THE HIGH COURT OF SINDH AT KARACHI

Special Criminal Anti-Terrorism Appeal No. 159 of 2020

 

Before:                                                      

Mr. Justice Mohammad Karim Khan Agha

Mr. Justice Irshad Ali Shah

 

Appellant:                                        Shafiq ur Rehman @ Shafiq through Mr. Liaquat Hussain advocate

Respondent:                                     The State through Mr. Ali Haider Saleem Additional Prosecutor General Sindh

Date of hearing:                              12.10.2021

Date of announcement:                15.10.2021

 

J U D G M E N T

IRSHAD ALI SHAH, J- The appellant allegedly for demanding Bhatta from complainant Abdul Ghafoor after due trial, has been convicted and sentenced to undergo for various terms spreading over five years with fine, with benefit of section 382(b) Cr.P.C by learned Judge, ATC-XV Karachi vide judgment dated 16th October 2020, which is impugned by the appellant before this court by preferring the instant Special Criminal A.T. Appeal.

2.       It is contended by learned counsel for the appellant that the appellant being innocent has been involved in this case falsely by the complainant; the FIR has been lodged with delay of about 22 days; no recovery of SIM card allegedly used in commission of incident is made from the appellant and evidence which the prosecution has produced before learned trial court being doubtful in its character has been believed by learned trial court without assigning cogent reasons, therefore, the appellant is liable to his acquittal.

3.       The complainant on service of notice appeared before this court and sought for time to engage a counsel but then chosen to remain absent which prima facie suggests that he has no defence to make. However, learned Addl. P.G for the state by supporting the impugned judgment sought for dismissal of the instant Special Criminal A. T. Appeal by contending that the prosecution has been able to prove its case against the appellant by bringing on record sufficient incriminating evidence.

4.       We have considered the above arguments and perused the record.

5.       The FIR of the incident has been lodged with delay of about 22 days, such delay having not been explained plausibly could not be ignored. It is reflecting consultation and deliberation. No Bhatta was ever paid by the complainant to the appellant or anyone else which has falsified the allegation of demand of Bhatta. No SIM card allegedly used for making demand for Bhatta is secured by the police. The appellant could not be connected to the recovery of watch mobile phone allegedly used in commission of incident for the reason that no question with regard to such recovery has been put to him for his explanation during course of his examination under Section 342 Cr.P.C. As per the appellant the complainant annoyed with him on account of demand for wages which lead to his involvement in this case falsely. The appellant being labour with him is not denied by the complainant. The labour could hardly make a demand of Bhatta from his master. Co-accused Muhammad Umair on the basis of same evidence has already been acquitted by the learned trial court. In these circumstances, it could be concluded safely that the prosecution has not been able to prove its case against the appellant beyond shadow of doubt and to such benefit he is found entitled too.

6.       In case of Muhammad Mansha vs The State (2018 SCMR 772), it has been held by the Hon’ble Apex Court that;

 

“4….Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt          in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted".

 

 

7.       Having concluded above, the conviction and sentence awarded to the appellant by way of impugned judgment are set aside, consequently, the appellant is acquitted of the offences for which he has been charged, tried and convicted by the learned trial Court, he shall be released forthwith in present case, if he is not required to be detained in any custody case.

8.       The instant Special Criminal A.T. Appeal is disposed of accordingly.

                                                         

                                                                    JUDGE

 

                                                          JUDGE   

 

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