The State through PG Sindh (Appellant) VS Saddam Hussain Sanghar (Respondent)

(iriminal Acqrrittal Appcal No. S-1() of2023 1

THE HIGH COURT OF SINDH, BENCH AT

SUKKUR

Criminal Acquittal Appeal No. S-I0 of 2023

Appellant: The Statc through Sycd Sardar Ali Shah Additional Prosecutor General, Sindh

a Respondent: Saddam Hussain through Mr. Naeeuddin Chachar,

Date ofhearing: 27.02.2025 Date ofJudgment: 2b.04.2025

J UDGMENT

Riazat Ali Sahar. J, Being aggrieved and dissatisfied with the judgment dated 23.A9.2022 passed by the learned lst Additional Sessions Judge (MCTC), Ghotki, in Sessions Case No.

152 of 2019 arising out of FIR bearing Crime No. 199 of 2019, I registered at Police Station A-Section Ghotki, for an offence punishable under Section 24 of ttre Sindh Arms Act, 2013, whereby the respondent, Saddam Hussain, u.as acquitted ofthe eharge, the State through Prosecutor General Sindh has preferred the present Criminal Acquittal Appeal.

2 Succinctly stated, the allegation levelled against the respondent is that on 24.08.2019, while in police custody in connection with Crime No. 187 of 2019 registered under Sections 302 and 324 ofthe Pakistan Penal Code at Police Station A-Section Ghotki, the respondent, during interrogation conducted by Investigating Officer SIP Ali Nawaz Dayo, purportedly confessed

{)riminal Acquitrel Appcal r-o. S-lrl of2023 2 to the commission of the crime and expressed willingness to produce the weapon allegedly used therein. Pursuant to this, the respondent voluntarily led the Investigating Offrcer and his subordinates near his residence, and at approximately 12:30 hours, retrieved and produced an unlicensed Kalashnikov (Pakistani origin), bearing No. 25631 along with its magazine, from a cotton \ crop in the presence of mashirs. Thereafter, the police party returned to the police station along with the respondent and the rrecovered weapon, and the subject FIR was lodged against him on the same day.

ll After the usual investigation, the case was challaned and proceeded to trial. Upon conclusion of the trial, the learned trial Court, through the impugned judgment, acquitted the respondent/accused of the charge.

1 During the course of the trial, the following prosecution witnesses were examined:

1.PWIVIashir Allah Bux Jiskani, who produced an attested police station copy of the memo of arrest and recovery;

2.PWComplainant SIP Ali Nawaz Dayo, who produced the following documentary evidence:

c Attested police station copy of entries No. 19 and 20 (comprising one sheet);

First Information Report (FIR);

o Attested police station copy of the letter addressed to the Senior Superintendent of Police (SSP), Ghotki at Mirpur Mathelo, seeking permission to send the recovered property for chemical analysis;

(iriorinal lccluittal,\pp(al No. S-10 of 202-j J o Copy of the letter issued by the SSP addressed to the Forensic Science l,aboratory, Larkana, regarding the dispatch of the recovered property;

" Attested police station copy of RC No. 465;

o Attested police station copy of the chemical analysis report issued by the Forensic Science Laboratory;

3.PWPC Allah Bux, who was the property car:rier in the case.

a Subsequently, the learned Deputy District Public Prosecutor closed the prosecution's side by recording a formal statement to that effect

5.The learned Additional Prosccutor General submitted that the learned appellate Court failed to give due regard to the heinous nature ofthe offence and neglected to properly assess the material evidence brought on record, which, according to the prosecution, was sufficient to substantiate the charges against the respondents. He contended that the respondents were unable to create any reasonable doubt in the prosecution's case or point out any material discrepancies in the ocular or documentary evidence.

v Despite this, the learned trial Court, without assigning any plausible legal justification, proceeded to acquit the respondents. It was further argued that the impugned judgment lacks cogent reasoning and does not reflect a judicious evaluation of the evidence, thereby rendering the acquittal perverse and legally unsustainable.

6 Conversely, the learned counsel representing the respondent contended that the impugned judgment does not suffer from any legal infirmity, having been rendered after a thorough appraisal of the facts and evidence on record. He further submitted that the respondent has been maliciously implicated in the instant case with ulterior motives, and there exists no credible or

(irimuul ;\cquittal Appeal r-o. S-10 of2D23 4

substantiated material connecting the respondent with the alleged offence

7 Heard. Record perused.

8 In its endeavour to substantiate the alleged recovery, the prosecution has primarily relied upon the ocular account of the complainant, both police constables who acted as mashirs, the

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Investigating Officer (SIP), and the purported property carrier.

However, upon scrutiny ofthe depositions, it becomes abundantly clear that their testimonies are riddled with contradictions, exaggerations, and inconsistencies, which materially impair the prosecution's version. SIP Ali Nawaz, in his evidence, stated that during the course of interrogation, the accused allegedly expressed willingness to lead the police party to a banana orchard, from where an unlicensed weapon was recovered and sealed on the spot through a memo. However, significant discrepancies emerge when V his statement is juxtaposed with that of the mashirs. For instance, SIP Ali Nawaz named PC Favaz and PC Mir Muhammad as the mashirs, whereas PC Allah Bux, who acted as a mashir, identified his co-mashir as PC Manjhi, thereby introducing uncertainty regarding the identit5, of official witnesses. Further contradictions arise concerning the location of the recovery. SIP Ali Nawaz deposed that the weapon was recovered from a banana garden, while the mashir stated that the site was a cotton field. SIP failed to disclose the specific time of the alleged intenogation and omitted to produce the relevant roznamcha entry on record, rvhich casts further doubt upon the credibility of the claimed recovery.

Oriminal Ac<ltrittal Appeal No. S-10 of2023 5

l\{oreover, although the alleged recovery occurred in an area where locals were present, no private individuals were associated as mashirs. The SIP claimed he approached several local residents who declined to act as mashirs but admitted to taking no legal action against their refusal. Conversely, the mashir stated that the SIP did not make any effort to involve private persons. Disparities I also exist in their account of the distance and sumoundings. The mashir claimed they had to walk 40-50 paces into the field from the road, whereas SIP described the site as only 10-12 feet away.

As for the recovery itself, SIP stated the weapon was lying openly in a sack on the surface, which he discarded on the spot without presenting it as case property, while the mashir claimed the weapon was buried in the soil, required excavation by hand, and appeared rusted and encrusted with mud, with no sack or cloth found. Even the chronology and procedure of the memo s 1 preparation are inconsistent. The mashir testifred that thel' took 15-20 minutes inside the crop freld to prepare the materials for sealing, with the memo having commenced at 1:00 PM and completed within 5-10 minutes. In contrast, SIP deposed that PC Mubarak authored the memo on the bonnet of the police vehicle, taking approximately 35-40 minutes, and the weapon was also sealed thereon. The prosecution failed to examine PC Mubarak, the alleged scribe of the memo, which constitutes a material omission.

Further doubt is cast upon the prosecution's CASE by the inconsistency regarding the location- SIP referred to the place of recovery as situated in village Amir Bux Sanghar, while the mashir

Criminal-Acquinal Appeal No. Sl0 of 2023 6

mentioned village Piral Sanghar. Most significantly, the

pl'osecution failed to establish the safe custody and preseruation of the case property in the police station's malkhana, which is a

foundational requirement for the admissibilit-r* and reliability of the positive Forensic Science Laboratory (FSL) report. In the

absence of proof regarding safe transmission and storage, the

/ positive FSL report loses legal efficacy and becomes inconsequential. Accordingly, the prosecution has miserably failed to discharge its burden of proof regarding the recovery of the weapon and to inspire confidence in the overall case narrative.

I Our legal system recognizes that even a single reasonable doubt entitles an accused to acquittal. The Hon'ble

Supreme Court famousiy expounded in Muhamma d Hassan and

Another u. The State (2024 SCMR 1427)t that it is not necessa ry for there to be multiple glaring defects in the prosecution's case; if t one circumstanee creates a reasonable doubt in a prudent

mind about the guilt of the accused, the accused must be

Accotding to these principles, once a single loophole/ lacuna is obseNed in 2 case presented bg the prosecution. the benefit of such l@pholelacuna in the prarsecution case automaticallg goes in favour ofan accused.lsee also, Daniet BoUd (Mustim Name Saifuttah) and another v. The State (1992 SCMR196): GulDast Khan v. The State (2009 SCMR431); Muhammad Ashraf alias Acchuv. The State (2019 SCMR 652); Abdut labbar and another v. The State (2O19 SCN4R 129): Mst. Asia Bibi v. The State and others (PLD 2019 SC 64) and Muhsmmad lmran v. Th€ Stare (2020 SCMR 857).

farh Perue v. fhe SfiE (1995 SCMR ,345: For giing benefit of doubt to an accused. it is not necessa?g that there should be mang ci,eumstances crcating doubts. lf a simple circumstance creates reasonable doubt in a pradent mind about the guilt of the accused, then he witl be mtilted to such benefit not as a mafter of grace and concession but as a matter of right.'

Criminal Acquittal Apperl No. S-10 of2023 7

given the benefit ofthat doubt as ofright.2 In the present case, we have identified more than one reason to doubt the prosecution's story - in fact, the case is replete with uncertainties at every critical step. Therefore, it would be wholly unsafe to allow the conviction to stand.

10.It is a frrmly entrenched principle in criminal I jurisprudence that the scope of an appeal against acquittal is inherently narrow and is to be exercised with considerable caution.

The jurisprudential approach to such appeals must be clearly distinguished llom that applied in appeals against contiction, as a conviction carries with it no presumption of correctness, while an acquittal benefits from a heightened threshold of judicial deference. This principle finds its foundation in the doctrine of the d.ouble presuntption of innocence-frrstly, that the accused is presumed innocent until proven guilty, and secondly, that once acquitted by a competent court of law, the presumption of innocence is fortified. In this regard, the Honourable Supreme Court of Pakistan, in the Ia ndmark case of Zaheer Din u. The t e 1993 162 enunciated the following guiding

principles which must govern the adjudication of appeals challenging an acquitta l:

"I:l oaetter, rctuithstanding the diuersity of facts and circuntstances of eath cose, o.ntongst otllers, some of the important antJ consistently folloued principles can be cleatly 2 Tariq Perua v. The State (1995 SCMR 1345), Riaz Masih alias Mithoo v. The state (1995 SCMR 1730), Muhammad Akram v. fhe State (2009 SCMR 230), and Hashim Qasim and another v. rhe state (2017 scMR 986).

Criminal Acquittal ,tppcal No. gl0 ot2023 B ui,sualized front the cited and other cdses-law on, the question of setti,ng aside an acquittal by this Court. They are as follows: -

(1)In an appeal ogainst. acqu.ittal the Suprem.e Court u;ould. rwt on prirciple ordinarily interfere and instead would giue du,e ueight ahd consideration to the fi,ndings of Court acqu,itting the occused. This approoch is slightly different th,an that in an appeal against conuiction uhen leaue is granted' only for re- appraisentent of eridence uhich then is unrJertaken l.t so os [o see that benefit of et]er! reasorvtble doubt shou.ld be ertended to the acar.sed. TIis difference of opproach is nainly cond.itionnd by the foct thot the acquittal carries with it th,e tuo uell accepted presumptions: One initial, that, till fourud guilty, the occu,sed is i,nnocent; and. truo that again after the trial o, Court below confi,rm.ed the asatm.ption of innocence.

(2)The acquittal will mt carry the second presumption and. uill also thus lose the first one i,f on pints hauing conclusiue effect on th.e end. result the Cou.rt below: (a) disregarded material euidenre; (b) misread, such euidence; (c) receiued such euid'ence illegally.

(3)In either case the well-krwun prinriples of re- appraisement of euid,erce will haue to be kcpt in uietu u,hile exant.ining the strength of the oieu's ewressed by the Court below. They will nat be brushed, aside lightly on mere dssumptions keeping always in uiew that a d.eparture from th.e normal priru:iple ntust be necessitated by obligatory obseruations of sonte higher principle as noted aboue and' for no other reag0tu.

(4)The Court would nnt interfere with oquittai nt,erely because all red.ppraisal of th,e euidence it conrcs to the conclusion different front that of the Court acquitting th,e accused. prouided both the conclusions are reasonably possible. If howeuer, the conclusion reached by that Cou,t't uas su.ch that no reasonable person u,ould conceiuably reo.ch the so,nte old uas im.possi,ble then thi.s Court utould, interfere in exreptional cases on ouenuhelm.ing proof resulting in coru:lusion ond. irresistible conclusion; and, that too with a uieto only to auoid, grate miscarriage of justice and for no other purpose. Tlt'e important test t:isualized. in these coses, in this behalf uos that the fi,nding sought to be interfered utith, after scrutiny wtder the foregoing searchin g light, should be found uholly as artificial, sh.ocking ond ridiculou.s".

Cruninal Acguittal -\ppeal No. SJ0 of2023 o

11.In light of the circumstances discussed hereinabove, I am of the firm and considered view that the prosecution has failed to prove its case against the private respondents beyond the shadow ofa reasonable doubt. It is a cardinal principle of criminal law that the benefit of doubt I must always be extended to the accused, and in the present case, the prosecution has not produced such cogent and convincing evidence as would displace the presumption of innocence in favour of the respondents. The learned trial Court, having undertaken a comprehensive evaluation of the material on record and having meticulously addressed both the legal and factual aspects involved, has justifiably acquitted the private respondents. ffus impugued judgment is well-reasoned, supported by sound legal reasoning, and does T not suffer from any apparent illegality, perversity, misreading, or non-reading of evidence which would invite interference by this Court in the exercise of appellate jurisdiction. In view of the foregoing, the instant Criminal Acquittal Appeal is found to be devoid of merit and substance, and is, therefore, d.ismissed, accordingly.

JUDGE

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