IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Criminal Appeal No.S-91 of 2019

Before:

Mr. Justice Muhammad Junaid Ghaffar

Mr. Justice Irshad Ali Shah

Appellant : Ameer Bux son of Qaisar Dasti

Through Mr.Habibullah Ghouri, Advocate

The State : Through Mr.Aitbar Ali Bullo, A.P.G.

Date of hearing : 25.08.2020

Date of decision : 25.08.2020.

J U D G M E N T

IRSHAD ALI SHAH-J; The facts in brief necessary for disposal of the instant appeal are that the appellant allegedly after committing death of his wife Mst.Zainab, by causing her fire shot injuries on allegation of “Karap”, made his escape good from the place of incident, subsequently, he was apprehended by police party of P.S Dodapur, led by ASI Abdul Khalique and on arrest from him was secured unlicensed incriminating pistol of 12 bore with five live cartridges of same bore, for that he was booked and reported upon.

2. At trial, the appellant did not plead guilty to the charge and the prosecution to prove it, examined in all three witnesses including complainant ASI Abdul Khalique and then closed its’ side.

3. The appellant in his statement recorded u/s.342 Cr.PC denied the prosecution allegation by pleading innocence by stating that the pistol has been foisted upon him by the police. He did not examine anyone in his defence or himself on oath.

4. On evaluation of evidence, so produced by the prosecution, learned 2^nd Additional Sessions Judge, Jacobabad, convicted and sentenced the appellant to undergo rigorous imprisonment for seven years with fine of rupees twenty thousand and in case of default whereof to undergo simple imprisonment for three months, for having committed an offence punishable u/s.25 of Sindh Arms Act, 2013, vide its judgment dated 17.10.2019, which is impugned by the appellant before this Court by way of instant appeal.

5. It is contended by learned counsel for the appellant that the appellant being innocent has been involved in this case falsely by the police; the pistol has been foisted upon the appellant and the evidence of the complainant and his witness being inconsistent has been believed by learned trial Court without cogent reasons. By contending so, he sought for acquittal of the appellant.

6. Learned A.P.G for the State by supporting the impugned judgment has sought for dismissal of the instant appeal.

7. We have considered the above arguments and perused the record.

8. On arrest, as per complainant ASI Abdul Khalique, the hands of the accused were tied with towel and on search from him was secured incriminating pistol of 12 bore with five live cartridges, for that a mashirnama of arrest and recovery was prepared under his dictation by PC Muhammad Rafique. The mashirnama of arrest and recovery does not contain a note that it was prepared by PC Rafique Ahmed under dictation of complainant ASI Abdul Khalique, which appears to be significant. As per PW/Mashir PC Muhammad Khan, the appellant on arrest was handcuffed. As per PW/PC Shah Muhammad Murad, on arrest the hands of appellant were tied with “romal”. Which one amongst them is correct? God knows better. However, both of the above said mashirs insisted that above said mashirnama was prepared by the complainant himself. By stating so, they belied the complainant that it was prepared by PC Rafique Ahmed under his dictation. Be that as it may, PC Rafique Ahmed has not been examined by the prosecution though was called to be examined by way of an application u/s.540 Cr.PC, for no obvious reason. His non examination could not be lost sight of. The inconsistencies in evidence of the complainant and mashir to recovery, as are pointed above, have made the recovery of pistol allegedly from the appellant to be doubtful.

9. The overall discussion involves a conclusion that the prosecution has not been able to prove its case against the appellant beyond shadow of doubt and he is found to be entitled to such 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. In view of the facts and reasons 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 present case, if not required in any other custody case.

12. Above are the reasons of our short order dated 25.08.2020, whereby instant appeal was allowed in the above terms.

J U D G E