovery, implicit reliance cannot be placed on the recovery if the same is challenged by the defence in the cross-examination;

(vii) That the question, whether testimony of a police official as a Mashir to the recovery of an offending article is to be accepted or not besides testing on the touchstone of the above legal principles, depends on the facts of each case; the Court will have to discern inter alia, as to whether such witness bore any animus against the accused involved or was he not over zealous investigating officer/witness. "

Reliance is also placed on Manjhi v. State (PLD 1996 Kar. 345); Ghulam Mustafa v. The State (2011 PCr.LJ 723). Thus, it is evident from the record that the IO/PW-2 had not furnished any plausible explanation as to why he did not associate any private witness from locality with recovery proceedings. Also, it does not appeal to a prudent mind that the place of recovery was exclusively accessible to or in the possession of the appellant up to the time of recovery.

10. The constable Asad Iqbal transmitted the complaint from place of recovery to police station for registration of FIR, but he was not produced as witness during trial. Similarly, the Mohrir Malkhana was not produced as witness to establish the safe custody of the pistol (Ex. P1) in the instant case. No reasonable explanation was given as to where and in whose custody the said pistol remained after it was purportedly recovered on the pointation of appellant. It is evident that Moharir Malkhana was neither produced nor his testimony was exhibited during trial. Thus, it would not be in the interest of justice to sustain conviction of appellant when safe custody of the case property is not established. The Supreme Court in a recent case titled as Ahmad Ali and another v. The State (2023 SCMR 781) held that it is the duty of the police and prosecution to establish that a case property was kept in safe custody and its relevant excerpts are reproduced below for ease of reference:

"5.... Thus, the Police Rules mandate that case property be kept in the Malkhana and that the entry of the same be recorded in Register No. XIX of the said Police Station. It is the duty of the police and prosecution to establish that the case property was kept in safe custody, and if it was required to be sent to any laboratory for analysis, to further establish its safe transmission and that the same was also recorded in the relevant register, including the road certificate, etc. The procedure in the Police Rules ensures that the case property, when is produced before the court, remains in safe custody and is not tempered with until that time. A complete mechanism is provided in Police Rules qua safe custody and safe transmission of case property to concerned laboratory and then to trial Court."

"6.... Thus, under the Police Rules and the High Court Rules, mentioned above, in all cases especially in the cases of articles sent to the chemical examiner, it is necessary that there be no doubt as to what person or persons have had charge of such articles throughout various stages of the inquiry. Besides, the person who packed, sealed, and dispatched such articles should invariably be examined. Further, the clothes, weapons, money, ornaments, food and every other article that forms a part of the circumstantial evidence has to be produced in court, and their connection with the case and identity should be proved by witnesses."

Reliance is also placed on Rustam Ali Shar v. The State (2024 PCr.LJ 68) and Nasrullah alias Momin and another v. The State (2023 PCr.LJ 589) and Reliance is also placed on the case titled as Zeenat Ali v. The State (2021 PCr.LJ 1294).

11. The issue of safe custody of recovered articles or case property from an accused requires paramount consideration especially in criminal offences for which an accused could be convicted for mere possession of such articles/property. The superior courts, in a series of precedents, time and again emphasized on the importance of safe custody in such cases. In the following cases the superior courts, inter alia, noted that the Moharir Malkhana was not produced as witness and laid great emphasis on the significance of proving safe custody and transmission: i. Said Wazir and another v. The State and others (2023 SCMR 1144) ii. Muhammad Hazir v. The State (2023 SCMR 986) iii. Javed Iqbal v. The State (2023 SCMR 139) iv. Akhtar Gul v. The State (2022 SCMR 1627) v. Abdul Ghani and others v. The State and others (2019 SCMR 608) vi. Muhammad Younis v. The State (2021 PCr.LJ 851)

12. Moreover, the trial court made an observation, in the impugned judgment, that the pistol (Ex. P1) was sent to PFSA in the other case which was functional, and crime empties were also recovered in that case which matched with it. However, the record of the instant case reveals that no such report was produced/exhibited during the judicial proceedings of this case. Evidence given by a witness in judicial proceedings of one case cannot be read into another case except as provided under the Qanun-e-Shahadat Order, 1984 (QSO). The Supreme Court expressed a similar view in a case titled as Nur Elahi v. The State and others (PLD 1966 SC 708) the relevant part of which reads as under:

"The question then is what should be the procedure to be adopted by the learned trial Judge in disposing of these two cases. It has been conceded by the learned Advocate-General as well as by Ch. Nazir Ahmad Khan who appeared for the three accused persons in the complaint case, that paragraph 8 of the judgment of the learned Single Judge, in so far as it directed that witnesses should be examined only once and their statements read out as evidence in the other case, is not supportable in law. To that extent, the appeal is well-founded and must succeed on this point."

The Supreme Court in a subsequent case titled as Muhammad Sarwar and others v. Khushi Muhammad and another 2008 SCMR 350 reiterated the abovementioned view, and the relevant excerpt reads as under:

"6....In the absence of any exceptional circumstances, the evidence recorded in one case may not hold good for the other case. The trial Court did not give any special reasons as to why it was not practicable or convenient to record the evidence in both the cases separately...."

Likewise, the Supreme Court in a more recent case titled as Khalid Mehmood alias Khaloo v. The State (2022 SCMR 1148) reaffirmed the aforenoted position of law and its relevant passage is reproduced below for ready reference:

"6.... It is admitted position that the learned Trial Court while convicting the appellant had relied upon the medical evidence comprising the postmortem report and the statement of the doctor in the earlier trial of the three co-accused of the appellant but the same was never exhibited during the current trial of the appellant. This Court in the case of Nur Elahi v. Ikram ul Haq and State (PLD 1966 SC 708) has categorically held that "witnesses should be examined only once and their statements read out as evidence in the other case is not supportable in law". It was further held that "every criminal proceeding is to be decided on the material on record of that proceeding and neither the record of another case nor any finding recorded therein should affect the decision and if the court takes into consideration evidence recorded in another case or a finding recorded therein the judgment is vitiated." The judgment in Nur Elahi supra case was further reiterated by this Court in Muhammad Sarwar v. Khushi Muhammad (2008 SCMR 350) wherein it has been held that "the evidence recorded in one case may not hold good for the other case." In view of the law laid down by this Court, it can safely be said that the learned Trial Court could not have relied upon the medical evidence that was brought on record in the earlier trial of the three co-accused of the appellant....."

13. Another noteworthy aspect of the case is that there are contradictions in the testimonies of Muhammad Naeem ASI (PW-1) and Shams-ul-Akbar (IO/PW-2) regarding the exact time of occurrence. The PW-1, during cross-examination, deposed that the police officials along with the appellant departed from police station CTD at about 2:15 pm whereas the PW-2 in his cross-examination deposed that they left the police station soon after the disclosure of appellant in physical remand and reached the place of recovery at about 3 pm. However, according to the complaint as well as FIR the time of occurrence is stated as 2:15 pm and at that time the appellant purportedly entered the graveyard and got recovered the pistol (Ex. P1). Thus, the version advanced by both the PWs is in direct contradiction with their own complaint and FIR. The said PWs accompanied the appellant in the whole process and witnessed the entire recovery proceedings, so their contradictory statements regarding time of occurrence cannot be overlooked as mere minor discrepancies. Even there is nothing on record to corroborate the assertions of PW-1 and PW-2 regarding the time of departure/arrival from the police station. There is another contradiction regarding the item in which the pistol (Ex. P1) was wrapped when it was recovered from the graveyard. As per the complaint and FIR the said pistol was wrapped in an envelope of blue colour whereas the PW-1 deposed (in cross-examination) that it was wrapped in a shopper of black colour and the IO/PW-2 deposed (in examination-in-chief) that it was wrapped in a shopper of blue colour. These contradictions raise serious doubts on the credibility of prosecution's witnesses.

14. Further, certain crucial documents were not properly exhibited during trial. The recovery memo. of the pistol (Ex. P1) was not exhibited and labeled with letters. Likewise, the complaint and FIR of the instant case were not exhibited and labeled, but: originals of the same are appended with the record of the case. The trial court, in the impugned judgment, referred to the foregoing documents with certain exhibits/labels (marked with letters), but the record is conspicuously clear regarding non-existence of such exhibits/labels on those documents. The only document which was properly exhibited and marked with letter is the un-scaled site-plan of place of recovery i.e. Ex. PA.

15. As a result of the above discussion, this Court concludes that the prosecution did not prove its case against the appellant beyond reasonable doubt. It is reasonably probable that the appellant neither made any disclosure in custody of police nor led them to the place of recovery. Further, the evidence of the prosecution is neither confidence inspiring nor unimpeachable. Thus, the appellant is entitled to the benefit of doubt. In this regard reference is made to the following judgments: i. Ahmad Ali and another v. The State (2023 SCMR 781)

"12. Even otherwise, it is well settled that for the purposes of extending the benefit of doubt to an accused, it is not necessary that there be multiple infirmities in the prosecution case or several circumstances creating doubt. A single or slightest doubt, if found reasonable, in the prosecution case would be sufficient to entitle the accused to its benefit. not as a matter of grace and concession but as a matter of right. Reliance in this regard may be placed on the cases reported as Tajamal Hussain v. The State (2022 SCMR 1567), Sajjad Hussain v. The State (2022 SCMR 1540), Abdul Ghafoor v. The State (2022 SCMR 1527 SC), Kashif Ali v. The State (2022 SCMR 1515), Muhammad Ashraf v. The State (2022 SCMR 1328), Khalid Mehmood v. The State (2022 SCMR 1148), Muhammad Sami Ullah v. The State (2022 SCMR 998), Bashir Muhammad Khan v. The State (2022 SCMR 986), The State v. Ahmed Omer Sheikh (2021 SCMR 873), Najaf Ali Shah v. The State (2021 SCMR 736), Muhammad Imran v. The State (2020 SCMR 857), Abdul Jabbar v. The State (2019 SCMR 129), Mst. Asia Bibi v. The State (PLD 2019 SC 64), Hashim Qasim v. The State (2017 SCMR 986), Muhammad Mansha v. The State (2018 SCMR 772), Muhammad Zaman v. The State (2014 SCMR 749 SC), Khalid Mehmood v. The State (2011 SCMR 664), Muhammad Akram v. The State (2009 SCMR 230), Faheem Ahmed. Farooqui v. The State (2008 SCMR 1572), Ghulam Qadir v. The State (2008 SCMR 1221) and Tariq Pervaiz v. The State (1995 SCMR 1345)."'

(ii) Mst. Hajira Bibi alias Seema and another v. Abdul Qaseem and another (2023 SCMR 870)

"For the accused to be afforded this right of the benefit of the doubt, it is not necessary that there should be many circumstances creating uncertainty and if there is only one doubt, the benefit of the same must go to the accused." iii. Bashir Muhammad Khan v. The State (2022 SCMR 986)

"It is a settled law that single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefits, not as a matter of grace and concession but as a matter of right. The conviction must be based on unimpeachable; trustworthy and reliable evidence. Any doubt arising in prosecution's case is to be resolved in favour of the accused and burden of proof is always on prosecution to prove its case beyond reasonable shadow of doubt." iv. Atif Zareef and others v. The State (PLD 2021 SC 550)

"The rule of giving benefit of doubt to accused person is essentially a rule of caution and prudence and is deep rooted in our jurisprudence for safe administration of criminal justice. Releasing a guilty by mistake is better than punishing an innocent by mistake. We, therefore, accept this appeal to the extent of appellant Nafees Ahmad, set aside his conviction and sentence, and acquit him of the charge by extending him the benefit of doubt." (Emphasis added). v. Muhammad Aslam v. The State (2011 SCMR 820)

It is well settled legal principle regarding dispensation of justice in criminal case that if any reasonable doubt is created in the case of the prosecution then its benefit is to be extended to the accused party". vi. Reliance is also placed on the case titled as Tariq Pervaiz v. The State (1995 SCMR 1345).

16. In view of the foregoing, this criminal appeal is allowed. The impugned judgment dated 18.01.2023, passed by the Additional Sessions Judge, Islamabad (West), whereby appellant has been convicted and sentenced, is set aside. The appellant is acquitted of all the charges in case FIR No. 9/22, dated 25.05.2022, offence under sections 13/20/65 of the Arms Ordinance, registered at police station CTD, Islamabad. The jail authorities shall release the appellant forthwith if his custody is not required in any other case.

JK/101/Isl. Appeal allowed.