IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Appeal No. 710 of 2021

Criminal Jail Appeal No. 264 of 2022

Appellant(s): Muhammad Haroon through Mr. Abdul Hakeem Shar advocate

Nemo for Muhammad Jameel

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

Date of hearing: 11.10.2022

Date of judgment: 11.10.2022

J U D G M E N T

IRSHAD ALI SHAH, J- It is alleged that the appellants with one more culprit robbed complainant Abid Ahmed of his motorcycle, for that they were booked and reported upon. On conclusion of trial, they were convicted under Section 397 PPC and sentenced to undergo rigorous imprisonment for 07 years with benefit of section 382(b) Cr.P.C, by learned Additional Sessions Judge XII, Karachi East vide judgment dated 11.12.2021 which is impugned by them before this Court by preferring two separate appeals, one through counsel and other from jail.

2. None has appeared to advance arguments on behalf of appellant Muhammad Jameel, who has preferred the appeal from jail. However, learned counsel for appellant Muhammad Haroon by covering the case of both the appellants sought for their acquittal by contending that they being innocent have been involved in this case falsely by the police and they have been convicted by learned trial Court virtually 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 the appellants beyond shadow of doubt and on arrest from them have been secured the robbed motorcycle and pistol which they allegedly used in commission of incident.

4. Heard arguments and perused the record.

5. The names and descriptions of the appellants are not disclosed in the FIR by the complainant though it is lodged with delay of about 03 days, such delay even otherwise having not been explained plausibly could not be overlooked. The appellants have not been subjected to identification parade through the Magistrate; such omission on the part of police could not be ignored. If for the sake of arguments, it is believed that the appellants have confessed their guilt before police, even then their such confession before police could not be used against them in terms of Article 39 of the Qaunun-e-Shahadat Order, 1984. Nothing has been brought on record by the complainant, which may prove that the robbed motorcycle was actually owned by him. 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 are found 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 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".

8. 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.

9. Instant appeals are disposed of accordingly.

JUDGE