IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Appeal No. 513 of 2021

Criminal Appeal No. 535 of 2021

Appellants: Muhammad Kashif and Tahir Nawaz through M/s Muhabbat Ali Ujjan and Sajjad Gul Khatri advocates

The State: Through Mr. Abrar Ali Khitchi, Additional Prosecutor General Sindh

Date of hearing: 21.09.2022

Date of judgment: 21.09.2022

J U D G M E N T

IRSHAD ALI SHAH, J- It is alleged that the appellants robbed complainant Umer Rauf of his cell phone, for that they were booked and reported upon by the police. After due trial, they were convicted for an offence punishable under Section 397 PPC and sentenced to undergo rigorous imprisonment for 07 years each with benefit of section 382-B Cr.P.C by learned Xth-Additional Sessions Judge, Karachi South vide judgment dated 23.08.2021, which they have impugned before this Court by preferring two separate appeals.

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 by making foistation of robbed cell phone and crime weapons and evidence of the P.Ws being doubtful in its character has been believed by learned trial Court without assigning cogent reasons, therefore, they are entitled to their acquittal by extending them benefit of doubt.

3. None has come forward to advance arguments on behalf of the complainant. However, learned Addl. P.G for the state by supporting the impugned judgment has sought for dismissal of the instant appeals.

4. Heard arguments and perused the record.

5. As per the complainant he was robbed of his cell phone without SIM Card by the appellants and on his cries, the police party led by HC Ali Nawaz came at the spot, apprehended the appellants and recovered from them his robbed cell phone and two revolvers of 32 bore, which they used in commission of the incident. Nothing has been brought on record by the complainant which may prove his ownership over the alleged robbed cell phone. As per HC Ali Nawaz he on hearing cries of the complainant, went at the place of incident together with his police party and apprehended the appellants and secured from them the robbed cell phone and revolvers under memo which was attested by P.Ws/mashirs PCs Uzair, Raheem Dad and Maroofullah. It is contrary to record, such memo is attested by complainant Umer Rauf and P.W/mashir PC Raheem Dad. On being asked who prepared such memo? It was stated by him that it was prepared by Munshi Aquib. How it was prepared by Munshi Aquib when he was not the member of police party? It smells of something wrong. Munshi Aquib being author of said memo has not cited as a witness by the prosecution; such omission has made the arrest of the appellants and recovery of robbed cell phone and crime weapons from them as alleged by the prosecution to be doubtful. No doubt P.W/I.O SIP Zulifqar Ali has attempted to support the case of prosecution, but his evidence alone is not enough to make a conclusion that the prosecution has 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 impugned judgment is set aside, consequently, appellants are acquitted of the offence for which they were charged, tried and convicted by learned trial Court and they shall be released forthwith, if are not required to be detained in any other custody case.

8. The instant appeals are disposed of accordingly.

JUDGE