RIAZ alias RAJA Versus State
MUHAMMAD IQBAL MAHAR, J. ---Appellant Riaz alias Raja has challenged the judgment dated 23.08.2011 passed by learned 1st Additional Sessions Judge, Sukkur in Sessions case No.219/2005 arising out of crime No.44/2005 registered at Police Station, Baiji Sharif, whereby he was convicted for offence under section 13(e), Arms Ordinance, 1965 and sentenced to suffer R.I for three years and to pay fine of Rs. 10,000/-, in case of default of payment of fine to suffer S.I for three months more. However benefit of section 382-B, Cr.P.C. was extended to him.
2. Precisely, prosecution case is that the appellant was under arrest in crime No. 41/2005 and on 09.08.2005 during interrogation he volunteered to produce Kalashnikov, used in main case. It is alleged that the appellant led the police party headed by complainant SIP, Hidayatulah Abbasi, SIO, of Police Station, Baiji Sharif towards jungle and when they reached near the house of appellant situated in Village Daterdino Kalhoro, produced Kalashnikov along with magazine and 10 live bullets from a protective Band at 1330 hours in presence of the private mashirs Fateh Mohammad and Moulvi Mohammad Ashraf Abbasi. On inquiry the appellant disclosed that the Kalashnikov is without permit. The complainant prepared such mashirnama and brought the accused and property at Police Station and lodged the FIR on behalf of State.
3. The Police after usual investigation submitted challan in the Court of law. A formal charge was framed against the appellant at Ex.2, to which he pleaded not guilty and claimed trial, such plea was obtained at Ex.3.
4. In order to establish the case, prosecution examined PW-1 HC, Rustam Ali at Ex.-04, PW-2 SHO Hidayatullah Abbasi at.Ex.05, who produced copy of memo of recovery, FIR, extract of departure and arrival entry at Ex.5-A to 5-C and PW-3 mashir Mohammad Ashraf at Ex.09. Thereafter learned DDPP for the State closed the prosecution side vide statement at Ex.10.
5. After conclusion of the prosecution evidence, learned trial Court recorded statement of the appellant/ accused as required under section 342, Cr.P.C. at Ex.11 in which he denied the allegations, claimed innocence and further stated that he has falsely been implicated in the case and alleged Kalashnikov has been foisted upon him. The appellant did not examine himself on oath but he led to produced PW Gulzar Ahmed in his defence.
6. The learned trial Court after hearing learned Counsel for appellant, learned DDPP for the State and appraising the evidence passed impugned judgment.
7. Learned Counsel for the appellant contended that the impugned judgment passed by learned trial Court is against the law and facts of the case; that the impugned judgment is not sustainable under the law; that the appellant is innocent and has falsely been involved in this case by the complainant at the instance of complainant of main case; that the Kalashnikov has been foisted upon him; that neither the alleged Kalashnikov was sealed nor it was sent to the Ballistic Expert for report; that original entries were not produced by the complainant; that there are material contradictions in the evidence of prosecution witnesses, which create doubt. He lastly concluded that the prosecution has failed to prove its case against the appellant beyond shadow of doubt, hence the appellant is entitled for acquittal. In support of his contention, learned counsel for the appellant relied upon case of Mashooq Ali Mallah v. The State (2016 PCr.LJ Note 8).
8. Learned Deputy Prosecutor General supported the impugned judgment and submitted that the Kalashnikov was recovered from the possession of the appellant in presence of private mashirs; that all the prosecution witnesses have fully supported the case, hence according to him the prosecution has proved its case beyond any reasonable doubt, therefore appellant is not entitled for acquittal.
9. I have carefully considered the submissions made by learned counsel for the appellant, learned DPG for the State and examined the evidence adduced by prosecution before learned trial Court.
10. Perusal of record reflects that the prosecution examined three witnesses, i.e. PC Rustam Ali, complainant SIP, Hidayatullah Abbasi and co-mashir Muhammad Ashraf but did not produce main mashir Fateh Muhammad in the Court.
11. As per prosecution case alleged Kalashnikov and bullets, allegedly recovered from the appellant, were neither sealed nor sent to the Ballistic Expert for verification as to whether the Kalashnikov was in working condition and nor any report, in this regard, has been produced in the evidence. In this regard complainant Hidayatullah Abbasi and PC, Rustam Ali have admitted in their evidence that the recovered Kalashnikov and bullets were not sealed at the place of recovery nor sent to the Expert. Furthermore, the Police party left Police Station through Roznamcha entry, but original departure and arrival entries had not been produced in support of departure from Police Station, which cast serious doubt upon the veracity of the prosecution case. In case of Mashooqur Ali Mallah v. The State (supra) Division Bench of this Court has held as under:
"While appreciating above evidence, it is manifest that the mashirnama of arrest and recovery dated 02.12.1998 reflects that K.K allegedly recovered from the possession of the appellant was neither sealed at the spot nor it was sent to the forensic and ballistic expert in order to know if the K.K allegedly recovered from the possession of the appellant was in working condition. PW.2 Asad Nabi in his evidence has categorically stated that "it is correct that K.K and bullets recovered from the accused were not sealed by the SHO in my presence." Besides police party had left Police station through Roznamcha entry No.4 but it is patent that original departure and arrival entries have not been produced at trial in order to show that police party had actually left Police Station for investigation of Crime No. 82/1998 registered at Police Station Badeh under sections 302, 34, P.P.C.........
Above stated circumstances/defects in the prosecution case are sufficient to hold that the prosecution had failed to prove its case against the appellant and prosecution case is highly doubtful."
11. Perusal of record further reflects that the place of recovery is protective Band, an open place, hence, it cannot be said that it was in exclusive possession of the appellant. In this respect, I am fortified by a decision of Division Bench of this Court in case of Abdul Ghani v. The State (2002 MLD 1075) wherein it has been held as under:
"Admittedly the place of recovery is an open place and cannot be said that it was a place exclusively in possession of the appellant; Kalashnikov has not been sealed at the spot, there is no entry number through which the police party has left the police station along with accused to the pointed place where the recovery is said have been effected; there is no evidence with the prosecution proving that crime weapon has been sent to the ballistic expert; no independent mashir has been associated on the factum of recovery."
12. I have also examined the evidence of the PWs, there are material contradictions and lacunas. At the time of examination of complainant the accused and case property were not shown to him in Court for the purpose of identification. The complainant deposed that the memo of recovery was prepared by PC but the mashir deposed that memo was prepared by complainant. The mashir further deposed that his signature was obtained on memo of recovery at Police Station. The discrepancies and lacunas stated above cannot be ignored while deciding the case and on the basis whereof, no conviction could be recorded but the learned trial Court has not taken into consideration while passing impugned judgment.
13. For what has been discussed above, I am of the opinion that the prosecution has failed to prove its case against the appellant beyond any shadow of doubt and it is settled law that benefit of doubt if any arising would go to the accused. In this regard reference can be made to case of Tariq Parvez v. The State (1995 SCMR 1345) and Muhammad Akram v. The State (2009 SCMR 230), wherein it has been held by honourable Supreme Court that:
"For giving benefit of doubt to appellant it is not necessary that there should be many circumstances creating doubts. If there is a single 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 matter of right".
14. Keeping in view the aforesaid circumstances and precedents of honourable Supreme Court and Division Bench of this Court, instant Criminal appeal was allowed and impugned judgment dated 23.08.2011, passed by learned 1st Additional Sessions Judge, Sukkur, was set aside. The appellant/accused was acquitted of the charge. The above are the reasons of my short order dated 08.10.2018.
JK/R-36/Sindh Appeal allowed.