IN THE HIGH COURT OF SINDH, KARACHI
Criminal Appeal No. 118 of 2017
Kashif Ali ..
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.Appellant
Versus
The State
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....Respondent
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Criminal Appeal No. 136 of 2017
Aijaz Ali ..
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..
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.Appellant
Versus
The State
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....Respondent
Date of Hearing:- 09.11.2017
Mr. Habib-ur-Rehman
Jiskani, advocate for appellant in Cr. Appeal No. 118/2017
Mr. Qaim
Ali Memon, advocate for appellant in Cr. Appeal No. 136/2017
Mr. Zahoor
Shah, DPG for the State
J U D G M E N T
FAHIM AHMED SIDDIQUI, J: As the
impugned judgment in Cr. Appeal No. 118/2017 and 136/2017 is one and the same
and the grounds taken in both the appeals are almost similar; therefore, this
single judgement will dispose of both the aforesaid appeals. These appeals are
preferred being aggrieved by the judgment dated 07-03-2017 passed by Additional
Sessions Judge-II, Malir, Karachi in Sessions Case No. 92/2015 (The State v.
Kashif Ali and another) whereby the appellants were convicted and sentenced for
offence u/s 397 PPC to suffer R.I. for 7 years with benefit of Section 382-B
CrPC.
2. On 20-05-2014, the complainant Abdul Basit
lodged FIR No. 169/2014 at PS Sachal, Karachi under Section 392 and 34 PPC
wherein he reported a cognizable offence. According to complainant, on the said
date, he and his brother Abdul Ghani were sitting in the street when at about
20:30 hours, two armed boys came on a motorbike and on the force of weapon has
snatched cash amount of Rs. 40,000/- and mobile phone from him and cash amount
of Rs. 500/- and mobile phone from his brother Abdul Ghani. Meanwhile, during routine
patrolling police party on official mobile reached at the scene of offence and
with the help of them, one of the accused was apprehended along with the weapon
while his associate succeeded in escaping. Complainant further narrates that on
enquiry the apprehended accused disclosed his name as Kashif Ali Chandio from him,
one 9-MM pistol without number, four live rounds and mobile phone of his
brother were recovered. On enquiry by police, the accused disclosed that the
pistol was without licence and he also disclosed the name of absconding accused
as Aijaz Ali Chadio. From personal search of the accused copy of document of
Motorcycle No. KDG 0718 was also recovered. Complainant also disclosed that the
absconding accused took away cash amount and during process of apprehension of
accused, the accused and his brother received injuries and then with the help
of police, the accused and case property were brought to police station for
reporting the incident.
3. After usual investigation, a Final Report
was submitted to the concerned Magistrate, who after taking cognizance sent up
the case to the learned Sessions Judge from where it was entrusted to the trial
Court. The appellants faced the trail and they were convicted and sentenced by
the trial Court as described above.
4. The trial against the appellants/accused
was initiated after framing of charge to which he pleaded not guilty. After
examining the prosecution witnesses and closure of prosecution side, the statement
of appellant/accused was recorded under Section 342 CrPC. In his statement, he
once again denied the prosecution case and pleaded his innocence. He did not
prefer to be examined on oath neither he produced any witness in his defence.
5. Arguments heard and record perused.
6. In the instant case, the complainant at
the time of lodging of FIR has described
that a 9 MM pistol was recovered from the possession of the apprehended accused
namely Kashif but record indicates that the recovered weapon is a 30 bore
pistol. It is also worth mentioning that the prosecution witness says that the
recovered pistol was of 30 bore which is contradictory to the version of
complainant taken in FIR. It is also important to note that at the time of
examination of complainant only mobile phones were produced and allegedly
recovered pistol was not produced. It is really fatal for the prosecution that
at the time of examination of complainant the allegedly recovered pistol was
not produced as such the same could not be identified by the complainant before
the trial Court. I am of the view that mere production of mobile phone before
the trial Court is not sufficient unless the ownership of complainant party on
such mobile phones is established by the prosecution. Another factor requires
consideration, both the private witnesses are brothers inter-se, as such highly
interested and their deposition requires corroboration. The evidence of both
the private witnesses could not be corroborated through some independent
evidence. An important witness of prosecution is the resident of neighbourhood
namely Gulzar but the prosecution did not examine the said independent witness.
7. I have also examined carefully the
deposition recorded before the trial Court and found that the same is not free
from contradictions. A very vital contradiction has already been pointed out
regarding the recovered weapon. In this respect, it is also notable that not
only in FIR it is mentioned that the recovered pistol was of 9 MM but the same
thing is also mentioned in the Final Report through which the accused persons
were sent up for trial. Meaning thereby that it is not a typographical mistake
and the repetition of the same casts serious doubt regarding the alleged
recovery. The complainant and his brother say that mobile phones were recovered
from the accused namely Kashif Ali while cash amount was taken away by
absconding accused but investigation officer says that the mobile phones were
also taken away by the absconding accused.
8. It is also notable that FIR was lodged
under Section 392 PPC and the charge sheet was also submitted by the
investigation officer with a recommendation that the accused persons should be
tried under Section 392 PPC but on account of recovery of weapon, the trial
Court framed charge under Section 397 PPC. Due to alleged recovery of weapon, a
separate case under Section 23 (1) (a) of Sindh Arms Act was registered against
appellant Kashif and for the same he was separately tried. In the said
companion case, the trial Court after full-fledged trial acquitted appellant
Kashif Ali. By such acquittal, it can be said that the recovery of alleged
crime weapon could not be established and the same is also a fatal blow to the
prosecution case.
8. In view of the above discussion, it can
be safely said that the prosecution could not succeed to establish a case
against the appellants and the pearls of doubts are scattered in the entire
prosecution case. In such a situation there remained no other alternate but to
extend benefit of doubt to the appellants. Resultantly, both the instant appeals
are allowed and both the appellants are acquitted from charge. Both the
appellants are present on bail, their bail bonds are cancelled and surety is
discharged. These are the reasons for my short order dated 09-11-2017.
J
U D G E