IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Appeal No. 495 of 2021

Appellants: Rizwan and Zubair through Mr. Shujaat Ali Khan advocate

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

Date of hearing: 14.12.2022

Date of judgment: 14.12.2022

J U D G M E N T

IRSHAD ALI SHAH, J- It is alleged that the appellants with one more culprit robbed complainant Imran Hussain of his cell phone and purse containing Rs.900/-, for that they were booked and reported upon. On conclusion of trial, they were convicted u/s 392 PPC and sentenced to undergo rigorous imprisonment for 03 years with fine of Rs.10,000/- each and in default whereof to undergo simple imprisonment for 03 months with benefit of section 382(b) Cr.P.C by learned IXth-Additional Sessions Judge, Karachi South, vide judgment dated 01.09.2021, which is impugned by the appellants before this court by way of the instant appeal.

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 they have been acquitted in Arms Act cases and evidence of the P.Ws in present case has been mis-appraised by learned trial Court. By contending so, he sought for acquittal of the appellants.

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 on arrest from the appellants have been secured the robbed property and pistols which they were having at the time of incident and prosecution has been able to prove its case against them beyond shadow of doubt.

4. Heard arguments and perused the record.

5. It is stated by the complainant that on the night of incident when he was standing at the place of incident, there came the appellants with one more culprit on their motorcycle and robbed him of his cell phone and purse containing Rs.900/-. On his cries, there came police party of P.S Boat Basin, it apprehended the appellants and secured from them the robbed property and pistols which they were having at the time of incident, while one of the culprit made his escape good. It is not appealing to prudent mind that the appellants even after committing robbery were waiting at the place of incident to be apprehended by the police party to come on cries being raised by the complainant, though they were having a chance to flee on their motorcycle that too without putting up any resistance. In FIR, it is stated by the complainant that he is labourer. He belied himself during his course of examination by stating that he is working with the police. I.O/SIP Muhammad Afzal, who allegedly apprehended the appellants and secured from them alleged robbed property and the pistols, which they were having at the time of incident, on asking was fair enough to admit that no 161 Cr.P.C statement is available in police file. It prima facie suggests that it was casual investigation of the present case on part of I.O/Inspector Waseem Ahmed. No case property is produced at trial for the reason that it was burnt on account of fire in malkhana. No road certificate is produced which may prove that the case property of the present case was actually kept in malkhana and it burnt there on account of fire. Nothing has been brought on record, which may suggest that acquittal of the appellants for recovery of unlicensed pistols has been impugned by the prosecution. In these circumstances, it would be safe to conclude that the prosecution has not been able to prove its case against the appellants beyond shadow of doubt and to such benefit they are found entitled.

7. 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".

8. In view of the facts and reasons discussed above, the conviction and sentence awarded to the appellants by way of impugned judgment are set aside, consequently, they are acquitted of the offence with which they were charged, tried, convicted and sentenced by learned trial Court; they are present on bail, their bail bonds are cancelled and sureties are discharged.

9. The instant appeal is disposed of accordingly.

JUDGE