IN THE HIGH COURT OF SINDH, AT KARACHI
Criminal Appeal No. 487 of 2021
Appellant: Aamir
through Mr. Muhammad Rafiq Brohi advocate
N
The State: Through
Mr. Khadim Hussain, Additional Prosecutor General Sindh
Date of hearing: 05.10.2022
Date of judgment: 05.10.2022
J U D G M E N T
IRSHAD ALI SHAH,
J-
It is alleged that on arrest from the appellant was secured one unlicensed
pistol of 30 bore with magazine containing 02 live bullets of same bore by
police party of PS New Karachi Industrial Area led by ASI Mazhar Hussain, which
he allegedly used while 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 sentenced to undergo rigorous imprisonment for 07 years with
fine of Rs.10,000/- and in default whereof to undergo simple imprisonment for
06 months with benefit of Section 382-B Cr.P.C by learned II-Additional
Sessions Judge, Karachi Central vide judgment dated 21.08.2021, 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 by making foistation of unlicensed pistol upon him and
evidence of the P.Ws being doubtful has been believed by learned trial Court
without lawful justification. By contending so, he sought for acquittal of the
appellant 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 case of the prosecution has been able to prove its case
against the appellant beyond shadow of doubt.
4. Heard arguments and perused the record.
5. It was stated by complainant ASI Mazhar
Hussain and PW/mashir PC Sajjan that on the date of incident they with rest of
the police personnel were on patrol duty, when reached at the place of incident
there they found a mob of person, beating one boy by calling him ‘Daket’, he was saved, on inquiry he disclosed
his name to be appellant and on search was secured unlicensed pistol of 30 bore
without number, with magazine containing 02 live bullets under memo which they prepared
at spot and took the appellant to hospital for treatment and then lodged formal
FIR of the incident. As per forensic report the pistol was with rubbed number.
Nothing has been brought on record which may suggest that the appellant after
arrest was actually taken to hospital for treatment. None from the mob who
allegedly apprehended the appellant in first instance has been examined; such
omission could not be lost sight of. On investigation, as per I.O/SIP Muhammad
Rafaqat, he recorded 161 Cr.PC statements of P.Ws/mashirs. He in that respect
is believed by P.W/mashir Muhammad Owais by stating that his statement was not
recorded by investigating officer. 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.
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,
convicted and sentenced 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