IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR.

Crl. Appeal No. S – 61 of 2022

Appellants: 1. Akhtiar Ali s/o Muhammad Hashim Vistro.

2. Sajid s/o Muhammad Hashim Vistro.

3. Ghulam Hussain s/o Sulleman Vistro.

4. Mumtaz Ali s/o Sulleman Vistro.

5. Ahsan Ali s/o Sulleman Vistro.

6. Sikandar Ali s/o Sulleman Vistro.

Through Mr. Nusrat Hussain J. Memon, Advocate.

Complainant: Hussain Bux s/o Sultan Khan Vistro.

Through Mr. Haji Shamsuddin Rajper, Advocate.

The State: Through Mr. Shafi Muhammad Mahar, Deputy Prosecutor General.

Date of hearing: 06-02-2023.

Date of decision: 06-02-2023.

J U D G M E N T

IRSHAD ALI SHAH, J. It is alleged that the appellants during course of robbery of cell phone and Rs.10,000/- caused lathi and butt blows to complainant Hussain Bux, P.Ws Feroz Gul and Kashif Hussain, for that they were booked and reported upon by the police. On conclusion of trial they were convicted and sentenced to various terms of imprisonment spreading over 07 years with fine etc; those were ordered to run concurrently with benefit of Section 382-B, Cr.P.C by learned IInd Additional Sessions Judge Naushahro Feroze vide judgment dated 17.08.2022 which is impugned by the appellants before this Court by way of instant appeal.

2. It is contended by learned counsel for the appellants that the appellants being innocent have been convicted and sentenced by learned trial Court on the basis of misappraisal of evidence, ignoring the delay of more than 04 months in lodgment of FIR, therefore they are entitled to their acquittal by extending them benefit of doubt.

3. Learned DPG and learned counsel for the complainant have sought for dismissal of the instant appeal by contending that the prosecution has been able to prove its case against the appellants beyond shadow of doubt.

4. Heard arguments and perused the record.

5. The FIR of the incident has been lodged by the complainant with delay of more than 04 months such delay having not been explained plausibly has made the version of the complainant, P.Ws Feroz Gul and Kashif Hussain to be doubtful one. The complainant and his witnesses as per medical certificate issued by Medical Officer Dr. Usman Ali were found sustaining the injuries which obviously are bailable in nature. I.O/SIP Muhammad Urs on asking was fair enough to admit that the parties were disputed over matrimonial affairs, they fought with each other but no robbery was committed. SIO/SIP Ghulam Abbas who finalized the investigation has not been examined by the prosecution for no obvious reason. By such omission the prosecution withheld the material piece of evidence which has prejudiced the appellants seriously in their defence. In these circumstances it would be safe to conclude that the prosecution has not been able to prove its case against the appellants beyond shadow of doubt and to such benefit they are found entitled.

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 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 appellants by way of impugned judgment are set-aside, consequently they are acquitted of the offence, for which they have been charged, tried, convicted and sentenced by the learned trial court, they shall be released forthwith, in the present case, if not required in any other custody case.

9. The above are the reason of short order dated 06-02-2023 where by the instant appeal was allowed.

J U D G E

Akber