2021 P Cr. L J 186
[Balochistan]
Before Muhammad Hashim Khan Kakar and Rozi Khan Barrech, JJ
The STATE through Prosecutor General Balochistan ---Appellant
Versus
MUHAMMAD ASHFAQ ---Respondent
Criminal Acquittal Appeal No. 72 of 2018, decided on 18th December, 2019.
(a) Pakistan Arms Act (XX of 1965)---
----S. 13(d) --- Possessing unlicensed weapon ---Appreciation of evidence ---Appeal against
acquittal ---Benefit of doubt ---Accused was charged that a T.T. pistol with magazine and two
live rounds were recovered on his pointation while in custody in connected FIR registered
under Ss. 302 & 34, P.P.C., for which he failed to produce any valid license ---Record
transpired that the alleged murder of the deceased took place on 03.07.2016 and the pistol was recovered along with empty after the delay of twenty five days from a drain with running water on the pointation of accused---Said drain was a running water drain, in such state of affairs how was it possible that the empty which was otherwise weighing very litt le
remained in a drain of running water and was recovered after twenty five days of the
occurrence--- Said fact did not appeal to a prudent mind that the accused after alleged
commission of offence would throw the crime weapon in the drain, which would rema in in
the drain, which was admittedly a running water drain ---Place of recovery was a populated
area wherefrom private witnesses could have been picked up and associated with the prosecution's case but was not done ---Said fact had also been admitted by the complainant
and the Investigation Officer of the case that they did not make any attempt to record statements of any private witnesses at the time of alleged recovery ---Said recovery was not
effected from exclusive possession of the accused and the place of recovery was also not in custody of the accused ---Even otherwise the accused was acquitted from the charge in the
main case under Ss. 302 & 34, P.P.C. and the present case was an offshoot of the main case wherein the evidence produced by the prosecution had been disbelieved and benefit of doubt
had been extended to the accused, therefore the accused was also entitled to benefit of doubt in the present case--- Appeal against acquittal was dismissed, in circumstances.
(b) Criminal trial ---
----Benefit of doubt ---Principle ---One circumstance, which created reasonable dent in the
veracity of the prosecution version could be taken into consideration for giving benefit not as a matter of grace rather as a matter of right.
(c) Appeal against acquittal ---
----D ouble presumption of innocence ---Interference---Accused, after acquittal, earned double
presumption of innocence in his favour ---To disturb such findings, strong and cogent
evidence was required.
Muhammad Mehmood Sadiq Khokhar for Appellant.
Abdul Mateen, DPG for the State.
Date of hearing: 12th November, 2019.
JUDGMENT
ROZI KHAN BARRECH, J. ---The instant appeal has been filed by the State
through the Prosecutor General Balochistan under section 417, Cr.P.C. against the judgment
dated 12.02.2018 ( hereinafter the "impugned judgment") passed by learned Additional
Sessions Judge -I, Quetta ("trial court") in Arms Case No.14/2016, whereby private
respondent was acquitted of the charge under sections 13(d) of the Arms Ordinance, 1965 in FIR No. 85/2016 of PS Industrial Area Quetta.
2. Relevant facts for disposal of the instant appeal are that the aforesaid FIR was lodged
at PS Industrial Area Quetta on the report of complainant Khalid Mehmood IP under Section 13-d of the Arms Ordinance, 1965 with the alle gation that in connected case bearing FIR No.
74 of 2016 lodged under sections 302 and 34, P.P.C. with the same police station on pointation of private respondent/accused a T.T pistol along with magazine and two live rounds were recovered, for which the ac cused failed to produce any valid license/permit.
Thus, the crime report.
After completion of the investigation, the challan was submitted before the trial court
whereby after full dressed trial vide impugned judgment dated 25.03.2019 private respondent was acquitted of the charge.
3. We have heard the learned counsel for the parties and have also gone through the
available record.
4. It may be observed that the accused/respondent was booked for an offence under
section 13 -d of the Arms Ordinance, 1965 wit h the allegation that a T.T pistol was recovered
on his pointation while in custody in connected FIR. To substantiate the charge against the accused/respondent, prosecution produced Khalid Mehmood IP as PW -1. According to this
witness on 28.07.2016 during investigation in FIR No. 74 of 2016 of PS Industrial Area
Quetta the accused/respondent made disclosure that he can affect recovery of crime weapon, which he allegedly used to murder one Muhammad Afzal. Thereafter the accused/respondent was taken to the pl ace of recovery i.e. Pakistan Lane Street in an official vehicle, where the
accused from a drain affected recovery of T.T pistol.
5. Record transpires that the alleged murder of the deceased Muhammad Afzal in FIR
No. 74 of 2016 took place on 03.07.2016 and the pistol was recovered along with empty on
28.07.2016 after the delay of twenty five days from a drain with running water on the
pointation of accused Muhammad Ishfaq. It has also come on record that the said drain is a running water drain, in such stat e of affairs how was it possible that the empty which was
otherwise weighing very little remained in a drain of running water and was recovered after twenty five days of the occurrence. It does not appeal to the prudent mind that the accused
after alleged commission of offence would through the crime weapon in the drain, which
would remain in the drain, which is admittedly a running water drain. Moreover, the place of
recovery is a populated area wherefrom private witnesses could have been picked up and associated with the prosecution's case but the prosecution case is totally silent in this respect.
This fact has also been admitted by the complainant and the investigation officer of the case that they did not make any attempt to record statements of any private witnesses at the time of alleged recovery. Moreover, the said recovery was not effected from exclusive possession of the accused and the place of recovery was also not in custody of the accused. It has also come on record that the bullet led was recov ered on the day of occurrence from the place of
occurrence and the same was taken into possession through recovery memo and was sealed in a parcel No.1, the said bullet led was not sent to Firearms Expert along with recovered pistol. Record further reveals that the alleged recovery was effected on 28.07.2016 and pistol
and one bullet empty were sent to Firearms Expert for opinion on 27.12.2016 after delay of five months without any explanation.
6. It is an established principle of law that for extending ben efit of doubt in favor of the
accused so many circumstances are not required rather one circumstance, which creates reasonable dent in the veracity of the prosecution version can be taken into consideration for the purpose not as a matter of grace rather as a matter of right. There are also other major contradictions in the statements of witnesses.
Even otherwise the accused/respondent was acquitted from the charge in the main
case under sections 302 and 34, P.P.C. and the instant case is offshoot of the m ain case i.e.
FIR No. 74 of 2016 registered with same police station wherein the evidence produced by the prosecution has been disbelieved and benefit of doubt has been extended to the appellant, therefore the appellant is also entitled to benefit of doubt in the instant case.
Even otherwise after the acquittal, the accused/respondent No.1 earned double
presumption of innocence in his favour, therefore, to disturb such findings, strong and cogent evidence is required, which is lacking in the present case.
Thus, for the foregoing reasons this appeal is accordingly dismissed.
JK/103/Bal. Appeal dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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