IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Jail Appeal No. 97 of 2022

Criminal Jail Appeal No. 342 of 2022

Appellants: Muhammad Aleem Baloch and Alataf Ahmed through Mr. Qaim Ali Memon advocate

The State: Mr. Khadim Hussain, Additional Prosecutor General Sindh

Date of hearing: 01.11.2022

Date of judgment: 01.11.2022

J U D G M E N T

IRSHAD ALI SHAH, J- It is alleged that the appellants robbed complainant Abdul Latif of his copy of CNIC, ATM Card, cell phone and Rs.400/- for that they were booked and reported upon. On conclusion of trial, they were convicted under Section 397 PPC and sentenced to undergo rigorous imprisonment for 07 years with benefit of section 382(b) Cr.P.C by learned Additional Sessions Judge-XII, Karachi East vide judgment dated 01.12.2021, which is impugned by the appellants before this Court by preferring two separate jail 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 and evidence of P.Ws being doubtful in its character has been relied upon by learned trial Court without lawful justification; therefore, the appellants are entitled to their acquittal by extending them benefit of doubt.

3. None has appeared to advance arguments on behalf of the complainant. However, learned Addl.P.G for the state by supporting the impugned judgment has sought for dismissal of the instant jail appeals by contending that the prosecution has been able to prove its case against the appellants beyond shadow of doubt.

4. Heard arguments and perused the record.

5. Names and descriptions of the appellants are not disclosed in the FIR, which appears to be significant. The appellants as per I.O/ASI Khalid Hussain were apprehended by him in suspicious positions and on search from them were secured the alleged robbed property and incriminating pistols and then they were taken to P.S Shahrah-e-Faisal, there they were investigated upon by I.O/ASI Arsalan Akhtar, during course whereof, they were identified by complainant Abdul Latif, to be the culprits responsible for committing robbery from him. The identity of the appellants by the complainant at police station without involvement of the Magistrate could hardly be relied upon to maintain conviction. It was stated by I.O/ASI Arsalan Akbar that the appellants also confessed their guilt before him. If such statement was actually made by the appellants before him, even then same could not be used against them being inadmissible in evidence in terms of Article 39 of the Qanun-e-Shahadat Order, 1984. Nothing has been brought on record which may suggest that the robbed cell phone was actually owned by the complainant. In these circumstances, it is concluded safely that the prosecution has not been able to prove its case against the appellants beyond shadow of 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 appellants by way of impugned judgment are set-aside, consequently, they are acquitted of the offence for which they were charged, tried, convicted and sentenced by learned trial Court and they shall be released forthwith, if are not required to be detained in any other custody case.

8. Instant jail appeals are disposed of accordingly.

JUDGE