THE HIGH COURT OF SINDH AT KARACHI

Special Criminal Anti-Terrorism Jail Appeal No. 202 of 2019

Before:

Mr. Justice Mohammad Karim Khan Agha

Mr. Justice Irshad Ali Shah

Appellant: Abid Masih through Mr. Habib-ur-Rehman Jiskani advocate

Respondent: The State through Mr. Muhammad Iqbal Awan Additional Prosecutor General Sindh

Date of hearing: 01.10.2021

Date of announcement: 06.10.2021

J U D G M E N T

IRSHAD ALI SHAH, J- It is alleged that the appellant and absconding accused Kaka robbed complainant Muhammad Usman of his money and cell phones, they were chased by the police party, led by ASI Qurban Ali, the absconding accused made his escape good while the appellant after an encounter, was apprehended by police together with the pistol of 9.mm bore and motorcycle, which he allegedly used in the commission of the incident for which he was booked and reported upon.

2. After due trial, the appellant was found guilty for the above said incident, consequently, he was convicted and sentenced to various terms spreading over 10 years with fine by learned Judge, ATC-XV, Karachi vide judgment dated 15.06.2019, which is impugned by the appellant before this Court by preferring the instant Special Criminal Jail Appeal.

3. 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 evidence of the prosecution witnesses being doubtful in its character has been believed by learned trial Court without lawful justification, therefore, the appellant is liable to his acquittal by extending him benefit of doubt.

4. Learned Addl. P.G for the State by supporting the impugned judgment has sought for dismissal of the instant appeal.

5. We have considered the above arguments and perused the record.

6. ASI Qurban Ali who allegedly apprehended the appellant at the spot and recovered from him the crime weapon and motorcycle on account of his failure to identify the appellant has been declared to be hostile to the prosecution. PW mashir Muhammad Umar during course of his examination was fair enough to say that he is unable to identify the appellant; the pistol was shown to him at the police station and it was also sealed at the police station. By stating so, he belied ASI Qurban Ali that it was sealed at the spot. As per complainant Muhammad Usman, the encounter whereby the appellant was allegedly apprehended by the police together with unlicensed pistol of 9.mm bore and motorcycle proved to be ineffective in all respects. As per I.O/ SIP Javaid Hussain there is no recovery of any robbed articles from the appellant. 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.

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 the facts and reasons discussed above, the conviction and sentence awarded to the appellant by way of impugned judgment are set aside, consequently, the appellant is acquitted of the offences for which he has been charged, tried and convicted by the learned trial Court, he shall be released forthwith in present case, if he is not required to be detained in any custody case.

9. The instant appeal is disposed of accordingly.

JUDGE

JUDGE

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