IN THE HIGH COURT OF SINDH AT KARACHI

Criminal Appeal No. 200 of 2022

Appellant: Noman @ Machi @ Imran through Mr. Saifullah advocate

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

Date of hearing: 22.11.2022

Date of Judgment: 22.11.2022

J U D G M E N T

IRSHAD ALI SHAH, J.- It is alleged that the appellant with one more culprit, robbed complainant Abdul Rehman and P.W Shahid of Rs.9000/- and Rs.3000/- respectively and when they were about to make their escape good, the appellant was apprehended together with unlicensed pistol of 30 bore with magazine containing 05 bullets of same bore and Rs.5620/-, for that the present case was registered. On conclusion of trial, the appellant was convicted under Section 392 PPC and sentenced to undergo simple imprisonment for 03 years with of Rs.5000/- and in default whereof to undergo simple imprisonment for 01 month with benefit of Section 382(b) Cr.P.C by learned IX-Additional Sessions Judge, Karachi South, vide judgment dated 14.03.2022, 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 police and he has been convicted by learned trial Court on the basis of misappraisal of evidence, therefore, he is entitled to his acquittal which is opposed by learned DPG 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 P.W SIP Khalid Mehmood that on the date of incident, he with his police party was conducting patrol, when reached at Crockery Bazar at Juria Market, was attracted to the cries of “dacoit dacoit”, on inquiry was told by the complainant that he and P.W Shahid have been robbed of their money by the appellant and other. On such information, he chased the culprit and was able to apprehend the appellant and from him was secured unlicensed pistol of 30 bore with magazine containing 05 live bullets and Rs.5620/-, under memo which he prepared at the spot in presence of complainant Abdul Rehman, PCs Abdul Sattar and Malik Ahsan, the appellant with the recovery was taken to P.S Kharadar where, the complainant lodged FIR with regard to the robbery, it was recorded by SIP Riaz Ahmed. P.W/mashir/P.C Malik Ahsan has attempted to support the complainant but such attempt failed when the complainant came into witness box and did not support the case and was declared hostile to the prosecution. P.W Shahid has not been examined by the prosecution. The inference which could be drawn of his non-examination under Article 129(g) of Qanun-e-Shahadat Order, 1984 would be that he was not going to support the case of prosecution. The case property has not been produced at trial, same as per I.O/SIP Khalid Mehmood was burnt on account of fire in Malkhana. No road certificate is produced, which may suggest that the case property of the present case was actually kept in Malkhana and it burnt there. In these circumstances, it would be safe to conclude that the prosecution has not been able to prove the involvement of the appellant in present case beyond shadow of doubt.

5. 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".

6. In view of the facts and reasons discussed above, the conviction and sentence awarded to the appellant by way of impugned judgments are set aside, consequently, he is acquitted of the offence for 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.

7. The instant appeal is disposed of accordingly.

JUDGE