IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Crl.  Appeal  No.S-03    of   2014.

Appellant    :  Abdul Sattar alias Abdul Razaq Shar, through Mr. Asif Ali

Abdul Razak Soomro, Advocte.

Respondent          :  The State, through Mr. Muneer Ahmed Abbasi, Deputy

District Public Prosecutor.

Date of hearing: 13-03-2015.         Date of Judgment:  13.03.2015.

J U D G M E N T.

NAIMATULLAH PHULPOTO, J.-                  Appellant Abdul Sattar alias Abdul Razaq, by caste Shar, was tried by the learned 2^nd Additional Sessions Judge, Shikarpur, in Sessions Case No.355/2012, re State v. Abdul Sattar alias Abdul Razaq Shar, registered as crime No.133/2012 at Police Station New Fojdari, Shikarpur, for offence under Section 13(d), Arms Ordinance.  After full-dressed trial appellant was found guilty and vide judgment dated 10.01.2014 he was convicted under Section 13(d) Arms Ordinance and sentenced for 05 years R.I and to pay the fine of Rs.10,000/-, in case of default in the payment of fine he was ordered to suffer R.I for one month more.  Benefit of Section 382-B, Cr.P.C was extended to him.

          2.       Brief facts of the prosecution case as disclosed in the F.I.R are that on 28.6.2012 complainant ASI Amjad Parvaiz Soomro of P.S New Fojdari, Shikarpur, left police station alongwith his subordinate staff vide roznamcha entry No.3, at 0815 hours, in his official vehicle and when they reached at the main road Khanpur, near curve of Panah Khokhar Village, it was about 09.00 a.m. and apprehended two persons, namely, Abdul Sattar alias Abdul Razaq Shar, from his possession one K.K bearing No.ANA 13674 of 7.62 bore along with one magazine containing 28 live bullets were recovered and from second person Khadim Hussain one SBBL gun bearing No.12-GA- USA & 02 live cartridges of 12 bore of red colour and one mobile phone NOKIA were recovered and sealed the same and both accused failed to produce permit and license.  Due to non-availability of private mashirs, PC Deedar Ali and PC Muhammad Rafiq were made as mashirs and mashirnama of arrest and recovery was prepared and complainant lodged separate F.I.Rs against both the accused under Section 13(d) Arms Ordinance on behalf of the State.

          3.       On the conclusion of usual investigation challan was submitted against accused Abdul Sattar alias Abdul Razaq Shar under the above-referred section.    

          4.       A formal charge against the appellant/accused was framed at Ex.02.  Accused did not plead guilty and claimed to be tried.  At the trial prosecution has examined complainant ASI Amjad Parvaiz at Ex.5, he produced photocopies of entries No.03 and 08 at Ex.5/A, mashirnama of arrest at Ex.5/B and F.I.R at Ex.5/C and PW-2 PC Muhammad Rafiq Qureshi at Ex.6.  Thereafter, prosecution side was closed vide statement Ex.7.    

          5.       Statement of accused Abdul Sattar alias Abdul Razaq Shar was recorded under Section 342, Cr.P.C at Ex.8, in which he claimed false implication and denied the prosecution case and stated that weapon has been foisted upon him.  Accused Abdul Sattar alias Abdul Razaq did not lead evidence in defence and declined to give evidence on oath in disproof of prosecution allegations.  Thereafter, the trial Court after assessment of the evidence convicted and sentenced the appellant as stated above.

          6.       I have carefully heard Mr. Asif Ali Abdul Razaq, learned advocate for the appellant, Mr. Muneer Ahmed Abbasi, learned Deputy District Public Prosecutor and scanned the entire evidence.

          7.       After hearing the learned Counsel and perusing the record, I have come to the conclusion that prosecution has failed to prove its case against appellant Abdul Sattar alias Abdul Razaq Shar beyond any reasonable doubt, for the reasons that complainant ASI Amjad Parvaiz Soomro has deposed that appellant Abdul Sattar and co-accused Khadim Hussain were arrested, K.K was recovered from the present appellant and SBBL gun was recovered from co-accused Khadim Hussain and co-accused Khadim Hussain has been acquitted on the same set of evidence by learned Civil Judge & Judicial Magistrate-III, Shikarpur by judgment dated 30.5.2013, mainly for the following reasons :-

          “The I.O failed to examine any private person from place of incident.  The time of incident is day time and place of incident situated near tool plaza.  From the material brought by prosecution is not free from doubt.  The circumstances as appearing in the matter create doubt as to the truthfulness of the prosecution of the case.  It is settled principle of law that benefit of doubt always goes to an accused and for that purpose it is not necessary that there must always be multiple circumstances to create doubt.  Even a single circumstance creating a reasonable doubt as to the guilt of an accused entitles him to such benefits.  In the case of Tariq Pervaiz V/S The State reported in 1995 SCMR 1345 while setting aside the conviction and sentence of an appellant therein it has been observed that for given an accused benefit of doubt 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 will be entitled to the benefit not as a matter of grace and concession but as a matter of right.  I also respectfully rely upon citations held in the case of Loung V/S The State (1999 PCRL J 595 Karachi), case of Muhammad Azeem V/S The State (1977 PCRL J 671 Karachi) and the case of Qadir Bux V/S The State (2011 PCRL J 1669 Karachi).  In the light of material placed on record by prosecution as discussed above my finding upon point No.01 is doubtful.”

          8.       After recovery of the Kalashnikov it was not sent to the Ballistic Expert in order to know whether it was in working condition or not.  Kalashnikov was recovered from the appellant at main road Khanpur near curve of Panah Khokhar Village at 9.00 a.m.  Inspite of that it appears that ASI Amjad Parvez Soomro made no efforts for calling the independent persons of the locality for making them as mashirs in this case.  Mere word of the police officials is not sufficient to record the conviction without independent corroboration.  Previous history of the appellant regarding his involvement in such type of cases has also not been brought on the record.

          9.       For the above-stated reasons I have no hesitation to hold that there are several circumstances in this case which create the doubt in the prosecution case.  It is settled law that when the prosecution case is doubtful, its benefit must go to the accused.  In the case reported as Tariq Parvez v. The State, (1995 S C M R 1345), following observations were recorded by the Hon’ble Supreme Court :-

“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.”

          10.     For the above-stated reasons, while relying upon the above cited authority, I have no hesitation to hold that the prosecution case is full of doubts.  Therefore, this appeal is allowed, the conviction and sentence awarded to the appellant vide judgment dated 10.01.2014 passed by the learned 2^nd Additional Sessions Judge, Shikarpur, is set aside and he is acquitted of the offence charged with.  Appellant is present on bail, his bail bond stands cancelled and surety is hereby discharged.

          11.     Above are the reasons of my short order dated 13.3.2015 passed in open Court, whereby instant appeal was allowed.    

                                                                                          JUDGE

Qazi Tahir/*