IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Jail Appeal No. 588 of 2021

Appellant: Muhammad Shayan through Mr. Habib-ur-Rehman Jiskani advocate

The State: Through Mr. Khadim Hussain, Additional Prosecutor General Sindh

Date of hearing: 10.11.2022

Date of judgment: 10.11.2022

J U D G M E N T

IRSHAD ALI SHAH, J- It is the case of the prosecution that on arrest from the appellant was secured the unlicensed pistol of 30 bore which he was having when he allegedly committed robbery against P.W/mashir Muhammad Zeeshan, for that he was booked and reported upon. On conclusion of trial, he was convicted under Section 23(1)(a) of Sindh Arms Act, 2013 and sentenced to undergo rigorous imprisonment for 04 years with benefit of section 382(b) Cr.P.C by learned X-Additional Sessions Judge, Karachi South vide judgment dated 29.09.2021, which is impugned by the appellant before this Court by preferring the instant jail appeal.

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 foisting upon him the unlicensed and unworkable pistol and evidence of the P.Ws being doubtful in its character has been believed by learned trial Court without lawful justification, therefore, the appellant is entitled to his acquittal, which is opposed by learned Addl. P.G for the state by contending that the prosecution has been able to prove its case against the appellant beyond shadow of doubt.

3. Heard arguments and perused the record.

4. It was stated by complainant H.C Naseer Ahmed that on the night of incident when with his police personnel were conducting patrol within the jurisdiction of P.S Napier went at the place of incident; the appellant was found there to have been apprehended by the mob as a dacoit; he was taken into custody and on search from him was secured pistol, such memo was prepared at the spot in presence of P.Ws/mashir Muhammad Zeeshan and Muhammad Zakir; the appellant was taken to P.S Napier and was booked in the present case formally. P.Ws Muhammad Zeeshan and Muhammad Zakir have attempted to support the complainant in his version on point of recovery of unlicensed pistol from the appellant while as per I.O/SIP Sajjad Yousuf on forensic examination, was not found in working condition. If it was so, then the said pistol could safely be said to be an iron piece. In these circumstances, the conclusion which could be drawn of above discussion would be that the prosecution has not been able to prove its case against the appellant beyond shadow of doubt.

5. In the case of Abdul Hafeez and 2 others vs. The State (2017 YLR 756), it has been held by the Division Bench of this Court that;

“Insofar as recovery of pistol, which was alleged to have been recovered on the pointation of the Appellant Abdul Hafeez is concerned, according to the FSL report, the said weapon was not in a working condition. In the light of FSL report no weight could be attached to the recovery of pistol.”

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

8. The instant jail appeal is disposed of accordingly.

JUDGE