MASHOOQ ALI LAGHARI Versus State
1. MUHAMMAD SALEEM JESSAR, J.--- Through this appeal Appellant has assailed Judgment dated 09.02.2019, handed down by learned 1st Additional District and Sessions Judge, Karachi East in Sessions Case No.1905/2018 (re: The State v. Mashooq Ali), being outcome of FIR No.332/2018 registered at P.S. Mobina Town under section 23-1(A), Sindh Arms Act, 2013, whereby he convicted the accused/appellant for the offence punishable under section 23-1(A), Sindh Arms Act, 2013, and sentenced him to undergo R.I. for ten (10) years and to pay fine of Rs.10,000/- (Rupees Ten thousand only) and in default to further undergo S.I. for two months. However, the appellant was extended benefit of section 382-B, Cr.P.C.
2. The crux of the prosecution case is that on 17.11.2018 complainant ASI Ali Madad in Government Mobile of ACLC Gadap Division along with his sub-ordinates i.e. PC Imran Ali-25900, PC Asad Abbas-28074, PC Babar Bajwa 20856 was busy in patrolling in search of absconding accused. When they reached at Khatm-e-Nabuwat Chowk, behind Karachi University, they got stopped a car bearing registration No.ABL-121, Toyota probix of white color, in which two persons were sitting, which was coming from Madras Chowk in suspicious condition. The said car was stopped at some distance from which a person who was sitting in front seat alighted and ran away from the spot inside the streets, whereas the police apprehended the person who was sitting on the driving seat, who on query disclosed his name as Mashooq Ali Laghari son of Ilahi Bux and also disclosed the name of the person who had succeeded to flee away as Farooq. The police conducted his personal search and recovered one .30 bore pistol on the barrel whereof "CALL 30 Mousar Made in China by Norinco" was embossed and on the plastic handle "M20" was embossed, which was loaded with magazine along with three live rounds from the right side fold of his shalwar. On demand, he failed to produce the license for the recovered pistol, therefore, he was arrested under section 23(i)-A, Sindh Arms Act, 2013 under the memo of arrest and recovery. He also failed to produce the document of car bearing registration No.ABL-121, therefore, the same was got checked from ACLC and the said car was found to be the stolen property of FIR No.561/2018, under section 381-A, P.P.C. of P.S. Gulshan-e-lqbal. Thereafter, the accused was brought at P.S. where the FIR of this case was registered against him.
3. After completion of usual investigation I.O. submitted charge sheet, against the above named accused before concerned Magistrate.
4. A formal charge vide Ex.02 was framed against the accused on 22.12.2018 and plea of the accused was recorded vide Ex.2/A in which he pleaded not guilty and claimed to be tried.
5. In order to prove its case prosecution got examined P.W-1 ASI Ali Madad at Ex.3, who produced departure entry No.44, memo of arrest and recovery, his statement under section 161, Cr.P.C. roznamcha entry No.54 and memo of inspection of place of incident as Ex.3/A to 3/E respectively. P.W-2, ASI Muhammad Arab was examined at Ex.04, whereas P.W-3, PC Syed Asad Abbas Zaidi was examined at Ex.5, who produced FIR as Ex.5/A. P.W-4, SIP Syed Suleman Ali Shah was examined at Ex.6, who produced roznamcha entries, request letter for FSL and FSL report as Ex.6/A to Ex.6/E. Thereafter on 16.01.2019, prosecution side was closed vide statement Ex-07.
6. Statement of accused was recorded under section 342, Cr.P.C. vide Ex. 8. wherein he denied all the allegations of the prosecution levelled against him and claimed to be innocent. According to him, he was going with her mother when he met with an accident with someone. They used abusive language and issued threats that they will not leave him. Thereafter, the police came at his house and took him at P.S, and booked him in this false case. However. he neither examined himself on oath, nor produced any witness in his defence.
7. After formulating the points for determination, recording evidence of the prosecution witnesses and hearing counsel for the parties, trial Court vide impugned judgment convicted and sentenced the appellant/accused, as stated above. Against the said judgment the appellant has preferred instant appeal.
8. 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.
9. Learned counsel for the appellant contended that he has been falsely involved in the present case. He further contended that the impugned judgment is suffering from misreading and non-reading of evidence. He submitted that no independent person was associated as a witness/mashir in the case and all the witnesses are police officials and even no police official of the P.S. Mobina Town where the FIR has been lodged, more particularly the author of the FIR, has been cited as a witness by the prosecution. He further submitted that the I.O. has himself admitted that he did not obtain any entry from P.S. Mobina Town where the FIR was registered. According to him, there are material contradictions in the evidence of the prosecution witnesses, so also there are certain admissions on their part which create doubts in the prosecution case benefit whereof must have been extended to the accused. Lastly he prayed for setting aside the impugned judgment and acquittal of the appellant/accused. In support of his contentions he relied upon the case of Deedar Ahmed v. The State (2016 PCr.LJ 1911).
10. Conversely, learned Addl. PG supported the impugned judgment and opposed the grant of appeal on the ground that all the prosecution witnesses have supported the case of prosecution. According to her, there is no delay in sending the weapon to FSL. She further argued that appellant was convicted in this case on 09.02.2019 while he has been acquitted in the main case on 23.02.2018, therefore, effect of his acquittal in main case would not favour him. She prayed for dismissal of the appeal and upholding the impugned judgment.
11. It seems that there are certain contradictions / admissions in the evidence of prosecution witnesses which go against the prosecution and in favour of the accused. Complainant Ali Madad in his cross-examination made following admissions:
12. "It is correct that the place of incident comes within the jurisdiction of P.S Mobina Town. It is correct neither I made any entry at P.S. Mobina Town nor I produce the same. It is correct in memo of arrest and recovery the time of giving signal to car and the time when starting preparing the memo is same i.e. 0100 hours. PC Asad Ali took a lift from a motorcyclist to P.S. Mobina Town. The recovered car was driven by PC Imran. It is correct that on the back of memo of arrest and recovery the sketch of pistol, magazine and bullet is prepared but the same does not bear my signature........ It is correct that on sealing cloth the Crime No.332/2018 is also mentioned. Vol. says it was mentioned after registration of the case. It is correct that the one bullet is of different colour from the other two .........
13. P.W. Mohammad Arab admitted in his cross-examination as under:--
14. "It is correct traffic was available at the place of incident.
15. ASI Ali Madad did not try to collect any private person from the locality as witness of the incident.....It is correct that the sketch of the pistol does not bear any signature. It is correct that the bullets are of different color........ My statement under section 161, Cr.P.C. was recorded on 16.11.2018....."
16. P.W. Syed Asad Abbas Zaidi in his cross-examination admitted:
17. "....I took lift by a motorcyclist to P.S. Mobina Town. I did not ask the name of the motorcyclist...... It is not in my knowledge if the case property was sealed at the spot. We went to place of incident directly from the court after obtaining remand of the accused........"
18. P.W. Syed Sulleman Ali Shah, I.O. of the case, in his cross-examination made following admissions:
19. "It is correct to suggest that I did not obtain any entry from P.S. Mobina Town...."
20. From above certain important factors come on the surface which adversely affect prosecution case. In the cases under the Arms Law most important piece of evidence would be; the recovery of the alleged unlicensed weapon. In the instant case the alleged recovery of pistol loaded with three live bullets from the right fold of shalwar of the accused/appellant has been effected in presence of mashirs ASI Mohammad Arab and PC Imran Ali. Mashir Mohammad Arab in his cross-examination clearly admitted,
21. "It is correct traffic was available at the place of incident...... ASI Ali Madad did not try to collect any private person from the locality as witness of the incident."
22. It has also come in the evidence of P.W. Syed Asad Abbas Zaidi hat for proceeding towards P.S. Mobina Town he took lift of a motorcyclist which clearly shows that traffic was plying on the road and that on the signal of the police the persons driving the vehicles would have certainly stopped their respective vehicles. There is nothing on the record that the police party signaled any other person(s) driving their respective vehicles for the purpose of associating them/him as mashir of the arrest and recovery. Needless to emphasize that under the relevant rules it was incumbent upon the police party making the search, arrest and recovery to associate independent person(s) as mashir(s). There is nothing on the record that the police tried to stop any vehicle in order to make the person(s) sitting therein as mashir of arrest and recovery and issued any notice under section 160, Cr.P.C. to any such person and if any such person refused or neglected to become mashir, whether any action under section 187, P.P.C. was taken against such person or not. 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.
23. In the case reported as State v.. Bashir and others (PLD 1997 SC 408) Honourable Supreme Court held as under:
24. "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."
25. It is also worthwhile to mention here that although in the FIR name of the complainant has been mentioned as State through ASI Ali Mohammad; however, P.W. Syed Asad Abbas Zaidi in his evidence deposed,
26. "...I reached P.S. Mobina Town and lodged FIR No.332/2018 under section 23(i)-A, Sindh Arms 2013 and obtained the copy of the said FIR".
27. Another important point is that that accused/appellant has been acquitted in the main case being outcome of FIR No.561/2018 registered at P.S. Gulshan-e-Iqbal, under sections 381-A and 411, P.P.C., therefore, as per settled law if an accused has been acquitted in the main case, he is also entitled to be acquitted in another case which is offshoot of the said main case in which he has already been acquitted. However, in this regard the plea taken by learned A.P.G. is that the appellant was convicted in the instant case under the Arms Act on 09.02.2019 whereas he has been acquitted in the main case subsequently on 23.02.2019, therefore, effect of his acquittal in the main case would not favour him. In this respect, suffice it to observe that it is the settled law that the appeal is the continuation of the original case; if any authority is needed, reference may be made to the judgment of this Court passed in the case of Abdul Sattar Dero v. The State (PLD 2019 Sindh 418). It is also a settled principle of law that even subsequent events could be taken into consideration by a High Court which have surfaced during the pendency of a lis before it and has direct nexus with the subject of pending lis. In this context reference may be made to the case of Mian Rafat Mehmood v. Director General, Lahore Development Authority, Lahore reported in 2016 CLC 408 Lahore. It will be essential to reproduce the relevant caption from Para-13 of the judgment from case of Mian Rafat Mehmood (supra), which reads as under:-
28. "---- I am of the view that generally relief cannot be granted in favour of any party beyond the scope of prayer clause, however, it is equally true that the jurisdiction of this Court to look into the subsequent events, in particular those which surfaced during pendency of a lis before it and has direct nexus with the subject of the pending lis, cannot be abridged while following the principle that relief cannot be granted beyond the prayer clause. The said proposition came under discussion before the apex Court of the country in number of cases including that reported as Muhammad Shehzad Malik v. Muhammad Sohail and another (2015 SCMR 1825) wherein the august Supreme Court, while dealing with the powers of the superior courts to look into the subsequent events irrespective of the fact as to whether they are part of the prayer clause, or not, has inter alia held as under:-
29. "The learned High Court has also not taken note of the subsequent events as stated by the parties before us that legal heirs of original owner Noor Muhammad have filed suit against the petitioners and others for securing compensation of land in question. It is also settled principle of law that superior courts had ample jurisdiction to look into the subsequent events at the time of deciding the case. (emphasis provided)
30. Moreover, the stance taken by the learned counsel representing the respondents stands negated from the fact that on the one hand he is of the view that relief cannot be granted beyond the prayer clause and on the other has referred to the cases of Mst. Amina Begum and Syed Ali Asghar and 3 others (Supra) to argue that this Court can take into consideration the subsequent, events as well. In this scenario, the query regarding jurisdiction of this Court to look into the events occurred during pendency of this petition has become more important. In case the plea of the respondents that this Court can take note of subsequent events is accepted, then said power cannot be confined only to order dated 22.07.2002 or the orders preceding the same rather this Court can consider all events surfaced during pendency of this petition, including Notification, dated 24.12.2002, and the subsequent proceedings conducted on the basis thereof."
31. In view of this legal position even if the accused/appellant has been acquitted in the main case subsequent to conviction of the accused, such factor would surely favour the accused and he would be entitled to be extended benefit of such acquittal in the main case.
32. Apart from above, there are also certain other factors which put dent and create doubts in the prosecution case. For instance: (i) although FIR was lodged at P.S. Mobina Town but not a single person from the said police station has been cited as witness in the case and even the author of the FIR has not been examined by the prosecution; (ii) although it has come in the evidence that P.C. Asad Abbas took lift of a motorcyclist while proceeding towards P.S. Mobina Town but the said motorcyclist has not been examined and even his 161, Cr.P.C. was not recorded; (iii) the complainant has admitted in his evidence that there is no signature of witnesses on the sketch; (iv) that it has also been admitted that on the sealing cloth Crime No.332/2018 was mentioned although admittedly the FIR was registered at police station subsequent to sealing process; (v) there is contradiction in the two statements of the complainant i.e. one made during his evidence before the trial Court and the other made in his 161, Cr.P.C. Statement regarding pointing out the place of incident to the I.O. by the complainant; (vi) it has also been admitted by the prosecution witnesses that bullets loaded in the weapon allegedly recovered from the accused were of different colours; (vii) although complainant deposed that the case property was sealed at the spot; however, according to P.W. Syed Asad Abbas Zaidi, who was accompanying the complainant at the time of arrest of accused and recovery of case property, it was not in his knowledge if the case property was sealed at the spot; (viii) the Investigating Officer of the case admitted in his evidence that he did not obtain any entry from P.S. Mobina Town; and (ix) that Complainant Ali Madad in his examination-in-chief deposed,
33. "I then prepared my 154, Cr.P.C. statement and dispatched the same through PC Azhar for incorporating in the book of 154, Cr.P.C".
34. However, the said PC Azhar has not been examined and instead P.C. Asad Ali claims that complainant ASI Ali Madad handed over to him 154, Cr.P.C. statement for incorporating the same in the book of 154, Cr.P.C.
35. Needless to emphasize that it is a well settled principle of law 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 guilt, 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:
36. "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."
37. In another case reported as Shamoon alias Shamma v. The State (1995 SCMR 1377) it was held by Honourable Supreme Court as under:
38. "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."
39. The accumulative effect of the abovesaid contradictions, infirmities/flaws in the prosecution case is that serious dents have been put and doubts created in the prosecution case. It is well settled principle of law that the prosecution is bound under the law to prove its case against the accused beyond any shadow of reasonable doubt. In view of aforesaid defects and lacunas, it can safely be held that the prosecution has not succeeded in discharging such obligation on its part. 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:-
40. "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."
41. For the foregoing reasons, by short order dated 19.08.2019 instant appeal was allowed and the impugned judgment dated 09.02.2019, handed down by learned 1st Additional District and Sessions Judge, Karachi East in Sessions Case No.1905/2018 (re: The State v. Mashooq Ali), being outcome of FIR No.332/2018 registered at P.S. Mobina Town under section 23-1(A), Sindh Arms Act, 2013 was set aside and the appellant was acquitted from all the charges. He was ordered to be released forthwith if his custody is not required in any other criminal/custody case.
42. Above are the reasons for the said short order.
43. JK/M-233/Sindh Appeal allowed.