IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR.

Criminal Appeal No.S-17 of 2019

Appellant: Taj Muhammad son of Muhammad Uris Pittafi, Resident of Taluka Sobhodero, District Khairpur. (Now confined at Central Prison Khairpur).

None for appellant.

The State: Through Mr. Khalil Ahmed Maitlo, Deputy Prosecutor General.

Date of hearing: 06-05-2021.

Date of decision: 06-05-2021.

J U D G M E N T.

IRSHAD ALI SHAH, J; The appellant for offence punishable u/s 23 (i) (a) Sindh Arms Act, 2013, for being in possession of unlicensed TT pistol with magazine containing three live bullets, was convicted and sentenced to undergo R.I for five years with benefit of section 382 (b) Cr.P.C by learned 1^st Additional Sessions Judge, Sukkur vide his judgment dated 21-01-2019, which is impugned by the appellant before this Court by preferring the instant Crl. Appeal.

2. Since long, none is coming forward on behalf of the appellant to argue the instant Crl. Appeal, therefore, it was taken up to be disposed of with assistance of learned DPG for the State. It was stated by him that as per jail roll, the appellant has already undergone the sentence, therefore, the instant Crl. Appeal having become in fructuous may dismissed accordingly.

3. I have considered the above argument and perused the record.

4. PC Abdul Qadir being first mashir to the arrest and recovery has not been examined by the prosecution. His non-examination prima-facie indicates that, he was not going to support the case of the prosecution. As per PW mashir PC Naeem Ahmed, he and rest of the police personnel stayed at the place of incident for about half an hour and made inquiry from the person about the identity of the accused. It goes to suggests the presence of private person at the place of incident. Complainant ASI Khan Muhammad has belied by PC Naeem Ahmed by stating that no private person met with him at the place of incident. As per him, he stayed at the place of incident for about 40 minutes. By stating so, he contradicted PW Mashir PC Naeem Ahmed that they stayed at the place of incident for about half an hour. There is nothing in evidence of PW mashir PC Naeem Ahmed that which may suggest that the pistol allegedly secured from the appellant was sealed at the spot and/or his 161 Cr.P.C statement was recorded. PC Ghulam Qadir, who has taken the pistol to the Expert, has not been examined by the prosecution. His examination was essential to prove the safe transmission of the pistol to the Expert. No explanation is offered by I/O ASI Ali Hassan for dispatching the pistol to the Expert with delay of about 08 days to its recovery. 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.

5. 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".

6. In view of the facts and reasons discussed above, the conviction and sentence recorded against the appellant by way of impugned judgment are set-aside, he is acquitted of the offence, for which he has been charged, tried and convicted by learned trial Court, if he is in custody, then he shall be released forthwith in the present case, if not required in any other custody case.

7. The instant Crl. Appeal is disposed of accordingly.

Judge

Nasim/P.A