IN THE HIGH COURT OF SINDH AT KARACHI

Criminal Appeal No. 254 of 2022

Appellant: Huzoor Bux through Mr. Gulsher Baloch advocate

Respondent: The State through Ms. Rubina Qadir, Deputy

Prosecutor General Sindh

Date of hearing: 08.11.2022

Date of Judgment: 08.11.2022

J U D G M E N T

IRSHAD ALI SHAH, J.- It is alleged that the appellant robbed complainant Muhammad Owais of his Rs.55,000/- and cell phone, for that he was booked and reported upon. On conclusion of trial, he was convicted u/s 392 PPC and was sentenced to undergo rigorous imprisonment for 03 years with fine of Rs.10,000/- and in default whereof to undergo further imprisonment for 01 month with benefit of Section 382(b) Cr.P.C by learned Xth-Additional Sessions Judge, Karachi East, vide judgment dated 06.04.2022,which is impugned by the appellant before this Court by preferring the instant appeal.

2. The name and description of the appellant are not appearing in the FIR though it is lodged with delay of about 04 days, which appears to be surprising. The appellant allegedly was apprehended by I.O/ASI Muhammad Iqbal on 26.07.2021 and from him was secured robbed cell phone and pistol which he allegedly was having at the time of incident and before him he confessed his guilt. If such confession was actually made by the appellant even then same being inadmissible in evidence in terms of Article 39 of Qanun-e-Shahadat Order, 1984 could not be used against him as evidence. On 27.07.2021, it is said that the appellant was identified by the complainant during course of identification parade before Mr.Niaz Hussain, the Magistrate having jurisdiction. On asking, the complainant was fair enough to admit that he firstly seen the appellant on 26.07.2021; it was one day prior to the alleged identification parade, therefore, could hardly be connected with such identification parade being hollow formality. The cell phone allegedly secured from the appellant is easily available in market. The appellant is said to have already been acquitted in a case of recovery of pistol by the Court having jurisdiction. 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 doubt.

3. In the 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".

4. In view of the facts and reasons discussed above, the conviction and sentence awarded to the appellant by way of impugned judgment are set aside, consequently, he is acquitted of the offence with which he was charged, tried, convicted and sentenced by learned trial Court; he is present in Court on bail, his bail bond is cancelled and surety is discharged.

5. The instant appeal is disposed of accordingly.

JUDGE