IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Appeal No. 150 of 2022

Appellant: Hamza Ejaz in person

The State: Through Mr. Khadim Hussain, Additional Prosecutor General Sindh

Date of hearing: 20.12.2022

Date of judgment: 20.12.2022

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 02 live bullets of same bore by police party of PS Tehmoria, Karachi, for that he was booked and reported upon by the police. On conclusion of trial, he was convicted under Section 23(1)(a) of Sindh Arms Act, 2013 and sentenced to undergo rigorous imprisonment for 03 years and to pay fine of Rs.10,000/- 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 22.02.2022, which is impugned by the appellant before this Court by way of instant appeal.

2. It is contended by the appellant in person that he being innocent has been involved in this case falsely by the police by foisting upon him an unlicensed pistol and he was about to complete his jail term when was released on bail. By contending so, he sought for his acquittal which is opposed by learned Addl. P.G for the State by contending that the prosecution has been able to prove its case beyond shadow of doubt.

3. Heard arguments and perused the record.

4. It is stated by complainant ASI Subhan Ali Shah and PW/mashir Nasiruddin that on 16.04.2019, they with rest of the police personnel were conducting patrol, when reached at the place of incident, apprehended the appellant and secured from him unlicensed pistol of 30 bore with magazine containing 02 live bullets. Surprisingly, their evidence is silent with regard to Roznamcha entry, whereby they were conducting patrol, such omission has made their assertion that they were on patrolling on the date of incident to be doubtful. It was stated by I.O/SIP Mohib Ali Chandio that on investigation, he recorded 161 Cr.P.C statements of the P.Ws; deposited the case property with forensic expert and after usual investigation, submitted challan of the case before the Court having jurisdiction. The report of forensic expert suggests that the property was deposited with him on 18.04.2019, it was with delay of about two days to its recovery. On asking it was stated by I.O/SIP Mohib Ali Chandio that for intervening period the property was kept in Malkhana. Nothing has been brought on record which may suggest that property for intervening period was actually kept in Malkhana, which has made the safe custody of the property for intervening period to be doubtful. In these circumstances, it would be safe to conclude that the prosecution has not been able to prove its case against the appellant beyond shadow of doubt.

5. 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".

6. 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.

7. The instant appeal is disposed of accordingly.

JUDGE