IN THE HIGH COURT
OF SINDH, AT KARACHI
Criminal Appeal No.107 of 2022
Appellant: Asif
Khan @ Babal through Mr. Jamroz Khan Afridi advocate
The State: Through
Mr. Fahim Hussain Panhwar, Deputy Prosecutor General Sindh
Date of hearing: 28.10.2022
Date of judgment: 28.10.2022
J U D G M E N T
IRSHAD ALI SHAH, J- It is alleged that the appellant committed
murder of Ayaz Ali by causing him injuries with some sharp cutting weapon
during course of robbery of his cell phone, NIC and Rs.200/- for that he was
booked and reported upon by the police. On conclusion of trial, he was
convicted under section 302(b) PPC and sentenced to undergo life imprisonment
and to pay compensation of Rs.500,000/- to the legal heirs of the deceased and
in default whereof to undergo simple imprisonment for 06 months; he was further
convicted under Section 392 PPC and was sentenced to undergo rigorous
imprisonment for 03 years and to pay fine of Rs.20,000/-; all the sentences
were ordered to run currently with benefit of Section 382(b) Cr.P.C, by learned
X-Additional Sessions Judge South vide judgment dated 09.02.2022, which is
impugned by the appellant before this Court by preferring this appeal.
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 complainant party and he has been
convicted and sentenced by learned trial Court virtually on the basis of no evidence,
therefor he is entitled to acquittal by extending him benefit of doubt.
3. None has come forward 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 instant appeal
by contending that the appellant has admitted his guilt before the police and
from him has been recovered the robbed property and crime weapon.
4. Heard arguments and perused the record.
5. Admittedly, none has seen the appellant
committing the alleged incident. He as per I.O/SIP Hameedullah was apprehended by
him on the basis suspicious and during course of interrogation he confessed his
guilt. If for the sake of arguments, it is believed that such confession was
actually made by the appellant before the said I.O/SIP, even then same being
inadmissible in evidence in terms of Article 39 of the Qanun-e-Shahadat Order,
1984 could not be used against him. It was further stated by him that on the pointation
of the appellant he secured cell phone of the deceased and dragger which he
allegedly used in commission of incident under memo which was prepared at the
spot. Nothing has been brought on record which may suggest that the cell phone allegedly
secured on pointation of the appellant was actually owned by the deceased. Even
otherwise, as per P.W/mashir Muhammad Ismail such memo was prepared by the
police at police station. By stating so, he made the alleged recovery of the
robbed property and crime weapon to be doubtful which suggests its foistation.
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 reasonable
doubt.
6. 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".
7. In view of 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 and he shall be released
forthwith, if is not required to be detained in any other custody case.
8. Above are the reasons of short order
dated 28.10.2022, whereby the instant criminal appeal was allowed.
.
J U D G E