IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Criminal Appeal No.S-63 of 2022
Appellant Nazir alias Raja : Through Mr. Ahsan Ahmed Qureshi,
Brohi Advocate.
The State : Through Mr. Khalil Ahmed Metlo,
Deputy Prosecutor General.
Dates of hearing : 23.11.2023, 30.11.2023 & 07.12.2023
Date of Judgment : 18.12.2023.
J U D G M E N T
Muhammad Saleem Jessar, J.- Through this appeal, Appellant has assailed Judgment dated 13.10.2022, handed down by learned I-Additional Sessions Judge, Larkana, in Sessions Case No.147 / 2020 (re: The State Vs. Nazir alias Raja Brohi), being outcome of FIR No.04/2020, registered at Police Station Rasheed Wagan), whereby the appellant was convicted for offence under Section 24 of Sindh Arms Act 2013 and sentenced to undergo R.I. for three (03) years, and to pay fine of Rs.10,000/-. In case of default, the appellant was directed to undergo S.I. for one month more. However, he was extended benefit of Section 382-B, Cr.P.C.
2. According to the case of prosecution, on 26.01.2020, the appellant, being wanted in main case Crime No.01/2020, u/s 302, 34, PPC, was apprehended by a police posse of PS Rasheed Wagan and an unlicensed 30-bore pistol loaded with four live bullets in it’s magazine was recovered from the appellant, therefore, he was booked in this case by complainant ASI Gul Hassan Brohi on behalf of State.
3. A formal charge was framed against the accused, to which he pleaded ‘not guilty’ and claimed to be tried.
4. In order to prove its case, prosecution examined and relied upon the evidence of PW-1 complainant ASI Gul Hassan, PW-2 eye-witness/mashir Mujahid Hussain, PW-3 PC Gulzar Ali and PW-4 SIP SIP Shahmeer Ali.
5. In his statement u/s 342, Cr.P.C, the appellant/accused denied the prosecution case and claimed to be innocent. However, neither he examined himself on oath nor produced any witness in his defence.
6. After formulating the points for determination, recording evidence of the prosecution witnesses and hearing counsel for the parties, trial Court vide impugned judgment convicted and sentenced the appellant / accused, as stated above. Against said judgment, the appellant has preferred instant appeal.
7. I have heard learned Counsel for the appellant as well as learned APG appearing for the State and have perused the material available on the record.
8. Learned counsel for the appellant submitted that co-accused Mukhtiar Ali Brohi, who per prosecution case, was arrested along with the present appellant and recovery of unlicensed pistol was shown from both of them; however, by disbelieving the evidence of same prosecution witnesses the learned trial Court acquitted said co-accused Mukhtiarkar Ali vide judgment dated 30.09.2022. He further contended that the appellant, though convicted by the trial Court in the main murder case, has been acquitted by this Court vide judgment dated 18.12.2023 passed in Cr. Appeal No.S-62/2022. He, therefore, submits that instant case, being offshoot of the main case, the appellant may also be acquitted of the charge in the light of dicta laid down by this Court in the case of Manjhi v. The State (PLD 1996 Karachi 345) and case of Fida Hussain v. The State (2012 PCr.LJ 226).
9. Learned Deputy Prosecutor General opposed the appeal, on the ground(s) that the offensive weapon was recovered on the pointation of the appellant. He contended that prosecution has successfully proved the charge against the appellant, hence, prayed for dismissal of the appeal.
10. I have gone through R&Ps of the case and the impugned judgment dated 13.10.2022 passed by the trial Court.
11. It is an admitted fact on record that co-accused Mukhtiar Ali Brohi was also apprehended by the same police party along with the appellant in presence of same mashirs and that case was also investigated by same police officer. However, the evidence of same set of witnesses was disbelieved by the trial court in respect of recovery of unlicensed weapon from co-accused Mukhtiar Ali, who was acquitted vide judgment dated 30.9.2022. Certified copy of the judgment is available on record, the relevant portion of the judgment in paragraph No.13 is reproduced hereunder:-
“13. The complainant has deposed in his examination in chief that he apprehended accused Nazir while HC Zahid Hussain apprehended Mukhtiar and they handcuffed them while mashir has deposed that both accused were apprehended by police constables and after apprehending the accused they were made to sit in police mobile without handcuffing. The complainant has stated in his FIR that both pistols were sealed but during his evidence he did not depose so, while mashir Mujahid Hussain has deposed that police sealed both pistols separately. Moreover, FSL report produced at Ex.7/A shows that one 30 bore pistol with magazine and four live cartridges recovered from the arrested accused Mukhtiar were sent to Forensic examiner, who reported that empties were not fired from the pistol and empties were dissimilar. The above discussed infirmities have caused dent in the case of prosecution against the accused.”
12. As stated above, instant case is offshoot of main Crime No.01/2020 of PS Rasheed Wagan, u/s 302, 34, PPC, wherein the appellant has been acquitted by this Court by disbelieving the evidence same prosecution witnesses being recovery officer, mashir and the investigation officer; hence, propriety of law demands, the appellant should be acquitted from the charge of instant case.
13. It seems that the legal position in such a situation, as enunciated by the Superior Courts, is that when an accused has been acquitted in the main case, he would be entitled to acquittal in a case which is offshoot of the main case. In this connection, reference may be made to the case of Yasir Chaudhry Vs. The State reported in 2012 MLD 1315, wherein it was held by the Lahore High Court as under:-
“In the case reported as Manjhi v. The State (PLD 1996 Karachi 345) it has been held that when the accused has been acquitted in the main case, he would become entitled to acquittal in a case which is offshoot of the said case. Same is the position here, as the present lis is an offshoot of the main murder case, so, respectfully following the dictum laid down in the judgment supra, this petition is allowed and the application of the petitioner under section 249-A Cr. P.C. is accepted and the petitioner is acquitted from the charge in case F.I.R. No.17 of 2003 dated 12.1.2003 registered under section 7 of the Surrender of Illicit Arms Act No.XXI of 1991 with Police Station Civil Lines, Bahawalpur.”
14. I have also noticed that appellant was booked under main crime No.01/2020 of PS Rasheed Wagan, u/s 302, 34, PPC and instant case is it’s offshoot. Since the appellant has been acquitted from the charge of main case, as such, keeping in view above legal position, it can safely be held that the accused / appellant deserves his acquittal in this offshoot case as well.
15. For what has been discussed above, instant Criminal Appeal is allowed, the impugned judgment dated 13.10.2022, handed down by learned I-Additional Sessions Judge, Larkana, in Sessions Case No.147 of 2020 (re:The State Vs. Nazir alias Raja Brohi), being outcome of FIR No.04/2020 registered at Police Station Rasheed Wagan, District Larkana, is set aside and the appellant is acquitted of the charge. The appellant shall be released forthwith, if his custody is not required in any other case.
JUDGE
Qazi Tahir PA/*