IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Criminal Appeal No.S-28 of 2023

Appellant:                    Farooq s/o Wahid Bakhsh Kherid Mazari,

Through Mr.Pardeep Kumar B.Butani, Advocate

The State:                      Through Mr. Ali Anwar Kandhro, Addl.P.G, Sindh

Date of hearing:           02.06.2023

Date of decision:           02.06.2023

JUDGMENT

IRSHAD ALI SHAH, J;- It is alleged that on arrest from the appellant was secured an unlicensed pistol of 30 bore with magazine, which he allegedly used to deterred the police party of P.S Kashmore, led by complainant ASI Hyder Ali Khoso, from discharging its lawful duty as public servants, for that he was booked and reported upon. At trial, he denied the charge and the prosecution to prove the same, examined complainant ASI Hyder Ali Khoso, PW Mashir/LPC Muhammad Arif and I.O/ASI Kamand Ali and then closed its side. The appellant in his statement recorded under Section 342 Cr.PC denied the prosecution’s allegation by pleading his innocence; he did not examine anyone in his defence or himself on oath to disprove the prosecution’s allegation against him. On conclusion of trial, he was convicted under Section 23(i)(a) of Sindh Arms Act, 2013 and sentenced to undergo rigorous imprisonment for two years and to pay fine of Rs.3000/- and in default whereof to undergo simple imprisonment for three days; he was further convicted under Section 25 of Sindh Arms Act, 2013 and sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs.1000/- and in default whereof, to undergo simple imprisonment for one day; both the sentences were directed to run concurrently, with benefit of Section 382-B Cr.PC, by learned Additional Sessions Judge, Kashmore, vide judgment dated 21.02.2023, which he has impugned before this Court by preferring the instant criminal appeal.

2.         It is contended by learned counsel for the appellant that he being innocent has been involved in this case falsely by the police by foisting upon him an unlicensed pistol only to save themselves from legal consequences for causing him fire shot injury; otherwise, he has nothing to do with the alleged incident. By contending so, he sought for acquittal of the appellant, which is opposed by learned Addl.P.G for the State by contending that the prosecution has been able to prove its case against him beyond shadow of doubt, which is strongly corroborated in shape of recovery.

3.         Heard arguments and perused the record.

4.         Despite advance information, no independent person was associated by the complainant to witness the incident; such omission on his part could not be ignored. No police personnel sustained fire shot injury during alleged encounter though it continued for about 10/12 minutes. No scratch even was caused to police mobile during such encounter, which appears to be astonishing. The pistol allegedly secured was found lying in front of the appellant at the time of his arrest; same has been subjected to its examination with delay of about six days; no explanation to such delay is offered by the prosecution. None has been examined by the prosecution to prove its safe custody in Malkhana. No question has been put to the appellant during course of his examination under Section 342 Cr.PC to have his explanation on the report of ballistic expert. In these circumstances, it would be safe to conclude that the prosecution has not able to prove its case against the appellant beyond shadow of reasonable doubt and to such benefit he is found entitled.

5.         In case of Haji Nawaz vs. The State (2020 SCMR 687), it has been held by Hon’ble Apex Court that;

“The law is settled by now that if a piece of evidence or a circumstance is not put to an accused person at the time of recording his statement under section 342 Cr.P.C then the same cannot be considered against him for the purpose of recording his conviction.”

6.         In case of Muhammad Mansha vs The State (2018 SCMR 772), it has been held by the 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.         Having concluded above, the conviction and sentence awarded to the appellant by way of impugned judgment are set-aside; he is acquitted of the offence, for which he was charged 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 criminal appeal is disposed of accordingly.

            JUDGE