2024 PLP 915 (MLD)

Muhammad Saleem Jessar, J.

Through this appeal, Appellant has assailed Judgment dated 03.04.2021, handed down by learned I-Additional Sessions Judge, Larkana, in Sessions Case No.680 / 2017 (re: The State v. Syed Mansoor Ali), being outcome of FIR No.118/2017, registered at Police Station Darri, Larkana), whereby the appellant was convicted for offence under Section 23(1)(a) of Sindh Arms Act 2013 and sentenced to undergo R.I. for ten (10) years, and to pay fine of Rs.50,000/-. In case of default, the appellant was directed to undergo S.I. for two months more. The appellant, however, was extended benefit of Section 382-B, Cr.P.C.

2. According to the case of prosecution, on 29.11.2017, the appellant being already in custody and during interrogation in connection with the main case vide Crime No.81/2017 of PS Darri, under section 302, P.P.C., having agreed voluntarily before ASI Ashraf Ali Narejo, led the police party headed by said ASI and two private mashirs to an open plot situated in Madina Colony, Larkana on Baqapur road and after digging earth took out and produced a black colour shopper, wherein a 30-bore pistol with erased number, therefore, he was booked in this case by the complainant ASI Ashraf Ali Narejo on behalf of State.

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

4. In order to prove its case, prosecution examined and relied upon the evidence of PW-1 eye-witness/mashir Kashif Hussain, PW-2 complainant ASI Ashraf Ali and PW-3 Amjad Ali, second mashir.

5. In his statement under section 342, Cr.P.C, the appellant/ accused 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 said judgment, the appellant has preferred instant appeal.

7. I have heard learned Counsel for the appellant as well as learned APG appearing for the State and have perused the material available on the record.

8. Learned counsel for the appellant submitted that private mashir of alleged recovery, namely, Kashif Hussain in his evidence before the trial Court did not support the case of prosecution, therefore, he was declared hostile and the prosecution then examined second mashir Amjad Ali. He further submitted that the weapon shown recovered from the possession of the appellant was in fact foisted upon the appellant at the instance of complainant of main murder case only with a view to strengthen the said case. He contended that instant case is the offshoot of main Crime vide FIR No.81/2017 registered at same police station, under Section 302, P.P.C., in which case he has been acquitted of the charge. He further submits that instant case, being its offshoot, the appellant may also be acquitted of the charge in the light of dicta laid down by this Court in the case of Manjhi v. The State (PLD 1996 Karachi 345).

9. Learned Assistant Prosecutor General opposed the appeal, on the ground(s) that the offensive weapon was recovered on the pointation of the appellant. He contended that prosecution has successfully proved the charge against the appellant, hence, prayed for dismissal of the appeal.

10. I have gone through R&Ps of the case and the impugned judgment dated 03.04.2021 passed by the trial Court.

11. The first mashir of alleged recovery, namely, Kashif Hussain in his evidence deposed that on the alleged date viz., 29.11.2017 he was available in the hospital along with his brother Naqash Ali and on receiving phone call from PS Waleed he went there, where police obtained his signatures on white unwritten papers. He was declared hostile and even in cross-examination by the learned State Counsel he denied to have either accompanied the complainant ASI Ashraf Ali on 29.11.2017 or production of alleged pistol by the appellant and preparation of memo of recovery. He also denied that second mashir Amjad Ali had also accompanied him and the police along with appellant to the place of alleged recovery. In such circumstances, the report of Ballistics Expert, even though in positive, cannot be believed; rather, the very recovery of offensive weapon becomes highly doubtful.

12. As stated above, instant case is offshoot of main Crime No.81/2017 of PS Darri, under section 302, P.P.C., wherein the appellant has been acquitted by disbelieving the evidence same prosecution witnesses being recovery officer and the mashir; hence, propriety of law demands, appellant should be acquitted from the charge of instant case.

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 acquittal 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 the 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 from the charge of the main case and instant case being offshoot of said main case, the appellant deserves his acquittal in this case also.

15. For what has been discussed above, instant Criminal Appeal is allowed, the impugned judgment dated 03.04.2021, handed down by learned I-Additional Sessions Judge, Larkana, in Sessions Case No.680 of 2017 (re: The State v. Syed Mansoor Ali), being outcome of FIR No.118/2017 registered at Police Station Darri, Larkana, is set aside and the appellant is acquitted of the charge. The appellant shall be released forthwith, if his custody is not required in any other case. JK/M-1/Sindh Appeal allowed.