IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Appeal No. 522 of 2021

Appellant: Muhammad Kashif through Mr. Muhabbat Ali Ujjan advocate

The State: Through Mr. Abrar Ali Khitchi, Additional Prosecutor General Sindh

Date of hearing: 21.09.2022

Date of judgment: 21.09.2022

J U D G M E N T

IRSHAD ALI SHAH, J- It is alleged that the appellant after committing robbery was about to make his escape good was apprehended by police party of PS Darakshan led by HC Ali Nawaz and on search from him were secured not only the robbed cell phone but unlicensed revolver with two live rounds, for that he was booked and reported upon. On conclusion of trial, the appellant was convicted under Section 23(1)(a) of Sindh Arms Act, 2013 and sentenced to undergo rigorous imprisonment for 06 years with fine of Rs.100,000/- and in default whereof to undergo simple imprisonment for 01 year with benefit of section 382-B Cr.P.C by learned Xth-Additional Sessions Judge, Karachi South vide judgment dated 23.08.2021, which he has impugned 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 by making foistation of unlicensed revolver and rounds upon him and evidence of the P.Ws being doubtful in its character has been believed by learned trial Court without lawful justification, therefore, 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 appeal by contending that the prosecution has been able to prove its case against the appellant beyond shadow of doubt.

4. Heard arguments and perused the record.

5. As per complainant HC Ali Nawaz on hearing of cries raised by PW/mashir Umer Rauf, he went at the place of incident, apprehended the appellant and secured from him the robbed cell phone and unlicensed revolver with two live rounds under memo, which was attested by P.Ws/mashirs PCs Uzair, Raheem Dad and Maroofullah. It is contrary to record, such memo is attested by PWs/mashirs Umer Rauf and PC Raheem Dad. On being asked who prepared such memo? It was stated by him that it was prepared by Munshi Aquib. How it was prepared by Munshi Aquib when he was not the member of police party? It smells of some foul play. Munshi Aquib being author of said memo has not been cited as a witness by the prosecution; such omission has made the arrest of the appellant and recovery of unlicensed revolver from him as alleged by the prosecution to be doubtful. No doubt P.W/I.O SIP Zulifqar Ali has attempted to support the case of prosecution, but his evidence alone is not enough to make a conclusion that the prosecution has been able to prove its case against the appellant 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 impugned judgment is set aside, consequently, appellant is acquitted of the offence for which he was charged, tried and convicted by learned trial Court and he shall be released forthwith, if is not required to be detained in any other custody case.

8. The instant appeal is disposed of accordingly.

JUDGE