IN THE HIGH COURT OF SINDH, AT KARACHI
Criminal Appeal No. 184 of 2020
Appellant: Nemo
for Muhammad Rafiq
The State: Mr.
Khadim Hussain, Additional Prosecutor General Sindh
Date of hearing: 02.11.2022
Date of judgment: 02.11.2022
J U D G M E N T
IRSHAD ALI SHAH, J- It is the case of the prosecution that on
arrest from the appellant was secured unlicensed pistol of 30 bore with
magazine containing 03 live bullets of same bore, for that he was booked and
reported upon. On conclusion of trial, he was convicted under Section 23(1)(a)
of Sindh Arms Act, 2013 and was sentenced to undergo imprisonment which he has
already undergone with fine of Rs.2000/- and in default whereof to undergo simple
imprisonment for 03 days, by learned IX-Additional Sessions Judge, Karachi
South, vide judgment dated 01.11.2019 which is impugned by the appellant before
this Court by preferring the instant appeal.
2. As per jail roll the appellant has
already been released from jail on completion of his jail term and perhaps this
appears to be reason for that he has neglected the instant appeal, it is being
disposed of with assistance of learned Addl. P.G. for the state, who by
supporting the impugned judgment has sought for dismissal of the same by
contending that the prosecution has been able to prove its case against the
appellant beyond shadow of doubt.
3. Heard arguments and perused the record.
4. It was stated by complainant ASI Noor
Ahmed that on the night of incident when he with his police party was
conducting patrol, when were at Café Hassan Chand Bibi Road, there came the
appellant on his motorcycle in suspicious condition, he was apprehended and on
search from him was secured unlicensed pistol of 30 bore with magazine
containing 03 live bullets of same bore with no number, it was secured under
memo signed by P.Ws/mashirs PCs Ghulam Abbas and Muhammad Saleem, the appellant
then was taken to P.S Risala, Karachi there he was booked in the present case
formally. Evidence of P.W/mashir Ghulam Abbas is silent with regard to the fact
that co-mashir P.W/PC Muhammad Saleem also signed such memo. As per report of
forensic expert, which is produced on record by I.O/SIP Ghulam Hussain, the
pistol allegedly secured from the appellant was found with its number rubbed. There
is line of demarcation between the number rubbed and without number; such
inconsistency could not be overlooked. The pistol allegedly secured from the
appellant has not been produced at trial for the reason that it was burnt on
account of fire in malkhana. Nothing
has been brought on record which may suggest that the pistol allegedly secured
from the appellant was actually kept in malkhana
and it was burnt there, on account of fire. In these circumstances, it is
concluded safely that the prosecution has not been able to prove its case
against the appellant beyond shadow of doubt.
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 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 was
charged, tried, convicted and sentenced by learned trial Court.
7.
Instant appeal is disposed of
accordingly.
JUDGE