IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Criminal Appeal No.S-66 of 2023

For hearing of main case

Present:

Mr. Justice Zulfiqar Ali Sangi.

Appellant: Irfan Ali son of Buland Khan Chandio

Through: Mr. Hamayoon Shaikh, advocate for appellant

State through: Mr. Khalil Ahmed Maitlo, Deputy P.G.

Date of hearing: 13.11.2023

Date of decision: 13.11.2023

J U D G M E N T

Zulfiqar Ali Sangi, J.– The appellant named above has filed instant Crl. Appeal, whereby he has impugned the judgment dated 19.06.2023, passed by IV Additional Sessions Judge Khairpur, in Sessions Case No.176/2016 (Re. The State Vs. Irfan Ali) arising out of FIR No. 22/2016, offence u/s 24 of The Sindh Arms Act, 2013 registered at P.S Babarloi, whereby he was convicted and sentenced R.I for five (05) years and to pay fine of Rs.50,000/- (Fifty thousand) or in default of payment of fine to suffer S. I for three months more with benefit of 382-B Cr.P.C, hence he preferred the instant appeal.

2. Precisely, prosecution case as unfolded in the FIR is that on 31.01.2016 accused Irfan Ali was already confined at PS Baberloi in FIR No. 17 of 2016 U/S 395, 465, 337-H(2) PPC, of PS Babarloi. During interrogation he volunteered to produce weapon used by him in the commission of said crime. Thereafter, complainant along with his subordinate staff PC Bakhat Ali, PC Salahuddin and DPC Ghulam Mustafa left police station under roznamcha entry No.11, at 1600 hours in a police van, took the accused with them and proceeded towards the pointed place. Accused led police party towards his house situated in deh Garhi Allah Dad, where he voluntarily had produced without permit Kalashnikov along with magazine and five live bullets. Accused further disclosed that he had used weapon in commission of said crime. Thereafter, such mashirnama of arrest and recovery was prepared at spot in presence and with signatures of mashirs Dodo and Salman. Thereafter, accused and case property were brought at P.S where complainant Inspector Fareed Ahmed Memon maintained entry and lodged FIR against accused on behalf of the State.

3. During investigation 161 Cr.P.C. statements of the PWs were recorded, weapon was sent to the FSL for report. Positive report of the FSL was received. On the conclusion of investigation, challan was submitted against the appellant/accused u/s 24 of The Sindh Arms Act, 2013.

4. After completing legal formalities, the trial Court framed charge against accused to which he pleaded not guilty and claimed to be tried.

5. The prosecution has examined 02 witnesses, they have produced certain documents and items in support of their evidence. Thereafter, the side of the prosecution was closed.

6. The appellant was examined under section 342 Cr.PC, wherein he denied the allegations leveled against him and pleaded his innocence. After hearing the parties and assessment of the evidence against the accused, trial Court convicted and sentenced the appellant/accused as stated above against the said conviction he has preferred instant appeal.

7. Learned counsel for the applicant/accused argued that accused is innocent and has falsely been implicated in this case by the police to show their efficiency; that the alleged property has been foisted upon appellant/accused; that all the PWs are police officials no independent corroboration in shape of private witness is brought on record and the place of incident is surrounded with populated area; that evidence adduced by the prosecution at the trial is not properly assessed and evaluated by the trial court which is insufficient to warrant conviction against the appellant/accused; that the judgment passed by the trial Court is preserve and liable to be set-aside; that the trial Court has failed to appreciate the factual as well as legal aspect of the case while convicting the appellant/accused; that the material contradictions appeared in the statements of prosecution witnesses on crucial points but those have not been taken into consideration by the learned trial Court while passing impugned judgment. Lastly, he prayed that the appellant/accused may be acquitted by extending him the benefit of doubt.

8. Conversely, learned APG appearing for the State opposed the appeal on the ground that prosecution has successfully proved its case against the appellant/accused beyond a reasonable doubt and all the witnesses including complainant/seizing officer have fully implicated the appellant/accused in their evidence recorded by the trial Court; that all the necessary documents including the entries of station diary, the memo of recovery and FIR have been produced; that the police officers are as good witnesses as comparison to the other if there is no any malafide or ill-will on their part to falsely implicate a innocent person; that during the cross-examination counsel had not shaken their evidence; that there are no major contradictions in the evidence of prosecution witnesses. Lastly, he submitted that appellant/accused was rightly convicted by the trial Court and prayed that appeal of appellant/accused may be dismissed.

9. From the perusal of record it appears that alleged case property was dispatched to the laboratory on 15.02.2016, after the 15 days of recovery for which no explanation whatsoever has been furnished by the prosecution that where it was kept for such intervening period which obviously leads to an adverse inference against the prosecution about the safe custody of recovered property. The complainant does not deposed a single word as to whether recovered Kalashnikov was kept in safe custody or not or in whose possession it was which too creates serious doubt.

10. Moreover, the investigation of the case in hand has been carried out in a casual and stereotype manner and the safe custody of the recovered pistol and the empties was not proved by the prosecution by producing any evidence in this respect as discussed above and the Malkhana Incharge was also not examined at the trial. There were several other circumstances/infirmities in the prosecution case. However, single circumstantial doubt is sufficient to acquit the accused. It is settled law that the benefit of all the favourable circumstances shall be extended to the accused not as a matter of grace or concession but as a matter of right. Reliance is placed on the cases of Tariq Pervez vs. The State (1995 SCMR 1345), the Honourable Supreme Court has observed as follows:-

“It is settled law that it is not necessary that there should many circumstances creating doubts. If there is a single circumstance, which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right.

11. Accordingly and in view of above legal position, instant Criminal Appeal stands allowed. Consequent thereof, impugned judgment dated 19.06.2023, passed by learned trial court in Sessions Case No.176 of 2016, Re: State v/s Irfan Ali Chandio, is hereby set-aside. Resultantly, appellant/accused Irfan Ali Chandio is hereby acquitted of the charge in F.I.R No.22 of 2016 of P.S Babarloi, U/S 24, The Sindh Arms Act, 2013. Appellant/accused is present on bail, his bail bond stands cancelled and the surety discharged. Office is directed to return the surety papers to the surety after proper verification and identification.

J U D G E

M. Ali/steno