IN THE HIGH COURT OF SINDH, KARACHI

Crl. Appeal No. S- 11 of 2017

Mashooq Ali……………………………………………….….…..…...Appellant

Versus

Xth Additional Sessions Judge Karachi South and another.…Respondents

Date of hearing & Judgment : 28.07.2017

Mr. Qaim Ali Memon, advocate for appellant.

Mr. Manazir Mehdi Memon, DPG

J U D G M E N T

FAHIM AHMED SIDDIQUI, J- The appellant through the instant criminal appeal assailed the judgment dated 23.12.2016 passed by the learned Additional Sessions Judge-X, Karachi South, in Sessions Case No. 1032/2016 under Section 23 (i)(a) of Sindh Arms Act, 2013, whereby the appellant was convicted and sentenced to undergo R.I. for 01 year and fine of Rs.1000/- and in case of default, he has to undergo S.I for 02 days in addition to the aforesaid sentence.

2. The facts of the case are that on 02.08.2016, a police party during routine patrolling received a spy information that one suspicious person was standing at Double Road, Kashmir Colony, near Bilal Masjid, Karachi. On such information, the patrolling police party reached at the reported place where they saw the said suspicious person. The police apprehended the said person in presence of official witnesses and enquired his name who disclosed his name as Mashooq Ali son of Abdul Hakeem (the present appellant). On his personal search, an unlicensed pistol of 30 bore with magazine and 03 live bullets were recovered from his possession and such Memo of Arrest and Recovery was prepared and later on accused and case property were brought back to the PS Mehmoodabad, where FIR was lodged on behalf of the State. After the investigation, a final report was submitted to the concerned Magistrate, who took cognizance and sent up the case for sessions trial. After the trial, the appellant was convicted and sentenced as described above.

3. The prosecution produced three witnesses; all of them are police officials i.e. complainant PW-1 ASI Majnoon Khan Ujjan and PW-2 ASI Naseer-ul-Hassan, the I.O of the case. The prosecution gave up both the witnesses of arrest and recovery. The appellant also recorded his statement under Section 342 of the Criminal Procedure Code but did not produce any defence witnesses. On the basis of the evidence so recorded, the learned trial Court convicted the accused as mentioned above by finding him guilty of the offence.

4. The learned counsel for the appellant states that in the instant case, the evidence against the appellant is insufficient and not warranted for conviction. He submits that the appellant has falsely been involved in the instant case and the recovery is foisted on him. He points out that there are contradictions in the case as in F.I.R and depositions of the witnesses. In the end, he submits that the appellant is enjoying a good reputation in his locality and he has no criminal record. He prays for a lenient view regarding the appellant because he is not a habitual offender and first time, he is involved in a criminal case.

5. The learned DPG supported the conviction and sentence and submitted that the trial court has already taken a lenient view by pronouncing a short sentence. He submits that the sentence already awarded to the appellant ought to be maintained.

6. After hearing the arguments and going through the record, I am of the opinion that the prosecution remained failed to establish the case against the appellant. The contradictions pointed out by the learned counsel for the appellant are considerable and the same may be termed as a fatal. In the entire case, the only evidence available on the record is the statement of complainant as the prosecution did not bother to examine the two witnesses of arrest and recovery. It is worth mentioning that the complainant has received beforehand information and on the tip of information, he allegedly approached to the place of arrest and recovery but due to non-examination of any other person from the raiding party, the movement of police party from the routine patrolling spots to the place of incident could not be highlighted. It is also worth mentioning that the appropriate reason for non-association of private witnesses has not been brought on a spotlight by the prosecution. No doubt, nothing has been brought on record from the defence side that the police party had any grudge against the appellant but from this aspect of the case, the prosecution could not take any advantage as the prosecution has to establish their case. In my humble view, non-examination of any of the marginal witnesses of the memo of alleged arrest and recovery, has caused a fatal dent in the prosecution case, due to which the entire episode is surrounded under the thick clouds of suspicion and doubts.

7. In view of the above discussion, I am of the considered opinion that the prosecution remained failed to bring the guilt of appellant/ convict at home and there are certain material contradictions. The marginal witnesses of the rest and recovery were not examined, which also goes against the prosecution. Therefore, the instant appeal was allowed by short order dated 28.07.2017, whereby the conviction and sentence awarded to appellant vide impugned judgment dated 23.12.2016 was set aside and appellant was acquitted of the charge and his bail bond stood cancelled and surety was discharged. The above are the reasons of my short order pronounced on the aforesaid date.

J U D G E