IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Criminal Appeal No.S-39 of 2023
Appellant : Sabir Ali s/o Muhammad Usman Magsi (on bail)
through Mr.Naseer Ahmed Wagan, Advocate
The State : Through Mr. Ali Anwar Kandhro, Addl. P.G.
assisted by Mr. Imran Mobeen Khan, Asst. P.G.
Criminal Appeal No.S-40 of 2023
Appellant : Fateh Ali son of Muhammad Ali Magsi (on bail)
through Mr.Naseer Ahmed Wagan, Advocate
The State : Through Mr. Ali Anwar Kandhro, Addl. P.G.
assisted by Mr. Imran Mobeen Khan, Asst. P.G.
Date of hearing : 30.10.2023.
Date of Judgment : 30.10.2023.
J U D G M E N T
Muhammad Saleem Jessar, J.- Through these two appeals, appellants Sabir Ali Magsi and Fateh Ali Magsi have assailed the Judgments dated 13.04.2023 separately passed in Sessions Case No.27/2023 re-The State v. Sabir Ali Magsi, outcome of Crime No.322/2022 of PS Kamber City and Sessions Case No.26/2023 re-The State v. Fateh Ali Magsi, outcome of Crime No.321/2022 of PS Kamber City, whereby the learned Sessions Judge, Kamber-Shahdadkot at Kamber convicted the accused / appellants for offence punishable under Section 24 of Sindh Arms Act 2013 and while imposing sentence upon each of them, handed over their custody to the Probation Officer for two years probation period upon executing the requisite bonds, with direction that each of them should furnish solvent surety in the sum of Rs.50,0000/- (Rupees Fifty Thousand Only) and fine amount of Rs.5000/- (Rupees Five Thousand Only) was also imposed upon them. In case of non-payment of fine amount, the appellants/accused were ordered to remain one month more time in probation period under supervision of Probation Officer, with further direction to submit a bond with certain restrictions imposed on them.
2. According to the case of prosecution, on 13.12.2022, the appellants Sabir Ali and Fateh Ali, who were already in police custody in connection with Crime No.318/2022 of PS Kamber City, accompanied the police party of said police station headed by ASI Nazar Hussain to the land of Ameer Hussain Magsi situated in Deh and Taluka Kamber, where from the heap of paddy/rice straws (called Palal in Sindhi) accused Sabir Ali took out and produced one Repeater of 12 bore along with four live cartridges, while accused Fateh Ali also took out and produced one 30-bore pistol along with magazine containing five live bullets. The appellants could not produce any valid license for said weapons, therefore, they were booked in these cases by complainant ASI Nazar Hussain on behalf of State.
3. Both the appellants/accused were tried separately. They pleaded ‘not guilty’ to the charge framed against them and claimed to be tried.
4. In order to prove its case, prosecution in both cases examined and relied upon the common evidence of PW-1 complainant and IO ASI Nazar Hussain, PW-2 eye-witness/mashir Riaz Hussain and PW-3 WASI Zameer Ali. They produced documents in their respective evidence.
5. The appellants/accused in their statements u/s 342, Cr.PC, denied the prosecution allegations and claimed to be innocent. However, neither they examined themselves on oath nor produced any witness in their defence.
6. After formulating the points for determination, recording evidence of the prosecution witnesses and hearing counsel for the parties, trial Court vide separate judgments convicted and sentenced the appellants/ accused, as stated above. Against said judgment, the appellants have preferred these appeals.
7. I have heard learned Counsel for the appellants as well as learned Addl. P.G assisted by learned Asst. P.G appearing for the State and have perused the material available on the record.
8. Learned counsel for the appellants submitted that the appellants are innocent and they were falsely implicated by foisting the alleged recoveries against them with a view to strengthen the main case crime No.318/2022 of P.S Kamber. He next contended that the mashir Riaz Hussain is highly interested and set up, as he is related to the complainant of main case. He also contended that there are material contradictions in the evidence of prosecution witnesses. He also contended that the alleged recoveries were made on 13.12.2022, whereas the weapons were sent to the Ballistic Expert on 28.12.2022 i.e. after inordinate delay of 15 days and the complainant, who acted as I.O. of the case did not furnish any explanation for such delay. He contended that the prosecution has not come with clean hands and the story whatever has been put forth, reveals that the prosecution itself left room for doubt, which as per settled law always goes in favour of the accused. Learned Counsel further contended that these cases are the offshoot of main Crime vide F.I.R. No.318/2022 registered at PS Kamber City, under Sections 447, 506/2, 148, 149, PPC. He submitted that in that case (Criminal Case No.25/2023 (re-The State Vs. Fateh Ali Magsi & others) the appellants have been acquitted of the charge by the trial Court vide judgment dated 27.6.2023 passed by Civil Judge & Judicial Magistrate-II, Kamber. He further submits that these cases, being its offshoot, the appellants may also be acquitted of the charge in the light of dicta laid down by this Court in the case of Manjhi v. The State (PLD 1996 Karachi 345).
9. Learned Additional Prosecutor General, assisted by learned Asst. P.G, by placing reliance upon the case reported as Yasir Chaudhry Vs. The State (2012 MLD 1315) do not oppose the appeals, mainly for the reason that the appellants stand acquitted of the charge in the main case.
10. I have gone through R&Ps of the cases and the impugned judgments dated 13.04.2023 passed by the trial Court.
11. It is an admitted position on record that the appellants were also booked under main case Crime No.318/2022 registered at PS Kamber City, for offence u/s 447, 506/2, 148, 149, PPC. However, in that case the appellants have been acquitted of the charge vide judgment dated 27.6.2023 and in this context certified copy of judgment has been placed on record. Though the alleged offence weapon were shown to have been recovered on the pointation of the appellants/accused on 13.12.2022; however, per ballistic reports same were delivered in the laboratory on 28.12.2022 with the delay of 15 days, for which the prosecution has not furnished any explanation. Though WASI Zameer Ali examined as PW-3 has deposed that he was Malkhana incharge at the relevant time and the weapons were kept by him in the Malkhana, but neither the complainant ASI Nazar Hussain nor mashir Riaz Hussain have uttered a single word in their depositions about deposit of the weapons in the Malkhana during the intervening period of 15 days. In such circumstances, sending the weapons to the laboratory with such delay casts serious doubt upon the veracity of the prosecution case and it shows that either the weapons were not recovered from the possession of the appellants or the police had falsely implicated the appellants by maneuvering the weapons at the instance of complainant party of main case. In such circumstances, the report of Ballistics Expert, even though in positive, cannot be believed; rather, the very recovery of offensive weapon becomes highly doubtful. Record further shows that joint mashirnama was prepared in respect of all three cases i.e. the main case and these offshoot cases, which is not permissible and such practice has always been deprecated by the Superior Courts.
12. As stated above, these cases are offshoot of main Crime No.318/2022 vide Criminal Case No.25/2023 (re-The State Versus Fateh Ali Magsi & others), wherein the appellants have been acquitted by the trial Court by disbelieving the evidence same prosecution witnesses; hence, propriety of law demands, appellants should be acquitted from the charge of these cases.
13. It seems that the legal position in such a situation, as enunciated by the Superior Courts, is that when an accused has been acquitted in the main case, he would be entitled to acquittal in a case which is offshoot of the main case. In this connection, reference may be made to the case of Yasir Chaudhry Vs. The State reported in 2012 MLD 1315, wherein it was held by the Lahore High Court as under:-
“In the case reported as Manjhi v. The State (PLD 1996 Karachi 345) it has been held that when the accused has been acquitted in the main case, he would become entitled to acquittal in a case which is offshoot of the said case. Same is the position here, as the present lis is an offshoot of the main murder case, so, respectfully following the dictum laid down in the judgment supra, this petition is allowed and the application of the petitioner under section 249-A Cr. P.C. is accepted and the petitioner is acquitted from the charge in case F.I.R. No.17 of 2003 dated 12.1.2003 registered under section 7 of the Surrender of Illicit Arms Act No.XXI of 1991 with Police Station Civil Lines, Bahawalpur.”
14. Keeping in view above legal position, it can safely be held that when the accused / appellants have been acquitted from the charge of the main case and these cases being offshoot of said main case, the appellants deserve their acquittal in these cases also.
15. For what has been discussed above, both these Criminal Appeals are allowed, the impugned judgments dated 13.04.2023, handed down by learned Sessions Judge, Kamber-Shahdadkot at Kamber are set aside and the appellants are acquitted of the charge.
JUDGE
Qazi Tahir PA/*