2020 M L D 1340
[Balochistan]
Before Abdul Hameed Baloch, J
SODHAL KHAN ---Appellant
Versus
The STATE--- Respondent
Criminal Appeal No.(s) 79 of 2019 ,decided on 5th November, 2019.
(a) Pakistan Arms Ordinance (XX of 1965) ---
----S. 13(e) ---Possession of unlicensed arms --- Appreciation of evidence ---Benefit of doubt --
-Sending of empties with weapon to the laboratory ---Effect ---Accused was convicted for
having been in possession of a shotgun with live cartridges without licence or permit ---
Accused was arrested by police after exchange of firing for about half an hour but it did not
appeal to reason as to how did the other accused, for whose arrest the raid was conducted, managed to escape--- Statement of complainant was contradicted by eye -witnesses ---
Prosecution had failed to dispatch the weapon with rounds in order to ascertain whether the recovered weapon was in working condition or not ---Mere recovery without the report of
Forensic Laboratory did not advance the case of prosecu tion---Appeal was accepted and the
accused was acquitted of the charge, in circumstances.
2015 MLD 1259 rel.
(b) Criminal trial ---
----Benefit of doubt ---Scope ---Accused is entitled to the benefit of doubt.
Sher Umar Khan v. Khan Pur alias Khaney PLD 2015 Pesh. 143 rel.
Shabbir Ahmed Sherazi for Appellant.
Abdul Mateen, Deputy Prosecutor General for the State.
Date of hearing: 25th October, 2019.
JUDGMENT
ABDUL HAMEED BALOCH, J. ---This criminal appeal has been directed against
the judgment dated 23rd April, 2019 (impugned judgment), passed by learned Additional Sessions Judge, Jhal Magsi at Gandawah, (trial court), whereby the appellant was convicted
under Section 13(e) Arms Ordi nance, 1965 (Ordinance 1965) and sentenced to suffer three
years' rigorous imprisonment with benefit of Section 382- B, Cr.P.C.
2. Precise facts of the case are that on 21st August, 2018, the complainant Fida Hussain
Rasaldar Levies lodged FIR No. 17 of 2018, with Levies Station Gandawah, under Section
13 (e) Arms Ordinance, 1965, alleging therein that they conducted a raid at village Goth Tambela for arrest of accused Shaman Khan and others in FIR No. 15 of 2018, under Sections 302, 147, 148, 149 Pakistan P enal Code, during which accused/appellant Sodhal
Khan was arrested from a tube well near said Goth and from his possession a double barrel shotgun with twenty live cartridges were recovered, for which he failed to produce any license or permit.
3. After re gistration of FIR the appellant the investigation was conducted and after
completion of formal investigation challan of the case was submitted before the trial court.
4. After codal formalities the trial court framed charge, to which the appellant denied
and claimed trial. In order to substantiate the charge the prosecution produced four witnesses.
After close of prosecution side the appellant was examined under Section 342, Cr.P.C, wherein he denied the allegation of prosecution. The appellant neither opte d to record his
statement on oath as envisaged under Section 340(2), Cr.P.C., nor produced any witness in their defence.
5. On completion of the trial, the learned trial court heard arguments and thereafter,
convicted the appellant in the terms as mentione d in para -1 supra vide impugned judgment,
hence this appeal.
6. I have heard the learned counsel for the appellant and Deputy Prosecutor General at
length and also perused the record. The appellant was arrested by the police after exchange of firing. The a ppellant was wanted in another case. On information the police encircled the
tube well where the appellant and other accused were present. PW- I stated that they chased
the accused to 3/4 kilometer. The firing was made from 100 paces and same remained conti nued for an hour. The witness further stated that neither the accused party nor the levies
personnel sustained injuries. Whereas PW -2 and PW -3 stated that the firing was continued
for half an hour. The prosecution story did not appeal to the reason, as des pite continuous
firing between levies personnel and accused how the remaining accused managed to escape from the scene. The statement of the complainant was contradicted by eye -witnesses.
7. The prosecution alleged that shotgun with twenty live rounds was recovered from the
possession of the accused. PW -2 was witness of recovery. The prosecution failed to dispatch
the weapon with rounds in order to ascertain whether the recovered weapon is in working condition or not. Mere recovery without FSL report did not advance the case of prosecution. Reliance is placed on 2015 MLD 1259. The relevant portion reads as under: --
"11. Perusal of the record reveals that from the evidence brought on record, the prosecution had not been able to prove its case against the appellant so also learned trial judge has not appraised the same while drawing the impugned conclusion. The charge against the appellant is of attempt of qatl- i-amd by firing at the police party,
deterring the raiding party (police) from the discharge of thei r official obligations and
the constitution of unlawful assembly for the purpose of rioting. The record depicts
that admittedly alleged encounter between the appellants and police party remained continued for half an hour, but none of the policemen or accu sed/ appellants was hurt
in the encounter, thus making it a mystery and even police mobile parked there was
also not hit by any bullet. Likewise, no recovery of crime weapon was effected from
the possession of the appellants except Sadaruddin alias Sadoro, but said recovery of
the crime weapon was not established, as no independent witness was associated to
witness the recovery. Furthermore, according to testimony of prosecution witnesses, they saw the accused/ appellants on the headlight of police mobile, but certainly the identification on the headlight of the police mobile was weak type of evidence requiring strong corroboration but the same was badly lacking. Moreover, the alleged recovered weapon from the possession of appellant Sadaruddin alias Sadoro was never sent to the Ballistic Expert, therefore, the alleged recovery in such situation was of no consequence."
8. It is settled law that the accused is entitled for benefit of doubt. Reliance is placed on
case law tilted as Sher Umar Khan v. Khan Pur alias Khaney, reported in PLD 2015 Pesh. 143, wherein it was held:
"It is settled law that the prosecution primarily is bound to establish guilt against the accused without shadow of reasonable doubt by producing trustworthy, convincing and coherent evidence enabling the Court to draw conclusion; whether the prosecution has succeeded in establishing accusation against the accused or otherwise; and if it comes to the conclusion that the charges so imputed against the accused has not been proved beyond reaso nable doubt, then accused would become
entitled for his release on getting benefit of doubt in the prosecution case. The requirement of the criminal case is that prosecution is duty bound to prove its case beyond any reasonable doubt and if any single and slightest doubt is created, benefit
of the same must go to the accused and it would be sufficient to discredit the prosecution story and entitle the accused for acquittal. Moreover, accused is always considered as the most favourite child of law and every benefit of doubt goes to him regardless of fact whether he has taken any such plea or not. Reliance can be placed on case titled, "Faryad Ali v. State" 2008 SCMR 1086
For the above reasons the appeal is accepted. The impugned judgment dated 23rd
April, 21 09 passed by learned Additional Sessions Judge, Jhal Magsi at Gandawah is set
aside. The appellant Sodhal Khan son of Khiya Khan, is acquitted of the charge under Section 13(e) Arms Ordinance, 1965, in case pursuant to FIR No. 17 of 2018, Levies Station Gandawah. This Court vide order dated 23rd April, 2019, on C.M.A. No.(s) 65 of 2019
suspended operation of impugned judgment passed by Additional Sessions Judge, Jhal Magsi at Gandawah and released the appellant on bail subject to furnishing surety to the tune of Rs.100,000/ - with till decision of the instant appeal; as such the surety bond stands
discharged.
SA/159/Bal. Appeal accepted.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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