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016 M L D 230

[Sindh]

Before Naimatullah Phulpoto, J

SHAHID IQBAL---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.98 of 2014, decided on 29th August, 2014.

(a) Sindh Arms Act (V of 2013)---

----S. 23(1)(a)---Possessing unlicensed arms---Appreciation of evidence---Evidence of police


officials---Principles---Evidence of Police Officials could not be discarded simply because they
belong to the Police force---Court was not to start with any presumption against them---Where the
fate of an accused in the case of recovery of unlicensed arms, hinged upon the testimony of Police
Officials alone, it was essential to find out if there was any possibility of securing independent
person at the time of recovery---Conviction or acquittal of an accused, would depend upon the
credibility of the witnesses; as assessed by the court, but where it was possible for the Police
Officials to call independent witnesses to act as Mashir, but they deliberately avoided, the court
had to be very careful in weighing such evidence---Judicial approach, had to be cautious in dealing
such type of evidence.

(b) Criminal Procedure Code (V of 1898)---

----S. 103---Search proceedings---Provisions of S.103, Cr.P.C. were not attracted to the case of
personal search of a person, but, where alleged recovery was made from accused, place of recovery
was situated in a thickly populated area, omission to secure independent mashirs from the locality,
was significant; and could not be brushed aside lightly.

(c) Sindh Arms Act (V of 2013)---

----S.23(1)(a)---Possessing unlicensed arms---Appreciation of evidence---Benefit of doubt---


Prosecution had failed to prove its case against accused beyond any shadow of doubt for the
reasons that despite contention of defence Counsel, arrival and Roznamcha entries, had not been
produced in evidence, in order to satisfy the court that Police party had actually left at relevant
time for patrolling---Non-production of departure and arrival entries in evidence would cut the
roots of prosecution case---No private person of the locality had been examined in the present case-
--Accused in his statement under S.342, Cr.P.C., had raised plea that recovery had been foisted
upon him for the political reasons---Such defence plea was rejected by the Trial Court for no
obvious reasons; and dealt with by Trial Court in a very casual manner---Proper mode of appraisal
of evidence in the case for the Trial Court, was to consider the reliability of each witness separately,
then to examine the case as a whole, and also to examine the credibility of the prosecution
witnesses in juxtaposition with each other---Mere fact that mashir of recovery, had no apparent
reason to depose falsely against accused, was not sufficient to hold him trustworthy---Mere fact
that prosecution witnesses, had no enmity with accused to implicate him falsely, would not render
their evidence unanswerable---Truth or falsity of the statements of the prosecution witnesses,
would largely depend upon the circumstances to accept the prosecution evidence, non-considering
the circumstances, would be totally inconsistent with the safe administration of justice---Rubbed
number pistol, recovered from the possession of accused, was sent to the Fire Arm Expert after 16
days of its recovery; and said inordinate delay had not been explained by the prosecution---
Possibility could not be ruled out that it was foisted upon accused by the Police---Several
circumstances existed which created serious doubt in the prosecution case---Conviction and
sentence recorded against accused were set aside, extending him benefit of doubt and he was
released, in circumstances.

(d) Criminal trial---

----Benefit of doubt---Benefit of all favourable circumstances in the prosecution evidence, must


go to accused, regardless of whether he had taken any such plea or not.

Muhammad Nawaz and another v. The State and others PLD 2005 SC 40 rel.

Shah Imroz Khan for Appellant.

Abrar Ali Khichi, Assistant Prosecutor General Sindh for Respondent.

Date of hearing: 26th August, 2014.

JUDGMENT

NAIMATULLAH PHULPOTO, J.---Appellant Shahid Iqbal was tried by Ms. Sarwat


Sultana, VIII Assistant Sessions Judge, Karachi East, for offence under section 23(1)(a) of Sindh
Arms Act, 2013. The appellant was found guilty and vide judgment dated 25.02.2014 he was
sentenced to suffer R.I. for 6 years and to pay fine of Rs.20,000/-. In case of default in payment of
fine he was ordered to suffer S.I. for one month more. Appellant was extended benefit of section
382-B, Cr.P.C. By this appeal, the appellant has challenged his conviction and sentence before this
Court.

2. The prosecution story lay within a very narrow compass. On 27.07.2013 ASI Muhammad
Ashfaq of P.S. Kornagi Industrial Area, Nasir Colony, Karachi left police station along with his
subordinate staff, namely, PCs Aurangzeb, Muhammad Shafiq and Samar Abbas for patrolling
duty. Duty hours of the police party were 08:00 p.m. to 08:00 a.m. During patrolling, police party
reached near Ahl-e-Hadees Masjid, Main Road, Nasir Colony, Karachi at 0015 hours where police
party saw present accused standing in suspicious manner. He was caught hold and his name was
inquired to which he has disclosed his name as Shahid Iqbal son of Munir Ahmed. ASI Muhammad
Ashfaq conducted personal search of accused in presence of mashirs, namely, PCs Aurangzeb,
Muhammad Shafiq and Samar Abbas. During search, one T.T. pistol and three live bullets were
recovered. The appellant failed to produce license for weapon carried by him, he was arrested.
Mashirnama of arrest and recovery was prepared in presence of mashirs. Case property was sealed
at the spot. Thereafter, accused and case property were brought to the police station where FIR
was lodged against the accused on behalf of the State vide Crime No.498 of 2013 under section
23(1)(a) of the Sindh Arms Act, 2013.

3. After registration of FIR, investigation was handed over to ASI Ali Nawaz, who visited the
place of recovery in presence of mashirs and prepared such mashirnama. Investigating officer
recorded 161, Cr.P.C. statement of accused. Weapon was sent to expert, positive report was
received. On conclusion of the investigation challan was submitted against the accused under the
above referred section.

4. Charge under section 23(1)(a) of the Sindh Arms Act, 2013 was framed against the
appellant and he was asked whether he pleads guilty or has any defence to make to which he
pleaded not guilty and claimed a trial. At the trial prosecution examined following witnesses:

(i) PW 1 Muhammad Ashfaq.

(ii) PW Ali Nawaz

(iii) PW Muhammad Shafiq.

Thereafter, prosecution side was closed.

5. In his statement recorded under section 342, Cr.P.C. appellant has disputed the case of
prosecution by alleging his false implication in this case for political reasons. Appellant has raised
plea that all the PWs are workers of a political party. The appellant did not step into the witness
box and did not examine any witness in defence.

6. On assessment of evidence available on record, learned Assistant Sessions Judge found the
appellant guilty and convicted him as stated above.

7. Mr. Shah Imroz Khan, learned counsel for the appellant with great energy put before me
the reasons for disbelieving the prosecution witnesses who are belonging to the police and has
endeavoured to show that their evidence as to patrolling and recovery of T.T. pistol from
possession of the appellant is untrustworthy. He has also argued that prosecution witnesses have
failed to produce arrival and departure entries in the evidence despite contention of defence
counsel. He has also argued that there was inordinate delay in sending the T.T. pistol and
ammunition to the expert, tampering with the case property could not be ruled out. It is also argued
that place of recovery is situated at thickly populated area, no efforts were made by A.S.-I.
Muhammad Ashfaq to call the independent and respectable persons of the locality to make them
as mashirs in this case. He has also referred to the number of contradictions in the evidence of the
complainant and mashir of recovery.

8. Mr. Abrar Ali Khichi, learned Assistant Prosecutor General Sindh argued that prosecution
has proved its case against the appellant. Evidence of police officials is as good as that of any other
citizen. He has supported the impugned judgment.

9. The evidence of police officials cannot be discarded simply because they belong to the
police force. The Court should not start with any presumption against them.

10. However, in a case of recovery of arms where the fate of an accused person hinges upon
the testimony of police officials alone, it is essential to find out if there was any possibility of
securing independent persons at the time of recovery. The conviction or acquittal of an accused
person depends upon the credibility of the witnesses as assessed by the Court but where it was
possible for the police officials to call independent witnesses to act as mashir but he deliberately
avoided, the Court has to be very careful in weighing such evidence. It is settled principle of law
that judicial approach has to be cautious in dealing such type of evidence.

11. I am conscious of the fact that provisions of section 103 are not attracted to the case of
personal search of a person, however, where alleged recovery was made from the appellant, place
of recovery is situated in a thickly populated area like near Ahl-e-Hadees Masjid, main road, Nasir
Colony, Karachi, the omission to secure independent mashirs from the locality is significant and
cannot be brushed aside lightly by this Court.

12. PW Muhammad Ashfaq has deposed that on 27.07.2013 he left police station along with
his subordinate staff and arrested the present accused in a suspicious manner at Ahl-e-Hadees
Masjid, main road, Nasir Colony, Karachi, and recovered from his possession one 30 bore pistol
and three live bullets for which he had no license. He lodged FIR on behalf of the State and handed
over the case papers and custody of accused to the I.O. In cross-examination he has admitted that
he has not mentioned the Roznamcha entry and T.T. pistol was not in working condition.

13. PW H.C. Muhammad Shafiq has deposed that on 27.07.2013 he along with ASI
Muhammad Ashfaq and other police constables left the police station for patrolling. The appellant
was arrested at 0015 hours at Ahl-e-Hadees Masjid, 30 bore pistol without license was recovered
from his possession. He acted as mashir. In his cross-examination he admitted that he has not
disclosed the time of recovery in his statement recorded under section 161, Cr.P.C.

14. Ali Nawaz, investigating officer after receipt of F.I.R. and custody of accused investigated
the case, visited the place of wardat and sent the property to the FSL, completed investigation and
submitted challan against accused. In his cross-examination he has admitted that he has not
produced Roznamcha entry in the Court.
15. I have examined/scrutinized the prosecution evidence minutely. Prosecution has failed to
prove its case against the accused beyond any shadow of doubt for the reasons that despite
contention of defence counsel, arrival and Roznamcha entries have not been produced in evidence.
In order to satisfy the Court that police party had actually left at relevant time for patrolling. Non-
production of departure and arrival entries in evidence cuts the roots of prosecution case.
Moreover, no private person of the locality has been examined in this case. Accused in his
statement under section 342, Cr.P.C. has raised plea that recovery has been foisted upon him for
the political reasons. This defence plea was rejected by the learned trial Judge for no obvious
reasons and dealt with by trial Court in a very casual manner. The proper mode of appraisal of
evidence in this case for the trial Court was to consider the reliability of each witness separately
then to examine the case as a whole and also to examine the credibility of the prosecution witnesses
in juxtaposition with each other. Mere fact that mashir of recovery had no apparent reason to
depose falsely against the accused was not sufficient to hold him trustworthy. Mere fact that
prosecution witnesses had no enmity with the appellant to implicate him falsely does not render
their evidence unassailable. Truth or falsity of the statements of the prosecution witnesses largely
depends upon the circumstances to accept the prosecution evidence without considering the
circumstances would be totally inconsistent with the safe administration of justice. There is also
another aspect of the case, rubbed number pistol was recovered from the possession of the appellant
on 27.07.2013 but the same was sent to the fire arm expert on 13.08.2013. Inordinate delay in
sending the pistol to the expert has not been explained by the prosecution as the number of pistol
was rubbed, possibility, cannot be ruled out that it was foisted upon the appellant by the police. In
above circumstances, positive report of expert would not improve the prosecution case. It is a
known principle of appreciation of evidence that benefit of all favourable circumstances in the
prosecution evidence must go to the accused regardless of whether he has taken any such plea or
not. Reliance is placed on the case of Muhammad Nawaz and another v. The State and others (2005
PLD Supreme Court 40). In the present case, there are several circumstances, which create serious
doubt in the prosecution case. No doubt, the Sindh Arms Act, 2013 is enacted to curb the
proliferation of arms and ammunitions and punishment for possession of any fire arm is extended
to 14 years and with fine. The rule for safe administration of criminal justice is; the harsher the
sentence the stricter the standard of proof. Therefore, for the purposes of safe administration of
criminal justice, some minimum standards of safety are to be laid down so as to strike a balance
between the prosecution and the defence and to obviate chances of miscarriage of justice on
account of exaggeration by the investigating agency. Such minimum standards of safety are even
otherwise necessary for safeguarding the Fundamental Rights of the citizens regarding life and
liberty, which cannot be left at the mercy of police officers without production of independent
evidence.

16. On overall assessment of entire evidence in the case and on considering of the surrounding
circumstances, I am of the considered view that case against the appellant is doubtful in nature.
Accordingly, I extend benefit of doubt to accused and acquit him from the charge. The conviction
and sentence recorded against the appellant are set aside. The appellant who is in custody be
released forthwith if not required in any other case.

In the result the appeal is accepted.

HBT/S-77/Sindh Appeal accepted.

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