JUDGMENT SHEET

IN  THE  HIGH  COURT  OF  SINDH, CIRCUIT  COURT,  LARKANA

Criminal Jail Appeal No.D-02 of 2020.

Criminal Jail Appeal No.D-03 of 2020.

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DATE                                       ORDER WITH SIGNATURE OF HON’BLE JUDGE

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Before:

Mr. Justice Irshad Ali Shah,

 Mr. Justice Agha Faisal,

For hearing of main case.

01.03.2022

                        Mr. Habibullah Ghouri, Advocate for the appellant.

Mr. Ali Anwar Kandhro, Addl. P. G for the State.

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IRSHAD ALI SHAH, J;- It is case of prosecution that the appellant allegedly with rest of culprits deterred the police party of P.S Thull, led by SIP Sibgatullah, from discharging their lawful duty as public servants by making fires at them with intention to commit their murder and on arrest from him was secured an unlicensed T.T Pistol of 30 bore with magazine containing three live bullets, for that he was booked and reported upon in two separate cases, those were amalgamated and on conclusion of trial, he was found guilty for the said offence and was convicted/sentenced to undergo various terms of imprisonment spreading over ten years including fine, with benefit of Section 382-B Cr.PC, by learned Incharge Anti Terrorism Court, Shikarpur, vide judgment dated 11.01.2020, which is impugned by him before this Court by preferring two separate appeals from jail, those now are being disposed of through instant judgment.  

2.        It is contended by learned counsel for the appellant that the appellant being innocent has been involved in this case falsely by the police by making foistation of an unlicensed pistol upon him; the evidence of complainant and his witnesses being contradictory and doubtful has been believed by learned trial Court without lawful justification; therefore, the appellant is entitled to his acquittal by extending him benefit of doubt.

3.        Learned Addl.P.G for the State by supporting the impugned judgment has sought for dismissal of the instant criminal jail appeal by contending that the prosecution has proved its case against the appellant beyond shadow of doubt.

4.        We have considered the above arguments and have perused the record.

5.        Despite advance information, no independent person was associated by the complainant to witness the incident; such omission on his part could not be lost sight of. The firing though continued for about five minutes within close range, proved to be ineffective in all respect, which has given a rise to reasonable doubt with regard to genuineness of allegation of an armed encounter by the appellant with the police party. The complainant and PW/Mashir PC Shahid Ali have contradicted each other with regard to availability of the houses in vicinity of place of incident; such contradiction has reduced the evidentiary value of their version reasonably. The pistol which is alleged to have been secured from the appellant has been subjected to its examination with delay of about four days to its recovery. No explanation to such delay is offered. Neither Incharge of Malkhana, nor the person who took the said pistol to Forensic Expert, has been examined by the prosecution to prove its safe custody and transmission. None from the vicinity has been examined by I.O/Inspector Javed Ahmed to have their version to ascertain about the correctness of the alleged incident; such omission on his part could not be overlooked. In these circumstances, it would be safe to conclude that the prosecution has not been able to prove its case against the appellant beyond shadow of doubt and to such benefit, he is found entitled.

6.        In case of Muhammad Mansha Vs. The State (2018 SCMR 772), it has been held by the Hon’ble Apex court that;

“4. Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted".

7.        In view of above, the conviction and sentence awarded to the appellant by way of impugned judgment are set aside, consequently, he is acquitted of the offence for which he was charged, tried and convicted by learned trial Court; he shall be released forthwith in the present case,        if not required to be detained in any other custody case.

8.        The instant criminal jail appeals are disposed of accordingly.

JUDGE  

    JUDGE