IN THE HIGH COURT OF SINDH, CIRCUIT COURT,

LARKANA

Crl. Appeal No. S-   124 of 2016.

Appellant:                             Naeem alias Gunda, through Mr. Athar Abbas Solangi, Advocate.

Respondent:                          The State, through Mr. Sharafuddin Kanhar, A.P.G.

Date of hearing:                    23.04.2018.

Date of Judgment:                23.04.2018.

JUDGMENT

AMJAD ALI SAHITO, J-. Through this criminal appeal, the appellant Naeem alias Gunda son of Nusrat Hussain Dahar has impugned the judgment dated 19.12.2016, passed by learned VI-Additional Sessions Judge, Larkana, in sessions Case No.521 of 2013, Re; St. v. Naeem alias Gunda and others, arisen out of Crime No.59 of 2013 of Police Station Badeh (District Larkana); whereby the appellant was convicted for offence under Section 23 (1) (a) of the Sindh Arms Act, 2013, and sentenced to suffer rigorous imprisonment for fourteen (14) years and to pay fine of Rs.50,000/- and in case of default in payment of fine to suffer S.I for three months more. However, he was extended benefit of Section 382-B Cr.P.C.

2.         The facts of the prosecution case are that on 14.7.2013 complainant SHO Mir Muhammad Abbasi lodged F.I.R on behalf of the State, alleging therein that on 14.7.2013 accused Naeem alias Gunda who was already under police custody in Crime No.58/2013 under Section 302, 324, 452, 34 P.P.C of P.S Badeh, was taken out from lockup and interrogated during which he disclosed that he had made injuries with repeater to Akbar Ali Sario and said repeater was concealed by him in the grass at the bridge of watercourse situated at the link road leading from Badeh to Bothro and volunteered to produce the same, as such he led the police party to the pointed place and took out repeater and four live cartridges of 12-bore and handed over the same to complainant in presence of mashirs Sikander and Gulbahar; after preparation of such mashirnama, the accused alongwith case property was brought back to police station, where complainant lodged F.I.R to the above effect. 

3.         On completion of usual investigation, the challan of the case was filed before concerned Judicial Magistrate.

4.         The charge against accused/ appellant was framed as Ex.3, to which he pleaded not guilty and claimed trial. As such prosecution examined its witnesses.

5.         PW-1/ Mashir Gul Bahar was examined at Ex.4; he produced mashirnama of arrest and mashirnama of place of occurrence at Ex.4-A and Ex.4-B. Then H.C Abdul Jabbar was examined as PW-2 at Ex.6. Second mashir Sikander Ali was examined as PW-3 at Ex.7.  Complainant SHO Mir Muhammad was examined as PW-4 at Ex.8; he produced copy of F.I.R at Ex.8-A. The State Counsel produced forensic report with his statement at Ex.9 and thereafter, the prosecution closed its side vide Ex.10.

6.         Then the statement of appellant was recorded under Section 342 Cr.P.C at Ex.19, in which he denied the prosecution allegations against him and also denied to examine himself on oath or to lead evidence in his defence.

7.         I have heard learned counsel for the appellant, as well as learned A.P.G. and perused the entire record with their assistance.

8.         Learned counsel for the appellant criticized the impugned judgment and argued that, the prosecution examined in all four witnesses at trial and out of them two witnesses, i.e. mashirs of alleged recovery have not supported the case of prosecution, while evidence of rest two witnesses who are the police officials, is unrealistic, full of contradictions, tainted with doubts and could not be relied upon, as such it insufficient for awarding conviction. Learned counsel lastly submitted that, all these factors create serious doubt in the case of prosecution, and it is well settled principle of law that benefit of even slightest doubt must go in favour of the accused.

9.         On the contrary the learned A.P.G appearing for the State half heartedly supported the impugned judgment by submitting the prosecution case has rightly been believed by the learned trial Court and the appellant has rightly been awarded conviction.

10.       I have heard the learned counsel for the parties and perused the record and have read the evidence of the witnesses examined at trial by prosecution.

11.       Perusal of record shows that, both the mashirs of alleged recovery, namely, Gulbahar and Sikander Ali have not supported the case of prosecution in its entirety; both of them were declared as hostile by the Prosecutor. They in one voice have deposed that, they were called by police at police station, where only their signatures were obtained on blank papers and that they do not know anything about this case.

12.       The trial Court while convicting the appellant has observed that, one of the Mashirs, namely, Gul Bahar while recording his evidence in main case/ Crime No.58/2013 of P.S Badeh, under Section 302 P.P.C has supported the prosecution case. If it is so, even then the statement of said mashir/ witness being self-contradictory is not trustworthy and reliable, as in one case he supports the recovery of alleged weapon and in other he does not support his own version, as such this statement cannot be made basis of conviction. The learned trial Court has not evaluated the above evidence in its true perspective and thus reached to an erroneous conclusion by holding the appellant guilty of the offence.

13.       Accordingly, the instant appeal is allowed. The conviction and sentence awarded to the appellant is set-aside and he is acquitted of the charge by extending him benefit of doubt.

14.       These are the detailed reasons of my short order dated 23.04.2018.

                                                                JUDGE

Ansari/*