IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Criminal Appeal No.S-97 of 2019
Appellant : Ali Bux son of Nijawat Ali Bahalkani,
Through Mr.Asif Ali Abdul Razzak Soomro, Advocate
The State : Through Mr.Muhammad Noonari, D.P.G
Date of hearing : 27.08.2020
Date of decision : 27.08.2020
J U D G M E N T
IRSHAD ALI SHAH, J.- The appellant by means of instant appeal has impugned judgment dated 17.10.2019, passed by learned 1st Additional Sessions Judge/MCTC, Kandhkot, whereby he has been convicted and sentenced as under;
“Accused Ali Bux Bahalkani is convicted under section 265-H(ii) Cr.PC for the offence under 25 Sindh Arms Act, 2013 and sentenced to suffer R.I for (07) years and to pay fine of Rs.30,000/- and in default whereof to further undergo S.I for two month. He present in Court on bail, taken into custody and remanded to Central Prison Sukkur through Superintendent District Jail Shikarpur to serve the sentence. The benefit of section 382-B Cr.P.C is allowed to the convict for the period which he has already remained in custody after having been arrested shall be computed towards conviction”.
2. The facts in brief necessary for disposal of instant appeal are that it is alleged that the appellant has committed Qatl-e-Amd of his daughter Mst.Zaheeran Khatoon, by causing her gunshot injuries and on arrest from him was secured the gun, which he allegedly used in above said incident, for that he was booked and reported upon by the police.
3. At trial, the appellant did not plead guilty to the charge and the prosecution to prove it, examined Complainant/SIO/ASI Ghulam Rasool and PW/Mashir HC Barkat Ali and then closed its’ side.
4. The appellant in his statement recorded u/s.342 Cr.PC denied the prosecution allegation by pleading innocence by stating there that it was his licensed gun which has been foisted upon him by the police. It was never used by him in commission of the incident and the police officials have deposed against him falsely. He did not examine anyone in his defence or himself on oath.
5. On conclusion of the trial, learned 1st Additional Sessions Judge/MCTC, Kandhkot, convicted and sentenced the appellant, as is detailed above, 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; there is no independent witness to the incident and the appellant has already been acquitted in main murder case in earlier course of the day. By contending so, he sought for acquittal of the appellant.
7. Learned D.P.G for the State by supporting the impugned judgment has sought for dismissal of the instant appeal.
8. I have considered the above arguments and perused the record.
9. As per complainant/SIO/ASI Ghulam Rasool and PW/Mashir HC Barkat Ali, they with police party went at the place of incident to apprehend the appellant and to secure from him the incriminating gun, on the basis of spy information. If it was so, then they ought to have associated with them independent person to witness the arrest of appellant and recovery of incriminating gun from him. It was not done by them, for no obvious reason, therefore, such omission on their part could not be overlooked. On arrest from the appellant, as per them, was secured the incriminating gun, which is claimed by the appellant to be his licensed gun. Be that as it may, it has been subjected to expert’s examination on 9th day of its recovery, without any plausible explanation to such delay, such delay as such could not be ignored. The complainant on asking was fair enough to admit that 161 Cr.PC statements of the PWs were recorded by WPC. Neither, name of such WPC is disclosed nor he is examined by the prosecution. His non-examination could not be lost sight of. In these circumstances, it would be safe to conclude that the prosecution has not been able to prove its case against the appellant beyond shadow of doubt.
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. The instant appeal is disposed of accordingly.
J U D G E
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