IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Appeal No. 482 of 2021

Appellant: Javed Iqbal Khan through Mr. Rao Taj advocate

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

Date of hearing: 20.10.2022

Date of judgment: 20.10.2022

J U D G M E N T

IRSHAD ALI SHAH, J- It is alleged that the appellant with rest of the culprits committed theft of diesel by tempering with the distribution line of PEPCO, for that the present case was registered. After due trial, co-accused Bahauddin Fareed Mazhar and Waqar Ahmed were acquitted while appellant and co-accused Muhammad Akbar were convicted u/s 462/B PPC and sentenced to undergo rigorous imprisonment for 07 years and to pay fine of Rupees One Million each and in default whereof to undergo rigorous imprisonment for 06 months; they were further convicted under Section 462/C PPC and sentenced to undergo imprisonment for 05 years and to pay fine of Rupees Five Lacs each and in default whereof to undergo rigorous imprisonment for 03 months; all the sentences were ordered to run concurrently with benefit of section 382(b) Cr.P.C by learned V-Additional Sessions Judge, Malir vide judgment dated 12.08.2021 which was impugned by the appellants by preferring two separate appeals; the appeal preferred by appellant Muhammad Akbar has abated on account of his death, while the appeal preferred by the appellant Javed Iqbal is now being disposed of by way of instant judgment.

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 at the instance of the complainant party and co-accused Bahauddin Fareed Mazhar and Waqar Ahmed have been acquitted on the basis of same evidence. By contending so, he sought for acquittal of the appellant.

3. None has appeared to advance arguments on behalf of the complainant. However, learned DPG for the state by supporting the impugned judgment has sought for dismissal of the appeal by contending that on arrest from appellant has been secured 03 liters of stolen diesel.

4. Heard arguments and perused the record.

5. Complainant Syed Shahid Iqbal and P.W Aziz-ur-Rehman besides supporting the case of the prosecution on factual premises, on asking were fair enough to admit that they have not seen the appellant committing the theft of diesel by tempering with the pipeline. It prima facie creates doubt about the involvement of the appellant in commission of the incident. P.W/mashir PC Mehmood on account of his failure to support the case of prosecution was declared hostile. P.W I.O/SIP Zahoor Ahmed was fair enough to admit that he did not call owner of the place of incident. Why he was not called? No explanation to it is offered by the prosecution. P.W I.O/SIP Muhammad Owais was fair enough to admit that neither the appellant is owner of the plot whereupon the alleged incident has taken place nor anything was secured from his possession. In these circumstances, it would be safe to conclude that the prosecution has not been able to prove its case against the appellant beyond shadow of doubt to such benefit he is found entitled.

6. 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”.

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 appellant by way of impugned judgments 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.

9. The instant appeal is disposed of accordingly.

JUDGE