IN THE HIGH COURT OF SINDH, AT KARACHI
Criminal Appeal No. 910 of 2019
Criminal Jail Appeal No. 134 of 2020
Appellant(s): Nemo
for appellants Muhammad Shahzad alias Babul and Umair
The State: Through
Mr. Khadim Hussain, Additional Prosecutor General Sindh
Date of hearing: 15.09.2022
Date of judgment: 15.09.2022
J U D G M E N T
IRSHAD ALI SHAH,
J- It is alleged that the appellants and co-accused Haris robbed
complainant Shakeel Ali and his witnesses of their cell phones and other
belongings, for that the present case was registered. After due trial,
co-accused Haris was acquitted while appellants were convicted under Section
397 PPC and sentenced to undergo rigorous imprisonment for 07 years with
benefit of Section 382-B Cr.P.C, passed by Assistant Sessions Judge-XVI,
Karachi West, vide judgment dated 11.11.2019, which is impugned by the
appellants before this Court by preferring two separate appeals, one from jail
and other through counsel.
2. The
appellants as per jail roll have already been released on completion of their
jail terms and probably this appears to be reason with them for having
neglected these appeals, those could not be kept pending on file of this court,
for want of their appearance together with their counsel, therefore, it was
decided to be disposed of on merits after hearing learned Addl. P.G for the
state.
3. Learned
Addl. P.G for the state by supporting the impugned judgment has sought for
dismissal of the instant appeals by contending that the appellants have
admitted their guilt before the police and on arrest from them have been secured
the robbed cell phones.
4. Heard
arguments and perused the record.
5. The
names and descriptions of the appellants are not appearing in FIR or even in
161 Cr.P.C statements of the P.Ws. The delay in lodgment of the FIR by 02 days
could not be overlooked. The very case at one moment was disposed of under “A”
Class. On arrest as per I.O/ASI Tariq Alam, the appellants and co-accused Haris
admitted their guilt before him and they were identified by the complainant and
his witnesses at police station Madina Colony. If for the sake of arguments, it
is believed that such statement was made by the appellants even then same could
not be used against them being inadmissible in terms of Article 39 of the
Qanun-e-Shahdadat Order, 1984. The identification of the appellants by the
complainant and his witnesses at police station without involvement of the
Magistrate could hardly be relied upon. Neither the complainant nor any of his
witness was able to produce any document which could have proved their
ownership over the recovered cell phones, those even otherwise, are alleged by
the appellants to have been foisted upon them by the police. In that situation,
it could be concluded safely that the prosecution has not been able to prove
its case against the appellants beyond shadow of doubt and to such benefit they
are entitled which has already been extended by learned trial court to
co-accused Haris by recording his acquittal.
6. In case of Muhammad Asif vs the State (2008
SCMR 1001), it has been held by Hon’ble apex Court that;
“…..yet there is a delay of about two hours
which has not been explained. Similarly P.W.7 stated during cross-examination
that the police reached the spot at twelve noon and about half an hour was
consumed in conducting inquest proceedings and thereafter the dead body was
sent to the hospital. He further stated that he accompanied the dead body which
was taken in a wagon to the hospital and that it took only 15 or 20 minutes in
reaching the hospital. In that case the dead body would have been received at
the hospital by 1-00 p.m. On the contrary, the doctor, who is an independent
witness, stated that he immediately started post mortem examination after the
receipt of body and the time of post-mortem given by him was 4-50 p.m. that
means that the body remained at the spot for quite some time. The F.I.Rs. which
are not recorded at the police station suffer from the inherent presumption
that the same were recorded after due deliberations…...”
7. 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”.
8. 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".
9. In view of above, the conviction and
sentence awarded to the appellants by way of impugned judgment are set-aside,
consequently, they are acquitted of the offence for which they were charged,
tried and convicted by learned trial Court. Since they have already been
released in the present case by jail authorities on completion of their jail
terms, therefore, no formal order of their release is being passed.
10. Both the appeals are disposed of
accordingly.
JUDGE