Ayaz Ali vs The State

IRSHAD ALI SHAH, J.---The appellant by way of instant appeal impugned judgment dated 10.09.2018 whereby he for an offence punishable under Section 24 of Sindh Arms Act, 2013 for being in possession of unlicensed SBBL gun with four live cartridges, which he allegedly used in commission of incident outcome of FIR No.91/2013 under Article 17(4) PEHO of P.S Tharu Shah, has been convicted and sentenced by learned 1st Additional Sessions Judge Naushehro Feroze to undergo rigorous imprisonment for five years with fine of Rs.50,000/- and in case of non-payment of fine to undergo simple imprisonment for two months with benefit of Section 382(b), Cr .P.C.

2. It is contended by learned counsel for the appellant that the appellant being innocent has been involved in this case falsely by the police by making foistation of alleged gun and cartridges upon him at the instance of the complaint, party of the main murder case, the appellant has already been acquitted in main murder case by Federal Shariat Court of Pakistan and the appellant has already undergone the agony of protracted trial for about seven years without his fault. By contending so, he sought for acquittal of the appellant. In support of his contention, he relied upon case of Ali Asghar Lashari v . The State (2019 PCr .LJ 53) .

3. Learned APG sought for dismissal of the instant appeal by contending that it is time barred.

4. In rebuttal to above, it is contended by learned counsel for the appellant that appeal was filed by the appellant within time. It was dismissed for non-prosecution, therefore, the fresh appeal was filed by the appellant which is in continuity of his first appeal. By contending so, he sought for disposal of instant appeal on merit. In support of his contention, he relied upon case of Zahid Hussain v . The State and others (Note) (201 1 PCr .LJ 344) .

5. I have considered the above arguments and perused the record.

6. Admittedly , the appellant was not named in the FIR relating to the main murde r case. The gun and cartridges have allegedly been secured from the appellant on 4th day of his arrest, which appears to be significant. The appellant was not found to in exclusive possession of the place from where the alleged recovery of gun cartridges was made. The gun has been subjected to its examination by the Expert on 7th day of its recovery , such delay has not been explained by the prosecution plausibly . No question is put to the appellant during course of his examination under Section 342, Cr.P.0 to have his explanation on report of the Expert by learned trial Court. The appellant admittedly has been acquitted by Federal Shariat Court of Pakistan in main murder case vide judgment dated 02.05.2019 (Jail Appeal No.12-1 of 2018). In these circumstances, the involvement of the appellant in the instant case obviously is appearing to be doubtful.

7. In case of Tarique Pervez v . The State (1995 SCMR 1345 ), it has been held by Hon'ble apex Court that; "For giving benefit of doubt to an accuse d it is not necessary that there should be many circumstances creating doubt- if a simple circumstance creates reasonable doubt in a prudent mind about the guilt of the accused, then he will be entitled to such benefit not as a matter of grace and concession but as a matter of right."

8. In view of the facts and reasons discussed above, the impugned judgment is set-aside, consequently , the appellant is acquitted of the offence for which he was charged, tried and convicted by learned trial Court, he is in custody and shall be released forthwith in the present case.

9. Needless to state that equity demands the hearing of instant appeal in continuity of first appeal of the appellant, which was dismissed for non-prosecution. If not, then the delay , if any, in filing of the instant appeal needs to be condoned simply for the reason that the appellant has got good case for his acquittal on merits.

10. The instant appeal is disposed of in above terms.