IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Appeal No. 910 of 2019

Criminal Jail Appeal No. 134 of 2020

Appellant(s): Nemo for appellants Muhammad Shahzad alias Babul and Umair

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

Date of hearing: 15.09.2022

Date of judgment: 15.09.2022

J U D G M E N T

IRSHAD ALI SHAH, J- It is alleged that the appellants and co-accused Haris robbed complainant Shakeel Ali and his witnesses of their cell phones and other belongings, for that the present case was registered. After due trial, co-accused Haris was acquitted while appellants were convicted under Section 397 PPC and sentenced to undergo rigorous imprisonment for 07 years with benefit of Section 382-B Cr.P.C, passed by Assistant Sessions Judge-XVI, Karachi West, vide judgment dated 11.11.2019, which is impugned by the appellants before this Court by preferring two separate appeals, one from jail and other through counsel.

2. The appellants as per jail roll have already been released on completion of their jail terms and probably this appears to be reason with them for having neglected these appeals, those could not be kept pending on file of this court, for want of their appearance together with their counsel, therefore, it was decided to be disposed of on merits after hearing learned Addl. P.G for the state.

3. Learned Addl. P.G for the state by supporting the impugned judgment has sought for dismissal of the instant appeals by contending that the appellants have admitted their guilt before the police and on arrest from them have been secured the robbed cell phones.

4. Heard arguments and perused the record.

5. The names and descriptions of the appellants are not appearing in FIR or even in 161 Cr.P.C statements of the P.Ws. The delay in lodgment of the FIR by 02 days could not be overlooked. The very case at one moment was disposed of under “A” Class. On arrest as per I.O/ASI Tariq Alam, the appellants and co-accused Haris admitted their guilt before him and they were identified by the complainant and his witnesses at police station Madina Colony. If for the sake of arguments, it is believed that such statement was made by the appellants even then same could not be used against them being inadmissible in terms of Article 39 of the Qanun-e-Shahdadat Order, 1984. The identification of the appellants by the complainant and his witnesses at police station without involvement of the Magistrate could hardly be relied upon. Neither the complainant nor any of his witness was able to produce any document which could have proved their ownership over the recovered cell phones, those even otherwise, are alleged by the appellants to have been foisted upon them by the police. In that situation, it could be concluded safely that the prosecution has not been able to prove its case against the appellants beyond shadow of doubt and to such benefit they are entitled which has already been extended by learned trial court to co-accused Haris by recording his acquittal.

6. In case of Muhammad Asif vs the State (2008 SCMR 1001), it has been held by Hon’ble apex Court that;

“…..yet there is a delay of about two hours which has not been explained. Similarly P.W.7 stated during cross-examination that the police reached the spot at twelve noon and about half an hour was consumed in conducting inquest proceedings and thereafter the dead body was sent to the hospital. He further stated that he accompanied the dead body which was taken in a wagon to the hospital and that it took only 15 or 20 minutes in reaching the hospital. In that case the dead body would have been received at the hospital by 1-00 p.m. On the contrary, the doctor, who is an independent witness, stated that he immediately started post mortem examination after the receipt of body and the time of post-mortem given by him was 4-50 p.m. that means that the body remained at the spot for quite some time. The F.I.Rs. which are not recorded at the police station suffer from the inherent presumption that the same were recorded after due deliberations…...”

7. In case of Sardar Bibi and others vs. Munir Ahmed and others (2017 SCMR 344), it has been held by the Hon’ble Apex Court that;

“When the eye-witnesses produced by the prosecution were disbelieved to the extent of one accused person attributed effective role, then the said eye-witnesses could not be relied upon for the purpose of convicting another accused person attributed a similar role without availability of independent corroboration to the extent of such other accused”.

8. 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".

9. In view of above, the conviction and sentence awarded to the appellants by way of impugned judgment are set-aside, consequently, they are acquitted of the offence for which they were charged, tried and convicted by learned trial Court. Since they have already been released in the present case by jail authorities on completion of their jail terms, therefore, no formal order of their release is being passed.

10. Both the appeals are disposed of accordingly.

JUDGE