IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Cr. Appeal No. S-84 of 2021

Appellant		Qurban Ali s/o Muhammad Hashim Jagirani, through Mr. Ahsan Ahmed Qureshi, advocate

The State		Through Mr. Aitbar Ali Bullo, D.P.G for the State
Date of hearing		28-04-2025
Date of judgment		28-04-2025

J U D G M E N T

Amjad Ali Sahito, J.- Through this Criminal Appeal, the appellant has challenged the judgment dated 01.12.2021, passed by learned 3rd Additional Sessions Judge/MCTC, Larkana in Sessions Case No. 345 of 2017, arising out of Crime No. 66/2017, registered at P.S Taluka, Larkana for the offence under section 23 S.A.A 2013, whereby the appellant was sentenced and convicted under Section 265-H(ii) Cr.P.C for committing offence punishable U/s 23 S.A.A 2013, and sentenced to undergo R.I for three years and also to pay fine in sum of Rs.10,000/ (ten thousand) and in default thereof, he shall undergo S.I for further period of one month. However, the benefit of section 382-B Cr.P.C. was extended to the appellant.

2. The prosecution case as depicted in the FIR lodged by complainant ASI Zulfiqar Ali Ghanghro on behalf of the State is that, on 09.07.2017, the complainant left P.S alongwith his staff namely PC Safdar Ali, PC Javed Ali in government vehicle No.SPc.576 under entry No.10 at 1200 hours for patrolling having investigation-bag, when the police party arrived at Kamber Road bypass “Sim-Dakhan”, the complainant received secret information that proclaimed offender of Crime No.14/2017 under Section 302 PPC namely Qurban Ali son of Mohammad Hashim Jagirani was waiting for conveyance at Kamber Road “Sim-Dakhan”. On such information the complainant party proceeded to the pointed place, arrived there at 1230 hours, where saw one person who seeing the police party tried to slip away but he was arrested with police-tactics and due to non-availability of the private persons, the complainant associating PCs Safdar Ali and Javed Ali as mashirs, enquired from him about the addressed to which he disclosed his named as Qurban Ali son of Mohammad Hashim Jagirani t/o village Tharo Khan Jagirani who was proclaimed offender of above said crime. The police party/complainant party conducted his personal search during which from his fold one pistol 30 bore alongwith magazine number rubbed Pak made in working condition containing three live bullets. On query about the licensed of the pistol arrested accused disclosed it was unlicensed one and on further enquiry accused disclosed it was same pistol with which he committed murder of Tharo Khan on 13.02.2017 by firing at him. Presuming the accused guilty of offence under Section 23(i) SAA was arrested under mashirnama of arrest and recovery which was prepared with the signatures of above named mashirs. Thereafter, the accused along with recovered property was brought at P.S where the complainant lodged FIR against him on behalf of the State.

3. After completing the investigation, case was challaned before the competent court. After supplying the case papers, the charge against the appellant/accused was framed at Ex. 2, to which he pleaded not guilty and claimed for trial.

4. In order to establish the accusation against the accused, the prosecution examined PW/mashir PC Raja Safdar at Ex.3, he produced mashirnama of arrest & personal, recovery of unlicensed pistol and bullets & mashirnama of site inspection at Ex.3-A and 3-B; PW-ASI Zulfiqar Ali, the complainant as well as Investigation Officer of this case, at Exhibit No.4, he produced Departure Entry No.10, FIR, entry No.15&16 Pay slip of accused, certificate, report of Forensic at Exs.4-A to 4-F. Then learned State Counsel closed the side of prosecution vide his statement at Exhibit No.5.

5. Thereafter, the statement of accused was recorded u/s 342 Cr.PC at Ex., wherein he denied the offence, with which he is charged and professed to be innocent and claimed his false implication in this case. However, neither the accused examined himself on oath nor did he lead evidence in defence.

6. The learned trial Court after hearing the counsel for the parties and on the assessment of the evidence, convicted and sentenced the appellant/accused named above.

7. Learned counsel for appellants contended that the appellant is innocent and; that the complainant A.S.I. Zulfiqar Ali has himself investigated the case; that the evidence of such interested witnesses requires independent corroboration, which is also lacking in this case; that complainant and his witnesses are police officials and no independent person has been cited as mashir of arrest and recovery, which is clear violation of mandatory provisions of Section 103 Cr.P.C. He lastly contended that the prosecution has failed to prove its case against the appellant, thus the appellant is entitled for acquittal.

8. On the other hand, learned D.P.G. while supporting the impugned judgment has argued that the prosecution has proved its case against the appellant; that the pistol produced by the accused and was sent to the Expert Fire Arms for which the result came as positive; that the prosecution witnesses have supported the prosecution case at the trial and inspite of lengthy cross examination by the defence counsel, their evidence could not be shattered, therefore, the accused is liable to be convicted. He prayed for conviction.

9. I have heard learned counsel for the appellant, learned D.P.G. and have minutely gone through the record with their able assistance.

10. It has borne out from the record that 09.07.2017, the complainant left P.S alongwith his staff namely PC Safdar Ali, PC Javed Ali in government vehicle under entry No.10 at 1200 hours for patrolling having investigation-bag, when the police party arrived at Kamber Road bypass “Sim-Dakhan”, the complainant received secret information that proclaimed offender of Crime No.14/2017, under Section 302 PPC namely Qurban Ali son of Mohammad Hashim Jagirani was waiting for conveyance at Kamber Road “Sim-Dakhan”. On such information the complainant party proceeded to the pointed place, arrived there and saw one person who tried to slip away but he was arrested with police-tactics and due to non-availability of the private persons, the complainant associating PCs Safdar Ali and Javed Ali as mashirs, who told his name as Qurban Ali son of Mohammad Hashim Jagirani t/o village Tharo Khan Jagirani, who was proclaimed offender of above said crime. The police party/complainant party conducted his personal search during which from his fold one pistol 30 bore alongwith magazine number rubbed Pak made in working condition containing three live bullets. On query about the licensed of the pistol arrested accused disclosed it was unlicensed one and on further enquiry accused disclosed it was same pistol with which he committed murder of Tharo Khan on 13.02.2017 by firing at him. Presuming the accused guilty of offence under Section 23(i) SAA was arrested under mashirnama of arrest and recovery which was prepared with the signatures of above named mashirs. Thereafter, the accused along with recovered property was brought at P.S where the complainant lodged FIR against him on behalf of the State.

11. No reasons are given for not procuring any private persons when recovery is made from outside the house where the respectable of the locality are supposed to be present and they should have been associated with such recovery. Thus the recovery of crime weapon in the case in hand is in violation of the mandatory provision of Section 103, Cr.P.C. Needless to emphasize that in view of the provisions of Section 103, Cr.P.C the officials making searches, recoveries and arrest, are reasonably required to associate private persons, more particularly in those cases in which the presence of private persons is admitted so as to lend credence to such actions, and to restore public confidence. This aspect of the matter must not be lost sight of indiscriminately and without exception.

12. Main object of Section 103 Cr.P.C. is to ensure transparency and fairness on the part of the police during course of recoveries restrain false implication and diminish scope of foisting fake recoveries upon accused and the complainant only relied upon his subordinate police constables.

13. For giving benefit of doubt to an accused rule has been laid down by the Hon’ble Supreme Court of Pakistan in the case of Muhammad Mansha v. The State (2018 SCMR 772), wherein the apex Court has ruled as under:-

“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”. Reliance in this behalf can be made in 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).”

14. It is settled principle of law that to extend benefit of doubt to an accused it is not necessary to gather many circumstances of doubt but if a single circumstance arises out of prosecution case is sufficient to discard the evidence of prosecution. I am persuaded that this is a fit case where appellant is entitled to be given/extended benefit of doubt, therefore, I am fortified with the dictum laid down by the Honourable Supreme Court of Pakistan in case of Tariq Pervaiz vs. The State reported as 1995 SCMR 1345, where it has been held as under:-

“The concept of benefit of doubt to an accused person is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a 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.”

15. Above stated circumstances / defects in the prosecution case are sufficient to hold that the prosecution has failed to prove its case against the appellant and prosecution case is highly doubtful, therefore, I am of the candid view that it is not the duty of the defense to disprove the case of the prosecution and defense plea may not be taken and may be sometimes it is not proved but burden of proof is not upon the defense but it is always upon the prosecution to prove the case beyond doubt. The circumstances are evident in this case, which have created serious doubt as to truthfulness of the prosecution case.

16. In view of above circumstances, the appellant is entitled to the benefit of doubt, accordingly, instant criminal appeal is allowed and impugned judgment dated 01.12.2021, passed by the III-Additional Sessions Judge/MCTC, Larkana in Sessions Case No. 345/2017 is set aside, resultantly appellant Qurban Ali is acquitted from the charge.

17. Instant criminal appeal stands disposed of as above.

J U D G E

Abdul Salam/P.A