2013 PLP 429 (MLD)

NISAR MUHAMMAD SHAIKH, J.

By consent of the parties this Criminal Appeal is taken up for regular hearing as, according to them, the short points are involved in this matter.

2. The appellant Shahzada Shahbaz alias Kashif was convicted for the offence under section 392/34 P.P.C. vide judgment dated 10-9-2011 passed by learned VIII-Assistant Session Judge Karachi (East) whereby she sentenced the appellant in Crime No.52 of 2009 of Police Station Bahadurabad, to suffer R.I. for 7 years and to pay fine of Rs.20,000 and in case of default in payment, to further suffer S.I. for one month. He was given benefit of section 382-B, Cr.P.C.

3. I have heard learned counsel for the parties and A.P.-G. for the State and also perused the record.

4. It is an admitted position that in this robbery case, the complainant Syed Ali Imran Shah Zaidi as well as his wife Mst. Amina Zohra were not examined by the prosecution before the trial Court, though they were the star witnesses as their articles including the cash and mobile phone, were allegedly robbed by the four unknown culprits who could only be identified by these victims of alleged robbery. The case of prosecution, rests upon the recovery and in this connection, the evidence of Investigating Officer namely Taj Muhammad Wasan S.I.U. of Police Station Jamsheed Quarters as well as mashir HC Rizwan Baig was recorded by the trial Court. According to their evidence, the present appellant was arrested on 5-9-2009 in connection with some other cases being Crime No.551 of 2009 and Crime No.552 of 2009 and recovery of many articles including 30 mobile phones, was effected from him. The evidence of these witnesses further shows that during interrogation of the police, the appellant disclosed that he along with others had committed robbery from the complainant in this case, about 7/8 months back. They further stated that one of the recovered articles i.e. a Mobile Phone, was pointed out by the appellant to be of the complainant. All the case properties were already lying in the police malkhana and the same were allegedly recovered from appellant. Learned A.P.-G. admits that this is the only piece of evidence that has been collected by the police during investigation against the present appellant. As per the F.I.R. dated 25-3-2009 of the complainant, the alleged robbery was committed on 23-3-2009 in which many articles of complainant and his wife were robbed and recovery of only one mobile phone is shown to have been effected on the pointation of the appellant from the police Malkhana on 10-9-2009 after the arrest of appellant on 5-9-2009.

5. Although the recovery of such a case property from Malkhana, on the disclosure of the appellant during the police interrogation, is not believable to connect the appellant for the alleged crime, yet such recovery after about 6 months of alleged robbery could not be relied upon specially in absence of evidence of complainant, to warrant conviction of the appellant, which is therefore not sustainable in law and calls for interference of this court.

6. In the circumstance, the conviction and sentence awarded to appellant through impugned judgment, are hereby set aside and the appellant is acquitted of the charge and he is directed to be released forthwith if not required in any other case. This appeal stands allowed accordingly. MWA/S-55/K Appeal allowed.