IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

 

Criminal Appeal No.S-53 of 2022.

 

 

Appellant:                            Uzair son of Zubair by caste Bhutto

Through Mr.Shakeel Ahmed G.Ansari, Advocate

 

Witness/Mashir:            Khuda Bux through Mr.Abdul Rehman A.Bhutto, Advocate

 

The State:                       Through Mr.Ali Anwar Kandhro, Addl.P.G.

 

 

Date of hearing:             02-03-2023

Date of decision:              02-03-2023

 

JUDGMENT

 

ZULFIQAR ALI SANGI, J;- Through instant criminal appeal, the appellant has assailed the judgment dated 11.10.2022, rendered by learned 5th Additional Sessions Judge, Shikarpur, in Sessions Case No.277/2022, emanating from FIR bearing Crime No.40/2022, for offence punishable U/S.23 (i) (a) of Sindh Arms Act, 2013, registered with P.S, New Foujdari, whereby he has been convicted for an offence punishable U/S.25 Sindh Arms Act, 2013 and sentenced to suffer rigorous imprisonment for 10 years with fine of Rs.20,000/- and in default whereof, to suffer simple imprisonment for six months, with benefit of Section 382-B Cr.PC.

2.       The allegation against the present appellant/accused is to the effect that on 07.03.2022, during interrogation in main case/FIR No.38/2022, U/S.324, 452, 504, 337-Ai, Fi, 114, 148 PPC, the present appellant/accused confessed his guilt and volunteered to produce the crime weapon viz. T.T pistol used by him in said crime and then led police party of P.S New Foujdari headed by complainant ASI Muhammad Zaffar behind the land of Pir Yakeen Shah near village Jano where he while digging the earth produced one T.T pistol of 30 bore with magazine containing three live bullets from a black color shopper, the same on query was disclosed to be unlicensed and was used by him in above said main case. Such mashirnama was prepared in presence of mashirs and on return to police station, he was booked and challaned in the present case.

 

3.       The formal charge was framed against the present appellant/accused, to which he pleaded not guilty and claimed trial.   

 

4.       To prove the charge against the appellant/accused, the prosecution examined two witnesses i.e Complainant/SIO Muhammad Zafar and Mashir PC Mir Muhammad, who all produced certain documents and items in support of the prosecution case. Thereafter, learned State Counsel closed the side of prosecution.

 

5.       In his statement recorded in terms of Section 342 Cr.PC, the appellant/accused denied the allegations leveled against him by pleading his innocence. He, however, did not examine himself on oath in disproof of the charge nor led any evidence in his defence.

 

6.       The learned trial Court on appraisal of the material brought on record and hearing counsel for the parties convicted and sentenced the present appellant/accused vide judgment, as detailed above.

 

7.       Per learned defence counsel, the instant case is false and fabricated against present appellant/accused; that the evidence of complainant/I.O and mashir being contradictory have no credibility and thus cannot be relied upon without independent corroboration; that the recovery of alleged crime weapon has been foisted against appellant/accused just to strengthen main case wherein he has already been acquitted. Summing up his contentions, the learned defence counsel submitted that the present accused has been arraigned in this case falsely by the police and thus concluded that the case of prosecution is doubtful and has no foundation against the appellant/accused, therefore, he deserves to be acquitted in the circumstances of case.

 

8.       In rebuttal to above, learned Addl.P.G for the State contends that all the witnesses have fully supported the case of prosecution and no major contradiction is noticed in their evidence; that the recovery of crime weapon on analysis has substantiated the involvement of present appellant/accused in the commission of offence; that the FSL report has fully supported the case of prosecution. Lastly, he  submitted that the learned trial Court finding the appellant/accused guilty of the offence has rightly convicted and sentenced him by way of impugned judgment which calls for no interference by this Court, therefore, the appeal filed by him being devoid of merits is liable to be dismissed.

 

9.       Heard arguments of learned counsel for the parties and have minutely gone through the material made available on record with their able assistance.

 

10.     The meticulous re-appraisal of evidence brought on record is entailing that all the witnesses have tried to support the case of prosecution but their evidence on scrutiny was found coupled with material defects. The broad features involved in the present case surfaced from the evidence of complainant that one 30 bore pistol alongwith magazine containing three live bullets of same bore was discovered on the pointation of the appellant which was sealed at the spot under such mashirnama prepared in presence of the mashirs who have signed the same but when this piece of evidence was being confronted with the evidence of mashir, who did not depose even a single word in respect of sealing of the pistol at the place wherefrom it was recovered and during cross examination he admitted that he has signed the mashirnama at police station. This singular infirmity in the case itself is sufficient to hold that the prosecution has not proved the case against the appellant beyond shadow of reasonable doubt. Moreover, the present appellant has already been acquitted by learned trial Court in main injuries case vide judgment dated 11.10.2022. 

 

11.     The over-all discussion arrived at conclusion that the prosecution has miserably failed to prove the guilt against present appellant beyond shadow of any reasonable doubt and it is a well-settled principle of law that for creating the shadow of a doubt, there should not be many circumstances. If a single circumstance creates reasonable doubt in the prudent mind, then its benefit is always extended in favour of the accused not as a matter of grace or concession, but as a matter of right. In this respect reliance is placed on the case of Muhammad Masha v. The State (2018 SCMR-772), wherein the Hon’ble Supreme Court of Pakistan has held 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 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”. Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR 1345), Ghulam Qadir and 2 others v.The State (2008 SCMR 1221), Muhammad Akram v. The State (2009 SCMR 230) and Muhammad Zaman v. The State (2014 SCMR 749)”.

 

12.     Resulting upon above discussion, I am of the judicious view that the learned trial Court has not evaluated the evidence in its true perspectives and thus arrived at an erroneous conclusion by holding present appellant as guilty of the offence. Thus, the conviction and sentence recorded against him by way of impugned judgment could not be sustained, it is set aside. The appellant is acquitted of the charged offence. Office is directed to issue release writ, directing the concerned jail authority to release him forthwith in the present case, if he is not required in any custody case.

 

13.     The instant criminal appeal is disposed of accordingly.

 

 

 

 

 

 

 

 

 

 

                                                                                JUDGE

 

 

 

 

 

 

 

 

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