IN THE HIGH COURT OF SINDH, AT KARACHI

 

Criminal Appeal No. 156 of 2022

Criminal Jail Appeal No. 164 of 2022

 

                                             

 

Appellants:                   Furqan through Mr. Khurram Maqsood advocate

 

                                      Nemo for Ahmed Raza

 

 

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

 

Date of hearing:           27.09.2022

 

Date of judgment:        27.09.2022

 

 

J U D G M E N T

 

IRSHAD ALI SHAH, J- It is alleged that the appellants and co-accused Bilal, Yasir, Mahfooz and Muhammad Farhan robbed complainant Muhammad Shahrukh of his cell phone, cash worth Rs.5000/- and copy of his CNIC, for that they were booked and reported upon. After due trial, co-accused Bilal, Yasir, Mahfooz and Muhammad Farhan were acquitted while appellants were convicted for offence punishable under Section 395 PPC and sentenced to undergo R.I for 04 years and pay fine of Rs.25,000/- each and in default whereof to undergo simple imprisonment for 06 months with benefit of section 382-B Cr.P.C by learned                            II-Additional Sessions Judge, Central Karachi vide judgment dated 07.12.2021, which is impugned by the appellants before this Court by preferring two separate one from jail and other through counsel.

2.       None has appeared to advance arguments on behalf of appellant Ahmed Raza, however, learned counsel for appellant Furqan sought for his acquittal by contending that he being innocent has been involved in this case falsely by the police and has been convicted by learned trial Court on the basis of no evidence.  

3.       Learned Addl. P.G for the State has sought for dismissal of instant appeals by contending that the prosecution has been able to prove its case against them beyond shadow of doubt and on arrest from them have been secured the robbed cell phone of the complainant.

4.       Heard arguments and perused the record.

5.       The names and descriptions of the appellants are not appearing in the FIR though it is lodged with unexplained and unplausible delay of about 04 days which appears to be significant. The appellants have not been subjected to identification parade, such omission on part of I.O/SIP Rafaqat could not be lost sight of. The identity of the cell phone by the complainant at police station New Karachi Industrial Area without involvement of Magistrate could hardly be relied upon. The identity of the appellants by the complainant at trial carry no importance legally. On the basis of same evidence, co-accused Bilal, Yasir, Mahfooz and Muhammad Farhan have been acquitted, while appellants have been convicted by learned trial Court. In these circumstances, it could be concluded safely that the prosecution has not been able to prove its case against the appellants beyond shadow of doubt and they too are entitled to such benefit.

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 the case of Sohail Abbas and others vs. Kashif and others (PLD 2001 S.C 546), it has been held by Honourable Apex court that;

“There is nothing available on record to indicate why identification parade of the accused persons was not held. Admittedly they were not known to the witnesses and in such circumstances if identification parade is not held, it becomes virtually impossible, in absence of any other evidence, to connect, with the alleged occurrence. The witnesses in their statements under section 161, Cr.P.C. did not mention the features of the accused persons nor other description like height and weight. They saw the accused for the first time in Court after about 2 years. In such circumstances, their asserting that the accused are the same who had committed the murder, no importance can be attached to it in the absence of any identification parade.”

 

 

9.       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".

 

 

10.       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, convicted and sentenced by learned trial Court and they shall be released forthwith, if are not required to be detained in any other custody case.

11.       Instant appeals are disposed of accordingly.

     JUDGE