IN THE HIGH COURT OF SINDH, AT KARACHI
Criminal Appeal No. 513 of 2021
Criminal Appeal No. 535 of 2021
Appellants: Muhammad
Kashif and Tahir Nawaz through M/s Muhabbat Ali Ujjan and Sajjad Gul Khatri
advocates
The State: Through
Mr. Abrar Ali Khitchi, Additional Prosecutor General Sindh
Date of hearing: 21.09.2022
Date of judgment: 21.09.2022
J U D G M E N T
IRSHAD ALI SHAH,
J- It is alleged that the appellants robbed complainant Umer Rauf of his
cell phone, for that they were booked and reported upon by the police. After
due trial, they were convicted for an offence punishable under Section 397 PPC
and sentenced to undergo rigorous imprisonment for 07 years each with benefit
of section 382-B Cr.P.C by learned Xth-Additional Sessions Judge, Karachi South
vide judgment dated 23.08.2021, which they have impugned before this Court by
preferring two separate appeals.
2. It
is contended by learned counsel for the appellants that the appellants being
innocent have been involved in this case falsely by the police by making
foistation of robbed cell phone and crime weapons and evidence of the P.Ws
being doubtful in its character has been believed by learned trial Court
without assigning cogent reasons, therefore, they are entitled to their
acquittal by extending them benefit of doubt.
3. None
has come forward to advance arguments on behalf of the complainant. However,
learned Addl. P.G for the state by supporting the impugned judgment has sought
for dismissal of the instant appeals.
4. Heard
arguments and perused the record.
5. As
per the complainant he was robbed of his cell phone without SIM Card by the
appellants and on his cries, the police party led by HC Ali Nawaz came at the
spot, apprehended the appellants and recovered from them his robbed cell phone and
two revolvers of 32 bore, which they used in commission of the incident. Nothing
has been brought on record by the complainant which may prove his ownership
over the alleged robbed cell phone. As per HC Ali Nawaz he on hearing cries of
the complainant, went at the place of incident together with his police party
and apprehended the appellants and secured from them the robbed cell phone and
revolvers under memo which was attested by P.Ws/mashirs PCs Uzair, Raheem Dad
and Maroofullah. It is contrary to record, such memo is attested by complainant
Umer Rauf and P.W/mashir PC Raheem Dad. On being asked who prepared such memo?
It was stated by him that it was prepared by Munshi Aquib. How it was prepared
by Munshi Aquib when he was not the member of police party? It smells of something
wrong. Munshi Aquib being author of said memo has not cited as a witness by the
prosecution; such omission has made the arrest of the appellants and recovery
of robbed cell phone and crime weapons from them as alleged by the prosecution to
be doubtful. No doubt P.W/I.O SIP Zulifqar Ali has attempted to support the
case of prosecution, but his evidence alone is not enough to make a conclusion
that the prosecution has been able to prove its case against the appellant
beyond shadow of 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 impugned judgment
is set aside, consequently, appellants
are acquitted of the offence for which they were charged, tried and convicted
by learned trial Court and they shall be released forthwith, if are not
required to be detained in any other custody case.
8.
The instant appeals are disposed
of accordingly.
JUDGE