IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Appeal No.107 of 2022

Appellant: Asif Khan @ Babal through Mr. Jamroz Khan Afridi advocate

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

Date of hearing: 28.10.2022

Date of judgment: 28.10.2022

J U D G M E N T

IRSHAD ALI SHAH, J- It is alleged that the appellant committed murder of Ayaz Ali by causing him injuries with some sharp cutting weapon during course of robbery of his cell phone, NIC and Rs.200/- for that he was booked and reported upon by the police. On conclusion of trial, he was convicted under section 302(b) PPC and sentenced to undergo life imprisonment and to pay compensation of Rs.500,000/- to the legal heirs of the deceased and in default whereof to undergo simple imprisonment for 06 months; he was further convicted under Section 392 PPC and was sentenced to undergo rigorous imprisonment for 03 years and to pay fine of Rs.20,000/-; all the sentences were ordered to run currently with benefit of Section 382(b) Cr.P.C, by learned X-Additional Sessions Judge South vide judgment dated 09.02.2022, which is impugned by the appellant before this Court by preferring this 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 police at the instance of complainant party and he has been convicted and sentenced by learned trial Court virtually on the basis of no evidence, therefor he is entitled to acquittal by extending him benefit of doubt.

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 the instant appeal by contending that the appellant has admitted his guilt before the police and from him has been recovered the robbed property and crime weapon.

4. Heard arguments and perused the record.

5. Admittedly, none has seen the appellant committing the alleged incident. He as per I.O/SIP Hameedullah was apprehended by him on the basis suspicious and during course of interrogation he confessed his guilt. If for the sake of arguments, it is believed that such confession was actually made by the appellant before the said I.O/SIP, even then same being inadmissible in evidence in terms of Article 39 of the Qanun-e-Shahadat Order, 1984 could not be used against him. It was further stated by him that on the pointation of the appellant he secured cell phone of the deceased and dragger which he allegedly used in commission of incident under memo which was prepared at the spot. Nothing has been brought on record which may suggest that the cell phone allegedly secured on pointation of the appellant was actually owned by the deceased. Even otherwise, as per P.W/mashir Muhammad Ismail such memo was prepared by the police at police station. By stating so, he made the alleged recovery of the robbed property and crime weapon to be doubtful which suggests its foistation. In these circumstances, it would be safe to conclude that the prosecution has not been able to prove its case against the appellant beyond shadow of reasonable doubt.

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. In view of above, the conviction and sentence awarded to the appellant by way of impugned judgment are set-aside, consequently, he is acquitted of the offence for which he was charged, tried, convicted and sentenced by learned trial Court and he shall be released forthwith, if is not required to be detained in any other custody case.

8. Above are the reasons of short order dated 28.10.2022, whereby the instant criminal appeal was allowed.

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J U D G E