IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR.
Crl.
Appeal No. S – 42 of 2020.
Before;
Mr. Justice Khadim Hussain Tunio,
Mr. Justice Irshad Ali Shah
Appellant: Allah Wadhayo @ Makoro son of
Muhammad Panjal bycaste Bozdar.
(Now confined at Central Prison
Khairpur)
Through M/s Rukhsar Ahmed
Junejo and Mumtaz Ali Junejo, Advocates.
The State: Through, Mr. Talib Hussain
Siyal, Assistant Prosecutor General for the State.
Date of
hearing: 31-03-2021.
Date of
decision: 31-03-2021.
J U D G M E N T
IRSHAD ALI SHAH, J. The
appellant by preferring instant appeal has impugned judgment dated 27-02-2020
passed by learned 1st Additional Sessions Judge/MCTC Khairpur,
whereby he for an offence punishable u/s 23 (a) of Sindh Arms Act, 2013 for
being in possessions of unlicensed country made pistol of 12 bore with 21 live
cartridges of 12 bore of different colour, 40 live bullets of Kalashnikov, 35
live bullets of 30 bore with three magazines, was convicted and sentenced to
undergo R.I for five years with fine of Rs. 50,000/- and in default in payment
whereof to undergo S.I for three months.
2. At trial, appellant denied the charge and
prosecution to prove it, examined PW-1 complainant ASI Ghulam Shabbir Larik,
PW-2 mashir PC Piyaro Khan PW-3 PC Azizullah and SIO/SIP Aftab Hussain Shah and
then closed the side.
3. The appellant in his statement recorded
u/s 342 Cr.P.C denied the prosecution’s allegation by pleading innocence by
stating that he has been involved in this case falsely by the police. He did
not examine anyone in his defence or himself on oath to disprove the
prosecution’s allegation against him in terms of section 340 (2) Cr.P.C.
4. On conclusion of the trial, the
appellant was convicted and sentenced by learned trial Court by way of impugned
judgment as stated above.
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 only to show its
efficiency; that there is no independent witness to the incident; that the
incharge of ‘malkhana’ has not been
examined by the prosecution; that the property has been subjected to its
chemical examination with delay of about five days and evidence of the
prosecution being inconsistent and doubtful has been believed by learned trial
Court without lawful justification. 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 Crl. Appeal.
7. We have considered the above arguments
and perused the record.
8. It
is stated by complainant ASI Ghulam Shabbir and PW mashir PC Piyaro Khan that
on the date of incident, when they with rest of the police personnel, were
conducting the patrol, and reached adjacent to Octroi post near Ansari Petrol
Pump, they found the appellant, he was apprehended and on search from him were
secured the country made pistol of 12 bore with 21 live cartridges of 12 bore
of different colour, 40 live bullets of Kalashnikov, 35 live bullets of 30 bore
with three magazines and 1600 grams of charas, a mashirnama of arrest and
recovery was prepared at the spot and then the appellant was taken to PS Pir Jo
Goth and was booked accordingly. On asking, it was stated by the complainant
that on arrest, the hands of the appellant were tied with his Romal and mashirnama of arrest and
recovery was prepared by PC Baqa Muhammad. The complainant in that respect is
belied by PW mashir PC Piyaro Khan, as per him, on arrest the appellant was
hand cuffed and mashirnama of arrest and recovery was prepared by the
complainant himself. The inconsistency in between the evidence of the complainant
and PW/mashir PC Piyaro Khan could not be lost sight of, simply for the reason
that it has made their version to be doubtful. The property, as per report of ballistic
expert has been subjected to chemical analysis with delay of about five days,
such delay having not been explained plausibly could not be over looked. None has been examined by the prosecution to
prove the safe custody of unlicensed weapons and ammunition allegedly recovered
from the appellant, for intervening period. As per SIP/SIO Aftab Hussain Shah,
the 161 Cr.P.C statements of PWs were written by PC Ghulam Qadir. If it was so,
then it goes to suggest that his participation in process of investigation was
only to the extent of table. Be that as it may, PC Ghulam Qadir, who has
conducted the material investigation of the case by recording 161 Cr.P.C
statements of the PWs has not been examined by the prosecution, which has
prejudiced the appellant in his defence seriously. In these circumstances, it
could be concluded safely that the prosecution has not been able to prove its
case against the appellant beyond shadow of doubt and to such benefit he is found
entitled;
9. 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".
10. In view of the facts and reasons discussed
above, the conviction and sentence awarded to the appellant by way of impugned
judgment is set-aside, consequently he is acquitted of the offence, for which he
has been charged, tried and convicted by the learned trial court, he is in custody
and shall be released forthwith in the present case.
11. Above
are the reasons of short order dated 31-03-2021, whereby the instant Crl. Appeal
was allowed.
J U D G E
J U
D G E
Nasim/Steno