IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Criminal Appeal No.S-08 of 2020
Appellant : Asghar son of Akbar by caste Siyanch
Through Mr.Habibullah Ghouri, Advocate
The State : Through Mr.Muhammad Noonari, D.P.G.
Date of hearing : 15.05.2020
Date of decision : 15.05.2020.
J U D G M E N T
IRSHAD ALI SHAH-J; The appellant by preferring the instant criminal appeal has impugned judgment dated 08.01.2020, passed by learned Additional Sessions Judge, Ratodero, whereby he for an offence punishable under section 24 of Sindh Arms Act, 2013 has been convicted and sentenced to undergo rigorous imprisonment for 05 years with fine of rupees Ten thousand and in case of default whereof to undergo simple imprisonment for 03 months, with benefit of section 382-B Cr.PC.
2. The facts in brief necessary for disposal of instant criminal appeal are that the appellant came at P.S, Ratodero, with an unlicensed repeater gun and made a disclosure before ASI Bagh Ali that he has committed Qatl-e-Amd of Zubair alias Zahoor and Mst.Latifan, by causing them fire shot injuries, after declaring them to be “Karo Kari”. On the basis of such recovery of repeater gun, the appellant was booked and reported upon accordingly.
3. At trial, the appellant did not plead guilty to the charge and prosecution to prove it examined, PW-01 complainant ASI Bagh Ali, PW-02 Mashir PC Ghulam Shabir, PW-03 Mashir PC Azhar Ali, PW-04 I.O/SIP Maqsood Ahmed and then closed the side.
4. The appellant in his statement recorded u/s.342 Cr.PC denied the prosecution allegation by pleading innocence, he did not examine anyone in his defence or himself on oath to disprove the charge against him.
5. On evaluation of evidence, so produced by the prosecution, the appellant has been convicted and sentenced accordingly by learned trial Court by way of impugned judgment.
6. It is contended by learned counsel for the appellant that the appellant being innocent has been involved in this case falsely by the police by making foistation of unlicensed repeater gun upon him and in earlier course of day, he has been acquitted in main murder case. By contending so he sought for acquittal of the appellant as according to him, the case of prosecution against him is not free from doubt.
7. Learned D.P.G for the State by supporting the impugned judgment has prayed for dismissal of the instant appeal.
8. I have considered the above arguments and perused the record.
9. As per complainant ASI Bagh Ali, unlicensed repeater gun was secured by him from the appellant under memo, which was witnessed by PWs/mashirs PC Ghulam Shabir and PC Azhar Ali. PW/Mashir PC Ghulam Shabir has been declared to be hostile to the prosecution by learned prosecutor on account of his failure to support the case of prosecution, while the evidence of PW/PC Azhar Ali who happened to be second mashir to arrest and recovery is silent with regard to preparation of memo of arrest and recovery of unlicensed repeater gun from the appellant by complainant ASI Bagh Ali. Such repeater gun as per report of ballistic expert has been sent to him with delay of about 14 days and such delay having not been explained by I.O/SIP Maqsood Ahmed could not be overlooked. There is no independent witness to such recovery. In these circumstances, it is rightly being contended by learned counsel for the appellant that the appellant is entitled to his acquittal, as the prosecution has not been able to prove its case against him beyond the shadow of benefit.
10. In case of Faheem Ahmed Farooqui vs. The State ( 2008 SCMR-1572), it is held that;
“single infirmity creating reasonable doubt regarding truth of the charge makes the whole case doubtful.
11. For what has been discussed above, the conviction and sentence recorded against the appellant together with the impugned judgment are set-aside. Consequently, the appellant is acquitted of the offence for which he was charged, tried and convicted by learned trial Court. The appellant shall be released forthwith in the present case.
12. The instant appeal is allowed accordingly.
J U D G E