IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Criminal Jail Appeal No.S-98 of 2019

Appellant             : Kashmir son of Huzoor Bux Ogahi

Through Mr. Faiz Muhammad Larik, Advocate

State                     :         Through Mr. Aitbar Ali Bullo, Deputy

Prosecutor General, Sindh.

Date of hearing      :         03.04.2023

Date of judgment   :         13.04.2023

JUDGMENT

ZULFIQAR ALI SANGI, J.:- This criminal jail appeal is directed against the impugned judgment dated 24.10.2019, passed by learned 1^st Additional Sessions Judge/ Model Criminal Trial Court, Kandhkot, in the Sessions Case No.151/2019 (M.C.T.C No.84/2019), arisen out of Crime No.46/2018, registered with P.S Ghouspur, (District Kashmore @ Kandhkot) for offence punishable under Section 23 (1)(a) of the Sindh Arms Act, 2013, whereby the appellant was convicted and sentenced to suffer R.I for seven years and to pay fine of Rs.30,000/- and in default whereof to undergo R.I for two months more.The benefit of Section 382-B Cr.P.C was extended to the appellant.

2.         The facts of the prosecution case as depicted from the FIR are that while in custody and during interrogation the accused became ready to handover crime weapon used in the commission of murder of Ahsan Ali being Crime No.45/2018, under Section 302, 114, 148, 149 P.P.C of P.S Ghouspur and on 12.8.2018, at 1500 hours, he discovered one unlicensed T.T pistol from Katchi Sarak (path) leading towards village Mehrab Jageerani, situated in Deh Naseer, which he possessed in contravention of Section 3 (i) of Sindh Arms Act, 2013.

3.         After the investigation, case was challaned, and after completing the legal formalities charge was framed against the appellant, to which he pleaded not guilty and claimed trial. Consequently, the prosecution examined its witnesses PW-1 Khadim Hussain Ogahi the mashir of the recovery and PW-2 ASI Gulzar Ahmed Gujrani the complainant as well as investigating officer of the case then the prosecution closed its side. The statement of appellant under Section 342 Cr.P.C. was recorded, in which he denied allegation of prosecution leveled against him and claimed innocence.  He, however did not examine himself on oath in terms of Subsection (2) of Section 340 Cr.P.C, nor lead any evidence in his defence to disprove the charge.

4.         After conclusion of the trial and hearing the parties, the learned trial Court passed the impugned judgment against which the appellanthas preferred instant appeal.

5.         Learned counsel for the appellant has argued that the judgment passed by the trial Court is much against the law, facts and equity and liable to be set-aside; that the trial Court has failed to appreciate the factual as well as legal aspects of the case while convicting the appellant; that the evidence adduced by the prosecution at the trial is not properly assessed and evaluated by the trial Court and the evidence is insufficient to warrant conviction of the appellant as it was consisting only police witnesses; that the trial Court has erred in concluding that the alleged recovery was effected from the accused in the mode and fashion described by the prosecution and that there are major contradictions in the evidence of the prosecution witnesses. Lastly, he has prayed for setting-aside the impugned judgment and acquittal of the appellant.

6.         Learned D.P.G. while opposing the appeal contended that the prosecution has fully established its case by producing reliable, trustworthy and confidence inspiring evidence as well as circumstantial and documentary evidence; that no major contradiction is pointed out by the defence counsel; that minor contradictions cannot be considered for acquittal.Lastly, he has prayed for the dismissal of instant appeal.

7.         I have heard the counsel for the parties and carefully perused the material available on record with their able assistance.

8.     The re-appraisal of evidence brought on record established that the prosecution has successfully proved its case against the appellant/accused beyond any reasonable shadow of doubt by producing reliable, trustworthy and confidence inspiring evidence. To establish the guilt against appellant/accused, the prosecution examined Complainant ASI Gulzar Ahmed Gujrani and Mashir Khadim Hussain who supported the recovery of an unlicensed T.T Pistol of 30 bore with magazine on the pointation of the appellant/accused and thus produced memo of arrest/recovery, relevant entries, FIR and FSL report. They both identified the accused and case property present in Court to be same. Both of them were cross examined by learned defence counsel but nothing came out from their mouth in favour of the appellant/accused and gave same answers to the questions and suggestions made on behalf of the appellant/accused which established their presence at the time of arrest and recovery of crime weapon. No material contradiction has even been pointed out in their evidence to base his acquittal. Moreover, the recovered crime weapon has been found in working condition as is evident from the FSL report. No any substance has been brought on record by the appellant/accused to justify his false involvement in present case at the hands of police officials. Further, the police officials are as good witnesses as any other citizen unless any malafide is established against them and their evidence cannot be discarded merely on the pretext that they belong to police department. In the present case the mashir of the recovery is also a private person whose evidence has not been shattered by the defence counsel.

9.     During the course of arguments, learned defence counsel pointed out some minor contradictions and discrepancies in the evidence of witnesses which in my humble view are not sufficient to hold that the case of prosecution is doubtful. It is settled by now that, where in the evidence, prosecution established its case beyond a reasonable doubt by producing reliable, trustworthy and confidence inspiring evidence then if there may be some minor contradictions which always are available in each and every case, hence, the same are ignored, as has been held by the Honourable Supreme Court in case of Zakir Khan v. The State (1995 SCMR-1793).

10.     Resulting upon above discussion that the learned trial Court finding present appellant/accused as guilty of the charged offence, has committed no illegality or irregularity while recording conviction/sentence, which does not call for any interference by this Court. Thus, the instant criminal jail appeal fails and the same is dismissed accordingly.

                             JUDGE