IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Cr. Appeal No.S-56 of 2022
Appellants Hameedullah Rind, Hazar Khan Veesar Abro, Azhar Iqbal Abbasi and Muhammad Qasim Khokhar through Mr. Imtiaz Ali Mugheri, advocate.
The State: Through Mr. Aitbar Ali Bullo, D.P.G
Date of hearing: 27-04-2023
Date of Judgment: 27-04-2023
J U D G M E N T
Zulfiqar Ali Sangi,J;- Through listed Criminal Appeal, appellantsimpugnthe judgmentdated 25.10.2022, passed by the learned Additional Sessions Judge-II, Jacobabad in Sessions Case No. 253/2022, (re: The State V/S Hameedullah and others), emanating from FIR bearing Crime No.39/2022 of P.S. City Jacobabad, for the offence U/S 395, 412 and 506/2 P.P.C, whereby the learned trial court has convicted the appellants for offence U/S 395 P.P.C and sentenced them to suffer R.I for ten years each, with fine of Rs.100,000/- on each accused. In case of default in payment, each accused shall further undergo S.I for six months more. The benefit of section 382-B Cr.P.C was also extended to the accused.
2. The facts of the prosecution case are thatComplainant Mukesh Kumar lodged FIR on 26.03.2022 at 2010 hours, stating therein that he has business of clothes in market and on the night of incident i.e 25.03.2022, he had taken Rs.15,00,000/- to deposit in Meezan Bank, but bank had been closed, hence he brought aforesaid amount to his house, complainant along with his father Kamal Kumar, brother Ameet Kumar, mother Reshma, were present in the house and Mst.Guddi came to meet with the mother of complainant. At about 07-00 P.M, they saw on light of electric blubs, 05 persons armed with TT pistols entered into his house and they identified two persons namely Hameedullah Rind and Hazar Khan Veesar Abro, whereas remaining three were unknown and could be identified if seen again. On the force of weapons, accused controlled complainant party and went inside the room. Accused Hameedullah and Hazar Khan robbed Rs.15,00,000/-, two gold necklace (Duhhries), each weighing 05 tola, one gold Wairh of half tola, two gold lady finger rings weighing 01 tola, two ear rings weighing one and half tola, 04 bangles weighing 06 tola, two male fingers rings weighing one tola, two gold chain weighing 02 tola, one mobile set Samsung touch screen mobile F3, with SIM card, one OPPO mobile set, one mobile set of Realme touch screen model Z2 from iron box lying in the room. Accused also robbed 04 gold bangles weighing 05 tola from Mst.GuddiBai. Complainant grappled with accused, hence CNIC card of accused had fallen, on which accused Hameedullah pointed TT pistol on head of complainant and asked to leave, else he would be done to death. Thereafter, all accused went away along with robbed property. Complainant informed the police and the police came at spot and recovered CNIC card of accused showing his name Muhammad Qasim S/o Muhammad Rafique Originally r/o Fattah Abad, Faisalabad at present police colony Khuzdar. Police collected CCTV recording from area, then complainant came to know that accused had come in car which they parked at other place, thereafter complainant lodged FIR.
3. After usual investigation case was challaned, necessary papers were supplied to the accused and then the charge was framed to which they pleaded not guilty and claimed to be tried.
4. In order to substantiate the charge, the prosecution has examined as many as six witnesses, who produced the certain items and documents. Thereafter the side of prosecution was closed. Trial Court recorded statements of accused under section 342 Cr.P.C, wherein the appellants/accused denied the prosecution allegations and claimed their false implication in this case.Accused neither examined themselvesU/S 340(2) Cr.P.C, nor led any evidence in their defence.
5. After assessment of evidence, learned trial court passed the above impugned judgment wherein the appellants were convicted and sentence as stated above. Being aggrievedand dissatisfied with the said judgment, the appellants/accused above named haspreferred this criminal appeal.
6. Learnedcounsel for the appellants has contended that theappellantsare innocent and havefalsely been implicated in this case; that trial Judge has not appreciated the evidence properly; that the complainant and eye witnesses have not identified present appellants before court during the trial; that entire story of the alleged incident is concocted, managed and engineered one; that the conclusion reached by the learned trial judge is based on misreading and non-reading of the evidence. He further submitted that the prosecution has miserably failed to prove the charge against the appellants, hence the judgment is liable to be set aside and the appellants may be acquitted of the charge.
7. The learned D.P.G submits that the appellants/accused are involved in this case by the complainant and no any enmity has been suggested by the appellants; that the complainant and eye witnesses have implicated accused in F.I.R and in 161 Cr.P.C statements respectively, but they being Hindu/Non-Muslim belonging to minority could not stand against accused; that from the evidence recorded by the trial court the offence u/s 412 Cr.P.C is proved, as cash amount, gold ornaments and cell phones robbed by accused on the day of incident have been recovered from them; that there is also recovery of crime weapons from accused Muhammad Qasim, Hameedullah and Hazar Khan. He further submits that this offence had created sense of insecurity and safety in the minds of citizens. He prayed that the appeal of the appellants may be dismissed.
8. I have heard learned counsel for the appellants, learned Deputy Prosecutor General and have gone through the material available on the record with their able assistance.
9. The prosecution produced three eye-witnesses Mukesh Kumar PW-1 (complainant), Ameet Kumar and Reshma Devi (eye-witnesses) of the incident before the trial court. They while supporting the happening of incident have not supported the case against the present appellants. All the witnesses deposed that 05 unknown culprits with muffled faces, armed with T.T pistols entered in the house and robbed the articles alleged in the FIR.The complainant deposed that the accused persons nominated in the FIR were not nominated by him as they have not committed the offence. PW-2 Ameet Kumar while not supporting the case against the appellants also deposed that accused nominated in the case were not available at the time and place of incident nor they have committed the offence. It was also deposed by all the three witnesses that FIR was lodged by them as suggested by the notables. All the three eye-witnesses were cross-examined by the DDPP for the state and they denied the suggestions made to them by the DDPP that the accused persons were nominated by them and due to compromise with the accused they are not supporting the case.Since there is no direct evidence against the appellants for committing the offence as alleged in the FIR, therefore, there appears only against them the recovery of robbed articles from their possession for which prosecutionnowhere gave description of the robbed gold ornaments nor did the complainant produce any receipt of its purchasing etc. The recovery witnesses are police officials and no private person was made as witness of the alleged recovery.After the recovery there appears no evidence that the complainant party identified the said articles to be the same which were robbed from them and in absence of the descriptions and the identification it cannot be said with certainty that the recovered property is that which was allegedly stolen. Reliance is placed on cases of Noor Ullah v. State, (2012 YLR 2618); Changez v. Shahid, (2018 MLD 1136) and Tariq Hussain v. State, 2018 MLD 1573.It is observed that no goldsmith was examined by the prosecution to prove that said ornaments were sold out to the complainant by him.Even the prosecution witnesses have not produced any receipt to prove the same. There is no evidence that when these gold articles were purchased by the complainant.In such circumstances the alleged recovery cannot be used against the appellants.Reliance is placed on case of Naveed Asghar and 2 others v. The State (PLD 2021 SC 600).
10. It is an established principle of law that an accused person is presumed to be innocent until and unless he is proved guilty beyond a reasonable doubt and this presumption of his innocence continues until the prosecution succeeds in proving the charge against him beyond a reasonable doubt on the basis of legally admissible, confidence-inspiring, trustworthy and reliable evidence. It has also been held by the Superior Courts that the conviction must be based upon unimpeachable evidence and certainty of guilt and any doubt arising in the prosecution case must be resolved in favour of the accused. The rule of giving benefit of doubt to an accused person is essentially a rule of caution and prudence and is deep-rooted in our jurisprudence for the safe administration of criminal justice. In common law, it is based on the maxim, "It is better that ten guilty persons be acquitted rather than one innocent person be convicted". While in Islamic criminal law it is based on the high authority of sayings of the Holy Prophet of Islam (Peace Be Upon Him): “Avert punishments (hudood) when there are doubts” and “Drive off the ordained crimes from the Muslims as far as you can. If there is any place of refuge for him [accused], let him have his way, because the leader's mistake in pardon is better than his mistake in punishment.” The Hon’ble Supreme Court has quoted probably the latter part of the last-mentioned saying of the Holy Prophet (PBUH) in the case of AyubMasih v. State (PLD 2002 SC-1048) "Mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent." The same principle has also been followed by the Honourable Supreme Court of Pakistan in the recent Judgment in case of Naveed Asghar and 2 others v. The State (PLD 2021 SC-600). It is also settled principle of law that if a single circumstance creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to such benefit not as a matter of grace and concession, but as a matter of right, as has been held in case of Tariq Pervez v. The State(1995 SCMR-1345), wherein the Honourable Supreme Court of Pakistan has held as under:-
"The concept of benefit of doubt to an accused person is deep-rooted in our country for giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubt. If there is any circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right".
11. The sequel of above discussion is that the learned trial Court has committed illegality while recording conviction/sentence erroneously, holding the present appellants as guilty of the alleged offence. Consequently, instant criminal appeal is allowed; the conviction and sentence awarded to the appellants by learned trial Court vide impugned judgment are set-aside and they are acquitted of the charged offence. Office is directed to issue release writ, directing the concerned jail authority to release the appellants forthwith in the present case if they are not required in any other custody case.
12. The instant criminal appeal is disposed of accordingly.
JUDGE