SOHAIB AZHAR BUTT (Appellant) VS THE STATE (Respondent)

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ln the High Court of Sindh at Karachi.

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Criminal ApPeal No) df 2022.

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Sohaib Azhar Butt son of :7..p:.aY at $d

Azharul Haq Butt, Muslim,

adult, resident of Saima Fine Tower, fiepury fle9t9tr F (J(,dr.t Shaheed-e-M illat Road, Karachi,

' now confined in Central Prison,

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Karachi............... Appellant.

Versus

The State.....'.".. """Respondent'

Appeal under section 410, Criminal Procedure Code, 1889 c

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THE HIG}I COURT OF'SINDH AT KARACHI

. CriminatAPPealNo' 464of2022

Appellant Sohaib Azhar Butt through Mr. Zulfiqar Ali Langah, advocate a/w appeilartt

Respondent The State through Mr. Mumtaz Ali Shah, Assistant Prosecutor General

Date of hearing 04-03-2025

Date of Judgment 04-03-2025

{ TUDG MENT

has been filed ]an Ali ]unejo J- The present Criminal Appeal HC t.' (

by the Appellant (accused), chailenging the Judgment dated :r

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* 22.07.2022 (here-in-after referred to as the Impugned ludgment) F of learned N'th Additional Sessions Judge' .u.

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! passed by the Court at Complex, Central Prison' Karachi Karachi-South Judicial

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-1. (here-in-a{ter referred to as the leamed Trial Court) in Sessions Case No. 666 of 2018 (The State vs' Sohaib Aztraa), i'vl-rereby the

learned TrQl Court convicted the Appellant under Section 25' of the Sindh Arms Act, 2013 and sentenced him to undergo for five years as rigorous imprisonment with fine of Rs'50'000/- (Rupees Filty Thousand OnIy) and in case of default of fine' the

Appellant shall suffer simpie imprisonment for 03 months'

2.The prosecution's case revolves around the recovery of a -l licensed 9mm pistol (bearing No. ZSA 10970) from a Honda City Car (Registration No. AMS 48n) parked at the appeliant's sholwoom, SB Motors, Defence Phase'IL Karachi' The recovery was made on 21.01.2018 duing the investigation of Crime No'

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The appellant' wtLile in custody 15/2[78(murder of Ali Gul)' murder case, allegedly conlessed to using this licensed for the police to recovei it' The pistol in '*re crime an'1 1ed the through four wibresses: PW-01 prosecution established its case testified' to the Appellant's (SIP Mrhammad umer Khattak) of a licensed 9mm pistol'and disclosure leading to the recovery corroborated by documentary vehicle from his showtoom' entries @x 4/ A-B)' evidence including departure/arrival memo (Ex 4/q' FiR copy (Ex 4/E)' arrd FSL report recovery confirmed (Retired IolAsI Anwar l{hattak) px +/l\;Pw-02 (Ex 5/A'B); Pt^{-03 (Hassan procedural compliance via eritries as a mashir;

-rrn-an) vedfied the recovery memo (Ex '4lC) and PW-04 (ASI Muhammad Hanif)' added under Section 540 A-Q, reinforcing the timeline Cr.P.C., Pro duced entries (Ex / its evidence with a formal statement (Ex Tte prosecu tion closed

08), while the ApPe[ant, in his Sectirrn 342 Cr'P'C' statement alleging a Police grudge and HC (Ex 09), denied allegations' ta a missing rePort (Ex 9/A) but offering no defense

The trial Court convicted the Appellant fl F ence.

b o o under Section 25 of the Sindh Arns Act' 2073' reiying on the )t J $r (fu"A/D' and consistent recovery memo (Ex '41q, FsL '"potl the the Appellant's ownership of testimonies, which confirmed possession of the vehicle weapon, its operability, and exclusive lus showroon Procedural compliance urrder Article 40 of from 1984' and the presumption of possession Qanun-e-Shahadat, Arms Act outweighed defense under Section 32 of the Sindh claims of irregutarities, leading to a sentence of five years' rigorous imprisonment with a fine' contends that the

3.The learnedcounsel for the Appellant prosecutiort's case is rid'lled with material irregularities' (evidencedby Ex9/ tr) including the Appellan/s illegal arrest was and jurisdictional violations' as the investigalion

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the recovery falling under P'S' conducted by P'S' KI.A desPite the delayed FIR registration, Defence. He frrrther qrgues that Cr'P'C' due to the absence of non-compliance with Section 103 independent wilrtesses, and the'vehiclds alleged

recovery wtside*'p Appellanfs showroom undenriine the contends that the claim of "exclusive possession" ' He

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failed to establish safe custody of the weapon' prosecution 'of tamPerin& a1d highlights discrepancies creating risks a;iC the FSL U"*"un the weapon's description in records anaiysis' He asserts that report, coupled with delays in forensic the Appellant and the recovery was staged to implicate evidence to directly link the emphasizes the lack of fingerprint Appellant to the weaPon' Citing flawed investigation' and procedural lapses' he conhadictions in witness testimonies' doubt under criminal invokes the principle of benefit of jurisprudence. The learned counsel prays for acquittaf urglng judgment as the this Court to set aside the impugned H reasonable doubt' and- secution failed to prove guilt beyond lA e conviction rests on unretiable eviderice marred bY

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cedural ilegality, contradictions' and insu{ficient

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o corroboration- s i General

4.Pet contra, the leamed Additional Prosecutot (APG) has argued' ihat the recovery of the licensed 9mm

pistoi(Ex 4/i) and-rehicle(Ex 4/C) toom the Appellan{s during custodial showtoorn, based on his volultaqy disclosure 40' The Appellan{s interrogation, fully complies u'ith Article evidence is confession leading to the dir;covery of incriminating admissible and forms a credibXe chain of circumstantial

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evidence.TheAPGcontendsthattheinvestigationbyP.S.KlA was lawful, as the recovery sGmmed from disclosures officers 15/2018)' which was made in the main murder case (Crime No' (Ex 4/A' atready under their jurisdiction' Procedural entries

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4/8, 5/A-8, 7/A-C) metiflilously documented the police

party's movements, negating claims of jurisdictional (SIP Umer impropriety. He further argued that PW-1 i{rattak) and PW4 (ASI Hanif) provided consistent'

unchallenged testimonies about the recovery ;r']roc€ss7 coroborated by dbcumentary evidence @x a/C' 4/l)'PW-3 (Hassan lCtturr), a private complainant in the connected murder (Ex a/C) as a mashit' lending case, verified the recovery memo errphasizes that impartiality to the proceedings' The APG law' and ti'reir police officials aae competent witnesses ulcier testimoniescannotbediscardedmerelyforbeingofficial.The APGassertsthattlrevehicle(FlondaCity)andpistolwere recovered from the Appellant's showroom' which was under was parked outside' his exclusive control. Even if the vehicle and iris voluntary the Appellant's ownership of the showroom section 32 disclosure establish conscious possession, satisfying license in tl're 9t the Sindh Arms Act, 2013' The pistol's Appellant's name (undisputed by the defense) futher cements trc culpabilitY. The APG relies on the FSL report (Ex 4/I)' ltt ciaims of I * ch conlirmed the weapon's oPerability' to rebut F .n unnecessary ering. He argues that fingerprint analysis was ll- o and the FSL report J lnce the pistol's ownership was admitted; s I in depositing conclusively linked it to the crime. Minor delays prosecutiort's case' the weapon with the FSL do not vitiate the The APG highlights the memo of recoveiry @* 4/9' signed by compliance' PW-3 and police officials, as proof of procedural disproving Entries (Fx 4/ A-B;,7 /a-C) corro$ate the timeline' allegations of delayed FIR registration or mala fide intent'

Lastly, Leamed APG urges this Court to dismiss the appeal and uphold the convictiotu aiguing that the trial Court and the correctly appiied the law, the erridence is conclusive' defense's obiections are teclrnical, uasubstantiated' and insu-fficient to overtum a lawful judgment'

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5.. After thoroughly evaluating the arguments advanced by the learned counsel for the appellant ' and the leamed AdditionalProsecutorGeneral(APG)fortheState'aswellas meticulouslY reviewing the case recotd, the following

observations emerge: PW-1 (SP Muhammad Umer Khattak): Deposed that the reccvered pistol bore the serial Similarly number "ZSA 7Og77O'. PW-z (IO Anwar Ktrattak): a{firmed the pistol's serial number as"ZSA' 7O9WO" in his testimony. The forensic examination report lists the pistol's

serial number as"ZSA 1lOg7O' (omitting one digit:"ZSA in the serial i.i}g7}' instead of "ZSAfigm}1' The discrepanry numbercreatesdoubtaboutwhethertheweapontestedbythe from the FSL is the same, as the one allegedly recovered the FSL Appellant. This breaks the, chain of custody' rendering report inadmissible' The prosecution relied on the same weaPon (Iicensed 9mm pistol, NoTZSA 10970) in both Sessions No'653 Case No. 666/2A78 (current case) and Criminal Appeal HC of 2OL9 grrior case). InAppeal No'663/2079' the present

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was acquitted by this Court by extending the I * o of F benefit of doubt" and this Court disbelieved the recovery u- o the pistol, holding *iat the prosecution failed to prove its mafu

S* case under Section 302, P.P.C' Tl-le prosecution's reliance on the

sErme weapoll (with identical registration details) in the present

case, despite its recovery being invalidated in a prior iudgment'

creates a fatal inconsistency' The weapon numbels continuity

cannot salvage a recoveiy already dee;ned unreliabie' llecoveiy

Memo (Ex 4/C): Attested only by poUce olficiais and FW-3 (Hassan Khan), a complainant il the cormected murder case (Crime No.15/2018). It is a matter of record that Arrival Entry No.19 (dated 21.'Oi'2018 at 1900 hours) at P'S' Defence' Karachi' conspicuously omits the presence of the private wito:ress' Mr'

Flassan ICran'Akakhail. The Coinplainant's statemmt recorded

under Section 154 of the Criminal Procedure Code (Cr'P'C')

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notably fails to document the Presence of wifiresses Hassan

KlranAkakhailandPC-MuhammadShahidduringthealleged recovery of the weapon, live bullet, and empty shell' This

ornission raises critical questions about the procedural as adherence and evidentiary reliability of the recovery Process' the absence 'of wibress corroboration undermines the authenticity of tr: reported findings' Furthermore' the prosecuLion, represented. by Complainant SIP Umar lCratak' to has failed to produce any departure entry from P'S' Defence substarrtiate the alleged recovery process or confirm that the

complainant and witnesses departed from the police station after the purported recovel)/' The recovery of an empty tri'ilet

shell under the jurisdiction of P.S' Defence has sparked serious { questions about procedural irreguiarities' The investigatile, sketch ailegedly drawn by SIP Muhammad Umer Khatak meticulously thows a pistol, a magazine, and live bullet but notably excluded the empty she1tr' The sketch of the pistol' magazine and live brrllet was orJy sigrLed by the Complainant and it was not attested by the 'witnesses with their signatures'

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sti tA These omissions undermine the credibility of the shelf s T * c i 't recovery, raising suspicions that its inclusion in the evidence c,1 o may have been fabricated' Adding to these irregularities' S* Compiainant SIP Muhalnmad Umer Khattak un1awfuJly retai-necl custody of the. case property - including the pistol, live cartridge, and pulported empty cartridge-for a prolonged period of three days, fromJanuary 21',2018, to January 24,2018, before finally depositing it at the Forensic and Science

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Laboratory. This undue delay in forwarding the case proPe*y 1 ,// and his decision to keep it in his personal custociy critically undermines the prosecution's case. During coutse o{ cross- examination, the Complainant has failed to assign reason for such inordinate delay in sending the case property for FSL examination and retainiag the case Property in his owl

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Police Malkhana at

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the same in possession not depositing t"]:1^* registration' ,**, problematic is the inordina* T on21'01'2018 at 1930 hours' L-'ut ' occurred' The alleged recovery ott22'01-2018 at 2040 hours-a lapse the FIR was lodged of which too was lodged on the basis exceeding 24 hours' 154' Cr'P'C' sent by the Complainant statement r:nder Section l{ratak through police official and at $P Muhammad Umer p's' Defence' was not present at that time the complainant prosecutior{s clairn that the complainant' PesPrte. the this were at P'S' Defence during witnesses, and accused Present Kratak fallld. to provide a SIP Umar period, Complainant for this unjustified delaf during his plausible explanation FIR jurisprudence' urrexplained delays in testimony' In criminal ofteri indicative { are viewed as a critical weakness' registration impropriety' It is pertinent to of fabrication or procedural by Complainant oudine the critical admissions made explicitly which SIP Umer Khatak during his cross-€xamination' the prosecutiorf s case' These sigrrificantly undermine as follows:

admissions are reproduced t*W ':tt i" fr* in^t n tn" "*"t ! _rr "!

not **tion th" no*' l. of both

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iio-bl" ot E* AB it do'" It is cortect to suggest that I haoe S* WEWis of rccooera' qf P'S' KlAregardingrccooery f,ot proau"na axtioal entry statenftnt 'pro"""ding,' lt is fact that in rny 754 CI'P'C' of nashirs of rccouerts is tothing rcgarding pl'esettce my 754 CI'P'C' statelfleflt suggest that I' had rccoileil -""1i, dela4 of 26 lrotrs ftom the time 'f is ccrtect to susseii tlut r tnd ;;;;";....'. ""'-""" rt '*rr of allegca ddeo the photogra-stlts ot capfined "rrrO* ft is fact that FSL Repott recooetA proceeilings""" """ by me a't Ex Ul date of receioing of Pistol so producedby it was allegedly rccotta'etl whilst ESL is ilateiL 24'01'2l;XS

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"' "'" It is corect to s 88est that on 27,07.2078... 't' '- "' case rte wea\ott hail remaineil fot 04 daYs PtoPu411lcti Maalkhana with me. lt is fact that I hatte not Ptoduced the ctinu weaPon tn depositing Registet Entty tegarding ct to suggest that tle Place of safe custodY. It is corre reiottetY of crime ueaqon is poPulatud and' alleged arca' lt is cotect to silgge st that at the thne comnrerCial ngs PeoPle of the atea had of alleged rccooery Proceedi associated bY flt sPoL lt is fact that I had not gatheted of recooery Pto ceeilings' lt ,s local of the arca as mashit the P istol Present in the court cofi'ect to su11est that d ate of the alleged rccoaerY usith the case ProPertY since x t xll.

remained with me and eom todaY I btought had not d.eposited. the Pistol witlt court, lt is fact that I had CitY Cottrts""" It is fact t:'''t Madllehaane bf shel I lrad 170 tbe end razol7 s ketc ho the teco aef e dem b acks ide c tlre feco1) etll n1el1x o ,., .., '., ooer' the

6.It lSa formdational PrinciPle o f cdminal larv that the o t{ i' establish gtitbeyond a rcasonai;le doubt , with Prosecu tion must at uncertainty favoring the accused' In a p aral1e1 the sligh test F -!-l obsewed inMuhannnail Hamildni o' Tle U Z o, aS by YLF. 2687\' this Court acquitted the accused $ State(2AJa s extending the benefit of doubt in a case under Section further 23(1)(a) of the Sindh Arms Act, 2013. This Position is le Supreme Court oI Pakistan's corroborated bY the Honourab A, / a' The State \2AL9 SCME 8t14)' which Soiangi )i rulrng'tnsaiian underscores the imPerative of a dhering to this standard'

it is evident that the

7.In light of thq foregoing discussion' its case against the appellant prosecution has {ailed to establish u"yo,'areasonabledoubt.Theimpugnedjudgmentisnot t"hese circumstances' Cdminal sustainable under the law' In

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the appeliant stands alloweci' and the Appeal filed on behaff of corwictionandsentencepassedbythelearnedtrialcourt,by impugned judgment' are hereby set-aside' The virhre of the be released forthwith if not required to be Appellant shail case' detained in any other pending

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