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