IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Appeal No. 487 of 2020

Before;

Mr. Justice Irshad Ali Shah

Appellant: Zubair @ Guddu through Mr. Ashraf Ali Shah advocate

The State: Through Mr. Faheem Hussain Panhwar, Deputy Prosecutor General Sindh

Date of hearing: 17.11.2022

Date of judgment: 17.11.2022

J U D G M E N T

IRSHAD ALI SHAH, J- It is alleged that on arrest from the appellant was secured unlicensed pistol of 30 bore without number with magazine containing 02 live bullets which he allegedly was having at the time of committing robbery, 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 rigorous imprisonment for 03 years and to pay fine of Rs.5000/- and in default whereof to undergo simple imprisonment for 01 month with benefit of Section 382(b) Cr.P.C by learned VI-Additional Sessions Judge Karachi West vide judgment dated 12.10.2020, which is impugned by the appellant before this Court by preferring the instant 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 at the instance of complainant party of main robbery case to save it from the liability of death of Bakht Nabi Syed and evidence of the P.Ws 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 DPG for the State by supporting the impugned judgment has sought for dismissal of the instant appeal by contending that the appellant was apprehended at the spot and from him has been secured the unlicensed pistol with bullets.

4. Heard arguments and perused the record.

5. It was stated by P.W/P.C Anwarullah that on the date of incident he, HC Amanullah and others were on patrolling, they went at the place of incident there they found the appellant and his associate to have been apprehended by mob and were being maltreated, they rescued and taken them into custody together with knife and pistol without number and then they were referred to Hospital for treatment, one amongst them namely Bakht Nabi Syed died of such injuries, while the appellant was involved in present case formally. As per Medical Officer Dr. Arif, P.W Mudassir Tariq and the accused were brought to him at Qatar Hospital, Orangi, for treatment by public and police came there. By stating so, he has falsified the version of P.W/P.C Anwarullah that they took P.W Mudassir Tariq, the appellant and his associate to the Hospital. H.C Amanullah, who has prepared the memo of arrest of the appellant and his associate has not been examined by the prosecution on account of his death. As per I.O/SIP Gulzar Ahmed the pistol allegedly secured from the appellant was sent to forensic expert. As per report of forensic examiner, the pistol secured from the appellant was found with its number robbed. There is line of demarcation between the pistol with its number rubbed and pistol without number. No explanation to such discrepancy is furnished, which has raised the reasonable doubt with regard to recovery of the pistol from the appellant. In these circumstances, it would be safe to conclude that the prosecution has not been able to prove the involvement of the appellant in commission of the incident beyond shadow of doubt.

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 above, the conviction and sentence awarded to the appellant by way of impugned judgment are set-aside, consequently, he is acquitted of the offence for which he was charged, tried and convicted by learned trial Court, he is present in Court on bail, his bail bond is cancelled and surety is discharged.

8. The instant appeal is disposed of accordingly.

JUDGE