LOUNG through Superintendent, Central Prison, Hyderabad vs THE STATE

1. ' GHULAM RABBANI, J.--- Appellant Lounge son of Qasim Machi has challenged the judgment, dated 30-5-1995 whereby the Judge, Special Court No,I (Suppression of Terrorist Activities), Hyderabad has convicted him under section 13-D, Arms Ordinance and sentenced him to suffer R.I. For 7 years and to pay a fine of Rs,5,000 or to suffer R.I. For 6 months more, in case of his default in payment of fine.

2. ' The facts of the case, succinctly, stated are that a Kalashnikov along with 3 empty magazines in a bandolier and 431 live bullets were recovered from the appellant by the Police on 14-3-1995 at 22- 00 hours after an encounter in between the Police and the alleged culprits, including the appellant came to an end. The appellant had no license for the arm-weapon and ammunition. He was taken into custody and brought at the police station by the Police party where the S.H.O. Sekhat Police Station lodged report under section 13-D, Arms Ordinance. The recovery is shown to have taken place in presence of Mashirs as per memo. Of recovery. After the usual investigation the appellant was challenged before the Trial Court.

3. ' During the course of trial, the charge was framed against the appellant to which he pleaded not guilty and claimed trial. Consequently, the prosecution examined S.H.O. Muhammad Uris Qambrani as P.W.1 who had acted as Investigating Officer and P.W.2 A.S.-I. Hakim Ali who had acted as Mashir of recovery and arrest. Thereafter, the statement of the accused under section 342, Cr.P.C. Was recorded who also examined himself on oath. In his statement under section 342, Cr.P.C. And in his deposition he denied the alleged recovery of Kalashnikov along with 3 empty magazine and 431 live bullets without license from him.

4. ' Learned Trial Court subsequently passed the impugned judgment and awarded the conviction and sentence as stated above.

5. ' The appellant was unrepresented and was produced before us in custody. He pleaded innocence and prayed that justice be done to him. Since the appellant was unrepresented we proceeded to examine the available record with the assistance of learned counsel for the State and found that the appellant was even unrepresented before the learned Trial Court. The perusal of the record and proceedings revealed that the prosecution failed to place on record the entry of the Station Diary to show that the Police party set out to the pointed place on getting alleged spy information. It also revealed that the articles allegedly recovered from the appellant were not sealed at the time of recovery nor thereafter at any time; and that the same were also not sent to the Forensic and Ballistic Expert to know if the Kalashnikov allegedly recovered from the possession of the appellant was in working condition. Besides, P.W. Muhammad Uris S.H.O. And Investigating Officer has not specifically named or described the place from where the appellant was arrested and the alleged arms and ammunition recovered. He has simply said that when they proceeded to the pointed placed after crossing protective Bund they saw five culprits including the appellant. He has, however, given no distance of that pointed place from the Bund. Similarly, the Mashir has also deposed in his evidence that when they reached at the pointed place they saw five dacoits going and then stated that there was exchange of firing in between them and the dacoits which continued for about half an hour and after that the culprits showed their willingness to surrender and entreated that they may not be fired at and that three of them succeeded to run away whereas the remaining two inclusive of the appellant were arrested and from possession of appellant the alleged Kalashnikov and other ammunition were recovered. This witness has even not stated if after crossing the protective Bund they reached at the pointed place. The weapon and ammunition allegedly recovered from the appellant was also not shown to him while recording his statement death.

6. ' When asked, the learned State Counsel admitted that the above infirmities in the prosecution case cast doubt on the prosecution case. He frankly stated that he did not support the impugned judgment.

7. Failure of the prosecution to place in its evidence the entry of Station Diary in regard to proceeding of Police party towards the pointed place cast doubt on the prosecution case. It is for the prosecution always to establish the departure of the Police from the relevant Police station. When they set out for patrolling or to a pointed place. In the case of Fareed Ahmed Langra v. The State reported in 1998 PCr.LJ page 1368 (relevant page 1373) it has been observed that non-production of this vital document surely creates serious doubt in relation to the genuineness of the prosecution story. Non-sealing of the articles recovered is another factor which impairs the prosecution case. In the case of Sajjan v. The State reported in 1998 PCr.LJ 1399 (relevant page 1402) it has been observed that in the absence of the weapon and ammunition having not been sealed upon the recovery and in the absence of the said weapon having not been certified to be functional as well as in the absence of the weapon and ammunition not described in evidence renders the case against the appellant to be doubtful. Besides, failure of witnesses to describe the specific place of recovery is also deemed to be yet another factor to create the doubt specially by the witnesses who are the Police officials and supposed to be more careful in describing the actual details. The circumstances as appearing in the matter create doubt as to the truthfulness of the prosecution case. It is a settled principle of law that benefit of doubt always goes to an accused and for that purpose it is not necessary that there must always be multiple circumstance to create doubt. Even a single circumstance creating a reasonable doubt as to the guilt of an accused entitles him to such benefit. In the case of Tariq Parvez v. The State reported in 1995 SCM R 1345 while setting aside the conviction and sentence of an appellant therein; it has been observed that for giving an accused benefit of doubt it is not necessary that there should be many circumstance creating doubt. 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.

8. ' Keeping in our view the circumstances as are obtaining in the matter and considering the case- law cited hereinabove, we allowed the appeal and set aside the conviction and sentence ordering that the appellant be released forthwith if not required in any other case by our short order and these are the reasons for the same.