2020 PLP 129 (YLRN)

MUHAMMAD SALEEM JESSAR, J.

Through this appeal Appellant has assailed Judgment dated 01.01.2018, handed down by learned 2nd Additional Sessions Judge, Badin in Sessions Case No.60 of 2015 (re: The State v. Mohammad Saleem), being outcome of FIR No.215/ 2015 registered at Police Station Badin, under Sections 23(i)(a) and 25 of Sindh Arms Act, 2013, whereby he convicted the accused/appellant for the offence punishable under Section 25 of Sindh Arms Act, 2013, and sentenced him to undergo R.I. for seven (7) years. It was further observed that the sentence awarded to the appellant in the instant case shall run concurrently with the sentence of life imprisonment awarded to appellant Mohammad Saleem in the main case i.e. S.C. No.220/2015 being outcome of Crime No.207 of 2015 under section 302, P.P.C. However, the appellant was extended benefit of Section 382-B, Cr. P.C.

2. The crux of the prosecution case is that accused Muhammad Saleem son of Mitha Khan Mallah was arrested and confined in police lockup of Police Station Badin in Crime No.207 of 2015 of Police Station Badin. On 13-7-2015 the Investigating Officer of the case namely, SIP Muhammad Siddique Dal interrogated accused Muhammad Saleem, who disclosed that he has concealed the pistol used by him in the murder of deceased Sawan in jungle near his house situated in Village Haji Achar Mallah. Thereafter, complainant along with his subordinate staff took accused in custody on the same date i.e. 13.7.2015 and left police station vide entry No.30 at 0540 hours and reached the pointed place, wherefrom accused took out one unlicensed single barrel gun at 0640 hours which was secured and sealed at the spot. Complainant prepared such memo of recovery of gun in presence of mashirs Ramzan and Ghulam Shabir, then he brought the accused and case property at Police Station Badin and lodged FIR against accused under sections 23(1)(a) and 25 of Sindh Arms Act on behalf of the State. After completing investigation challan was submitted before competent court of law.

3. A formal charge was framed against the accused vide Ex.02 to which he pleaded not guilty and claimed to be tried vide his plea Ex.3.

4. In order to prove its case, prosecution examined P.W.1 mashir Ramzan at Ex.6, who produced memo of arrest as Ex.6-A, SIP Muhammad Siddique Dal was examined at Ex.7, who produced departure and arrival entries, FIR, report of Ballistic Expert as Exs.7-A to 7-C respectively. Thereafter, learned D.D.A closed the side of prosecution vide his Statement Ex.8.

5. Statement of the accused was recorded under section 342, Cr.P.C. vide Ex.09 wherein he denied the prosecution allegations and claimed to be innocent. However, neither he examined himself on oath nor produced any witness in his defence.

6. After formulating the points for determination, recording evidence of the prosecution witnesses and hearing counsel for the parties, trial Court vide impugned judgment convicted and sentenced the appellant/accused, as stated above. Against the said judgment the appellant has preferred instant appeal.

7. I have heard learned counsel for the appellant as well as learned D.P.G. appearing for the State and perused the material available on the record.

8. Mr. Mian Taj Mohammad Keerio, learned counsel for the appellant at the very outset submitted that instant case is offshoot of main crime i.e. FIR No. 207 of 2015 registered at Police Station Badin under Sections 302, 114, 504, 34, P.P.C. vide Sessions Case No.220 of 2015 (re: The State v. Mohammad Saleem and others). He further submitted that appellant along with co-accused was convicted in the main case against which they filed Cr. Appeal No.S-10/2018, which was subsequently converted into Criminal Appeal No.D-31 of 2019 and was placed before a Division Bench; however, again it was converted into Cr. Appeal No. S-100 of 2019 and was ordered to be heard by a Single Bench. He further submitted that present appellant along with co-accused has already been acquitted of the charge in the main case consequent upon a compromise entered into between the parties, vide judgment dated 11.11.2019 passed by this Court. According to him, since instant case is offshoot of the main case, therefore appellant deserves to be acquitted in this case too.

9. Learned Deputy Prosecutor General has frankly conceded to the submission of appellant's counsel and has candidly given his No Objection to the grant of instant appeal.

10. In fact, initially appellant Mohammad Saleem and co-accused Mitha Khan were convicted for offence punishable under section 302(b), P.P.C. and were awarded sentence of imprisonment of life vide judgment dated 1st day of January, 2018 passed in Sessions Case No.220 of 2015 against which they filed Cr. Appeal No.S-10 of 2018. By the same judgment co-accused Darya Khan and Noor Mohammad were acquitted, therefore complainant Mohammad Ishaque Khoso filed Cr. Acquittal Appeal No.D-03 of 2018 against their acquittal. At the same time he also filed Cr. Revision Application No.D-01 of 2018 before a Division Bench for enhancement of sentence of appellant Mohammad Saleem. In the circumstances, all the matters were ordered to be heard by a Division Bench, thus vide an administrative order dated 09.3.2018 Cr. Appeal No.S-10 of 2018 was ordered to be treated as D.B. matter and was ordered to be fixed together with aforesaid Cr. Revision Application No.D-01/ 2018 before a Division Bench, according to roster. Subsequently, vide order dated 15.5.2019 Cr. Acq. Appeal No.D-03 of 2018 and Cr. Revision Application No.D-01 of 2018 were dismissed for non-prosecution and resultantly, Cr. Appeal No.D-31 of 2018 was ordered to be fixed before a Single Bench, as per roster. Accordingly, it was renumbered as Cr. Appeal No.S-100 of 2019.

11. Thereafter, vide judgment dated 11.11.2019 the said Cr. Appeal was disposed of in terms of a compromise arrived at between the parties and present appellant and co-accused Mitha Khan were acquitted of the charge under section 345(6), Cr. P.C.

12. As stated above, the main contention of learned counsel for the appellant is that instant case is off shoot of main crime i.e. FIR No.207 of 2015 registered at Police Station Badin under Sections 302, 114, 504, 34, P.P.C. vide Sessions Case No.220 of 2015 (re: The State v. Mohammad Saleem and others) in which present appellant along with co-accused has already been acquitted of the charge, therefore appellant deserves to be acquitted in the instant case also.

13. It seems that the legal position in such a situation, as enunciated by the Superior Courts, is that when an accused has been acquitted in the main case, he would be entitled to be acquitted in a case which is offshoot of the main case. In this connection, reference may be made to the case of Yasir Chaudhry v. The State reported in 2012 MLD 1315, wherein it was held by Honourable Lahore High Court as Under:-- "In the case reported as Manjhi v. The State (PLD 1996 Karachi 345) it has been held that when the accused has been acquitted in the main case, he would become entitled to acquittal in a case which is offshoot of the said case. Same is the position here, as the present lis is an offshoot of the main murder case, so, respectfully following the dictum laid down in the judgment supra, this petition is allowed and the application of the petitioner under section 249-A, Cr.P.C. is accepted and the petitioner is acquitted from the charge in case FIR No.17 of 2003 dated 12.1.2003 registered under section 7 of the Surrender of Illicit Arms Act No.XXI of 1991 with Police Station Civil Lines, Bahawalpur."

14. Keeping in view above legal position, it can safely be held that when the accused / appellant has been acquitted in the main case and instant case being offshoot of the said main case, the appellant deserves to be acquitted in this case also.

15. As stated above, learned Deputy Prosecutor General has also not controverted this legal position and has recorded his No Objection to the grant of instant appeal.

16. Accordingly, by a short order dated 25.11.2019, instant criminal appeal was allowed. Consequently, impugned judgment dated 01.01.2018, handed down by learned 2nd Additional Sessions Judge, Badin in Sessions Case No. 60 of 2015 (re: The State v. Mohammad Saleem), being outcome of FIR No.215/2015 registered at Police Station Badin, under sections 23(i)(a) and 25 of Sindh Arms Act, 2013, was set aside and appellant Mohammad Saleem son of Mitha Khan was acquitted of the charge. He was ordered to be released forthwith, is his custody was no longer required by jail authorities.

17. Above are the reasons for the said short order.

18. Approved for reporting. JK/M-104/Sindh Appeal accepted.