IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Crl.  Appeal  No.S-112    of   2011.

Appellant    :  Ganj Ali alias Chhoto Mazari, through Mr. Nisar Ahmed

G. Abro, Advocte.

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

District Public Prosecutor.

Date of hearing: 16-03-2015.         Date of Judgment:  16.03.2015.

J U D G M E N T.

NAIMATULLAH PHULPOTO, J.-                  Appellant Ganj Ali alias Chhoto, by caste Mazari, was tried by the learned Assistant Sessions Judge, Kashmore, in Sessions Case No.04/2011, re State v. Ganj Ali alias Chhoto Mazari, registered as crime No.12/2011 at Police Station Kashmore, for offence under Section 13(d), Arms Ordinance.  After full-dressed trial appellant was found guilty and was convicted under Section 13(d) Arms Ordinance and sentenced for 05 years R.I and to pay the fine of Rs.2000/-, in case of default in the payment of fine he was ordered to suffer R.I for 02 months 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 14.1.2011 SIP Imtiaz Ali Suhriyani, S.H.O of P.S Kashmore, arrested accused Ganj Ali alias Chhoto Mazari in connection with crime No.10/2011, under Sections 365-A, 395, PPC and crime No.11/2011, under Section 324, 353, 148, 149, PPC, both registered at P.S Kashmore, who was found going armed with an unlicensed Kalashnikov loaded with one magazine containing 10 live bullets and registered F.I.R of this case on behalf of the State being crime No.12/2011, under Section 13(d) Arms Ordinance.

          3.       On the conclusion of usual investigation challan was submitted against accused Ganj Ali alias Chhoto 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 PW-1 WHC Atta Muhammad at Ex.03, he produced attested copy of mashirnama of arrest of accused Ganj Ali alias Chhoto and recovery at Ex.3/A and PW-2 complainant SIP Imtiaz Ali Suhriyani at Ex.5, he produced copy of F.I.R at Ex.5/A and copy of departure entry at Ex.5/B.  Thereafter, prosecution side was closed vide statement Ex.7.    

          5.       Statement of accused Ganj Ali alias Chhoto 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 Ganj Ali alias Chhoto 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. Nisar Ahmed G. Abro, learned advocate for the appellant, Mr. Muneer Ahmed Abbasi, learned Deputy District Public Prosecutor and scanned the entire evidence.

          7.       In my considered view, prosecution story is highly unnatural and unbelievable.  Trial Court has failed to provide fair opportunity to accused Ganj Ali alias Chhoto to cross-examine P.W WHC Atta Muhammad Thaheem.  Evidence of P.W WHC Atta Muhammad Thaheem reflects that accused Ganj Ali alias Chhoto has cross-examined this witness himself.  Trial Court keeping in view the circumstances of the case should have provided facility of the defence Counsel to the appellant on State expenses, but it was not done in this case.  After recovery of the Kalashnikov and bullets, there is nothing on the record that the same were sealed on the spot.  The same were also not sent to the Ballistic Expert for report.  Mere word of the police officials is not sufficient to record the conviction without independent corroboration.  Moreover, departure and arrival entries were not produced by the complainant to satisfy the Court that police officials had actually left the police station on the relevant date.  Previous history of the appellant regarding his involvement in such type of cases has also not been brought on the record.

          8.       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.  Reliance is placed upon the case reported as Tariq Parvez v. The State, (1995 S C M R 1345), in which 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.”

          9.       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 13.9.2011 passed by the learned Assistant Sessions Judge, Kashmore, is set aside and he is acquitted of the offence charged with.  Appellant is present on bail, his bail bonds stand cancelled and surety is hereby discharged.

          10.     Above are the reasons of my short order dated 16.3.2015 passed in open Court, whereby instant appeal was allowed.     

                                                                                          JUDGE

Qazi Tahir/*