SOHAIL S/O SHAFI MUHAMMAD (Appellant) VS THE STATE (Respondent)

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DerlL. Re;;sr t (Judt.;

tN THE HrcH couRT oF srNDH AT KARAcH t )|ao tb) Cr.Appeal No. 1ot2024 Sohail, S/o Shafi Mullrammad Muslim, adult, Presently confined at prison Landhi Malir Karachi Appellant

Versus d. The State

Respondent

F.l.R. No.531/2023 ' U/S.23(1Xa), Sindh Arms Act,2O13 P.S. lbrahim Hyderi, Karachi.

APPEAL UND EJt SEC toN 4'10 CRt NAL PRO EDURE

CODE. 1898

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THE HIGH COURT OF SINDH AT KARACHI'

Criminal APPeal No.181 of 2024

Appellant Sohaii tLougtl Mr. Muhammad ,

Yousif, advocate

Respondent The State through Mr. Altaf Khokhar, Deputy Prosecutor General

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Date of hearing 13-03-202)

Date of Short order '13-03-7025

Date of reasons 18-03-2025

IUD GMENT

Jan Ali ]uneio, j.- This criminal appeal is directed against the \ judgment dared27.02.2024 (here-in-after referred to as the "lmpugned Judgment") passed by the Additional Sessions . Judge-IV, Malir, Karachi (hereinafter referred. to as tlr e "Tria1

No. 43 ol 2024, wherebY the i Shafi Muhammad was convicted tl.

o the Sindh Arms Act, 2013 and sonment (RI) for five Years with a * Il fine of Rs. 50,000/-, and in defaul! to further unr-lergo 30 days of simple imprisonment.

Z. The case arose out o{ FIR No' 53'l/20n, registered at P'S: Ibrahim Hyderi, Karachi, undersection 23(1)(a) of tl.re Sindh Arms Ac! 201.3. As per the prosecutiory on18'12'2023 at about 0330 hours, a police party led by SIP Abdul Qadir lakhro was

on patrol when they received spy information atrout susPects reachilg in Street Nq.5, Umar Colony, Ibrahim Hycieri' Upon the location. four suspects tried to flee' Sohail (appellant) and Muhammaci Ibrahim were arrested, while two accotnplices

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managed to escape. The prosecution alleges that a .30 fore.

pistol with two live rounds was recoveredrfrom the appe[ariU t.. I

and 1050 grams of charas was recovered from co-accuse d ,, ,l

Muhammad lbrahim. The weapons and drugs were sealed,on the spot, and a memo of arrest and recovery was prepared. The Investigating Officer (IO) SIP Muhammad Pinyal recordecl statements of the witnesses, sent the case property for forensic analysis, and submitted a final charge sheet under Section.173 Cr.P.C. The tial Court framed a formal charge against,the Appellant to *hi.h th" Appellant did not plead guilfy. i

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3.During trial, the prosecution examined four wihresses ras under:

PW-1: SIP Abdul Qadir ]akhro (Complainant) This witness was examined at Exhibit 3.

He produced the following documents:

Exhibit 3/A: Police Daily Diary Entry No. 23, which records the departure of the poiice t party for patrolling.

o ) Exhibit 3/B FIR No. 531,/2023, the Fitst ) InJormation Report lodged against the t1 o accused.

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Exhibit 3/C: Memo of Arrest & Recovery, documenting the seizure of a.30 bore pistol with two live rounds from the accused Sohail.

Exhibit 3/D: Seizure Memo of Charas, recording the recovery of1050 grams of charas from co-accused Muhammad Ibrahirn. ,t- + Exhibit 3/E: Malkhana Entry Register (No. 19, Enhy No. 340/2023), proving that . the recoveled weapon and charas were deposited in safe custody at the police station.

PW-2: HCWaris Ali (Witness of Recovery/\4ushir)

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This wihress was examirled at Exhibit 4.

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PW-3: HC Ali Khan (Malkhana In-charge)

This witress was examined at Exhibit 5.

He produced the following document:

Exhibit 5/A: Malkhana Entry No. 340/2023, confirming that the recovered weapon and narcotics were safely stored in the police station's Malkhana (storehouse).

PW-4: SIP Muhammad Pinyal (Investigating Officer) This wihress was examined at Exhibit 6.

I-{e produced the follorar'rng documents:

Exhibit 6/A,: Letter to Forpnsic Lab, ploving that the weapon and drggs were sent, for forensic analysis.

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Exh.ibit 5/B: Forensic Science Laboratory ,../ (FSL) Report, confirming that the.30 bore -.] pistol was in working condition. ,'l

Exhibit 6/C: Chemical Examination Re$ort, establishing that the seized charas was a \ narcotic substance.

u- .!. Exhibit 6/D: Final Charge Sheet (Chaila-n) o t; under Section 173 Cr.P.C, formally presenting . ir The prcirsecution concluded its case, and the statemer1tlof ' the Appellant was recorded under Section 342 of the Criniina I Procedure Code (Cr.P.C.), wherein he asscrted his imocence. The Appellant neither presented any defence evidence nor

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chose to testify under oath in accordance with Section 3a0(2) of ) xt the Cr.P.C. As a result, the leamed trial Court rendcre( thg Impugned Judgment, convicting and sentencing the Appellant whih making the foliowing obsewations:

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The ocular evidence of the prosecution witnes;ses was consistent and remained unshaken duling cross-examina tion.

The recovered property was kept in safe custody, and its chain of custody was not challenged by the defense a The defense failed to produce any evidence of f:;se The prosecution established guilt beyond a reasonable loubt, leading to the appelJantls conviction.

4.The learned counsel for the appellant argued that thg \ | :t! ..: ;

appellant has been falsely implicated due toia land dispute with the Katchhi community, ald the entire case is based on fabricated evidence. It was contended that the prosecutior3

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jarrest failed to associate independent witnesses, despite the occurring in a populated area, and the memo of recovery lacked essential details, :'aising serious doubts abou: its authenticity. The leamed counsel further argued that the chain of safe custody of the recovered weapon and charas was not i\ tablished, as evident from the missing errtries 1n

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o Malkhana Register and delays in sending the property ,for orcnsic analysis. Additionaliy, contradictions in. tl-rc prosecution witnesses' testimonies regarding the use ,; of torchlight, the manner of recovery, and the presencc of. oti.rer accused render the case highly doubtful. It was ulgecl that, given these inconsistencies and the failure to prove the cabe beyond a reasonable doubt, the impugned judgment be, set aside, and the appellant be acquitted. ,I ' 'i v

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J 5. Per contra, Conversely, the learned, Deputy Prosecutor. General (DPG) vehemently oppoled the appeai, arguing that its case beyoncl a tire prosecution successfully proved reasonable doubt througir consistent and corrobor:qtcf

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testimonies of police witnesses It was subniitted 1 that independent witnesses are not mandatory for convictirin, - especially in cases where the recovery is rirade during a laie- I night raid inran isolated area. The learned DpG maintained tllat the weapon and charas were recovered from tfre appbitalrt, :{ properly sealed, and sent for forensic examination, lwhich confirmed their authenticity. The absence of any motive for false implication by the police further strengthcns the prosecution's case. Moreover, minor conkadictions . in wibresses' depositions do not materially affect the case, and mere technical irregularities in docrimentation clo i not warrant acquittal. Therefore, it was prayed that the appeal be dismissed, and the conviction and sentence awardecl by tiie trial Court be upheld.

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6.After thoroughly evaluating the arguments advancccl ,Lry the leamed counsel for the appellant and ,the leamecl Depufy Prosecutor General (DPG) for the State, as well as rneticulously reviewing the case record, the following observations einerge, The prosecution's case is riddlei with inconsistencies and

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L1 '?l i contradictions, creating serious doubt regarding the recovery .of the weapon and the credibility of the evidence. The Memo of Arrest and Recovery, as well as the testimony of PW HC War.is AIi, explicitly state that the weapon and bullets were r ecoyelecl /1. from the foid of the appellant's trousers. However, SIP Abdul . . ., Qadir, , the complainant, failed to disclose this cruciaL,,fact during his testimony, raising doubts about the accuracy of tlie recovery process. Additionally, neither.SIP Abdul Qadir, masltr HC Waris Ali, tl're Memo of Arrest and Recovery, tlre sketch of the pistol, nor the FIR mention any serial number on I the recovered pistol. In stark contrast, the Forensic Scie+ce \ Laboratory (FSL) Report (Exh. 6/E) states that the pistol bore the numberPAM-6041, which was never disclosed liy:,any .ii

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prosecution witness during their evidence' Furthermore, a ietter dated 19-12-2023, issued by the Investigating Otjrcer .t (LO.) to the AIG Forensic Department Sindh, shows that the pistol was without a number, whereas a note of the FSL datecl 19-12-2}23states that the pistol bore the number PAM-6041, creating an unexplained contradiction. The credibiliry of thc police version is further shaken by inctnsistencies in lrow the spy information was received-SI! Abdull Qadir claimed he was informed through phone, while mashir HC Waris. Ali stated that the spy. informer an'ived on foot. Moreover, WIIC AIi Khan,' the Malkhana in-charge, admitted during cross- examination that he did not receive any personal search artrcles / l. of the accused, but only the case ProPerty, parcels in a sealed a condition, further undermining the prosecution's claim regarding the appellaut's possession of the weapon. These contradictions and omissions severely damage the prosecutiorts,case, making it unsafe to sustain a conviction'' i".

It is a foundational principle of criminal law tirat the \ o I i"prosecution trust establish guilt beyond n rcasonable dorl't, with I 'rt even the slightest uncertainty favoring the accused. L't a parallel *'H scenarro, as oDservecr in Muhammad Hamilani a' The State (2018 YLR 2687), this Court acquitted the accusect 'by extending the benefit of doubt in a case under Sgctiol 23(1)(a) of the Sindh Arms Act, 2013. This positior, is further corroborated by the.Honourable Supreme Court of Pakistar-r's ruling in Saiian Solangi a. The State (2m9 SCMR 844), whid,r underscores the imperative of adhering to this standarr'l' ;, ' , 8. In light of the foregoing discussion, it is evident tliat the prosecution has failed to establish its case against the appelalnt bey.ond reasonable doubt. The impugned judgment is 'not sustainable under the law. In these circumstances, Crimiriai

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Appeal filed on behalf of the appellant stands allowed, ancl tire a conviction and sentence passed by the learned hial coult, by :t virtue of the impugned judgment, are hereby set-aside. Thb l

Appetlant shall be released forthwith if not required to. t c detained in any other pending case. Theselare the reasoni for short Order dated: 13-03-2025.

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JUDGE

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