2026 P Cr. L J 440

 2026 P Cr. L J 440

[Sindh (Larkana Bench)]

Before Muhammad Saleem Jessar, J

KHADIM BHAYO---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. S-47 of 2024, decided on 8th April, 2025.

(a) Sindh Arms Act (V of 2013)---

----Ss. 25 & 23(1)(a)---Possession of unlicensed weapon---Appreciation

of evidence---Benefit of doubt---Delay of seven days in sending the

weapon to Ballistic Expert---Consequential---Prosecution case was

that an unlicensed 9mm pistol along with magazine was recovered

from the possession of accused, which was used in the commission

of main offence registered under S.393, P.P.C---Perusal of Ballistic

Expert's report reflected that the crime weapon was received to

their office on 20.11.2023 while it was allegedly recovered on

14.11.2023---Thus, there was delay of seven days in transmitting

crime weapon from malkhana to Ballistic Expert, creating serious

doubt into its safe custody at malkhana more particularly when the

Mashir of recovery and arrest himself was Incharge Malkhana---

Appeal against conviction was allowed, in circumstances.

(b) Sindh Arms Act (V of 2013)---

----Ss. 25 & 23(1)(a)---Possession of unlicensed weapon---Appreciation

of evidence---Benefit of doubt---Enmity proved---Probability of false

implication---Prosecution case was that an unlicensed 9mm pistol

along with magazine was recovered from the possession of accused,

which was used in the commission of main offence registered under

S.393, P.P.C---Perusal of record reflected that during trial in main

case, it was admitted by complainant and witness in cross-

examination that father of co-accused had already lodged FIR under

S.302,P.P.C., against the father of complainant regarding the murder

of his son, therefore, appellant and co-accused were falsely

implicated in main case which created serious doubt into the

veracity of prosecution case---Hence, prosecution failed to bring

home guilt of the accused and they were acquitted of the charge by

Trial Court---In view of such background of standing enmity, false

implication of present appellant in the present case by police at the

behest of complainant party of main case could not be ruled out---

Appeal against conviction was allowed, in circumstances.

(c) Sindh Arms Act (V of 2013)... Ss. 25 & 23(1)(a)---Criminal Procedure Code (V of 1898), S. 103---

Possession of unlicensed weapon---Appreciation of evidence---

Benefit of doubt---Non-association of private witnesses at the time of

arrest and recovery---Consequential---Prosecution case was that an

unlicensed 9mm pistol along with magazine was recovered from the

possession of accused, which was used in the commission of main

offence registered under S.393, P.P.C---No denial that the prosecution

had advance information of the availability of appellant, who was

also absconder in main case registered with same police station---

However, the raiding party did not associate a public mashir to

witness the arrest and recovery proceedings nor took any effort to

arrange private person to act as mashir and attest that all

proceedings were being undertaken by the police impartially---Thus,

there was clear violation of S.103,Cr.P.C---Appeal against conviction

was allowed, in circumstances.

(d) Sindh Arms Act (V of 2013)---

----Ss. 25 & 23(1)(a)---Possession of unlicensed weapon---Appreciation

of evidence---Benefit of doubt---Infirmities in the case of

prosecution---Prosecution case was that an unlicensed 9mm pistol

along with magazine was recovered from the possession of accused,

which was used in the commission of main offence registered under

S.393, P.P.C---Complainant himself had acted on three counts being

complainant, author of FIR as well as Investigating Officer while

mashir/Police Constable had also acted as InchargeMalkhana,

testimony of such highly interested witnesses lacked credibility---An

officer, who was himself complainant in the case, could not be

expected to collect and preserve evidence, which would go against

his case---Such complainant could not properly perform duties of an

independent and fair Investigating Officer---Such practice of

complainant Police Officers acting as Investigating Officers had

never been approved---Besides, according to para 3 of R.25.2 of

Police Rules, 1934, it was the duty of an Investigating Officer to find

out the truth and his object shall be to discover the actual facts and

for the achievement of such object he shall not commit himself

prematurely to any view of the facts for or against any person---

Moreover, the appellant had been acquitted from the charge of main

case andit being offshoot case the appellant deserved to be acquitted

from the charge of present case---Appeal against conviction was

allowed, in circumstances.

The State v. Bashir and others PLD 1997 SC 408; Yasir Chaudhry v.

The State and another 2012 MLD 1315 and Muhammad Akram v. The

State 2009 SCMR 230 rel.

(e) Sindh Arms Act (V of 2013)... Ss. 25 & 23(1)(a)---Possession of unlicensed weapon---Appreciation

of evidence---Benefit of doubt---Contradictions in the statements of

witnesses---Prosecution case was that an unlicensed 9mm pistol

along with magazine was recovered from the possession of accused,

which was used in the commission of main offence registered under

S.393, P.P.C---Prosecution evidence consisted of only two prosecution

witnesses---Complainant/Investigating Officer stated in cross-

examination that after leaving Police Station, they patrolled through

firstly B Pull, then K Pull and then arrived at place of occurrence,

which was contradicted by Mashir/InchargeMalkhana by stating that

they patrolled through KP City, then K , then SG and then arrived at

place of occurrence---Complainant stated that they noticed accused

at the distance of 50/60 paces which was contradicted by Mashir by

stating they noticed accused at the distance of 30/40 paces---In his

cross-examination, complainant/Investigating Officer claimed that

they asked private persons to act as mashir but no one was ready

which was contradictory to the version of FIR in which there was no

mention about saying anybody to act as mashir, while the mashir

simply stated that due to non-availability of private mashirs,

complainant associated him and another Police Constable as

mashirs---Thus, the prosecution evidence on such material points

contradicted each other---Appeal against conviction was allowed, in

circumstances.

Appellant in person (on bail).

Nazir Ahmed Bangwar, D.P.G for the State.

Date of hearing: 8th April, 2025.

JUDGMENT

MUHAMMAD SALEEM JESSAR, J.---This criminal appeal has been

directed against the judgment dated 22.6.2024, passed by learned IInd

Additional Sessions Judge, Kandhkot, in Sessions Case No.05/2023,

whereby the appellant was convicted for offence punishable under

Sections 23 (i)(a) and 25 of the Sindh Arms Act, 2013, and sentenced to

undergo R.I for ten years and pay fine of Rs.200,000/= and in case of

default in payment thereof to undergo S.I for two years. The appellant

was extended benefit of Section 382-B Cr.P.C.

2. The crux of prosecution case as unfolded in the FIR is that on

14.11.2023 headed by ASI Rukan Din of P.S Karampur whilst on patrol

duty received spy information regarding presence of accused Khadim

Bhayo (the appellant) and Altaf Hussain near Ihsan Curve who were

allegedly wanted in connection with Crime No.93 of 2023 registered

with P.S Karampur under Section 393 P.P.C, upon such information,

police party rushed towards pointed place and at about 5.00 p.m. they arrested the appellant. Due to non-availability of the private persons,

complainant by citing PC Altaf Hussain and PC Ali Gohar as attesting

witnesses conducted their personal search. However, nothing was

recovered from co-accused Altaf Hussain while an unlicensed 9mm

Pistol along with magazine was recovered from the appellant Khadim

Bhayo. After completion of formalities, police came to P.S along with

the accused as well as property and lodged instant FIR against them on

behalf of the State.

3. The police after completion of usual investigation submitted

challan of the case. The learned trial Court framed the charge against

appellant, to which he pleaded not guilty and claimed trial.

4. The prosecution examined Complainant/author cum I.O ASI

Rukan Din (now SIP), PW-2/Mashir/I/C Malkhana PC Altaf Hussain and

then ADPP for State closed its side vide statement dated 14.5.2024.

5. The prosecution the statement of appellant was recorded in terms

of Section 342 Cr.P.C., in which he denied the allegations of the

prosecution levelled against him and claimed his innocence and false

implication in this case. However, neither he examined himself on

oath nor led any sort of evidence in his defence.

6. After hearing the parties, the trial Court passed the impugned

judgment dated 22.6.2024, thereby convicting and sentencing the

appellant as stated above. Hence the appellant has preferred instant

criminal appeal against said judgment.

7. I have heard appellant in person, learned D.P.G. for the State, and

perused the record with assistance of learned D.P.G.

8. Appellant is present on bail, however, his counsel is not in

attendance. Appellant claims innocence and false implication in this

case by foisting false recovery being offshoot of main case vide Cr.

Case No.20 of 2024 arisen out of Crime No.93 of 2023 of P.S Karampur

under Section 393 P.P.C in which he along with co-accused Altaf

Hussain have been acquitted of the charge vide judgment dated

23.02.2024. He further pointed out that in the main case it was

surfaced that prior his false implication in this case as well as main

case, father of co-accused Altaf Hussain, who happens to be his cousin,

had lodged FIR in the murder case against complainant party of this

case, therefore, they have been falsely implicated by complainant of

main case, hence while extending benefit of doubt, they were

acquitted by the trial court. On all these submissions, he urged that he

is innocent and he has been falsely implicated in this case by the

police. Hence he may be acquitted in this case. 9. Learned D.P.G after going through the Para No.20 of the impugned

judgment at page No.83 of the paper book affirms that appellant has

already been acquitted in main case and besides there are certain

discrepancies, irregularities as well as contradictions in the

prosecution case, therefore, he has no objection if the appellant is

acquitted of the charge.

10. Perusal of record reveals that allegedly police party while on

patrolling arrested appellant along with co-accused who were wanted in

main case and recovery of crime weapon used in the commission of

crime in main case was effected from the appellant in presence of police

mashirs PC Altaf Hussain and PC Ali Gohar, therefore, instant case was

registered by complainant ASI Rukun Din. However, in the main case

appellant along with co- accused have been acquitted of the charge by

the trial Court.

11. As regards the recovery of crime weapon from the appellant is

concerned, perusal of ballistic expert's report reflects that the crime

weapon was received to their office on 20.11.2023 while it was

allegedly recovered on 14.11.2023, thus there is delay of 7 days in

transmitting crime weapon from malkhana to ballistic expert, creating

serious doubt into its safe custody at malkhana more particularly

when the Mashir of recovery and arrest himself was Incharge

Malkhana.

12. Perusal of record reflects; during trial in main case, it was

admitted by complainant and P.W in cross-examination that father of

co-accused Altaf Hussain namely Ghulam Ali had already lodged FIR

bearing Crime No.35/2023 under Section 302 P.P.C at P.S Ghouspur

against the father of complainant namely Ghulam Mustafa regarding

the murder of his son, therefore, appellant and co-accused were falsely

implicated in main case which created serious doubt into the veracity of

prosecution case. Hence, prosecution failed to bring home guilt of the

accused and they were acquitted of the charge by trial Court vide

judgment dated 23.02.2024, true copy whereof has also been brought on

record. In view of such background of standing enmity, false

implication of present appellant in this case by police at the behest of

complainant party of main case cannot be ruled out. There is no denial

that the prosecution had advance information of the availability of

appellant, who was also absconder in main case registered with same

police station,; however, the raiding party did not associate a public

mashir to witness the arrest and recovery proceedings nor taken any

effort to arrange private person to act as mashir and attest that all

proceedings being undertaken by the police impartially, thus there is

clear violation of Section 103 Cr.P.C. 13. Close scrutiny of the record reflects that prosecution case suffers

from discrepancies. irregularities and infirmities as well as

contradictions between statements of P.Ws. It is astonishing to see that

complainant himself has acted on three counts being complainant,

Author of FIR as well as Investigating Officer while mashir PC Altaf

Hussain has also acted as Incharge Malkhana, testimony of such highly

interested witnesses lacks credibility. It is needless to emphasize that

an officer, who is himself complainant in the case, cannot be expected

to collect and preserve evidence, which goes against his case. He can

not properly perform duties of an independent and fair investigating

officer. It is, therefore, that the superior Courts have never approved

the practice of complainant police officers acting as Investigating

Officers. Besides, according to para 3 of rule 25.2 of Police Rules, 1934,

it is the duty of an Investigating Officer to find out the truth and his

object shall be to discover the actual facts and for the achievement of

such object he shall not commit himself prematurely to any view of

the facts for or against any person. Reliance is placed in the case

reported as The State v. Bashir and others (PLD 1997 SC 408) in which

Hon'ble Supreme Court while referring to above Police Rules, observed

as under:

"It could hardly be expected that a police officer, who is heading a

raiding party and is a witness, also becomes the complainant and

lodges an FIR against the accused, and then becoming an

Investigating Officer of the same case, will comply with the

aforesaid Police Rule. In the circumstances, the practice of seizing

officer or the head of a police party who is also a witness to the

crime becoming or being nominated as an Investigating Officer of

the same case should be avoided and if any other competent

officer is available in the police station, he may be nominated as

the Investigating Officer rather than the head of the police party.

As observed Investigating Officer is as important witness for the

defence also and in case the head of the police party also becomes

the Investigating Officer he may not be able to discharge his

duties as required of him under the Police Rules."

14. I have also scanned the prosecution evidence consisting upon

only two prosecution witnesses. PW-1 complainant/I.O stated in cross-

examination that after leaving Police Station, they patrolled through

firstly Begari Pull, then Khararo Pull and then arrived at Iqbal Laro,

which was contradicted by PW-2 Mashir/I/c Malkhana by stating that

they patrolled through Karampur City, then Khararo, then Sher Garh

and then arrived at Iqbal Laro. P.W-1 stated that they noticed accused

at the distance of 50/60 paces which is contradicted by Mashir PC Altaf

Hussain by stating they noticed accused at the distance of 30/40 paces.

In his cross-examination, PW-1 complainant/I.O claimed that they asked private persons to act as mashir but no one was ready which is

contradictory to the version of FIR in which there is no mention about

saying any body to act as mashir, while the mashir simply stated that

due to non-availability of private mashirs, complainant associated him

and another PC as mashirs. Thus the prosecution evidence on such

material points contradicts to each other.

15. Moreover, the appellant has been acquitted from the charge of

main case and it being offshoot case the appellant deserves to be

acquitted from the charge of present case. I am fortified with the dicta

laid down by learned Bench of Lahore High Court in the case of Yasir

Chaudhry v. The State and another (2012 MLD 1315). It will be

appropriate to reproduce relevant Para No.5 of said judgment which

reads as under:

"5. In the case reported as Manjhi v. The State (PLD 1996 Kar. 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 of 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. Resultantly, the proceedings

before the learned trial Court are quashed."

16. In view of above discussion, there appears several circumstances

infirmities in the prosecution case, which have created reasonable

doubts about the guilt of the appellant. In the case of Muhammad

Akram v. The State (2009 SCMR 230), it is held by hon'ble Supreme

Court as under :-

"It is an axiomatic principle of law that in case of doubt, the benefit

thereof must accrue in favor of the accused as matter of right and

not of grace. It was observed by this Court in the case of Tariq

Pervez v. The State 1995 SCMR 1345 that for giving the benefit of

doubt, it was not necessary that there should be many

circumstances creating doubts. If there is circumstance which

created reasonable doubt in a prudent mind about the guilt of the

accused, then the accused would be entitled to the benefit of

doubt not as a matter of grace and concession but as a matter of

right."

17. In the circumstances and in view of above peculiar

circumstances of the case as well as citations discussed herein above,

prosecution has miserably failed to prove its charge against the appellant beyond shadow of reasonable doubt. Consequently, instant

appeal is hereby allowed. Resultantly impugned judgment dated

22.6.2024 passed by trial Court/IInd Additional Sessions Judge,

Kandhkot vide Sessions Case No.05/2023 Re: State v. Khadim Bhayo,

whereby the appellant was convicted and sentenced for offence

punishable under Sections 23(1)(a) and 25 of the Sindh Arms Act, 2013,

is hereby set aside. Resultantly, the Appellant stand acquitted of the

charge. He is present before the court on bail. His bail bond stand

cancelled and surety shall be deemed to be discharged; subject to

proper verification, identification and as per rules.

JK/K-12/Sindh Appeal allowed.