ORDER SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Criminal Appeal No.D-47 of 2020.
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DATE ORDER WITH SIGNATURE OF HON’BLE JUDGE
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Before:
Mr. Justice Irshad Ali Shah,
Mr. Justice Agha Faisal,
For hearing of main case.
12.01.2022
Mr. Shahbaz Ali Brohi, Advocate for the appellant.
Mr. Aitbar Ali Bullo, D.P.G for the State.
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IRSHAD ALI SHAH, J.- The facts in brief necessary for disposal of the instant criminal appeal are that the appellant allegedly with rest of the culprits, after having formed an unlawful assembly and in prosecution of their common object, deterred the police party of Police Station, Jahan Wah, led by SIP Sher Muhammad Jafferi from discharging its lawful duty as public servants by making fires at them with intention to commit their murder and then made their escape good except the appellant, who was apprehended by them at the spot together with an unlicensed Pistol of 30 bore, when he was found causing butt blow to PC Nadeem Ahmed on his head with the said Pistol, for that the present case was registered. After due trial, the appellant was found guilty for the above said offence and was convicted and sentenced to various terms by learned Incharge Judge, Anti Terrorism Court, Shikarpur, vide judgment dated 17.12.2020, which has been impugned by the appellant before this Court by preferring the instant criminal appeal.
2. 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 an unlicensed Pistol upon him and evidence of the prosecution being doubtful in its character has been believed by learned trial Court without lawful justification, therefore, the appellant is entitled to his acquittal by extending him benefit of doubt.
3. Learned D.P.G for the State by supporting the impugned judgment has sought for dismissal of the instant criminal appeal.
4. We have considered the above arguments and perused the record.
5. There is no independent witness to the incident and the encounter proved to be ineffective in all respect. PW/PC Nadeem Ahmed who was caused butt blow on his head allegedly by the appellant has reported his arrival at the hospital for examination of his injury, treatment and certificate on the next date of the incident. No explanation to such delay is offered by him, which appears to be significant. PW/PC Nadeem Ahmed even otherwise during course of his examination was fair enough to say that he could not identify the accused, who caused him head injury and such injury even otherwise, as per Medical Officer Dr. Ahsan was found to be bailable in its nature. In these circumstances, the involvement of the appellant in the above said incident on the basis of recovery of an unlicensed Pistol which is said to have been foisted upon him is appearing to be doubtful.
6. In case of Muhammad Mansha Vs. The State (2018 SCMR-772), it has been held by the Hon’ble Apex court that;
“4. Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted".
7. In view of the facts and reasons discussed above, the conviction and sentence awarded to the appellant by way of impugned judgment are set aside, consequently, the appellant is acquitted of the offence, for which he has been charged, tried and convicted by the learned trial court, he shall be released forthwith in present case, if is not required to be detained in any custody case.
8. The instant Criminal Appeal is disposed of accordingly.
JUDGE
JUDGE