IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Jail Appeal No. 590 of 2021

Appellant: Muhammad Shayan through Mr. Habib-ur-Rehman Jiskani advocate

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

Date of hearing: 10.11.2022

Date of judgment: 10.11.2022

J U D G M E N T

IRSHAD ALI SHAH, J- It is the case of the prosecution that the appellant and his associate robbed complainant Muhammad Zeeshan and P.W Muhammad Zakir of their cell phones and during course of such robbery, not only caused butt blow to P.W Muhammad Zakir but had a bite on a thigh of the complainant, for that he was booked and reported upon by the police. On conclusion of trial, he was convicted under Section 394 PPC and sentenced to undergo rigorous imprisonment for 04 years and to pay fine of Rs.100,000/- and in default whereof to undergo simple imprisonment for 01 year, with benefit of section 382(b) Cr.P.C by learned X-Additional Sessions Judge, Karachi South vide judgment dated 29.09.2021, which is impugned by the appellant before this Court by preferring the instant jail 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 and evidence of the P.Ws being doubtful in its character has been believed by learned trial Court without lawful justification, therefore, the appellant is entitled to his acquittal, which is opposed by learned Addl. P.G for the state by contending that the prosecution has been able to prove its case against the appellant beyond shadow of doubt.

3. Heard arguments and perused the record.

4. It was stated by complainant Zeeshan and P.W Naseer that on the night of incident, they were playing the game with their friends at the place of incident, there came the appellant and one more culprit on their motorcycle and then by pointing their pistols robbed them of their cell phones and when they were about to make their escape good, the appellant was apprehended, he was beaten severally by the mohalla people, the police party of P.S Napier led by HC Naseer Ahmed came at the place of incident, taken the appellant into custody and then booked him in the present case formally. No robbed property was recovered from the appellant. Even otherwise, nothing has been brought on record by the complainant or P.W Zeeshan which may prove their ownership over the robbed cell phones. As per I.O/SIP Sajjad Yousuf, on forensic examination, the pistol secured from the appellant was not found in working condition. In these circumstances, the plea of innocence the appellant has raised could not be lost sight of. The conclusion which could be drawn of above discussion would be that the prosecution has not been able to prove its case against the appellant beyond shadow of doubt.

5. 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".

6. 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 in custody to be released forthwith if not required to be detained in any other custody case.

7. The instant jail appeal is disposed of accordingly.

JUDGE