2015 M L D 1618

[Sindh]

Before Aftab Ahmed Gorar, J

ROSHAN ALI alias IQRAR---Appellant

versus

The STATE---Respondent

Criminal Appeal No.S-132 of 2009, decided on 13th November, 2014.

Pakistan Arms Ordinance (XX of 1965)---

----S. 13(d)---Possessing unlicensed arms---Appreciation of evidence---Benefit of doubt---Prosecution

had failed to prove its case against accused as two cases, were registered against accused and his co-
accused under one mashirnama---Both the cases were tried and decided by the same court and two
judgments were delivered on the same very day---Accused was acquitted, in one case, while in case
under S.13(d) of Pakistan Arms Ordinance, 1965 he was convicted---Trial Court, disbelieved the
prosecution evidence in one case, and more or less on the same evidence of prosecution witnesses,
convicted accused without assigning sound reasons---Kalashnikov allegedly recovered from accused,
having neither been sealed at the spot, nor sent to Ballistic Expert along with empties for examination
and report, prosecution case was highly doubtful, in circumstances---Sealing of weapons was essential,
particularly in cases, when it was alleged that weapon was used in the commission of crime, and
empties were secured from the place of wardat---No doubt Police Officials as citizens, were as good
witnesses in the court proceedings, as any other person, yet some amount of care was needed when
they were only eye-witnesses in the case---Court, in the exercise of appreciation of evidence, was to see
whether witness in question, was not an overzealous witness---Testimony of witnesses, in the case,
appeared to be unnatural and untrustworthy, which had created doubt in the prosecution case---All
these factors, had created doubt in the prosecution case---Prosecution had to prove its case against
accused beyond reasonable doubt, but in the present case, there were several circumstances which had
created doubt in the prosecution case---Prosecution case being full of doubts, its benefit must be
extended to accused---Conviction and sentence awarded to accused, were set aside, he was acquitted of
the charge---Accused being on bail, his bail bond, and surety were discharged.

Ghulam Murtaza Korai for Appellant.

Syed Sardar Shah, A.P.G. for the State.

ORDER

AFTAB AHMED GORAR, J.--- This appeal has been filed against the impugned judgment dated 29-8-2009,
passed by 1st Additional Sessions Judge, Sukkur, in Sessions Case No.184/2008 Re: State v. Roshan Ali
alias Iqrar, under section 13(d) A.O. whereby convicted the appellant under section 265-H(2), Cr.P.C. and
sentenced him to suffer R.I. for three years and to pay fine of Rs.1000 and in case of default thereof he
should suffer S.I. for 1 month more. However, benefit of section 382-B, Cr.P.C. was extended to him.

2. Necessary facts for disposal of this case are that on 16-6-2008 SIP Abdul Jabbar Mahar S.H.O, Police
Station Abad was on patrolling in the area. After patrolling at various places they reached at Airport
police picket where he received spy information that some dacoits duly armed with weapons were
standing at the link road leading from Bagerji to Jhangmor with intention to commit some offence. SIP
Abdul Jabbar acquainted his staff and proceeded towards the pointed place, when at about 2130 hours
reached at the link road leading to Bagerji Jhangmor, they saw four persons on search light of mobile
who on seeing the police party started firing upon them with intention to commit their murders. Police
party also retaliated the firing and encounter continued for about 20/25 minutes. During the encounter
one of the persons fell down while raising cry, while the other made their escape good. The police
officials apprehended two persons along-with Kalashnikovs. Due to non-availability of the private
mashirs, ASI Bashir Ahmed Jagirani and ASI Abdul Jabbar Mahar were nominated as mahsirs and
enquired about the names of the persons. One disclosed his name as Abdul Fattah alias Fateh
Muhammad alias Fatu and from his possession a Kalashnikov and five live bullets in the magazine was
recovered besides 60 live bullets in the bag and three currency notes of Rs.50 from front pocket of his
shirt were recovered. The other, having injury on left arm and leg and was bleeding, disclosed his name
as Roshan Ali alias Iqrar Mahar and a Kalashnikov was lying beside him which was taken into custody
and was found loaded with one live bullet in its chamber and two in its magazine. The bag was found
containing 48 bullets in it. On enquiry the accused disclosed that they had no license for the weapons.
Complainant prepared memo of arrest and recovery at the spot, referred the injured accused to civil
hospital Sukkur for treatment and brought another accused at the police station Abad where he lodged
the FIR.

3. After fulfillment of all the necessary formalities charge was framed against accused as Exh.02, to
which he pleaded not guilty vide plea recorded as Exh.03.

4. In support of its' case prosecution examined P.W.1, Complainant SIP Abdul Jabbar Mahar at Exh.04,
he produced Photostat copy of memo of arrest and recovery as Exh.4-A, (Original produced in main
S.C.No.182/2008). He further produced attested photocopy roznamcha entries Nos.29 and 38 regarding
departure and arrival after arrest of the accused as Exh.4.B and C and FIR Ex.4.D. P.W. ASI Bashir Ahmed
was examined at Exh.5 and he produced attested photocopy of memo of inspection of the place of
incident as Exh.5-A. (Original produced in main S.C. No.182/2008). P.W. Muhammad Ismail was
examined as Exh.6. Thereafter the side of the prosecution was closed by DDPP vide statement as Ex.7.

5. The statement of accused under section 342, Cr.P.C. was recorded at Exh.8. In his statement he
denied the allegations of the prosecution leveled against him. To reply the question have you to say
anything else, he stated that in fact Police and Rangers personnel raided his village and made firing in
which he sustained injury as he was working in the field and in order to save themselves from the
clutches of law, the police booked him in this false case and such news was also published in the various
newspapers and produced the news clipping and application. However, neither he examined himself on
oath nor led any sort of evidence in his defence.
6. Learned counsel for appellant has submitted that on one and the same mashirnama the case bearing
No.101 /2008 under sections 401, 353, 324, P.P.C. the appellant and co-accused have been acquitted by
extending them benefit of doubt, but on the same evidence the learned trial court has convicted the
appellant vide impugned judgment, which is against the norms of justice. He further submitted that the
complainant to save himself from the clutches of law, has managed the above case, as the police and
rangers had raided the village of appellant and made firing in which the appellant became injured, hence
the appellant has been falsely booked in the above case by the police. He further submitted that entire
prosecution evidence is consisting upon police personnel only. He further submitted that I.O. has failed
to send the Kalashnikov and empties to the ballistic expert for his opinion regarding its working
condition. He submitted that there is contradiction in the statements of complainant and witnesses. He
lastly submitted that the prosecution has failed to prove the case beyond any shadow of doubt hence
the impugned judgment may be set-aside and the appellant may be acquitted.

5(sic) Learned A.P.G. appearing on behalf of the State has supported the impugned judgment on the
ground that appellant was arrested on the spot with one Kalashnikov and bullets were recovered from
him.

6(sic) I have heard learned Counsel for the parties at considerable length and have perused the record.

7. In my view the prosecution has failed to prove its case against the appellant as two cases against the
appellant and co-accused were registered being Crime No.101 of 2008 under sections 401, 324 and 353,
P.P.C. and other bearing Crime No.103 of 2008 under section 13(d) Arms Ordinance under one
mashirnama. Both the cases were tried and decided by the same court and on the very same day two
judgments were delivered by the trial court and from the case under sections 401, 324, 353, P.P.C. the
appellant was acquitted and the case under section 13(d) A.O. has been convicted. The learned trial
court disbelieved the prosecution evidence in one case and more or less on the same evidence of
prosecution witnesses, convicted appellant without assigning sound reasons. Kalashnikov recovered
from the appellant having neither been sealed at the spot nor sent to the ballistic expert along with
empties for examination and report as such prosecution case was highly doubtful. Lapse on the part of
police is clear and admitted. Wisdom behind sealing the weapons at the place of incident is to eliminate
the possibility of manipulation of evidence after the recovery of the crime weapons. Sealing of weapons
is essential, particularly in cases when it is alleged that weapon was used in the commission of crime and
empties were secured from the Wardat. In this case Kalashnikov was used in commission of offence and
recovered from the possession of appellant, two empties were collected from the place of incident. In
such situation Kalashnikov and empties were to be sent to the Ballistic Expert for examination and
report so as to connect the appellant in the commission of crime. In this case weapon and empties were
not sealed and possibility could not be excluded regarding tampering with the said piece of evidence. In
order to avoid possibility of manipulation, this court has always insisted that property should be sealed
at the place of wardat so as to discard any possibility of manipulation or tampering with prosecution
evidence. Unfortunately, this exercise has not been completed in this case, nor reason has been
assigned for such omission. The prosecution could not satisfy the Court about such omission. No doubt
police officials as citizens are as good witnesses in Court proceedings as any other person yet, some
amount of care is needed when they are only eye-witnesses in the case. It is not on account of an
inherent defect in their testimony but due to a possibility that an individual police official and not all,
might in mistaken zeal to see that the person he believes to be a culprit, is convicted, might blur line
between duty and propriety. It is the settled law that in the exercise of appreciation of evidence it is
necessary as pre-requisite, to see whether witness in question is not such an overzealous witness. In this
case, the defence plea taken by the appellant is that in fact police and ranger personnel raided his
village and made firing in which he sustained injury as he was working in the field and in order to save
themselves from the clutches of law, the police booked him in this case and such news was published in
various newspapers, but such plea has not been considered by the learned trial Court. Furthermore, on
the spy information police reached at the place of incident and the police officials have sufficient time to
call the independent and respectable persons of locality to make them mashirs in this case but it has not
been done. Their testimony, appears to be unnatural and untrustworthy, and creates doubt in the
prosecution case. All these factors create doubt in the prosecution case. Prosecution has to prove its
case against the accused beyond reasonable doubt, in this case there are several circumstances, which
create doubt in the prosecution case.

For my above stated reasons, I have come to the conclusion that prosecution case, as to veracity and
credibility of prosecution witnesses, is full of doubts, its benefit must be extended to appellant.
Consequently, appeal is allowed. Conviction and sentence dated 29-8-2009 is set aside. Appellant is
acquitted of the charge. He is present on bail, his bail bonds stand discharged and surety discharged.
Office is directed to return the surety papers of the appellant after proper identification and verification.

HBT/R-28/Sindh

Appeal allowed.