IN THE HIGH COURT OF SINDH, KARACHI

Criminal Appeal No. 158 of 2017

Naeem Khan….……………..……………………..……………….….Appellant

Versus

The State……………………………………..…………………....Respondents

Date of Hearing:- 09.11.2017

Mr. Sardar Salman Ishaque, advocate for appellant

Mr. Zahoor Shah, APG for the State

J U D G M E N T

FAHIM AHMED SIDDIQUI, J: Being aggrieved by the judgment dated 25-03-2017 passed by learned Additional Sessions Judge-III, Karachi East in Sessions Case No. 1253/2016, whereby the appellant was convicted and sentenced for offence u/s 23(1)(a) of Sindh Arms Act, 2013 (hereinafter referred as ‘SAA’) to suffer R.I. for one year and to pay fine of Rs.2000/- in default of which, he has to suffer R.I. for 15 days more.

2. The facts of the case are that the appellant was arrested in FIR No. 158/2016 for an offence under Section 9(c) CNS Act and at the time of his arrest, one 9-MM pistol was recovered from his possession. As the said pistol was without licence; therefore, another FIR No. 159/2016 was lodged under Section 23(1)(a) SAA.

3. After completion of the investigation, Final Report was submitted to the concerned Magistrate, who after taking cognizance sent up the case to the learned Sessions Judge from where it was entrusted to the trial Court, where the trial was conducted, and he was convicted and sentenced as mentioned above.

4. The trial against the appellant/accused was initiated and a charge was framed. He denied the charge and claimed trial. During trial, the prosecution examined complainant ASI Tariq Khan and marginal witness ASI Mir Khan as well as Investigation Officer SIP Muhammad Akram Qureshi. All the relevant documents and articles pertaining to case were produced through the complainant and investigation officer. After examination of prosecution witnesses, the learned Prosecutor closed the prosecution side and the statement of appellant/accused was recorded under Section 342 CrPC in which he once again denied the prosecution case and pleaded his innocence. He did not prefer to be examined on oath neither he produced any witness in his defence.

5. On consideration of the evidence, the learned Court below found that the offence under section 23(1)(a) SAA has been made out and convicted and sentenced the accused as already mentioned. The conviction and sentence are challenged in this appeal.

6. Arguments heard and record perused.

7. After having heard the learned counsel for the appellant and the learned APG and after having meticulously going through the record, the submissions made by the learned APG seems to be unjustified. Besides there are certain contradictions, inconsistencies, developments and embellishments in the evidence of PWs. In my humble view, the very ‘memo of arrest and recovery’ appears to be doubtful as it is mentioned in that the police party apprehended the appellant but they did not try to associate a private and independent witness of arrest and recovery. Even at the time of inspection of the place of incident, no private person could be arranged by the investigation officer. The complainant admits that he did not try to associate any private person as witness. There was ample time to arrange a witness but the same was avoided which creates doubt regarding the whole of the prosecution story. I have also noticed some important and vital contradictions in the deposition of witnesses, which is fatal for the prosecution case. The complainant in his deposition admitted that he had not mentioned certain important things regarding description of weapon like rubbing of number, non-mentioning of the wordings mentioned at the magazine etc. Even it is also admitted that the sketch prepared is not matching with the pistol and the lock of pistol is not available in the sketch. After going through the entire material, I am confident that the case against the appellant is engulfed under the thick clouds of doubt and it is settled law that the benefit of doubt should go in favour of the accused.

8. The upshot of the above discussion is that the case against the appellant is not free from doubt, hence the instant appeal was allowed and the appellant was acquitted and his bail bond was cancelled and surety was discharged by a short order dated 09.11.2017. These are the reasons for the said short order.

J U D G E