IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Appeal No. 496 of 2021

Appellant: Zubair Ahmed through Mr. Shujaat Ali Khan advocate

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

Date of hearing: 14.12.2022

Date of judgment: 14.12.2022

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 with magazine containing 04 live bullets of same bore by police party of PS Civil Line, 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 sentenced to undergo R.I for 01 year with fine of Rs.1000/- and in default whereof to undergo simple imprisonment for 07 days with benefit of section 382(b) Cr.P.C by learned IXth-Additional Sessions Judge, Karachi South, vide judgment dated 01.09.2021, which is impugned by the appellant before this court by way of the instant appeal.

2. It is contended by learned counsel for the appellant that he being innocent has been involved in this case falsely by the police by foisting upon him unlicensed pistol, there is no independent witness to the incident and he has been convicted and sentenced by learned trial Court on the basis of misappraisal of evidence. By contending so, he sought for acquittal of the appellant.

3. Learned DPG for the state by supporting the impugned judgment has sought for dismissal of the instant appeal by contending that on arrest from the appellant has been secured the unlicensed pistol and prosecution has been able to prove its case against them beyond shadow of doubt.

4. Heard arguments and perused the record.

5. It is stated by complainant SIP Muhammad Anwar and P.W/mashir PC Muhammad Amir that on the date of incident when they with rest of the police personnel were conducting patrol when reached at Ahmed Raza Khan Road at Hijrat Colony, there they apprehended the appellant and on search from him was secured an unlicensed pistol of 30 bore with magazine containing 04 live bullets of same bore under memo and then he was booked in the present case and its formal investigation was conducted by I.O/ASI Wahid Ali. None of them is able to produce the pistol allegedly secured from the appellant at trial for the reason that it has been burnt on account of fire in malkhana. No road certificate is produced, which may prove that the pistol, the case property of the present case was actually kept in malkhana and it has been burnt there on account of fire. In these circumstances, in absence of case property, the subject matter of the present case, it would be safe to conclude 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.

6. In the 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 the facts and reasons discussed above, the conviction and sentence awarded to the appellant by way of impugned judgment are set aside, consequently, he is acquitted of the offence with which he was charged, tried, convicted and sentenced by learned trial Court; he is present on bail, his bail bond is cancelled and surety is discharged.

8. The instant appeal is disposed of accordingly.

JUDGE