IN THE HIGH COURT OF SINDH AT KARACHI

Criminal Appeal No. 82 of 2020

Appellant: Abid Ali @ Nana through Mr. Nadeem Ahmed Azar advocate

Respondent: The State through Mr. Faheem Husssain Panhwar, Deputy Prosecutor General Sindh

Date of hearing: 21.11.2022

Date of Judgment: 21.11.2022

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 9mm bore without number with magazine containing 05 live bullets of same bore, for that he was booked and reported upon by police. On conclusion of trial, he was convicted u/s 23(1)(a) of Sindh Arms Act 2013 and sentenced to undergo rigorous imprisonment for 03 years with fine of Rs.20,000/- and in default whereof to undergo simple imprisonment for 01 month with benefit of Section 382(b) Cr.P.C by learned V-Additional Sessions Judge, Karachi Central, vide judgment dated 20.01.2020, which is impugned by him before this Court by way of the instant appeal.

2. It is contended by the learned counsel for the appellant that the appellant being innocent has been involved in this case falsely by the police by foisting upon him an unlicensed pistol and evidence of the P.Ws being doubtful has been relied upon by the learned trial Court without assigning cogent reasons. By contending so, he sought for acquittal of the appellant.

3. Learned DPG for the State has sought for dismissal of the instant appeal by contending that the prosecution has been able to prove its case against the appellant beyond shadow of doubt.

4. Heard arguments and perused the record.

5. It was stated by complainant SIP Muhammad Islam and P.W/mashir PC Abdul Rasheed that on the night of incident they with rest of police personnel were conducting patrol and were intimated by a person on motorcycle that the appellant and co-accused Owais alias Shah Sahab being armed with weapons are available on their motorcycle at the place of incident, on such intimation, they proceeded to the place of incident, without associating with them any independent person to witness the possible arrest of the appellant and weapon from him which appears to be significant. At the place of incident, they found the co-accused Owais alias Shah Sahab and the appellant who surprisingly were waiting for them on their motorcycle to be apprehended. They were formally apprehended by the complainant and above said P.W and from them were allegedly secured unlicensed pistols of 30 and 9mm bore respectively under joint memo prepared at the spot and they were booked accordingly. On forensic examination, as per I.O/ASI Subhan Ali Shah, the pistol secured from the appellant was found with its number rubbed. There is line of demarcation with pistol without number and pistol with its number rubbed. Co-accused Owais alias Shah Sahab as per impugned judgment has already been acquitted by learned III-Additional Sessions Judge, Karachi Central. Such acquittal as per learned DPG for the State has not been impugned. Even otherwise, as per appellant he was apprehended much before his formal arrest and it was declared on account of filing an application before highups by his brother Qamar Ali. In these circumstances, it would be safe to conclude that the prosecution has not been able to prove the involvement of the appellant in the present case 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