IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Appeal No. 488 of 2020

Before;

Mr. Justice Irshad Ali Shah

Appellant: Zubair @ Guddu through Mr. Ashraf Ali Shah advocate

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

Date of hearing: 17.11.2022

Date of judgment: 17.11.2022

J U D G M E N T

IRSHAD ALI SHAH, J- It is alleged that the appellant with two more culprits, robbed P.Ws Mudassir Tariq and Sami alias Sunni of their money, which they were having and during course whereof they caused knife injuries to P.W Mudassir Tariq, one of the culprit made his escape good, while appellant and his associate, who was named Bakht Nabi Syed were apprehended at the spot by the public, from them were secured the knife and pistol, which they allegedly used in commission of incident, they were maltreated as a result of such maltreatment, Bakht Nabi Syed died, while the appellant was booked and reported upon by the police. On conclusion of trial, the appellant was convicted under section 397 PPC and sentenced to undergo rigorous imprisonment for 07 years and to pay fine of Rs.10,000/- and in default whereof to undergo simple imprisonment for 01 month with benefit of Section 382(b) Cr.P.C by learned VI-Additional Sessions Judge Karachi West vide judgment dated 12.10.2020, which is impugned by the appellant before this Court by preferring the instant 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 complainant party to save itself from liability of death of Bakht Nabi Syed 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 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 been apprehended at the spot and from him has been secured the pistol which he was having at the time of incident.

4. Heard arguments and perused the record.

5. Admittedly complainant Mubashir Tariq is not an eye witness to the incident, therefore, his evidence hardly lends support to the case of prosecution. It was stated by P.W/P.C Anwarullah that on the date of incident he, HC Amanullah and others were on patrolling, they went at the place of incident there they found the appellant and his associate to have been apprehended by mob and were being maltreated, they were rescued and then were taken into custody together with knife and pistol and then were referred to Hospital for treatment, one amongst them namely Bakht Nabi Syed died of such injuries, while the appellant was involved in present case formally. As per Medical Officer Dr. Arif, P.W Mudassir Tariq and the accused were brought to him at Qatar Hospital, Orangi, for treatment by public and police came there. By stating so, he has falsified the version of P.W/P.C Anwarullah that they took P.W Mudassir Tariq, the appellant and his associate to the Hospital. H.C Amanullah who prepared the memo of arrest of the appellant and his associate has not been examined by the prosecution on account of his death. There is no recovery of the robbed property from the appellant. None from the public who initially apprehended the appellant and his associate and affected recovery of knife and pistol from them has been examined by the prosecution. As per P.W Mudassir Tariq, he was informed about the appellant by the I.O and he identified him through his picture. As per P.W Sami alias Sunni he has not identified the appellant before the Court excepting the present (at the time of evidence). P.W Muhammad Younus was fair enough to say that in his 161 Cr.P.C statement he has stated specifically that he has not seen the faces of the accused. The inconsistencies between the evidence of P.Ws Mudassir, Sami alias Sunni and Muhammad Younus with regard to the identity of the appellant have made the involvement of the appellant in the commission of incident to be doubtful. I.O/SIP Gulzar Ahmed was also fair enough to say that no identification of the appellant was held. 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.

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 and convicted by learned trial Court, he is present in Court on bail, his bail bond is cancelled and surety is discharged.

8. The instant appeal is disposed of accordingly.

JUDGE