IN THE HIGH COURT OF SINDH, AT KARACHI

 

Criminal Appeal No. 486 of 2021  

                                                       

 

Appellant:                    Aamir through Mr. Muhammad Rafiq Brohi advocate

N

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

 

Complainant:               Muhammad Owais in person

 

Date of hearing:           05.10.2022

 

Date of judgment:        05.10.2022

 

 

J U D G M E N T

 

IRSHAD ALI SHAH, J- It is alleged that the appellant and co-accused Kashan alias Shunto during course of robbery of his cell phone and cash worth Rs.400/500, caused fire shot injury to P.W Rizwan, for that they were booked and reported upon. On conclusion of trial, co-accused Kashan alias Shunto was acquitted, while the appellant was convicted under Sections 392 PPC and sentenced to undergo rigorous imprisonment for 07 years with fine of Rs.50,000/- and in default whereof to undergo simple imprisonment for 06 months. He was further convicted under Section 397 PPC and sentenced to undergo R.I for 07 years, both the sentences were ordered to run concurrently with benefit of section 382-B Cr.P.C by learned II-Additional Sessions Judge, Karachi Central vide judgment dated 21.08.2021 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 police and on the basis of same evidence co-accused Kashan alias Shunto has been acquitted. By contending so, he sought for acquittal of the appellant by extending him benefit of doubt.

3.       Learned Addl. P.G for the state, who is assisted by complainant Muhammad Owais by supporting the impugned judgment has sought for dismissal of the instant appeal by contending that the case of the appellant is distinguishable to that of acquitted accused.

4.       Heard arguments and perused the record.

5.       The FIR of the incident has been lodged with delay of about 15 hours, such delay having not been explained plausibly could not be overlooked. It was stated by the complainant that he identified the appellant at lock up of P.S New Karachi Industrial Area, when he went there to lodge report of the incident. The identity of the appellant by the complainant at police station without involvement of the Magistrate is of no help to the case of prosecution. On asking, the complainant was fair enough to admit that the contents of FIR were not read over to him. By stating so, he impliedly has disowned his own FIR. PW Rizwan has identified the appellant at trial, such identity is not enough to improve the case of prosecution. There is no recovery of robbed article from the appellant. No medical record has been brought on file, which may prove that PW Rizwan actually has sustained fire shot injury during course of alleged robbery. Co-accused Kashan alias Shunto though was identified by the complainant during course of identification parade conducted by Mr. Hameedullah, the Magistrate having jurisdiction, has been acquitted by learned trial Court by extending him benefit of doubt. 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 the appellant 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;

“…..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 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.”

 

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 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 appellant by way of impugned judgment are set-aside, consequently, he is acquitted of the offence for which he was charged, tried, convicted and sentenced by learned trial Court and he shall be released forthwith, if is not required to be detained in any other custody case.

11.     The instant appeal is disposed of accordingly.

                                                                                                 JUDGE