IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Appeal No. 487 of 2021

Appellant: Aamir through Mr. Muhammad Rafiq Brohi advocate

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

Date of hearing: 05.10.2022

Date of judgment: 05.10.2022

J U D G M E N T

IRSHAD ALI SHAH, J- It is alleged that on arrest from the appellant was secured one unlicensed pistol of 30 bore with magazine containing 02 live bullets of same bore by police party of PS New Karachi Industrial Area led by ASI Mazhar Hussain, which he allegedly used while 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 sentenced to undergo rigorous imprisonment for 07 years with fine of Rs.10,000/- and in default whereof to undergo simple imprisonment for 06 months with benefit of Section 382-B Cr.P.C by learned II-Additional Sessions Judge, Karachi Central vide judgment dated 21.08.2021, 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 by making foistation of unlicensed pistol upon him and evidence of the P.Ws being doubtful has been believed by learned trial Court without lawful justification. By contending so, he sought for acquittal of the appellant by extending him benefit of doubt.

3. Learned Addl. P.G for the state by supporting the impugned judgment has sought for dismissal of the instant appeal by contending that the case of 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 ASI Mazhar Hussain and PW/mashir PC Sajjan that on the date of incident they with rest of the police personnel were on patrol duty, when reached at the place of incident there they found a mob of person, beating one boy by calling him ‘Daket’, he was saved, on inquiry he disclosed his name to be appellant and on search was secured unlicensed pistol of 30 bore without number, with magazine containing 02 live bullets under memo which they prepared at spot and took the appellant to hospital for treatment and then lodged formal FIR of the incident. As per forensic report the pistol was with rubbed number. Nothing has been brought on record which may suggest that the appellant after arrest was actually taken to hospital for treatment. None from the mob who allegedly apprehended the appellant in first instance has been examined; such omission could not be lost sight of. On investigation, as per I.O/SIP Muhammad Rafaqat, he recorded 161 Cr.PC statements of P.Ws/mashirs. He in that respect is believed by P.W/mashir Muhammad Owais by stating that his statement was not recorded by investigating officer. 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.

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, convicted and sentenced by learned trial Court and he shall be released forthwith, if is not required to be detained in any other custody case.

8. The instant appeal is disposed of accordingly.

JUDGE