IN THE HIGH COURT OF SINDH, AT KARACHI
Criminal Appeal No. 156 of 2022
Criminal Jail Appeal No. 164 of 2022
Appellants: Furqan
through Mr. Khurram Maqsood advocate
Nemo
for Ahmed Raza
The State: Through
Mr. Khadim Hussaim, Additional Prosecutor General Sindh
Date of hearing: 27.09.2022
Date of judgment: 27.09.2022
J U D G M E N T
IRSHAD ALI SHAH,
J- It is alleged that the appellants
and co-accused Bilal, Yasir, Mahfooz and Muhammad Farhan robbed complainant
Muhammad Shahrukh of his cell phone, cash worth Rs.5000/- and copy of his CNIC,
for that they were booked and reported upon. After due trial, co-accused Bilal,
Yasir, Mahfooz and Muhammad Farhan were acquitted while appellants were
convicted for offence punishable under Section 395 PPC and sentenced to undergo
R.I for 04 years and pay fine of Rs.25,000/- each and in default whereof to
undergo simple imprisonment for 06 months with benefit of section 382-B Cr.P.C
by learned
II-Additional Sessions Judge, Central Karachi vide judgment dated 07.12.2021,
which is impugned by the appellants before this Court by preferring two
separate one from jail and other through counsel.
2. None
has appeared to advance arguments on behalf of appellant Ahmed Raza, however,
learned counsel for appellant Furqan sought for his acquittal by contending
that he being innocent has been involved in this case falsely by the police and
has been convicted by learned trial Court on the basis of no evidence.
3. Learned
Addl. P.G for the State has sought for dismissal of instant appeals by
contending that the prosecution has been able to prove its case against them
beyond shadow of doubt and on arrest from them have been secured the robbed
cell phone of the complainant.
4. Heard
arguments and perused the record.
5. The
names and descriptions of the appellants are not appearing in the FIR though it
is lodged with unexplained and unplausible delay of about 04 days which appears
to be significant. The appellants have not been subjected to identification
parade, such omission on part of I.O/SIP Rafaqat could not be lost sight of.
The identity of the cell phone by the complainant at police station New Karachi
Industrial Area without involvement of Magistrate could hardly be relied upon.
The identity of the appellants by the complainant at trial carry no importance
legally. On the basis of same evidence, co-accused Bilal, Yasir, Mahfooz and
Muhammad Farhan have been acquitted, while appellants have been convicted by
learned trial Court. In these circumstances, it could be concluded safely that
the prosecution has not been able to prove its case against the appellants
beyond shadow of doubt and they too are entitled to such benefit.
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 the case of Sohail Abbas and others vs. Kashif and others (PLD 2001 S.C 546), it has been held by Honourable Apex court
that;
“There is nothing available on record to
indicate why identification parade of the accused persons was not held.
Admittedly they were not known to the witnesses and in such circumstances if
identification parade is not held, it becomes virtually impossible, in absence
of any other evidence, to connect, with the alleged occurrence. The witnesses
in their statements under section 161, Cr.P.C. did not mention the features of
the accused persons nor other description like height and weight. They saw the
accused for the first time in Court after about 2 years. In such circumstances,
their asserting that the accused are the same who had committed the murder, no
importance can be attached to it in the absence of any identification parade.”
9. 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".
10. 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, convicted and sentenced by learned trial Court and they shall be
released forthwith, if are not required to be detained in any other custody
case.
11.
Instant appeals are disposed of
accordingly.
JUDGE