IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Cr. Acq. Appeal No. S-122 of 2021

Appellant		The State Through
		Mr. Aitbar Ali Bullo, D.P.G for the State
Date of hearing		23-05-2023
Date of Judgment		23-05-2023

J U D G M E N T

Zulfiqar Ali Sangi, J. Through instant Criminal Acquittal Appeal, the appellant/State has assailed the judgment dated 12.06.2021, passed by the learned I-Additional Sessions Judge/MCTC, Kambar in Sessions Case No. 335/2017 (Re. State Vs. Aashiq Ali Seelro & others), for offence punishable Under Section 24 of Sindh Arms Act, 2013, arising out of Crime No.41/2017, registered at P.S. Bahram, whereby respondent/accused Ashiq Ali Seelro was acquitted of the charge.

Precisely, the facts leading to disposal of instant criminal acquittal appeal are that on 21.09.2017 complainant A.S.I. Shafi Muhammad lodged the F.I.R on behalf of State stating therein that accused Muhammad Hassan who was already arrested in Crime No.35/2017 of P.S Behram for offence punishable under sections 302, 148, 149 P.P.C and during interrogation, he voluntarily confessed his guilt and produced unlicensed 9 mm pistol along with magazine containing five live bullets in its magazine in presence of police officials as well as private mashirs. It is further averred in the FIR that the same pistol was used by him in murder case of Mumtaz Seelro, hence the above F.I.R was lodged.

2. After registration of FIR and conclusion of the investigation, the challan was submitted before the court having jurisdiction. The case papers were supplied to the accused such receipt was obtained from him. Formal charge against accused was framed, to which he pleaded not guilty and claimed to be tried.

3. In order to establish accusation against the respondent/ accused, the prosecution examined complainant as well as I.O and first mashir of the case, they produced certain documents and items in support of their evidence. Thereafter, the learned DDPP for the State closed it’s side.

4. The statement of accused u/s 342 Cr.P.C was recorded, wherein accused pleaded his innocence. However, he did not examine himself on oath nor produced any evidence in his defence. He prayed for justice.

5. The learned trial Court after hearing the Counsel for the parties and evaluation of the evidence acquitted the respondent/accused, which has been challenged by the learned D.P.G. on behalf of State by preferring the instant criminal acquittal appeal.

6. Learned D.P.G. submits that the prosecution has examined two witnesses, who have fully supported the prosecution case and no contradictors are available in their evidence, however, the learned trial court has overlooked the evidence of prosecution witnesses and on the sole ground of safe custody and transmission has acquitted the respondents, though there was ample evidence to convict the accused which has not been considered. Therefore, he prayed that the criminal acquittal appeal be allowed and the impugned judgment be reversed and the respondent be convicted.

7. I have heard the learned D.P.G. and perused the material available on the record.

8. The perusal of impugned judgment reflects that the learned trial Court after observing in para Nos.6,7,8, 9 and 10 has acquitted the respondent/accused, same are reproduced as under:-

6. Undeniably no oral or documentary evidence has been brought on record to establish safe custody as well as safe transmission of weapon to Ballistic Expert, which is a requirement of law as observed by the Honourable Apex Court in the case of Kamaluddin @ Kamla v. The state (2018 SCMR 577). Moreover, per F.I.R (Exh-3/D) the weapon was allegedly recovered on 09.03.2020 but per Ballistic Expert Report (Exh-3/E) it was received by F.S.L, Forensic Division Larkana on 18.03.2020, which too creates a reasonable doubt in a prudent mind about prosecution case and such delay of 09 days has also not been accounted for plausibly.

7. Per case of Saifullah versus the State (1992 MLD 984 Karachi) where the fate of a case hints upon the testimony of police officials alone it is necessary to find out if there was any possibility of securing independent persons at that time. Judicial approach has to be cautious in dealing with such evidence.

8. Per case of Muhammad Manak v. the state (2018 SCMR 772) a single circumstance creating a reasonable doubt in a prudent mind is sufficient to extend benefit of doubt to an accused not as a matter of grace but as a matter of right because religious & legal teachings are that it is better to acquit ten guilty persons than to convict an innocent person.

9. Judicious scanning & appraisal of entire evidence makes it easier to understand for a prudent mind that prosecution case has become doubtful entitling the present accused to acquittal as a matter of right.

10. At the time of decision of case in hand I respectfully rely on case law as below;-i) Tariq Parvez versus the state (1995 SCMR 1345) wherein the Honourable Apex Court, at page 1247 was pleased to observe that “The concept of benefit of doubt to an accused person is deep rooted in our country. For giving him benefit of doubt it is not necessary that there should be many circumstances creating doubts---Single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefit, not as a matter of grace and concession, but as a matter of right.” AND the same principle was reiterated in the case of Muhammad Akram versus the state (2009 SCMR 230 at its page 236 ii) 2017 P. Criminal Law Journal P-1451 (Sindh) (e) Criminal Trial---“Benefit of doubt--- Prosecution was required to prove its case beyond a reasonable doubt, which was the cornerstone of the criminal standard of proof. If one doubt created regarding the truth of the charge benefit of the same would be extended to the accused” iii) 2018 P.Cr.L.J 570 (DB Baluchistan) (g) Criminal trial----“Benefit of doubt --- Principles---If there was a single circumstance which created doubt regarding the prosecution case the same would be sufficient to give benefit of doubt to the accused. iv) SBLR 2019 Sindh 169 (Honourable Sukkur Bench) v) 2020 P.Cr.L.J Note 2 (Sindh Honourable Larkana Bench) & Note 12 (Sindh) Benefit of doubt… Principle… If any reasonable doubt arises in the prosecution case the benefit thereof would be extended to the accused not as a matter of grace but as a matter of right & vi. un-reported judgment dated: 19-11-2020 (Cr. Appeal NO.S-10/2020 Re- Mithal versus the state) passed by the Honourable High Court of Sindh, Circuit Court Larkana.

9. It is well settled by now that the scope of appeal against acquittal is very narrow and there is a double presumption of innocence and that the Courts generally do not interfere with the same unless they find the reasoning in the impugned judgment to be perverse, arbitrary, foolish, artificial, speculative and ridiculous as was held by the Supreme Court in the cases of State Versus Abdul Khaliq and others (PLD 2011 SC 554), wherein the Hon’ble Supreme Court has held as under:-

“From the ratio of all the above pronouncements and those cited by the learned counsel for the parties, it can be deduced that the scope of interference in appeal against acquittal is most narrow and limited because in an acquittal the presumption of innocence is significantly added to the cardinal rule of criminal jurisprudence, that an accused shall be presumed to be innocent until proved guilty; in other words, the presumption of innocence is doubled. The courts shall be very slow in interfering with such an acquittal judgment, unless it is shown to be perverse, passed in gross violation of law, suffering from the errors of grave misreading or non-reading of the evidence; such judgments should not be lightly interfered and heavy burden lies on the prosecution to rebut the presumption of innocence which the accused has earned and attained on account of his acquittal. It has been categorically held in a plethora of judgments that interference in a judgment of acquittal is rare and the prosecution must show that there are glaring errors of law and fact committed by the Court in arriving at the decision, which would result into grave miscarriage of justice; the acquittal judgment is perfunctory or wholly artificial or a shocking conclusion has been drawn. Moreover, in number of dictums of this Court, it has been categorically laid down that such judgment should not be interjected until the findings are perverse, arbitrary, foolish, artificial, speculative and ridiculous (Emphasis supplied). The Court of appeal should not interfere simply for the reason that on the re-appraisal of the evidence a different conclusion could possibly be arrived at, the factual conclusions should not be upset, except when palpably perverse, suffering from serious and material factual infirmities. It is averred in The State v. Muhammad Sharif (1995 SCMR 635) and Muhammad Ijaz Ahmad v. Raja Fahim Afzal and 2 others (1998 SCMR 1281) that the Supreme Court being the final forum would be chary and hesitant to interfere in the findings of the Courts below. It is, therefore, expedient and imperative that the above criteria and the guidelines should be followed in deciding these appeals.”

10. On perusal of impugned judgment, it reflects that the trial court has not committed any illegality or infirmity while passing the impugned judgment, therefore, I am of the view that the learned trial Court has rightly acquitted the respondent/accused by way of impugned judgment. Accordingly, instant criminal acquittal appeal is dismissed in limine together with listed application.

J U D G E

Abdul Salam/P.A