THE HIGH COURT OF SINDH AT KARACHI
Criminal Appeal No.188 of 2018
Present:
Mr. Justice Abdul Maalik Gaddi
Appellant : Muhammad Ayoub through Mr. Sajjad Hussain,
advocate
Respondent : The State through Mr. Muntazir Mehdi, DPG
Date of hearing : 09.4.2018
Date of Judgment : 09.4.2018
1. FOR ORDERS ON MA NO.2919/2018
2. FOR HEARING OF MAIN CASE
3. FOR ORDERS ON MA NO.2920/2018
JUDGMENT
1. Exemption granted subject to all just exceptions.
2-3. Through instant appeal, the appellant has assailed the legality and propriety of the Judgment dated 16.01.2018 passed by the learned I-Additional Sessions Judge, Malir, Karachi, in Sessions Case No.845/2017 re. Muhammad Ayoub son of Rehmatullah vs. The State, arising out of Crime No.522/2017 for offence under Section 23-1(a) Sindh Arms Act, 2013 registered at PS SITE Superhighway Industrial Area, whereby the learned trial Court, after full dressed trial convicted and sentenced the appellant as mentioned in Point No.2 of the Impugned Judgment. For the sake of convenience, it would be appropriate to reproduce the said Point, which reads as under:
“Point No.2
In view of my findings arrived at above point, accused Muhammad Ayoub son of Rehmatullah is found guilty to be charged of offence under Section 23-1(a) Sindh Arms Act, 2013. The accused has failed to engage his counsel who could have thrashed out the prosecution case during cross examination but due to such reason accused could not succeed to get any contradiction and discrepancies in the prosecution, therefore in the interest of justice the Court has taken the lenient view, the accused is convicted under Section 265-H(ii)CrPC and sentence to suffer R.I for one (01) year. He has remained in judicial custody since 11.11.2017. The benefit of Section 382-B CrPC is also extended to him. He is produce in custody and is remanded back to District Jail Landhi to serve out the above sentence, awarded to him. Copy of judgment be delivered to accused on free of cost.”
4. Brief facts of the prosecution’s case are that the complainant ASI Soomar Khan lodged FIR on 08.11.2017, stating therein that present appellant/accused was arrested at spot in Crime No.521/2017 under section 392 PPC of Police Station Site Superhighway Industrial Area and he was found in possession of one 30 bore pistol rubbed number containing magazine with four live rounds in presence of mashirs. On inquiry, application/ accused could not produce any valid license of pistol. The robbed articles were recovered from the possession of co-accused Aadil of main case. Consequent upon: the case was registered inter-alia against him under Section 23-1(a) Sindh Arms Act, 2013.
5. It appears from the record that a formal charge was framed against the appellant at Exh.02 to which appellant pleaded not guilty and claimed to be tried.
6. It also appears from the record that in order to substantiate the charge against present appellant, the prosecution had examined the following witnesses:-
(i) PW-01 ASI Soomar Khan at Ex.3, who is complainant of this case. He produced roznamcha entry No.4 at Ex.3/A, attested copy of memo of arrest and recovery at Ex.3/B, (original lying in main case), carbon copy of FIR at Ex.3/C, arrival entry No.25 at Ex.3/D, attested copy of memo of site inspection at Ex.3/E.
(ii) PW-02 Mumtaz Ahmed examined at Ex.4, who is private mashir of this case.
(iii) PW-03 ASI Israr Ahmed examined at Ex.5, who is I/O of this case. He produced departure entry at Ex.5/A, arrival entry at Ex.5/B, police letter at Ex.5/C FSL examination report at Ex.5/D.
These witnesses were cross examined by the counsel for the appellant and thereafter, learned DDPP for the State closed the side of the prosecution vide at Ex.6.
7. Statement of appellant was recorded under section 342 CrPC at Exh.7, in which he denied all the prosecution allegations leveled against him and claimed himself to be innocent. However, the appellant neither examined himself on Oath nor led any evidence in his defense.
8. Today this case is fixed at initial stage. Learned DPG present in Court in other cases waives the notice of this appeal and submits that the short sentence has been awarded by the trial Court in this matter, therefore he is ready to argue the appeal.
9. In view of above short sentence, parties’ advocates have been heard. It is argued by the learned counsel for appellant that the case against the appellant is false and has been registered due to enmity. He further submits that the appellant has been acquitted in main case being Crime No.521/2017 of PS SITE Superhighway Industrial Area under Section 392 PPC, but on the basis of same Mashirnama of this case, but trial Court has convicted the present appellant in this case without assigning any good reasons. Therefore, according to him on this ground alone, appellant has a good case for his acquittal. He further submits that the appellant having no past criminal history and is behind the bar for the last 08 months and according to him he has also served the substantial sentence.
10. Learned DPG submits that this case is offshoot of crime No.521/2017 registered under Section 392 PPC of PS SITE Superhighway Industrial Area, in which the appellant has been acquitted. Therefore, in the circumstances, he was of the view that the appellant is entitled of his acquittal from the charge.
11. I have given my anxious thoughts to the contentions raised at the bar and have also gone through the case papers so made available before me.
12. It appears from the record that present appellant was arrested along with accused Aadil on 08.11.2017 under Crime No.521/2017 registered under Section 392 PPC of PS SITE Superhighway Industrial Area and a joint Mashirnama of Section 23(i)(a), Sindh Arms Act and Section 392 PPC was prepared in presence of same Mashirs and it is admitted by learned DPG that on the basis of same Mashirnama, the present appellant along with co-accused Aadil have been acquitted by the trial Court, therefore, according to him on the basis of common Mashirnama of arrest and recovery, the appellant has been acquitted, therefore, the common Mashirnama, which has been annexed in this case has become doubtful. Apart from this, the whole case of the prosecution rest upon the evidence of police officials, the same has been perused and considered by me and found that the said evidence is contradictory on material particular of the case. I have perused the evidence so brought on record and found that the story and the evidence of prosecution do not inspire any confidence. It does not reflect from the record, when the case property allegedly recovered from the appellant was sent to Ballistic Expert for its opinion.
13. As observed above, this appellant has been acquitted in the main case under Crime No.521/2017 of PS SITE Superhighway Industrial Area, therefore, the learned DPG has rightly conceded that it is a fit case for acquittal. It also does not reflect from the record that the applicant is a previous convict or has been arrested in a case of similar nature in past. Under these circumstances and in view of the no objection extended by learned DPG, I allow this appeal. Consequently, Impugned Order dated 16.01.2018 passed by the learned trial Court is set aside. Resultantly, the appellant, who is in custody, is ordered to be released forthwith, if he is not required in any other criminal case. Since this appeal is allowed, therefore, the application i.e. M.A. No.2920/2018 has become infructuous and same is disposed of accordingly.
JUDGE