DAIM Versus State
MUHAMMAD SALEEM JESSAR, J.--- Through this Criminal Appeal appellant Daim has assailed judgment dated 09.11.2016 handed down by learned 4th Additional Sessions Judge, Shaheed Benazirabad in Sessions Case No.102 of 2016 (re: The State v. Daim) being outcome of FIR No.05/2016 registered at Police Station Airport Nawabshah, under section 23(1)(a), Sindh Arms Act, 2013, whereby appellant has been convicted for offence punishable under section 23(1)(a), Sindh Arms Act, 2013 and sentenced to suffer R.I. for five (5) years and to pay fine of Rs.25,000/- (Rupees Twenty Five thousand only) and in default to suffer S.I. for six months more. However, the accused was extended benefit of section 382-B, Cr.P.C.
2. Concisely, the facts of prosecution case are that on 21-02-2016 complainant ASI Sikander Ali Vistro of Police Station Airport lodged aforesaid FIR alleging therein that he along with PC Fayaz Ahmed, PC Muhammad Ans and PC Arif Ali, proceeded in dress duly armed with government ammunition from Police Station vide entry No. 16 at about 17:10 hours for patrolling in official vehicle. During patrolling police party reached near Talpur Railway level crossing where they saw that one person crossed Railway level crossing and came at Market Road; however on seeing the police party said person returned back. Looking the said person as suspected, police party apprehended him tactfully. Due to non-availability of private witnesses, complainant associated PC Fayaz Ahmed and PC Muhammad Ans as Mashir and inquired from accused about his name and address, who disclosed his name as Daim son of Muhammad Bux Khaskheli, resident of village Momin Dahri. Upon personal search of accused one Pistol along with magazine was recovered from left fold of his Shalwar. Complainant checked the pistol and found 05 live bullets lying in its magazine. From front pocket of accused cash of Rs.100/- was recovered. On demand accused could not produce license for the pistol and the bullets. Complainant sealed the pistol, prepared memo of recovery and returned to police station where he registered instant case against the accused.
3. After completing usual investigation challan was submitted before the concerned court. Thereafter, a formal charge was framed against the accused at Ex. No. 2, to which he pleaded not guilty vide his Plea Ex. No. 2/A.
4. In order to prove its case prosecution examined two witnesses viz. PW-1, complainant ASI Sikander Ali Vistro at Ex. No. 3, who produced copy of entry No. 16 of daily diary as Ex. 03/A, memo of recovery as Ex. No. 3/B, entry No: 23 of daily diary as Ex: 03/C, FIR as Ex: 03/D and report of ballistic expert as Ex.03/E.PW-2 PC Fayaz Ahmed, mashir of arrest and recovery, was examined at Ex.
4. Thereafter, learned ADPP for the State closed side of prosecution vide his Statement Ex. No. 5.
5. Statement of accused under section 342, Cr.P.C. was recorded vide Ex. 6, in which accused claimed to be innocent and stated that the evidence against him is false. However, neither he examined himself on oath under section 340(2), Cr.P.C. nor produced any witness in his defence.
6. After formulating the points for determination, recording evidence of prosecution witnesses and hearing counsel for the parties, learned trial Court vide impugned judgment convicted and sentenced the accused / appellant, as stated above. Against the said judgment instant appeal has been preferred by the convicted accused.
7. I have heard learned counsel for the parties and perused the material available on the record.
8. Learned counsel for the appellant submitted that the accused has been falsely involved in the present. According to him, in fact, the accused was arrested from a hotel and the police demanded illegal gratification from him and on his refusal, he has been falsely implicated in the case. He further contended that no independent witness has been examined and the prosecution witnesses are police officials, as such their evidence is not of worth-reliance. He further contended that there is also violation of section 103, Cr.P.C. as no private witness of the locality has been associated as mashir and both the mashirs are police officials although it has come in evidence that the place of arrest and alleged recovery was a populated area. He further contended that the impugned judgment suffers from misreading and non-reading of evidence and that there are material contradictions in the evidence of prosecution witnesses. Learned counsel lastly prayed for allowing instant appeal and acquittal of the accused/appellant.
9. Conversely, learned A.P.G. appearing for the State opposed the grant of appeal. According to her, prosecution has succeeded in proving its case against the accused beyond shadow of reasonable doubt as such the accused has rightly been convicted by the trial Court. She further submitted that the evidence of police officials is also as good as the evidence of any other independent witness and their evidence cannot be discarded merely for the reason that they are police officials. She prayed for dismissal of the appeal and upholding the impugned judgment.
10. From the perusal of the evidence of complainant/P.W.1 ASI Sikandar Ali, who is also Investigating Officer of the case, and that of P.W.2 PC Fayaz Ali, who acted as mashir of arrest and recovery, it appears that they have made certain admissions which are fatal to the prosecution case. The complainant/I.O. ASI Sikandar Ali in his examination-in-chief, inter alia, deposed, "After lodging of FIR, I investigated the case." In his cross-examination he made following admissions:
"It is correct to suggest that Sakrand Road and Lal Building are thickly populated areas of city...... It is correct to suggest that Talpur Railway Crossing is a busy place. I requested to some persons crossing thereby for acting as witness, but they not prepared to be a witness. PC Fiaz Hussain requested to peoples for acting as witness...... It is correct to suggest that original book of Roznamcha was not produced before this Court I do not remember the date, when pistol was sent to Ballistic Expert...."
11. P.W.2 PC Fayaz Ali, who acted as one of the mashirs of memo of arrest and recovery, in his examination-in-chief, inter alia, deposed, "ASI tried to associate private witnesses but nobody was ready to act as witness."
12. From above, certain discrepancies/legal flaws have emerged from the prosecution case. Firstly; it seems that the complainant/I.O. did not associate any private person of the locality to act as mashir of arrest and recovery. Although he has tried to justify such fault on his part by saying that although he asked the people to act as mashir but they were not prepared. P.W. 2/Mashir, PC Fyaza Ali also made similar statement in his evidence. Needless to observe that the complainant/I.O. of the case while effecting arrest of the accused and recovery of the weapon, was not supposed to only fulfill a formality by merely asking private persons present at the spot to act as mashir but he should have utilized his powers bestowed upon him under the law by issuing notice under section 160, Cr.P.C. to such person which was not done by him. Besides, the complainant although stated that he asked the persons available at the spot to act as witness/mashir but they were not prepared; however, admittedly he did not take any action under section 187, P.P.C. against such person for not providing assistance to the complainant, who was a public servant and was performing his official duty.
13. Needless to emphasize that in view of provisions of section 103, Cr.P.C. the officials making searches, recoveries and arrests, are reasonably required to associate private persons, more particularly in those cases in which presence of private persons is admitted so as to lend credence to such actions, and to restore public confidence. This aspect of the matter must not be lost sight of indiscriminately and without exception. In the case reported as State v. Bashir and others (supra) Honourable Supreme Court held as under:
"As regards above second submission of Mr. M.M. Aqil, it may be observed that it has been repeatedly held that the requirements of section 103, Cr.P.C. namely, that two Members of the public of the locality should be Mashirs of 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."
14. Yet in another case reported as Yameen Kumhar v. The State (PLD 1090 Karachi 275) this Court after discussing various case-laws on this point held as under:
"A perusal of the aforestated authorities and a catena of judgments of various High Courts which we have not quoted here clearly lay down that section 103, Cr.P.C. is to be applied to recovery, search and arrest made during investigation of a crime. It has been termed as mandatory but not absolute and its non-compliance in certain circumstances will not render search and recovery illegal. However, where during investigation of a crime recovery is made from any inhabited locality compliance with section 103 must be made. It cannot be ignored or brushed aside on the whims and caprices of the Investigating Officer except on well-founded grounds and in exceptional cases. If recovery has been made in contravention of section 103, it is the duty of the prosecution to explain it and give valid and reasonable explanation for such digression. Recovery is an important piece of evidence which is to be proved by disinterested, independent and respectable witnesses. Such witnesses should be of the locality if the circumstances of the case permit. Section 103 embodies rule of prudence and justice. It is intended to eliminate and guard against 'chicanery' and 'concoction', to minimise manipulation and false implication. It is for these reasons that there is a consensus in the Superior Courts that compliance with section 103 should not be bypassed nor that its applicability be restricted to proceedings under Chapter VII only. The principles of section 103 have been applied and practised during investigation in crimes for so long and with such regularity and force that any attempt to restrict it to proceedings under Chapter VII only will unsettle the settled law.
The provisions of Chapter VII make it clear that they relate to the search of any place but it cannot be restricted only to house or a closed place, it can be an open place, open area, a. playground, field or garden from where recovery can be made for which search is conducted. Although in strict sense the provisions of section 103 are restricted to searches under Chapter VII of Cr.P.C. it has become a practice to apply it to all recoveries made by the Police Officers while investigating any crime. The rules of justice enunciated by section 103 are so embedded in our criminal jurisprudence and so universally accepted that in all criminal cases two mashirs are always cited for recovery and reliance is placed on these witnesses in the ordinary course provided they are independent, respectable and inhabitants of the locality. The residence of the mashirs becomes relevant depending on the facts of the case. The emphasis should be on respectability."
15. Learned trial Court in the impugned judgment, while dealing with the defence plea regarding violation of the provisions of section 103, Cr.P.C. observed, "Association of two respectable inhabitants of locality and provision of section 103, Cr.P.C. is not applicable to cases as provided under section 34 of Sindh Arms Act, 2013." In this respect, it may be observed that the provisions of section 34 of the Arms Act do not expressly exclude the provisions of section 103, Cr.P.C. to be applied in the cases under the Sindh Arms Act, 2013, but it simply provides that besides private persons, police officials can also be associated as mashirs of recovery. In this connection, it would be advantageous to refer to the case of Shan v. The State reported in 2015 PCr.LJ 747 [Sindh] wherein it was held as under:
"12. It is significant to mention that section 34 of Sindh Arms Act has not expressly excluded the provisions of section 103, Cr.P.C. But on the contrary, section 34 has provided a legal cover that police officials also can act as witnesses of recovery besides the private persons. The proviso to section to section 34 of Sindh Arms Act provides that any police officer or present person present on the spot can be witness of search and recovery, therefore, it was prime duty of the police to prefer a private witness if available at the spot to maintain transparency and fairness of the alleged recovery. It is the prime duty of Courts to ensure during the course of the administration of justice that there must be a plausible explanation for non-association of witnesses from public."
16. In the above-cited judgment, reference was also made to a letter bearing No. J.P.32-R(S)/88-SCJ, dated 20th August, 1990 duly sent by learned Registrar of Honourable Supreme Court of Pakistan to Inspectors General of Police of all the four provinces of Pakistan on the point of association of private witnesses in the process of recovery in criminal cases. It would be advantageous to reproduce hereunder the relevant portion from the said letter of Honourable Supreme Court:
"It has come to the notice of this Court that in a large number of criminal cases, the witnesses of recovery are from the police force and that the Police Officers concerned when appearing before the Court are often unable to give satisfactory explanation, why they failed to associate witnesses of the public in a case where the raid/recovery was planned well in advance. This Court has, therefore, directed that the requirement of associating non-officials witnesses in such cases should be impressed upon all concerned.
(2) The Court has also directed in this context that the Courts should also examine two aspects of the issue in such cases. Is there a plausible explanation for not associating witnesses from the public; and whether some features of the cases in addition to ocular account given by the Police Officials support the prosecution version when denied by the defence.
(3) It is suggested that the above orders of this Court should be brought to all concerned for strict compliance."
17. In view of aforesaid factual and legal position, alleged recovery of the pistol along with live bullets from the accused becomes doubtful.
18. Another discrepancy / legal flaw in the prosecution case is that although .30 bore T.T. Pistol along with live bullets was allegedly recovered from the possession of accused/appellant on 21.02.2016, as admitted by the prosecution witnesses; however, the said weapon was sent to Forensic Science Laboratory on 02.03.2016 i.e. after ten (10) days of its alleged recovery which is evident from the report of FSL Ex.03/E. No plausible explanation has come forward from prosecution side for such delay in sending the weapon to FSL, which creates doubt in the veracity and credibility of such recovery as well as the report of FSL, more particularly when the complainant/I.O. also does not claim that he had deposited the alleged recovered pistol in the Malkhana/safe custody during the intervening period. In the case reported as Samandar alias Qurban and others v. The State reported in 2017 MLD 539 Karachi, while dealing with the point of delay in sending the weapon to Ballistic Expert, this Court held as under:
"Apart from above sending of crime weapon to ballistic expert for forensic report with delay of 20 days of their recovery also added further doubt into the prosecution case, thus in view of above coupled with non-compliance of section 103, Cr.P.C., it can safely be presumed that alleged recovery of crime weapon was not made from the possession of the appellants as alleged by the prosecution."
19. In the case reported as Yaqoob Shah v. The State (1995 SCMR 1293) Honourable Supreme Court held that the report of the Fire-Arm Expert was of no avail to the prosecution as the crime empties and the fire-arms allegedly recovered from the accused were sent to Forensic Science Laboratory after delay. Reference in this respect may also be made to the decision reported as Ghulam Hussain and 2 others v. State (1998 PCr.LJ.779). In the circumstances, report of the ballistic expert, even might be in positive, would lose its sanctity.
20. It is also an admitted position that the complainant himself investigated the entire case and submitted challan before the concerned court. Such conduct of the police official has not been appreciated by the Superior Courts. In the case of Nazeer Ahmed v. The State reported in PLD 2009 Karachi 191 this Court, while dealing with this point, held that Police Officer who simultaneously is the complainant as well as the Investigating Officer of the case, cannot be expected to collect and preserve evidence which goes against his case and that such Investigating Officer cannot properly perform duties of an independent and fair investigating officer. Reference in this connection can also be made to the cases reported as Mohammad Siddique v. The State (2011 YLR 2261 [Karachi]) and Mohammad Akram v. The State (1995 MLD 1532 [Peshawar]).
21. Yet in the case of STATE through Advocate General, Sindh v. Bashir and others (PLD 1997 Supreme Court 408), Honourable Mr. Justice Nasir Aslam Zahid (as he then was),being a member of the Bench which decided the case, while adding his note in the said judgment and referring to Para 3 of Rule 25.2 in Chapter XXV of the Police Rules, 1934, observed as under:
"It could hardly be expected that a police officer, who is heading a raiding party and is a witness, also becomes the complainant and lodged an FIR against the accused, and then becoming an Investigating Officer of the same case, will comply with the aforesaid Police Rule. In the circumstances, the practice of the seizing officer or the head of a police party who is also a witness to the crime becoming or being nominated as an Investigating Officer of the same case should be avoided and if any other competent officer is available in the police station he may be nominated as the Investigating Officer rather than the head of the Police Party. As observed, Investigating Officer is an important witness for the defence also and in case the head of the police party also becomes the Investigating Officer he may not be able to discharge his duties as required of him under the Police Rules."
22. It is also now well settled that the prosecution is bound under the law 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 conviction must be based and founded on unimpeachable evidence and certainty of uilt and any doubt arising in the prosecution case must be resolved in favour of the accused. In the case reported as Wazir Mohammad v. The State (1992 SCMR 1134) it was held by Honourable Supreme Court as under:
"In the criminal trial whereas it is the duty of the prosecution to 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 the prosecution."
23. In another case reported as Shamoon alias Shamma v. The State (1995 SCMR 1377) it was held by Honourable Supreme Court as under:
"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 the accused 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 prosecution, the question of burden of proof on the accused to establish his plea in defence does not arise."
24. The accumulative effect of the abovesaid infirmities and legal flaws in the prosecution case is that the prosecution has not succeeded in discharging its obligation to prove the case beyond shadow of reasonable doubt. Needless to emphasize the well settled principle of law that the accused is entitled to be extended benefit of doubt as a matter of right. In the present case, there are many circumstances which create doubts in the prosecution case. Even an accused cannot be deprived of benefit of doubt merely because there is only one circumstance which creates doubt in the prosecution story. In the case reported as Tariq Pervaiz v. The State 1995 SCMR 1345 the Honourable Supreme Court held as under:-
"The concept of benefit of doubt to an accused is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right."
25. For the foregoing reasons by a short order passed on 31.10.2019, instant appeal was allowed. Consequently, impugned judgment dated 09.11.2016 handed down by learned 4th Additional Sessions Judge, Shaheed Benazirabad in Sessions Case No.102 of 2016 (re: The State v. Daim) being outcome of FIR No.05/2016 registered at Police Station Airport Nawabshah, under section 23(1)(a), Sindh Arms Act, 2013, was set aside and appellant Daim son of Mohammad Bux Khaskheli was acquitted of the charge and was ordered to be released forthwith, if his custody was not required in any other criminal case.
Above are the reasons for the said short order.
SA/D-19/Sindh Appeal allowed.