2010 PLP 223 (YLR)

SALMAN ANSARI, J.

This Criminal Appeal has been filed on behalf of appellant Sarfraz son of Muhammad Ibrahim who was convicted by judgment dated 6-2-2006 passed by the learned Sessions Judge Karachi South to under-go R.I. 4 years and to pay fine of Rs.20,000 and in default of payment of fine to undergo 3 months R.I. more with benefit of section 382-B, Cr.P.C. The conviction was awarded under section 392, P.P.C.

2. Brief facts of the case according to F.I.R. lodged by one Abdul Qadir at Police Station, Kharadar, Karachi that on 2-7-2005 at about.1400 hours while he along with his friend Abdul Basit were going to Jelani Centre to sell his mobile phone set made Samsung Model N-700, when they reached at Bagh-e-Zuhra Road a boy whose name they later on learnt as Sarfraz suddenly came in front of complainant with "Ustra/razor" in his hand threatened to kill. Due to fear they handed over the shopper containing mobile phone and the culprit ran away, on their commotion of `dako' `dako' a police mobile arrived and A.S-I Khalil Ahmed on pointation apprehended the cul prit, from where he was taken to the police station where the memos. of arrest, seizure and personal search were prepared and F.I.R. was lodged at 1445 hours (Exh.5/1).

3. After conclusion of investigation the challan was submitted and appellant pleaded not guilty, claimed to be tried. The prosecution in support of its case examined P.W. 1 Khalil Ahmed at Exh.4 who brought on record Mashirnama of arrest and recovery Exh.4/A. P.W.2 Muhammad Akram at Exh.5 who brought on record F.I.R. at Exh.51A, P.W.3 Abdul Qadir (complainant) at Exh.6, who brought on record Mashirnama of inspection of Wardat at Exh.6/A, P.W.4 Abdul Basit at Exh.7, P.W.5 Habibullah at Exh.8 and P.W.6 Khalil Ahmed at Exh.9. Vide statement Exh.10 learned DDA closed the prosecution.

4. The statement of appellant was recorded under section 342, Cr.P.C. at Exh.11. He denied having committed offence and claimed to be innocent, however declined to give evidence on Oath under section 340(2), Cr.P.C.

5. Learned counsel for appellant/ convict has argued that the material witnesses have not supported the prosecution case and failed to identify the appellant. Both the policemen have given different versions of the place of incident, although same is a very busy locality but no other independent private witness has been associated with arrest, search and recovery. The trial Court has not considered that both the main witnesses namely Abdul Qadir (complainant) and his friend Abdul Basit have not supported the prosecution case on the point of identification which would make this case doubtful therefore the benefit of doubt should be given to the appellant.

6. Learned counsel appearing for the State conceded quite candidly where the complainant and other eye-witness Abdul Basit have not identified the appel lant, he should have been given benefit of doubt.

7. Taking into consideration the arguments of the parties in this case. It is the prosecution case that on the hue and cry raised by the complainant Abdul Qadir and his friend Abdul Basit the chase had been taken by police in which police had apprehended the culprit from whom the Razor/Ustra and the plastic bag containing mobile phone was recovered and the complainant had acted as witness of the alleged seizure, recovery and memo. of place of Wardat, though both the witnesses had narrated the facts as given in F.I.R. but had failed to identify the appellant Sarfraz in the Court. The P.W. Abdul Basit was declared hostile by the prosecution hence in my opinion there are only police witness who supported the prosecution case of an incident which had been taken place in a very crowded locality of the city. No other private witness has been associated regarding arrest, search and recovery.

8. In such circumstances, in my opinion the appellant should have been given benefit of doubt. Accordingly, I allow this appeal and acquit the appellant Sarfraz and set aside the impugned judgment dated 6-1-2006. H.B.T./S-15/K Appeal allowed.