MUREED ALI S/O DAWOOD (Appellant) VS THE STATE (Respondent)

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rN THE HON'BLE H]GH COURT OF SIIUDH

AT KARAC}II

CRTMINAI, APPEAI, NO. ) /2024

MUREED AI,I S/O DAIIOOD

BY CASTE BURIRO

MUSLTM ADULT, PRESE}TTLY CONFINED

IN a . iIAIL afidn,* APPEI.,LAMT

VERSUS

THE STATE RESPO}TDENT

FrR NO.49/2023 v/st 23(i)-A & 25 sAA 2013

P. S . DHABT'IT

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4ELEAII UNDER SECTTON 4i0 CR.P.C. t

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TF{E HIGH CON.]RT OF'' SINDH AT KAR.ACHI

Criminal Appeal No.99 of 2094,

Fresent: Mr. Justice Jan Ali Junejo

For App el]- an t Ivtrr. Nisar Ahmed Narejo, Advocate For State: Mr, Mumtaz Ali Shah,.,{FG

Date of hearing: t*-a\-s,oe5

Date of Judgment: \{L-O3-9O96

.TL,IDGMENT

/l . Jan Ali .trunejo, J.- Through tiris Criminal Appeal. .tht;./ -f appellant, Mureed Ali S/o. Dawood Buriro, has impugned the judgment dated ts.ot.s024 (hereinafter referred to as thr: "Impugned Judgment"), passed by the iearned IInd Additional Sessions Judge, Thatta (hereinafter referred to as the "Trial c, i'. t-'

Court"), in Sessions Case No.+s/2023, arising out of F-lii |-r jr No.4,9/2o23 registere(l at P.S. Dhabe.ii. rvhereby he was convicte,.l St under Section zs(t)(a). of the Sindh Arms Act, 2o13 and senteuced

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him to su{Ier R.l. for ten years u'ith benefit of Section .'isg-ll.

Cr.P.C.

2.The appellant \l'.is charged u'ith the posscssion of ar:

)- unlicensecl 3o-bore pistol along rvith a ntagazine containing three live bullets, which r,t'as allegedly recovered fiorn his possessi,rir otr

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O2.O5.9O23. Challan rvas submitted and the trial commenced on framing of charge against the Appellant. The prosecution produc6cf - I two witnesses and several documents to support its case against the Appellant, Mureed Ali. Buriro is a details of the witnesses along with the documents produced during the trial:

I. PW-r: ASI Talib Hussain (Complainant) o ASI Talib .Llussain was the complainant and the investigating officer in this case. He testified about the arrest ofthe accused and the recovery ofthe unlicensed

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I weapon.

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o Documents Produced:

Exh.of /A: Memo of Arrest and Recovery -. Exh.oilB: FIR (First Information Report) Exh.o5lC: Departure and Arrival Entries Exh.oilD: Letter for FSL (Forensic Science Laboratory) . This letter rvas sent to the FSL for the examination of the recovered weapon.

Exh.oglE: FSL Examination Report tr ' The FSL report confirmed that the '.i recovered weapon was in working condition * at the time of recovery.

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Exh.of /F: Departure and Arrival Entries for Sending Case Property to FSL Sr . These entries recorded the movement of the case property (the weapon) to and from the

FSL.

e,. P.W-Qz HC Muhammad Ismail (Mashir/Witness) HC Muhammad Ismail was a poiice official rvho acted as a mashir (witness) during the arrest and recovery process. Testimonl, of HC Muhammad b

v lsmail was recorded as Exh.6.

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I aftei: the closure ofprosecution evidence, the statement ofthe accused Mureed Ali was recorded under Section 342 Cr'P C', wherein he denied all allegations and claimed false implication by the police. However, he chose not to examine himself on oath under Section s+o(z) Cr.P.C. and did not present any defence witnesses or evidence in his support. The court, after evaluating the evidence on record, found the prosecution's case to be proven beyond a reasonable doubt. Consequently, the accused was convicted under Section Lg(l)-Aof the Sindh Arms Act, 2o13, and sentenced to ten years of rigorous imprisonment.

+ The learned coutrsel for the appellant contended that thc appellant is innocent and has been falsely implicated by the police ' with malafide intentions. It was argued that the trial court misread

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h the facts and circumstances of the case and passed the impugned ,q judgment without judicial application of mind' The alleged l,t- ..,

recovery olthe weapon, rvhich is the soie basis for conviction, was s'.H claimed to be foisted upon the appellant, and the procedure under Section los Cr.P.C. was not follorved as no independent witnesses lvere associated. The defence also pointed out contradictions in the statements of prosecution witnesses, asserting that no direct or \ indirect evidence linked the appellant to the aileged crime' Furthermore, the cor'rnsel alleged that the appellant was bookeci in police' a false case due to non-fulfillment of illegal demands by the

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and the trial court failed to consider the weaknesses ir-r the prosecution's case. Therefore, it was prayed that the impugned judgment dated ts-ot-2o24be set riside.

5.Per contra, the learned APG opposed the appeal, arguing that the prosecution had successfully proved its case beyond a reasonable,doubt through reliable and corroborated evidence. It rl wap emphasized that the appellant was,apprehended red-h.apded/-. 4 with dn unlicensed weapon, and the forensic report confirmed the weapon's working condition. The prosecution wittlesses, despite being polibe ofiicials, consistently supported the case, and no material contradictions were found that could weaken the piosecution's stance. The clairn of false impiication was dismissed as baseless, considering the appellant's previous criminal record and involvement in similar offences. Furthermore, the APG 'contended that procedural lapses, if any, were not substantial o enough to vitiate the trial, and the trial court rightly convicted the s , i.l appellant based on the strength ofthe evidence. Therefore, it was submitted that the appeal be dismissed and the conviction upheld'

6.I have carefully considered the arguments presented by the learned counsel for the Appellant as well as the learned Additional Prosecutor Generai (APG) representing the State' Additionally, I har.,e meticulously examined the evidence available on record with

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the utmost caution and diligence. A thorough perusal ofthe record

case (Crime reveals that the Appellant was acquitted in the main by the No.49/2025 under section 99? of the Pakistan Penal Code) . \ same Trial Court' However, in the impugned judgment' the Trial

is a Court failedrto take this acquittal into account' This acquittal crucial aspect that should have been duly considered' as it directly

affects the credibility of the prosecution's case' The alleged

and the recovery of the weapon was linked to the main case' Appellant's acquittal therein casts serious doubt on the

prosecution's narrative. Furthelmore, the memo of arrest and

case provided recovery reveals that the Complainant in the main information regarding the Present Appellant to the Complainant/Investigating Officer (l'O') of the current case'

was 'not However, the signature of the private Complainant ' obtained on the alleged memo of arest and recovdry' Despite the failed to tJ. avaiiability' of a private witness, the Complainant/I'O' o \l) raising S*\', include him in the arrest and 'recovery proceedings,- concerns about the credibility and fairness of the investigation' ' the Private Additionaltyl the prosecution failed to examine

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'Complainant as a lvitness to establish the arrest and recovery The Trial against the Appellant based on this disclosure' """tt 1:

previous convictions' placed significant reliance on the Appellant's However' the charge while convicting him in the present case'

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framed against the Appellant did not mention these prior convictions. This omission constitutes a clear violation of Section 265-I of the Criminal Procedure Code, 1898, which mandates the following:

"965-1. Procedure in case ofprevious conviction: (l) In a case where, by reason of a preuious conviction the accused has bebn charged under Section 991, sub-section (7) the Court, after finding the accused guilty of the. '*ii"n"" charged and recording a conviction, shall record the plea oflhe accused in relation to such part of the charge.

previously @) ff the accused admits that he has been conuicted as alleged in the charge, the Court may Pass.a sentence upon hTtn according to law, and ifthe accusid does nbt ia.it that he has been preuiously conuicted a1 alleged in the charge, the Court may take euidence in resiect of the alliged previous conviction, and shall record a finding thereon, and then pass sentence uPon him according to taw'. ' '' 4 In the present case, the charge framed against the Appellant did not mention any previous convictions, and the Trial Court IL failed to adhere to the procedural reqttirements set forth in Section o c65-I of the Criminal Frocedure Code (Cr'P'C')' This constitutes a

S'r tr \ fundamental flaw in the trial process, as it deprived the Appetlant of the opportunity to respond to the allegations of prior convictions, which were subsequently used to en'hance his sentence'

The reliance on these i>revious convictions without formaliy b 4,. informing the Appei)atrt through tire charge sheet resulted in

reliance on the serious prejudice to his defense' The Trial Court's

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Appeliant's past convictions rvithout following the mandatory legal procedure under Section c65-1, Ct.P.C., is a grave error. Previotts convictions cannot be used against an accused unless they are properly placed on record and the accused is given a fair ,l -!

opportunity to contest them. The failute to comply with'this r"Orirement undermines the legality of the conviction and "rr".r,rr sentence imposed on the Appellant. In view of the foregoing, it is evident that the Trial Court committed a serious error by failing to consider the Appellant's acquittal in the main case and by relying \ on his previous convictions without adhering to the mandatory provisions of Section 265-I, Cr.P.C. The charge framed against the

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Appellant made no reference to his past convictions, and he rvas not afforded an opportunity to defend himselfagainst these allegations' This constitutes a fundamental violation of the Appeilant's right to ,-. a fair deltnse, rendering the conviction and senteuce imposed by u.

the Trial Court legally unsustainabie' In similar circumstances, in the case ol Sanaullah alias Haii Sardar u. The State (2015 YLR 97L:r),thdlearned Lahore High Court acquitted the accused on the ground that the Trial Court had failed to follow the procedure prescribed under Sectio n 965-l of the Criminal Procedure Code (Cr.P.C.).

E For the reasons stated abovel this Criminal Appeal is allowed The Impugned Judgment dated 18.o1.2o2<l passed by the learned

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ilnd Additional Sessions Judge, Thatta, in Sessions Case No.4.s/2023 is set aside. The appellant, Mureed Ali S/o' Dawood Buriro, is acquitted of the charges under Section es(t)(a) of the Sindh Arms lrct,2ol3, and is ordered to be released forthrvith if nc-, required in any other case

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