IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Appeal No. 93 of 2022

Criminal Appeal No. 94 of 2022

Appellants: Khizar through Mr. Muhammad Yousuf Khan advocate

Fahad through Mr. Tassaduq Nadeem advocate

The State: Through Mr. Faheem Hussain Panhwar, Deputy Prosecutor General Sindh

Date of hearing: 24.08.2022

Date of judgment: 24.08.2022

J U D G M E N T

IRSHAD ALI SHAH, J- It is alleged that the appellants with rest of the culprits robbed complainant Salam Muhammad Shafi of his Suzuki Pickup duly loaded with 50 sacks containing plastic granules, for that the present case was registered. After due trial, they for the said offence, were convicted under Section 395 PPC and sentenced to undergo R.I for 04 years and to pay fine of Rs.30,000/- each and in default whereof to undergo simple imprisonment for 06 months with benefit of Section 382-B Cr.P.C by learned II-Additional Sessions Judge, Central Karachi, vide judgment dated 23.01.2022, which is impugned by the appellants before this Court by preferring two separate appeals.

2. None has appeared on behalf of appellant Khizar. However, learned counsel for appellant Fahad has covered the arguments on behalf of both the appellants by stating that they being innocent have been involved in this case falsely by the police by making foistation of robbed articles upon them and have been convicted and sentenced by learned trial Court on the basis of misappraisal of evidence, therefore, they are entitled to acquittal by extending them benefit of doubt.

3. None has appeared on behalf of the complainant to advance arguments. However, learned DPG for the state by supporting the impugned judgment has sought for dismissal of the instant appeals by contending that on arrest from the appellants has been secured the robbed property.

4. Heard arguments and perused the record.

5. It was stated by the complainant that on the date of incident, he and PW Shahzeb when were going on Suzuki Pickup duly loaded with 50 sacks containing plastic granules, there came six unknown culprits, on three motorcycles, duly armed with weapons and then they robbed him of his Suzuki Pick up together with the load lying therein, such incident was reported by him to the police. It was reported by the complainant with delay of about 07 days, such delay having not been explained plausibly could not be overlooked. It was further stated by the complainant that he was called by the police to identify the culprits which he did. The identity of the culprits without involvement of Magistrate could reasonably be judged with doubt. PW Shahzeb being sole independent witness to the incident has not been examined by the prosecution. The inference which could be drawn of his non-examination under Article 129(g) of the Qanun-e-Shahadat Order, 1984 would be that he was not going to support the case of prosecution. It was stated by PW ASI Imam Bux that he arrested the appellants and co-accused Nauman and secured from them the robbed property and crime weapons under mashirnama which he prepared in presence of P.Ws/mashirs PCs Zakir and Sulleman. None of the P.W/mashir to such recovery, the prosecution has been able to examine. In that situation, the appellants could hardly be connected with such recovery. In these circumstances, it could be concluded safely that the prosecution has not been able to prove its case against the appellants beyond shadow of doubt and to such benefit they are found entitled.

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 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".

8. 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 not required to be detained in any other custody case.

9. Both the appeals are disposed of accordingly.

JUDGE