IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Appeal No. 57 of 2019

Appellants: Zahoor alias Zahoor Kabari and Usman Ghani through Mr. Zia-ul-Haq advocate

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

Date of hearing: 29.09.2022

Date of judgment: 29.09.2022

J U D G M E N T

IRSHAD ALI SHAH, J- It is alleged that the appellants robbed complainant Khan Nawaz of his cell phone, cash worth Rs.8000/-, copies of his driving license and CNIC, for that they were booked and reported upon. On conclusion of trial, they were convicted u/s 397 PPC and sentenced to undergo R.I for 07 years and to pay fine of Rs.30,000/- each and in default whereof to undergo simple imprisonment for 30 days by learned IV-Additional Sessions Judge, Karachi West vide judgment dated 16.01.2019, which is impugned by the appellants before this Court, by preferring the instant appeal.

2. It is contended by the 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 property and crime weapons and evidence of P.Ws being doubtful in its character has been believed by learned trial Court without lawful justification, 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 DPG for the state by supporting the impugned judgment has sought for dismissal of instant appeal by contending that the prosecution has been able to prove its case against the appellants beyond shadow of doubt.

4. Heard arguments and perused the record.

5. It is stated by complainant Khan Nawaz in his FIR that on the date of incident when he came out from Al-Falah Clinic after his medical check-up, was confronted by two persons on motorcycle, they robbed him of his cell phone, cash worth Rs.8000/-, copies of his driving license and CNIC. Contrary to FIR, it was stated by the complainant at trial, that he came out of Al-Falah Clinic without his medical check-up, on account of rush there; such inconsistency could not be ignored. It was further stated by the complainant that the incident was witnessed by PWs Ibrahim Khan and Saifullah. None of them is examined by the prosecution. The inference which could be drawn of their non-examination under Article 129(g) of Qanun-e-Shahadat Order, 1984 would be that they were not going to support the case of prosecution. It is further stated by the complainant that on his cries, police party of PS Saeedabad led by ASI Wazeer Ahmed came at the spot, apprehended the appellants and secured from them robbed property and crime weapons. Contrary to it, in same breath it was stated by the complainant that the weapons were secured from the appellants by the mob and were handed over to police; such contradiction could not be overlooked. None from the mob who allegedly apprehended the appellants and secured from them the weapons has been examined by the prosecution. It was stated by PW ASI Wazeer Ahmed that he prepared memo of arrest and recovery from the appellants at the spot. He that in respect is belied by the complainant by stating that all the formalities were completed by the police at PS Saeedabad. No member of police party who allegedly was with ASI Wazeer Ahmed at the time of incident has been examined by the prosecution, such omission could not be lost sight of. As per I.O/ASI Ashique Ali he did not record statement of Medical Officer of Al-Falah Clinic, its compounder or security guard. It was essential to prove the factum of incident, such omission on part of I.O/ASI Ashique Ali could not be overlooked. In these circumstances, it is concluded safely that the prosecution has not been able to prove its case against the appellants beyond shadow of doubt and to such benefits they are found entitled.

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 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, they are present in Court on bail, their bail bonds are cancelled and sureties are discharged.

8. The instant appeal is disposed of accordingly.

JUDGE