IN THE HIGH COURT OF SINDH, CIRCUIT COURT,
LARKANA.
Crl. Appeal No.S-45 of 2012
Appellant : Saeed Ahmed Solangi, through Mr. Athar Abbas
Solangi, Advocte.
Respondent : The State, through Mr. Shahzado Saleem Nahiyoon,
Assistant Prosecutor General.
Date of hearing: 28-09-2015. Date of Judgment: 28.09.2015.
J U D G M E N T.
SALAHUDDIN PANHWAR, J.- Through instant appeal, the Appellant Saeed Ahmed Solangi has assailed the judgment dated 18th May, 2012 passed by the learned 1st Additional Sessions Judge, Dadu in Sessions Case No.545/2011, “Re- State v. Saeed Ahmed Solangi”, (Crime No.67/2011 of P.S Sita Road, under Sections 354-A, 452, 34, PPC), whereby appellant was convicted and sentenced to suffer R.I. for five years under Section 452, PPC and to pay fine of Rs.10,000/-, in default whereof to undergo R.I. for three months more; he was also awarded sentence of R.I. for two years under Section 354 PPC and to pay fine of Rs.10,000/- in default whereof he was ordered to undergo R.I. for three months more. Benefit of Section 382-B, Cr.P.C was extended to the appellant.
2. Precisely, relevant facts are that Mst. Rukhsana wife of Khalid Hussain Palh lodged F.I.R contending therein that on 28.7.2011, she was washing the utensils on the floor of hand-pump of her house; her husband Khalid Hussain and brother Riaz Hussain were watching TV inside the room while electric bulbs were flashing. At about 8.30 p.m. accused Saeed Solangi, armed with pistol, alongwith two unknown persons, armed with hatchets, intruded into the house. Out of them one unknown person caught hold of her (complainant) from her arms while accused Saeed Ahmed striped of her shirt (Qameez) and started putting his hands inside the Qameez with intention to expose her (complainant) to public with intention to outrage her modesty.
3. The complainant produced torn Qameez before the author of F.I.R on 29.7.2011. During investigation, the investigating officer recorded statements of P.Ws Khalid Hussain and Riaz Hussain under Section 161, Cr.P.C on 29.7.2011 i.e very date of lodgment of FIR. Accused Saeed Ahmed was arrested on 31.7.2011 and after completing investigation the police submitted challan (charge sheet) in the Court of law on 15.8.2011 showing two unknown persons as absconders.
4. Accused Saeed Ahmed Solangi was charge sheeted to which he pleaded ‘not guilty’ and claimed trial.
5. At trial, prosecution examined Mst. Rukhsana as P.W-1 at Ex.4 who is complainant so also victim of the incident. She produced F.I.R at Ex.5; PW-2 ASI Ali Gul Qureshi at Ex.6 (author of F.I.R as well as investigating officer); he produced mashirnama of recovery of torn Qameez of complainant at Ex.7, mashirnama of place of wardat at Ex.8, mashirnama of arrest of accused Saeed Ahmed at Ex.9. The learned DDPP gave up PW Jalal (mashir) vide statement at Ex.10; thereafter DDPP closed the prosecution side by statement at Ex.11.
6. The statement of accused Saeed Ahmed was recorded as provided by Section 342, Cr.P.C at Ex.12. He declined to examine himself on Oath or any witness in his defense; however, he stated that case is false and he is innocent.
7. Learned Counsel for the appellant, inter alia, contends that material eyewitnesses i.e. husband of complainant namely Khalid Hussain and her brother Riaz Hussain were not examined by the prosecution, hence withholding of their evidence reflects that they were not supporting the prosecution case; this aspect alone is sufficient for acquittal of appellant. In support of this plea he has emphasized Article 129 of the Qanoon-e-Shahadat Order, 1984; though there is allegation that modesty of complainant was outraged and her clothes were torn but it is matter of record that such clothes were not produced or identified by complainant during trial; that the husband of complainant is serving in police department, inspite of that he has remained silent, which shows that story set up against the appellant is not believable; in fact one ASI, who has registered F.I.R, was having illicit relations with complainant, appellant being nekmard objected to such visiting terms, as such he was booked by said police official.
8. Learned APG admitted that clothes were not shown to the complainant for identification at trial. He is also unable to answer that why husband and brother of complainant were not examined at trial.
9. Heard learned Counsel and perused the record.
10. The prosecution case, as spelt out by FIR, in substance is that appellant alongwith two unknown persons trespassed and stripped of clothes of complainant Rukhsana when she was washing the utensils and at such time her husband Khalid Hussain and brother Riaz Hussain were watching the TV inside the room. It is indeed improbable and irrational that her husband and brother neither dared to intervene nor dared to come forward to act as complainant particularly when husband of the complainant namely Khalid Hussain is serving in the police. A husband or brother cannot be expected to remain watching TV in such like situation rather such relation was demanding an action from these witnesses but record shows that names of these witnesses only appear in relevant column of the challan (charge sheet) which is quite improbable and shocking if the prosecution story is believed to be true. Here I would like to refer the case of ‘Shahzad Tanveer v. State (2012 SCMR 172) wherein honourable Supreme Court held:-
“13. It is strange that none of the accused carried any weapon except a small kitchen knife, the total length and width of which was 6-1 x ½ including its handle while going to commit a capital offence. It is also more strange that none of the P.Ws dared to physically intervene in order to save the victim or apprehend the accused at the spot. Neither the clothes of any P.W got stained with blood nor had they received any scratch on their persons. In this view of the mater the presence of the P.Ws at the time of occurrence appears to be doubtful.”
11. It should always be kept in mind that prosecution story, being the foundation on which edifice of the prosecution is raised, occupies a pivotal position in a criminal case, therefore, it should stand to reason and must be natural, convincing and free from any inherent improbability. Reference is made to the case of ‘Shamim v. State’ (2003 SCMR 1466).
12. I have no hesitation to acknowledge the legal position that: it is always the prerogative of the prosecution not to examine all the listed / named witnesses but such prerogative never vests a discretion in the prosecution to withhold the ‘material witness’ because the burden always remains on prosecution to prove the charge beyond shadow of doubt which the prosecution cannot take an exception under such prerogative; else it would amount to seek an exception to provision of Article 129(g) of Qanun-e-Shahadat Order, 1984, which in no way could be approved. Reference can be made to the case of ‘Lal Khan v. State’ (2006 SCMR 1846) wherein it is held that:
“The prosecution is certainly not required to produce a number of witnesses as the qualify and not the quantity of the evidence is the rule but non-production of most natural and material witnesses of occurrence, would strongly lead to an inference of prosecutorial misconduct which would not only be considered a source of undue advantage for possession but also an act of suppression of material facts causing prejudice to the accused. The act of withholding of most natural and a material witness of the occurrence would create an impression that the witness if would have been brought into witness-box, he might not have supported the prosecution and in such eventuality the prosecution must not be in a position to avoid the consequence.”
13. In the instant matter the status of PWs Khalid Hussain and Riaz Hussain was always natural witnesses hence their evidence was always having the status of material evidence in absence whereof it would never be safe to hold the conviction. Record reflects that no reasons are assigned by the prosecution for non-examination of such material witnesses. Withholding of material witnesses without any legal and plausible justification shall result into adverse inference against the one withholding such evidence. Worth to add it is established principle of law that conviction can well be maintained on a solitary statement of witness but it would not be safe where prosecution claims eye witnesses and their presence is otherwise natural at such relevant time. Thus, non-appearance of a husband and a brother to support a charge of assault upon wife/sister ought to have been appreciated by learned trial Court Judge within four corners, so sketched by relevant law and guidelines by Apex Court which prima facie has not been done.
14. At this juncture it is also material that motive is not shown in this case, hence without any enmity what was the purpose of outraging the modesty of a woman by entering in her house in presence of male members, this aspect also strengthens the plea raised by appellant’s Counsel that version is not appeal-able to a prudent mind. Even otherwise, it is duty of the prosecution to prove its case against the accused beyond reasonable doubt. Further, admittedly, the case property was torn-clothes but same were not shown or identified by the complainant before the trial Court. This brings to say that prosecution produced nothing on record (trial) except words of the complainant/victim which in absence of evidence of material witnesses and case property were never sufficient to hold conviction even if the accused/appellant fails in proving defence plea because the law is always clear that it is the prosecution which has to prove its case beyond reasonable doubt and weakness in defence shall not in any manner help prosecution seeking exception to its mandatory obligation i.e to prove the charge beyond reasonable shadow of doubt.
15. Under these circumstances, suffice to say that prosecution story lacks logical reasons and is not free from doubt. Accordingly, impugned judgment is set aside and appellant is hereby acquitted of the charge. He is already on bail, his bail bonds stand cancelled and surety, discharged.
JUDGE
Qazi Tahir/*