IN THE HIGH COURT OF SINDH, CIRCUIT COURT,

LARKANA

Crl. Appeal No. S- 10 of 2022.

Imtiaz Ali son of Muhammad

by caste Khoonharo.                                                                        ………….…....Appellant.

Versus

The State.                                                                               ………......…Respondent.

            Mr. Abdul Sattar Hulio, Advocate for appellant.

            Mr. Aitbar Ali Bullo, Deputy Prosecutor General.

            Date of hearing:                    06.04.2023.

            Date of judgment:                06.04.2023.

JUDGMENT

Zulfiqar Ali Sangi, J: The present appeal is directed against the judgment dated 31.01.2022 passed by the learned Assistant Sessions Judge, K.N. Shah, whereby the appellant was convicted and sentenced for offence punishable under Section 23 of the Sindh Arms Act, 2013, arisen out of F.I.R No.175/2021 of P.S K.N. Shah, in Sessions case No.525/2021. The appellant was sentenced to undergo R.I for three (03) years with fine of Rs.15000/- and in case of default in payment of fine to suffer S.I for three months. The benefit of Section 382-B Cr.P.C was extended to the appellant.

2.         The appellant against his conviction and sentence preferred appeal before learned Sessions Judge, Dadu, vide Criminal Appeal No.13/2022, which was made over to learned 1^st Additional Sessions Judge, Dadu, who vide judgment dated 26.03.2022 maintained the conviction and sentence awarded to appellant by learned trial Court. Ultimately, captioned appeal was preferred on behalf of the appellant before this Court.

3.         The appellant was booked and brought to face the trial, on the allegation that on 27.10.2021 he was apprehended alongwith unlicensed pistol of 30-bore by the police party, headed by complainant / ASI Ghulam Rasool, in presence of police mashirs/ witnesses and the F.I.R was registered to that effect.

4.         On completion of usual investigation, the challan was submitted and appellant was sent up for trial. The learned trial Court framed the charge against appellant, to which he pleaded not guilty and claimed to be tried.

5.         In order to prove the charge against the appellant, the prosecution examined complainant ASI Ghulam Rasool, PW / Mashir P.C Imran Ali and I.O/ ASI Munawar Ali. They produced certain documents including F.I.R, FSL report and entries etc. in support of their evidence. Then, the learned Prosecutor closed the side and at end of trial the statement of appellant / accused was recorded under Section 342 Cr.P.C, in which he denied the allegations of the prosecution leveled against him. He claimed his innocence and false implication in this case. He neither examined himself on oath nor led any sort of evidence in his defence.

6.         After hearing the parties, the trial Court passed the impugned judgment dated 31.01.2022, in which the appellant/ accused was convicted as stated above, who then preferred appeal before learned Sessions Judge, which was decided by learned 1^st Additional Sessions Judge, Dadu, and vide judgment dated 26.03.2022, the appeal was dismissed  and sentence awarded to appellant was maintained. Thereafter, the appellant preferred instant appeal before this Court.

7.         Heard learned counsel for the appellant, learned D.P.G. appearing for the State and gone through the entire evidence / material available on record with their able assistance.

8.         As regards to the maintainability of this appeal in view of the fact that the appellant has already availed the remedy of appeal, learned counsel submit that this appeal may be converted into criminal revision application. Order accordingly.

9.         It appears that both the witnesses are police personnel and no any independent person has been cited or examined by prosecution as mashir/ witness, though the alleged incident is said to have taken place near fish-pond on link road leading from K.N. Shah towards Gozo. The location of the place of vardat shows that it is an open and busy place, where presence of the independent persons cannot be ruled out. The appellant was shown to be arrested in the day time from a common, open and busy place, when people remained available in routine business of life as such it is hard to believe that at that time there was no private person present. No doubt, the evidence of the police officials is as good as other witnesses, but when the whole case rests upon sole evidence of police officials, their evidence requires deep scrutiny.

9.         Record further reveals that, evidence of the witnesses examined by prosecution is neither reliable nor trustworthy, as they have contradicted each other on very important crucial points, which prove them to be untrustworthy witnesses and on the basis of such evidence, conviction cannot be maintained.

10.       The complainant / ASI Ghulam Rasool deposed that, accused tried to escape and he was apprehended while covering distance of five paces by P.C Imran Ali and was tied with “Roomal”. Whereas, P.C Imran Ali deposed that accused did not try to escape and he has also not disclosed that hands of accused were tied with “Roomal”. Complainant further deposed that he deposited the recovered pistol in “Malkhana”, however, the investigation officer deposed during his cross-examination that he received pistol and cash of Rs.150/- from the complainant. Moreover, the prosecution witnesses stated that the pistol was deposited in “Malkhana”, but the Incharge of the “Malkhana” was not examined to prove such fact. It was stated by the Investigation Officer that he sent the case property to ballistic expert through P.C Nisar Ahmed, but P.C Nisar Ahmed was also not put into witness box to prove the safe transmission. The FSL report shows that the case property was received to laboratory on 10.11.2021 and there is nothing on record to show that from 29.10.2021 till 10.11.2021 where the case property was kept.

11.       All these facts prove that the entire case was cooked-up at police station and the case of prosecution is doubtful. The learned Trial and Appellate Court have not evaluated the evidence and other infirmities referred to above, in true perspective and thus reached to an erroneous conclusion by holding the appellant guilty of the offence.

12.       Resultantly, instant criminal revision application is allowed. The conviction and sentence awarded to applicant is set-aside and he is acquitted of the charge by extending him benefit of doubt. The applicant is present on bail; his bail bond stands cancelled and surety discharged. The office is directed to return the surety papers to surety on proper verification and identification as per practice and procedure.

                                                       Judge

Ansari