THE HIGH COURT OF SINDH, AT KARACHI

Criminal Appeal No. 280 of 2022

Appellant: Tawaf Khan through Mr. Muhammad Riaz Abbasi, advocate

The State: Through Ms. Rubina Qadir, Deputy Prosecutor General Sindh

Complainant: Nemo

Date of hearing: 04.10.2022

Date of judgment: 04.10.2022

J U D G M E N T

IRSHAD ALI SHAH, J- It is alleged that the appellant with rest of the culprits committed robbery from the house of complainant Syed Sabih Haider Jafferi as is detailed in FIR, for that the present case was registered. After due investigation, the appellant was reported upon by the police to face trial for the above said incident. On conclusion of the trial, he was convicted under section 397 PPC and was sentenced to undergo rigorous imprisonment for 07 years with benefit of Section 382-B Cr.P.C, by learned IX-Additional Sessions Judge, Karachi South, vide judgment dated 11.04.2022, which is impugned by the appellant before this Court by preferring the instant appeal.

2. It is contended by learned counsel for the appellant that the appellant being innocent has been involved in this case falsely by the complainant party; there is no recovery of robbed property from the appellant; his arrest is doubtful and evidence of the PWs being doubtful in its character has been believed by the learned trial Court without assigning the cogent reasons, therefore the appellant is entitled to acquittal by extending him benefit of doubt.

3. None has come forward to advance arguments on behalf of the complainant. However, learned D.P.G 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. It is stated by the complainant that on the date of incident, it was intimated to him by his wife Mst. Salma Aziz that the appellant, being their formal employee, with others have committed robbery from their house. On such information, he went to his house and then reported the incident to police. No doubt, the complainant is not eye witness to the incident but there could be made no denial to the fact that he has supported the factum of the incident. The material evidence is furnished by P.W Mst. Salma Aziz, it was stated by her that the appellant and others after keeping her under wrongful restraint have committed robbery from her house. She has stood by her version, on all material points with regard to the alleged robbery. No issue of mistaken identity of the appellant is involved. Whatever is stated by P.W Mst. Salma Aziz is taking support from ancillary evidence, same could not be disbelieved or doubted only for the reason that there is no recovery of any sort from the appellant or his arrest is doubtful. In these circumstances, learned trial Court was right to conclude that the prosecution has been able to prove its case against the appellant beyond shadow of doubt.

6. Neither the appellant nor any of his associate has used the weapon which they allegedly were having at the time of incident, therefore, punishment awarded to the appellant for offence u/s 397 PPC is appearing to be misplaced, it is modified to one u/s 392 PPC, consequently, the appellant is convicted u/s 392 PPC and sentenced to undergo rigorous imprisonment for 04 years with fine of Rs.20,000/- and in default whereof to undergo simple imprisonment for 03 months with benefit of section 382-B Cr.P.C.

7. In case of Salah-Ud-Din vs. The State (1990 P.Cr.L.J 1221), it has been held by Hon’ble Lahore High Court that;

“8. Learned counsel for the appellant at the end argued that the case even on facts ~as concluded above, did not fall under section 397, P.P.C. The argument carries weight. The provisions of section 397, P.P.C. are to the effect that if at the time of committing robbery or dacoity the offender uses any deadly weapon, he shall be punished with an imprisonment of not less than 7 years. In the present case the appellant had not used their weapons. What they had done was the pointation of the weapons at the complainant and under the fear thereof he was made to surrender his rickshaw and Rs.10 he was carrying. The offence committed thus amounted to simple robbery punishable under section 392 of the Code. Conclusion accordingly.”           

8. Subject to above modification in sentence, the instant appeal fails and is dismissed accordingly.

JUDGE