IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Appeal No. 446 of 2020

Criminal Jail Appeal No. 260 of 2021

Before;

Mr. Justice Irshad Ali Shah

Appellants: Sheeraz Khan @ Sheroz Khan and Umar Khan through M/s Basheer Ahmed Ghoto and Habib-ur-Rehman Jiskani advocates

The State: Through Mr. Faheem Hussain Panhwar, DPG

Date of hearing: 15.08.2022

Date of judgment: 15.08.2022

J U D G M E N T

IRSHAD ALI SHAH, J- It is alleged that the appellants robbed complainant Syed Aamir Hussain Shah of his cell phone and then went away by making aerial and ineffective firing, for that they were booked and reported upon. After due trial, they were convicted for an offence punishable under Section 397 PPC and sentenced to undergo R.I for 07 years each with benefit of section 382-B Cr.P.C by learned XI-Additional Sessions Judge, Karachi East, vide judgment dated 13.10.2020, which is impugned by the appellants before this Court by preferring two separate appeals.

2. It is contended by learned counsel for the appellants that the appellants being innocent have been involved in this case falsely by the police by foisting a cell phone upon them and they have been convicted by learned trial Court on the basis of misappraisal of evidence, therefore, they are liable to be acquitted by extending them benefit of doubt, who even otherwise are about to complete their jail term.

3. None has come forward to advance arguments on behalf of the complainant. However, learned DPG for the state by supporting the impugned judgment has sought for dismissal of instant appeals.

4. Heard arguments and perused the record.

5. Names and descriptions of the appellants are not disclosed in FIR though it is lodged by the complainant with delay of about 07 days. Unexplained delay in lodgment of FIR could not be overlooked. The identity of the appellants by the complainant at police station without involvement of the Magistrate, could hardly be relied upon to base conviction. The 161 Cr.P.C statement of P.W Muhammad Faisal Ajmal as per I.O /ASI Imtiaz Ahmed was recorded by him on 30.03.2019, it was with delay of two days even to the lodgment of the FIR, which prima facie suggests that he was introduced in investigation by the police subsequently. In these circumstances, the involvement of the appellants in this case, mainly on the basis of recovery of the alleged robbed cell phone from them, which was easily available in market and is alleged by the appellants to have been foisted upon them, is appearing to be doubtful.

6. In case of Muhammad Asif vs the State (2008 SCMR 1001), it has been held by Hon’ble apex Court that;

“…..yet there is a delay of about two hours which has not been explained. Similarly P.W.7 stated during cross-examination that the police reached the spot at twelve noon and about half an hour was consumed in conducting inquest proceedings and thereafter the dead body was sent to the hospital. He further stated that he accompanied the dead body which was taken in a wagon to the hospital and that it took only 15 or 20 minutes in reaching the hospital. In that case the dead body would have been received at the hospital by 1-00 p.m. On the contrary, the doctor, who is an independent witness, stated that he immediately started post mortem examination after the receipt of body and the time of post-mortem given by him was 4-50 p.m. that means that the body remained at the spot for quite some time. The F.I.Rs. which are not recorded at the police station suffer from the inherent presumption that the same were recorded after due deliberations…...”

7. In case of Abdul Khaliq vs. the State (1996 SCMR 1553), it has been held by Hon’ble apex Court that;

“……It is a settled position of law that late recording of 161, Cr.P.C. statement of a prosecution witness reduces its value to nil unless there is plausible explanation for such delay.”

8. 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".

9. In view of above, the conviction and sentence awarded to the appellants by way of impugned judgment are set aside, consequently, they are acquitted of the offence, for which they were charged, tried and convicted by learned trial Court, they are in custody and to be released forthwith, if are not required to be detained in any other custody case.

10. Both the appeals are disposed of accordingly.

JUDGE

..