THE HIGH COURT OF SINDH, AT KARACHI

 

Criminal Appeal No.319 of 2021

 

                                             

 

Appellant:                    Muhammad Ghufran son of Fateh Muhammad through Mr. Shamraiz Khan Tanoli, advocate

 

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

 

Date of hearing:           30.09.2022

 

Date of judgment:        30.09.2022

 

 

J U D G M E N T

 

IRSHAD ALI SHAH, J- It is the case of the prosecution when complainant Muhammad Zohaib went out with his family to have a dinner they were robbed at of their cash and cell phone and during course of such robbery, the complainant was also fired at by the culprits, for that the present case was registered.  After due trial, co-accused Amjad Khan alias Farhan was acquitted while the appellant was convicted under section 394 PPC and sentenced to undergo rigorous imprisonment for life and to pay fine of Rs.100,000/- and in default whereof to undergo simple imprisonment for 03 months with  benefit of section 382-B Cr.PC, by learned IV Additional Sessions Judge, Karachi East, vide judgment dated 06th May, 2021, which is impugned by the appellant before this Court by way of instant appeal.

2.       It is contended by the learned counsel for the appellant that the appellant being innocent has been involved in this case falsely by the police by foisting upon him robbed property and crime weapon; the FIR has been lodged with delay of about three days; co-accused Amjad Khan alias Farhan has already been acquitted while the appellant has been convicted by learned trial Court on the basis of same evidence. By contending so he sought for acquittal of the appellant by extending him benefit if doubt. In support of his contention he relied upon case of Mah Gul versus The State                 (2009 SCMR 4).

3.       None has appeared 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 the prosecution has been able to prove its case against the appellant beyond shadow of doubt.

4.       Heard arguments and perused the record.

 

5.       The name and description of the culprits involved in the incident are not appearing in the FIR though it is lodged with delay of three days, which appears to be surprising, therefore, the identity of the appellant by the complainant and PW Sanobar at trial or during course of investigation is appearing to be doubtful. If for the sake of argument, it is believed that the appellant has confessed his guilt before IO SIP Abdul Rasool during course of investigation by making such statement, even then same being inadmissible in evidence in terms of Article 39 of the Qanun-e-Shahadat Order, 1984, could not be used against the appellant. On asking, it was stated by the complainant that all the documents were prepared at police station. If it was so, then it was a table investigation on the part of IO/SIP Abdul Rasool. In these circumstances, it could be concluded safely that the prosecution has not been able to prove its case against the appellant beyond shadow of doubt and to such benefit he too is found entitled.

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

“Delay of about two hours in lodging FIR had not been explained—FIRs which were not recorded at the Police Station, suffered from the inherent presumption that same were recorded after due deliberation.”

 

7.       In case of Tariq Pervaiz vs the State (1995 SCMR 1345). It has been held by the Hon’ble Supreme Court that:-

“For giving benefit of doubt to an accused, it is not necessary that there should be many circumstances creating reasonable doubt in a prudent mind about the guilt of accused, then he would be entitled to such benefit not as a matter of grace and concession but of right.”

 

8.       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”.

 

9.       In view of the facts and reason discussed above, the conviction and sentence recorded against the appellant by way of impugned judgment are set-aside; consequently, the appellant is acquitted of the offence for which he was charged, tried, convicted and sentenced by learned trial Court. He is in custody, to be released forthwith, if not required to be detained in any other custody case.

10.     Above are the reason of short order dated 30.09.2022, whereby the instant appeal was allowed.

                                                                                                   

                                                                                                                        J U D G E