ZAFFAR Versus State
MUHAMMAD SALEEM JESSAR, J.--- Through this Criminal Appeal, the appellant has challenged the Judgment dated 12.04.2018 passed by the learned 1st Additional Sessions Judge, Kamber in Sessions Case No.412 of 2016 (Re: The State v. Zafar Kalhoro) arising out of Crime No.59 of 2016 of P.S Mahi Makol, whereby he convicted the appellant for offence punishable under section 24 of Sindh Arms Act, 2013 and sentenced him to suffer R.I. for 03(three) years and to pay fine of Rs.5,000/- (Rupees Five Thousand only) and in case of non-payment of fine, to undergo S.I. for one month more.
2. Succinctly, the facts of the prosecution case, as unfolded by complainant ASI Munawar Ali Lahori in FIR No.59 of 2016, registered at P.S. Mahi Makol, are that on 05.12.2016, accused/appellant Zaffar Kalhoro, who was already arrested in main case bearing Crime No.55 of 2016, under sections 324, 337-H(2)/34, P.P.C., registered at P.S Mahi Makol and was confined in police lockup under P.C. remand, consequent upon interrogation by the complainant vide entry No. 13 at 1330 hours, showed his willingness to produce the crime weapon used in the aforesaid crime. Accordingly, the complainant took accused and left the P.S in police mobile along with P.C Muhammad Soomar, P.C Saleem Ali, P.C Ashique and private mashirs namely, Sain Bux and Karim Bux as well as DPC Abdul Karim vide DD Entry No.14 recorded at 1400 hours. When they reached near the house of accused Zaffar Kalhoro, situated at village Esso Kalhoro, the accused asked them to stop the mobile. When the mobile was stopped, the accused led them inside the room of his house, wherefrom he took-out one SBBL gun of .12 bore kept in an Iron Trunk and voluntarily produced the same before the complainant in presence of above-named private mashirs. Then the complainant sealed the gun at the spot and prepared such memo in presence of above-named private mashirs. Thereafter, they returned back to police station along with accused and secured property, where complainant registered FIR No.59 of 2016 under Section 24, Sindh Arms Act, 2013 against the accused/appellant on behalf of the State.
3. The charge against the accused/appellant was framed under section 265D, Cr.P.C. as Ex.2, to which he pleaded not guilty and claimed to be tried vide his plea as Ex.2/A.
4. In order to prove the charge against the accused, the prosecution examined complainant ASI Munawar Ali Lahori at Ex.3, who produced copies of DD entries Nos.13 and 14, carbon copy of memo of arrest and recovery, carbon copy of DD entry No.16, FIR, memo of place of wardhat and ballistic expert report as Ex.3/A to 3/H respectively. P.W. Sain Bux Korejo, who acted as mashir, was examined at Ex.4. Thereafter, prosecution side was closed vide statement Ex.5.
5. Statement of the accused under section 342, Cr.P.C. was recorded as Ex.6, wherein he denied the prosecution allegations and professed his innocence. However, neither he examined himself on oath under section 340(ii), Cr.P.C., nor produced any witness in his defence.
6. After formulating the points for determination, recording evidence of the prosecution witnesses and hearing the learned counsel for the parties, the learned trial Court, vide impugned judgment, convicted and sentenced the appellant as stated above. Against the said judgment, appellant has preferred the instant appeal.
7. Learned counsel for the appellant has contended that the appellant has been falsely involved in the present case. He further contended that there are material contradictions in the evidence of the prosecution witnesses, which make the prosecution case highly doubtful. He further contended that although the private persons were associated as mashirs but they are interested and setup witnesses as they were also the mashirs in the main case and are closely related to the complainant. According to him, no independent private witness has been examined. He further contended that the complainant himself has investigated the case, which has not been appreciated by the Superior Courts. He denied that the accused had ever led the police to the place of recovery of the crime weapon and produced the same before the police. It is further contended that there are legal flaws in the prosecution case, thus, the impugned judgment is not sustainable in the eyes of law. It is further contended that the learned trial Court has not taken into consideration properly the legal as well as factual aspects of the case and has passed the impugned judgment in a hasty and mechanical manner without appreciating the relevant law as well as the submissions made on behalf of the accused. Learned counsel further contended that the alleged weapon was sent to the Chemical Examiner for it's examination with lot of delay and therefore, he submitted that such delay on the part of the prosecution in sending the weapon to ballistic expert was fatal for the prosecution and could not be relied upon to sustain the conviction against the accused. He prayed for setting aside the impugned judgment and acquittal of the accused/appellant. In support of his contention, he has placed reliance upon the cases of Ghulam Hussain and 2 others v. The State (1998 PCr.LJ 779) and Yaqoob Shah v. The State (1995 SCMR 1293).
8. Conversely, learned A.P.G. supported the impugned judgment and contended that the prosecution has succeeded in proving its case against the accused and all the prosecution witnesses have implicated the appellant in the commission of the alleged offence. He further contended that the accused himself led the police party and produced the crime weapon. According to him, minor contradictions in the evidence of the prosecution witnesses are ignorable. He however could not controvert the fact that any inmate from the place of recovery i.e. house of the accused was made/associated as witness nor justification has been given by the I.O. for non-joining of the said independent person. He prayed for dismissal of the appeal and maintaining the conviction and sentence awarded to the appellant vide impugned judgment.
9. I have heard learned counsel for the appellant as well as learned A.P.G appearing for the State and perused the material available on the record.
10. It seems that there are contradictions in the depositions of the complainant ASI Munawar Ali Lahori and P.W. Sain Bux, who acted as mashir of recovery. According to the complainant, on 05.12.2016, he took out the accused/appellant from the lockup as the accused was already in police custody and was confined in lockup in the main case under sections 324, 337-H(2)/34, P.P.C. vide DD entry No.13 recorded at 1330 hours (Ex.03/A) and after interrogation from the accused when he showed his willingness to produce the crime weapon, the complainant along with the accused, mashirs and his subordinate staff left the P.S. vide Entry No.14 recorded at 1400 hours (Ex.03/B) and the crime weapon was allegedly recovered vide memo prepared on the same date at 1430 hours. However, mashir Sain Bux in his examination-in-chief deposed that; "We reached at place of recovery, at 1100 hours". Thus, there is glaring contradiction in the deposition of mashir vis-a-vis the deposition of the complainant as well as the entries produced as Ex.3/A and 3/B as well as mashirnama Ex.3/C.
11. The evidence of the complainant is also silent as to how the mashirs namely, P.W. Sain Bux and Karim Bux were present at the police station, however, P.W. Sain Bux in his cross-examination stated that; "ASI Munawar Ali Lahori, made a call on the mobile phone to co-mashir Karim Bux. We both were sitting together. We rushed towards P.S. on bike". He also admitted, "Complainant, in main case namely Fakir Mohammad is my uncle. Co-mashir Karim Bux is also my uncle." It is not understandable as to why the I.O. called such mashirs, who are admittedly closely related to the complainant and did not associate any other private witness of the locality, more particularly in view of the admission of mashir Sain Bux to the effect that; "It is a fact that there were houses and shops of different communities near P.S. Mahi Makol" Complainant/ASI Munawar Ali Lahori (Ex.3) had admitted in his cross-examination that the attesting witnesses/mashirs were close relatives of the complainant of the main case and the place of recovery was not only a thickly populated area but was house of the accused situated in the village, therefore, while responding to a question, he admitted in his cross-examination in following terms:-
"It is a fact that both the Mashirs are close relatives of complainant of main case namely Fakir Muhammad. It is a fact that place of recovery was situated in a large village. The family members of accused were available in the house. We handcuffed the accused while leaving the P.S. It is a fact that there is no mention about handcuffed the accused in the memo and FIR. Accused led us inside the house. About 2/3 minutes were consumed by the accused in producing the weapon."
12. In this view of the matter, when there were houses and shops near the police station, then other private persons could have easily been taken by the I.O. to associate them as mashirs of recovery. It seems that no serious efforts were made by the Investigating Officer to associate such independent persons of the locality as mashir. No doubt the applicability of section 103, Cr.P.C. is ousted by means of section 34 of the Act but when the person was going to be charged with an offence, which carries punishment in the shape of sentence, then it was incumbent upon the police officer/I.O. to associate independent persons of the locality more particularly when the mashirs brought and associated by him were inimical towards the accused being relatives to the complainant of main case and independent persons where the place of recovery was a thickly populated area, particularly when they entered into the house of the accused but none from the house inmates of the accused was made as mashir of the recovery proceedings nor justification has been furnished by the I.O. for non-joining of such independent witnesses. It is well settled principle of law that the police persons are the good witnesses as like anyone good from the public but in presence of the independent persons of the area, it was essential upon the police officer to have associated such uncontroversial persons as mashirs of the recovery proceedings only to abstain himself from any adverse or animosity ought to be occurred on his part but that has not been done by the police officer. Needless to emphasize that in view of the 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 the 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 The State v. Bashir and others (PLD 1997 SC 408), the Honourable Supreme Court has 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."
13. There is yet another legal flaw/lacuna in the prosecution evidence/case. The I.O. has admitted in his evidence that the crime weapon was allegedly recovered on 05.12.2016 vide memo Ex.13/C prepared on 05.12.2016 at 1430 hours, however, the I.O. sent the crime weapon to the Ballistic Expert for examination and report on 13.12.2016 i.e. after a delay of about 08(eight) days, which is evident from the report of the Ballistic Expert (Ex.3/h), which shows the "Date Received" as "13.12.2016". No explanation has been offered by the prosecution for such delay. Such delay also weakens the prosecution case. 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 has observed 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."
14. In the case reported as Yaqoob Shah v. The State (1995 SCMR 1293), the honourable Supreme Court has 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".
15. Furthermore, original report of the Ballistic Expert has not been produced in the evidence. The I.O. in his evidence has deposed that; "I produce attested copy of ballistic expert report at Ex.03/h," It is settled principle of law that without establishing a case where Photostat copies could be accepted in evidence as envisaged under the law, the same could not be produced in the Court, thus, the same are not admissible in evidence. In this connection, reference may be made to the case of Sanaullah v. The State reported in 1990 PCr.LJ 966, wherein it was held that without having made out a case for production of secondary evidence as envisaged by section 63 of the Evidence Act, 1872, the same could not be produced in Court and that the Court should have sent for the originals and after comparing photo copies with them should have placed the same on file, which was permissible in law. It was held that the Photostat copies were not admissible in evidence. In the instant case too, no such exercise as prescribed under the law was undertaken by the trial Court, as such, the attested copies of the report of Ballistic Expert was not admissible in evidence, thus, such piece of evidence is liable to be discarded from consideration, which would ultimately create heavy dents in the prosecution case.
16. It is also of worth-importance that in the instant case, complainant namely, ASI Munawar Ali Lahori himself conducted the investigation of the case without offering any explanation/justification as to why he did not handover the case papers to any other police officer for conducting investigation. In the case of Nazeer Ahmed v. The State reported in PLD 2009 Karachi 191, this Court did not appreciate such conduct on the part of a police officer and held that Police Officer, who himself is the complainant cannot be expected to collect and preserve the evidence, which goes against his case and that such Investigating Officer cannot properly perform the duties like 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]).
17. Reverting back to the findings of the trial court, the learned trial court has observed that the accused/appellant has not established his defence or false involvement by not examining himself on oath in terms of section 340(2), Cr.P.C, nor examined any witness in his defence, therefore, he could not establish his defence or rebut the allegation levelled against him by the prosecution is immaterial. Before going to discuss the above observation, it will be conducive to reproduce the Para-13 of the impugned judgment, which reads as under:-
"The accused Zaffar Kalhoro, has miserably failed to establish his defence plea for his false involvement in this case. Even, the accused has neither examined himself on oath under section 340(2), Cr.P.C, nor examined any witness in his defence to prove the allegations of prosecution levelled against him and in support of his defence version."
18. By holding the above, the learned trial court has not appreciated the settled principle of law that a criminal case is to be decided on the basis of totality of impressions gathered from the circumstances of the case and not on the basis of single element. Reference in this regard can be made from the case of Nadeem Ramzan v. The State (2018 SCMR 149).
19. Disinterested persons were available and were not joined in the recovery proceedings, therefore, no implicit reliance could be placed on the evidence of interested witnesses. In this regard, reference can be made from the cases of Mohammad Shafi v. Tahirur Rehman (1972 SCMR 144) and Ghulam Shabbir v. Bachal and another (1980 SCMR 708)
20. In view the aforesaid contradictions in the evidence of the prosecution witnesses, so also admissions made by them coupled with the legal flaws and lacunas in the prosecution case, as pointed out above, it can safely be held that the prosecution has not succeeded in proving its case against the accused / appellant beyond reasonable shadow of doubt. It is settled principle of law that a single circumstance, which creates doubt in the prosecution case, is sufficient to extend benefit of doubt to the accused but in this case there are several circumstances, which have created doubt in the prosecution story but unfortunately the prosecution evidence has not been appreciated by the trial Court according to the settled principle of law. Even an accused cannot be deprived of benefit of doubt merely because there is only single circumstance, which creates doubt in the prosecution case as has been observed by the honourable Supreme Court of Pakistan in the case reported as Tariq Pervaiz v. The State (1995 SCMR 1345), wherein it has been held as under:-
"The concept of benefit of doubt to an accused person 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."
21. For what has been discussed above, it can safely be held that the prosecution has miserably failed to prove its case beyond reasonable shadow of doubt and this Court in absence of the prosecution version cannot take steps forward in upholding the impugned judgment, hence, the same needs to be interfered in presence of the reasonable doubts in the prosecution story as well as keeping in view the observance of the apex Court as referred to above, therefore, by a short order dated 20.08.2018 instant Criminal Appeal was allowed and consequently the impugned judgment dated 12.04.2018, handed down by the learned 1st Additional Sessions Judge, Kamber, was set aside and the appellant/accused was acquitted of the charges. His bail bond stood cancelled and surety furnished by him, vide Surety Bond No.101 of 2018 dated 03.05.2018, was also discharged. Above are the reasons for the said short order.
JK/Z-14/Sindh Appeal allowed.