IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Jail Appeal No. 02 of 2021

Appellant: Nemo for Sher Ali

The State: Through Ms. Seema Zaidi, Additional Prosecutor General Sindh

Date of hearing: 19.10.2022

Date of judgment: 19.10.2022

J U D G M E N T

IRSHAD ALI SHAH, J- It is the case of the prosecution that the appellant and co-accused Sher Dil robbed complainant Muhammad Naeem Akhtar of his cash worth Rs.5070/-and then made their escape good from the place of incident; they were chased and apprehended by police party of P.S Steel Town, led by ASI Muhammad Moosa after an encounter, thereby co-accused Sher Dil died after sustaining fire shot injuries; from them were secured the crime weapons, for that the present case was registered. On conclusion of the trial, the appellant was convicted under Section 397 PPC and sentenced to undergo rigorous imprisonment for 07 years, he was further convicted under section 324 PPC and sentenced to undergo rigorous imprisonment for 05 years with fine of Rs.5000/- and in default whereof to undergo simple imprisonment for 03 months; he was further convicted under Section 353 PPC and sentenced to undergo rigorous imprisonment for 01 year; all the sentences were ordered to run concurrently with benefit of section 382(b) Cr.P.C by learned Additional Sessions Judge-II, Malir, Karachi vide judgment dated 01.11.2016, which is impugned by the appellant before this Court by preferring the instant jail appeal.

2. As per jail roll, the appellant has already been released in present on completion of his jail term and perhaps this appears to be reason with the appellant to have neglected the instant appeal, therefore, it is being disposed of after providing chance of hearing to learned Addl. P.G for the state, who has supported the impugned judgment.

3. Heard arguments and perused the record.

4. As per prosecution, the appellant was apprehended after an encounter whereby his associate lost his life. None from police party sustained fire shot injury, which appears to be surprising. As per complainant Malik Muhammad Naeem the mashirnama was written by P.W ASI Muhammad Moosa which as per him was written by police constable at his dictation; such inconsistency could not be lost sight of as it has made the very preparation of mashirnama of arrest and recovery to be doubtful. The evidence of I.O/SIP Zakir Hussain is only to the extent that he after investigation submitted charge sheet of the case. If for the sake of arguments, his evidence is believed to be true even then it is not enough to improve the case of prosecution. In these circumstances, it is concluded safely that the prosecution has not been able to prove its case against the appellant beyond shadow of doubt.

5. 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".

6. In view of the facts and reasons discussed 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. No formal order of his release is being passed for the reason that he has already released in the above case after completion of his jail term.

7. The instant jail appeal is disposed of accordingly.

JUDGE