IN THE HIGH COURT OF SINDH, KARACHI

Criminal Appeal No. 283 of 2016

Naseer Ahmed..………..…...……………………..……………….….Appellant

Versus

The State…………..…………………………..…………………....Respondent

Date of Hearing:- 01.11.2017

Mr. Muneer Ahmed Khan, advocate for the appellant

Mr. Muntazir Mehdi, DPG for the State

J U D G M E N T

FAHIM AHMED SIDDIQUI, J: This criminal appeal has been directed against the judgment dated 29.07.2016, passed by learned Additional Sessions Judge-II, Malir at Karachi, whereby, the appellant was convicted and sentenced under Section 392, 324 & 34 PPC. The operative part of the impugned judgment is as under:

“While keeping in view of my findings in foregoing points, I am of the humble opinion that prosecution has proved the case by producing confidence inspiring evidence. It is also admitted position that charge upon accused was framed for the offence U/S 395 PPC but it had not been proved from the testimony of both the witnesses i.e. PW 01 & PW 02 that number of accused were 05 or more, neither it is depicted from memo of arrest of accused, in charge is altered without notice to accused on same evidence, to two separate heads, one for robbery (i.e. 392 PPC) and other far attempt to commit Qatl-i-amd (i.e. 324 PPC of complainant. No prejudice is likely to be caused to accused as charge is altered on same evidence.

I, therefore, convict the accused under section 265-H (2) CrPC for the offence punishable under section 392 PPC and sentence him to suffer RI for 03 (Three) years so also to pay fine of Rs. 10,000/- (Rupees Ten Thousand) or in default to suffer SI for 03 months more. He is further convicted for the offence under section 324 PPC and sentenced to suffer RI for 05 (Five) years so also to pay a fine of Rs. 20,000/- (Rupees Twenty Thousand) or in default to suffer SI for 04 months more. The benefit under section 382-B CrPC is also extended to accused. In both the sentences shall run concurrently. The accused is present on bail; he is taken into custody and remanded to jail to serve out aforesaid sentences.”

2. I have heard the arguments advanced at bar and have gone through the record and proceedings of trial Court with the able assistance of learned defence counsel and learned prosecutor.

3. In the instant case, certain points are considerable. It is the case of the prosecution that the appellant was arrested while armed with a pistol; as such a companion case for recovery of pistol was also lodged against the appellant. During the course of arguments, the learned defence counsel has pointed out that the appellant has been acquitted in companion case after a full-fledged trial. This aspect of the case is not controverted by the learned prosecutor. It is worth noting that when the case of recovery of weapon was not established; the main case cannot be sustained.

4. The prosecution has examined complainant and his friend as allegedly the stand of complainant was also available at the spot. I am of the view that both of the said witnesses are highly interested and no corroboration is available on the record regarding their evidence. The incident was said to be taken place at a thickly populated area but the police did not try to associate at least one private and independent witness from the locality.

5. It is the case of the prosecution that at the time of arrest the appellant was armed with an unlicensed pistol for which a separate case was registered against the appellant. It has come on the record that in the said companion case, the appellant has been acquitted. From the acquittal in the case under Section 23 (1) (a) Sindh Arms Act, it can be said that the recovery of illicit pistol was not established, meaning thereby that an important segment of the prosecution case is vanished. I am of the view that this aspect of the case also creates the clouds of doubt regarding the entire prosecution case.

6. I have scanned the entire record especially the depositions recorded before the trial Court. The two important prosecution witnesses are not in agreement regarding the important point of the case. They are not in agreement regarding the time of the alleged incident. There are certain contradictions in respect of the mode of the incident as well as the apprehension of the appellant. Both the important witnesses are also not in agreement regarding the number of police officers came to the scene of incident. After going through the evidence recorded before the trial Court, I am confident in holding that even on the basis of the evidence so recorded before the trial Court, the case against the appellant could not establish beyond a reasonable doubt.

7. The upshot of the above discussion is that the prosecution miserably failed to establish the case against the appellant beyond reasonable doubt, as such the instant appeal is allowed and the appellant is acquitted from the charge. The appellant is present on bail, his bail bond is cancelled and surety is discharged.

The above are the reasons for my short order dated 01-11-2017.

J U D G E