HIGH COURT OF SINDH AT KARACHI

 

Criminal Appeal No.398 of 2018

 

Appellant              :         Zahid Hussain son of Hakim Ali

                                      through Mr. Habib-ur-Rehman Jiskani,

Advocate.

 

 

Respondent          :         The State through Ms. Amna Ansari,

Additional Prosecutor General, Sindh.

 

Date of hearing     :        01.04.2019

 

Date of Judgment :        01.04.2019

 

J U D G M E N T

 

 

Abdul Maalik Gaddi, J.Appellant Zahid Hussain was tried by the Court of learned Xth Additional Sessions Judge, Karachi (West), in Sessions Case No.1361 of 2016 (re: The State v. Zahid Hussain), arising out of Crime No.160 of 2016 registered at police station Surjani Town, Karachi, under Section 395, PPC. By judgment dated 24.05.2018, the appellant was convicted under Section 265-H(ii), Cr.P.C. and sentenced him to suffer R.I. for five years with fine of Rs.50,000/- and in default of payment of fine, it was further ordered that appellant shall suffer S.I. for three months more. However, the benefit of Section 382-B Cr.P.C. was also extended to the appellant.

 

2.       The brief facts of the prosecution case leading to the filing of this appeal are that on 22.05.2016 at about 2115 hours, at main road, khuda ki basti morr, Surjani Town, Karachi, accused had committed the dacoity of Coasters bearing No.JE-5239 and                JE-0380 and fled away. Hence, this FIR.

 

3.       The charge was framed on 07.12.2016 at Ex.4 against the accused by the learned trial Court, to which he pleaded not guilty and claimed to be tried vide plea at Ex.4/A.

 

4.       At trial, in order to establish accusation against appellant/accused, prosecution had examined following witnesses:-

 

(i)           PW-1 complainant Dilshad Ali at Ex.5, who produced copy of FIR, memo of inspection, and memo of recovery at Ex.5/A to Ex.5/D respectively;

 

(ii)          PW-2 Farhan at Ex.6, who produced memo of recovery at Ex.6/A;

 

(iii)        PW-3 Ali Nawaz at Ex.7;

 

(iv)         PW-4 ASI Muhammad Akram at Ex.8, who produced roznamcha entries at Ex.8/A and Ex.8/B respectively;

 

(v)          PW-5 SIP Muhammad Akram at Ex.9, who produced memo of arrest and recovery at Ex.9/A.

 

 

These witnesses were cross examined by the Counsel for the appellant. Thereafter, leaned DDPP closed the prosecution side vide Statement at Ex.10 alongwith statement at Ex.11, whereby the prosecution was given up PW ASI Attaullah.

 

5.       Statement of appellant was recorded under Section 342, Cr.P.C. at Ex.12, in which he has denied the allegations as leveled by the prosecution by stating that he is innocent and nothing was recovered from him. He further stated that police demanded money from him as he failed to fulfill the demand, he has been falsely implicated in this case. However, accused neither examined himself on Oath nor led any evidence in his defence.

 

6.       Mr. Habib-ur-Rehman Jiskani, the learned counsel for appellant has argued that the appellant is innocent and has been falsely implicated by the complainant; that FIR was lodged after the delay of about two days, for which no explanation has been furnished by the prosecution; that neither the appellant has been nominated in FIR nor his physical features has been given in it; that the appellant was arrested on 23.05.2016 in other Crimes bearing FIRs Nos.227 and 228 of 2016, registered at police station Site Super Highway Industrial Area, under Sections 324/353/34, PPC and 23(i)(a) of Sindh Arms Act, 2013, in which the appellant was acquitted by the trial Court vide judgments dated 08.10.2016 and the mashirnama of aforesaid cases and instant case is same, which was already disbelieved by the trial Court; that the alleged recovery of Coaster No.JE-25239 has been foisted upon him. Per learned counsel, the evidence so brought on record by the prosecution witnesses in this case is contradictory in nature to each other on material particulars of the case. During the course of arguments, learned counsel for appellant has taken to me to the evidence of prosecution and highlighted the number of contradictions in between the statements of prosecution witnesses, therefore, according to him, on the basis of contradictory evidence, conviction could not be maintained against the appellant. He further contended that appellant is maintaining his entire family and due to his confinement in jail, they are suffering from their livelihood, hence, he prayed for acquittal of the appellant by allowing the appeal.

 

7.       Conversely, Ms. Amna Ansari, learned Additional Prosecutor General, Sindh for the State has supported the impugned judgment passed by the trial Court and contended that the appellant was arrested on spot and on his pointation, Coaster bearing No.JE-5239 was recovered. Per learned Additional Prosecutor General, Sindh, the offence committed by the appellant is serious and heinous in nature, thus, appellant is not entitled for any relief. 

 

8.       I have given my anxious thoughts to the contentions raised at the bar and have gone through the case papers so made available before me.

 

9.       After careful consideration and meticulous examination of the available record, suffice to say that mere heinous nature of offence is not sufficient to convict the accused because the accused continues with presumption of innocence until found otherwise at the end of the trial. It is the settled principle of law that burden is always upon the prosecution to prove the case beyond shadow of doubt. Keeping in view of this basic touchstone of criminal administration of justice, I have examined the ocular, documentary evidence as well as circumstantial evidence, alongwith impugned judgment on record.

 

10.     From the perusal of record, I have come to the conclusion that the prosecution has failed to prove its’ case against the appellant for the reasons that the alleged incident was took place on 22.05.2016 at about 2115 hours, whereas, the FIR of the said offence i.e. snatching of Coaster No.JE-5239, was lodged on 24.05.2016 at about 0030 hours, after the delay of about two (2) days, for which no explanation has been furnished by the prosecution. Not only this, from the perusal of FIR, it reflects that neither appellant has been nominated in it nor his physical features have been given in it. Therefore, on this ground, false implication of the appellant in this case with due deliberation and consultation could not be ruled out. Record further shows that appellant was arrested on 23.05.2019 in other crimes bearing FIRs Nos.227 and 228 of 2016 of the said police station registered at police station Site Super Highway Industrial Area, under Sections 324/353/34, PPC and 23(i)(a) of Sindh Arms Act, 2013, in said cases as well as in instant case, common mashirnama of arrest and recovery was made. It is argued by the learned Counsel for the appellant that appellant has been acquitted in crimes No.227 and 228 of 2016 by the learned Sessions Judge, Malir Karachi, vide judgments dated 08.10.2016, therefore, according to him, which shows that mashirnama of instant case has already been disbelieved by the trial Court. No appeals against the said judgments have been filed by the prosecution, as such, according to learned Counsel for the appellant, the said judgments have attained finality. When confronted the above facts to learned Additional Prosecutor General Sindh for explanation, she did not reply properly.

 

11.     Moreover, from perusal of FIR, it appears that appellant has not been nominated in it. After arrest of the appellant, he was not put into identification parade for identification test through eye witnesses. I have also gone through the evidence of prosecution witnesses so made available on record and found the same is contradictory on material particulars of the case to each other. For instance, PW-7 Ali Nawaz, who was the driver of Coaster No.JE-5239, in his cross examination at Ex.7, deposed that at the time of incident, appellant was muffled faced with towel as his eyes were only visible, whereas, while contradicting this fact, PW-6 Farhan, who was also the driver of other Coaster No.JE-0380, in his cross examination at Ex.6, deposed that present appellant alongwith other persons was snatched both the Coasters. It is important to note here that if the appellant was muffled face with towel at the time of incident then question arise that how driver PW-7 Ali Nawaz identified the present appellant in Court. Nothing on record that other Coaster bearing No.JE-0380 was snatched or recovered from the present appellant. When confronted this fact to learned Additional Prosecutor General, Sindh, she has again no answered with her. I have also gone through the evidence of other prosecution witnesses and also found that the same are full of contradictions and not corroborated to each other on material particulars of the case, therefore, no conviction could be awarded to the appellant on the basis of contradictory evidence.

 

12.     As per record, in this case, there are number of infirmities/lacunas, which have created serious doubt in the prosecution case. It is settled principle of law that for extending benefit of doubt, it is not necessary that there should be multiple circumstances creating doubt. If a single circumstance, which creates reasonable doubt in a prudent mind about the guilt of accused, then he will be entitled to such benefit not as a matter of grace and concession, but as a matter of right, as has been held in the case of Tariq Pervez v. The State reported as 1993 SCMR 1345, wherein the Hon’ble Supreme Court has held as under:-

 

“The concept of benefit of doubt to an accused person is deep-rooted in our country for giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right.”

 

 

13.     For the above stated reasons, while respectfully relying upon the above cited case law, I have no hesitation to hold that prosecution has failed to prove its’ case against the appellant beyond any shadow of reasonable doubt. Consequently, this Appeal is allowed, conviction and sentence awarded by the trial Court vide judgment dated 24.05.2018 are set-aside. Appellant is in jail, he shall be released forthwith, if he is not required in any custody case.

 

JUDGE

 

Faizan A. Rathore/PA*