IN THE HIGH COURT OF SINDH, AT KARACHI
Criminal Appeal No. 487 of 2020
Before;
Mr. Justice Irshad Ali Shah
Appellant: Zubair
@ Guddu through Mr. Ashraf Ali Shah advocate
The State: Through
Mr. Faheem Hussain Panhwar, Deputy Prosecutor
General Sindh
Date of hearing: 17.11.2022
Date of judgment: 17.11.2022
J U D G M E N T
IRSHAD ALI SHAH, J- It is alleged that on arrest from the
appellant was secured unlicensed pistol of 30 bore without number with magazine
containing 02 live bullets which he allegedly was having at the time of committing
robbery, 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 was sentenced
to undergo rigorous imprisonment for 03 years and to pay fine of Rs.5000/- and
in default whereof to undergo simple imprisonment for 01 month with benefit of
Section 382(b) Cr.P.C by learned VI-Additional Sessions Judge Karachi West vide
judgment dated 12.10.2020, which is impugned by the appellant before this Court
by preferring the instant 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 at the instance of complainant party of main robbery case
to save it from the liability of death of Bakht Nabi Syed 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 by extending him benefit of doubt.
3. Learned DPG for the State by supporting
the impugned judgment has sought for dismissal of the instant appeal by
contending that the appellant was apprehended at the spot and from him has been
secured the unlicensed pistol with bullets.
4. Heard arguments and perused the record.
5. It was stated by P.W/P.C Anwarullah that
on the date of incident he, HC Amanullah and others were on patrolling, they
went at the place of incident there they found the appellant and his associate
to have been apprehended by mob and were being maltreated, they rescued and taken
them into custody together with knife and pistol without number and then they
were referred to Hospital for treatment, one amongst them namely Bakht Nabi
Syed died of such injuries, while the appellant was involved in present case
formally. As per Medical Officer Dr. Arif, P.W Mudassir Tariq and the accused
were brought to him at Qatar Hospital, Orangi, for treatment by public and
police came there. By stating so, he has falsified the version of P.W/P.C
Anwarullah that they took P.W Mudassir Tariq, the appellant and his associate
to the Hospital. H.C Amanullah, who has prepared
the memo of arrest of the appellant and his associate has not been examined by
the prosecution on account of his death. As per I.O/SIP Gulzar Ahmed the pistol
allegedly secured from the appellant was sent to forensic expert. As per report
of forensic examiner, the pistol secured from the appellant was found with its
number robbed. There is line of demarcation between the pistol with its number
rubbed and pistol without number. No explanation to such discrepancy is
furnished, which has raised the reasonable doubt with regard to recovery of the
pistol from the appellant. In these circumstances, it would be safe to conclude
that the prosecution has not been able to prove the involvement of the
appellant in commission of the incident beyond shadow of doubt.
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 is
present in Court on bail, his bail bond is cancelled and surety is discharged.
8. The
instant appeal is disposed of accordingly.
JUDGE