IN THE HIGH COURT OF SINDH, CIRCUIT COURT,
LARKANA
Crl. Jail Appeal No. D- 05 of 2015.
Present: Mr. Justice Khadim Hussain M. Shaikh.
Mr. Justice Amjad Ali Sahito.
Appellant: Qurban Kandrani, through Mr. Abdul Rehman Bhutto, Advocate.
Respondent: The State, through Khadim Hussain Khoharo, Addl.P.G.
Date of hearing: 17.05.2018.
Date of Judgment: 17.05.2018.
JUDGMENT
Amjad Ali Sahito, J-. Through this criminal appeal, the appellant Qurban son of Ghulam Nabi Kandrani has impugned the judgment dated 26.01.2015, passed by learned Judge, Anti-Terrorism Court Shikarpur, in Special Case No.06 of 2013, Re; St. v. Qurban and others, arisen out of Crime No.216 of 2012 registered with Police Station A-Section Thull (District Jacobabad); whereby the appellant was convicted for offence under Section 365-A read with Section 149 P.P.C and sentenced to suffer rigorous imprisonment for life with forfeiture of his property to the State. However, he was extended benefit of Section 382-B Cr.P.C.
2. The facts of the prosecution case are that on 24.12.2012 complainant Rahim Bux Sarki lodged report, stating therein that, on 22.11.2012 he alongwith his brohter Karim Bux and his cousin Ghulam Yasin were draining out rain water through tractor, as such at about 02.00 a.m. eight persons armed with kalashnikovs arrived there, out of them they in headlight of tractor identified four persons to be Muhammad Sallah, Laloo, Sheero and Morio while four persons were not identified by them and they abducted complainant on gunpoint asking his brohter and cousin to arrange for ransom, thereafter they took him and confined him in katcha area and chained him, where accused Jaffar and Ghulam Sarwar having kalashnikovs used to keep watch over him and used to maltreat him. It is further stated in F.I.R that accused Mst. Azeema and Mst. Bakhtawar while giving meals challenged him to arrange rupees three hundred thousand. The complainant has further stated in F.I.R that he was confined for one month and on 24.12.2012, when accused were sleeping, he un-locked his chain and escaped and then came at police station and lodged report to the above effect.
3. On completion of usual investigation, the challan of the case was filed before concerned Court adding the name of appellant Qurban in the list of absconders on the basis of statements of both alleged eyewitnesses of the case recorded under Section 164 Cr.P.C. who disclosed his name to be accused.
4. On 1st April, 2014, the charge against co-accused Jaffer, Muhammad Hassan and Samano was framed as Ex.9, to which they pleaded not guilty and claimed trial. As such prosecution examined its witnesses.
5. Dr. Abdul Karim Ansari was examined at Ex.10; he produced medical certificate and police letter at Ex.10-A and Ex.10-B. PW Ghulam Yasin was examined at Ex.11, he produced 164 Cr.P.C statement at Ex.11-A. PW/ Mashir Ali Hyder was examined at Ex.13 he produced memos of place of vardat, pace of occurrence and injuries of abductee at Ex.13-A to Ex.13-C.
6. Meantime, fact of formal arrest of appellant Qurban was brought on record of trial Court on 05.9.2015 from District Jail, Jacobabad, as such amended charge was framed on 13.10.2014 and thereafter, the prosecution examined complainant Rahim Bux at Ex.16, he produced F.I.R at Ex.16-A. PW Karim Bux at Ex.17. PW Ghulam Yasin at Ex.18. PW Ali Hyder Sarki at Ex.19 and ASI Hidayatullah Wagan at Ex.20. Thereafter, the prosecution closed its side vide Ex.21.
6. Then the statements of appellant and co-accused were recorded under Section 342 Cr.P.C at Ex.22 to Ex.25, in which they denied the prosecution allegations against them and also denied to examine themselves on oath except appellant Qurban. However, none of accused led evidence in their defence.
8. We have heard learned counsel for the appellant, as well as learned A.P.G. and perused the entire record with their assistance.
9. Learned counsel for the appellant criticized the impugned judgment. He mainly contended that, the eyewitnesses of the case examined at trial have not supported the case of prosecution in toto and were declared as hostile by the prosecution itself, as such their testimony is unrealistic, full of contradictions, tainted with doubts and could not be relied upon; therefore, it was in-sufficient for awarding conviction. Per learned counsel, on same set of evidence co-accused were acquitted, while present appellant was convicted. Learned counsel submitted that, this sole factor create serious doubt in the case of prosecution, and it is well settled principle of law that benefit of even slightest doubt must go in favour of the accused.
10. On the contrary the learned A.P.G appearing for the State half heartedly supported the impugned judgment by submitting the prosecution evidence has rightly been believed by the learned trial Court and the appellant has rightly been awarded conviction.
11. We have heard the learned counsel for the parties and perused the record and have read the evidence of the witnesses examined at trial by prosecution.
12. It is matter of record that, appellant Qurban was not nominated in the F.I.R; however his name was disclosed by alleged eyewitnesses namely, Karim Bux and Ghulam Yasin in their 164 Cr.P.C statements. But when these witnesses came into witness box, both of them disowned contents of their statements recorded under Section 164 Cr.P.C statements. PW Ghulam Yasin in his deposition dated 12th August, 2014 stated in his examination-in-chief that my statement was not recorded by the police. I was called in Court of Civil Judge and J.M Thull and then my signatures were taken on the written papers. Similarly, PW in his deposition of same date, stated in his examination-in-chief that my 164 Cr.P.C statement was not recorded. Both of them did not identify the accused present in Court to be the same. Both these witnesses were declared hostile by the learned Prosecutor.
13. Though the complainant did not nominate present appellant Qurban in his F.I.R, but when he came in witness box, he disclosed the name of appellant to be accused of the case. Moreover, both the eyewitnesses while recording their first depositions dated 12th August, 2014, did not own their 164 Cr.P.C statements, however while recording their depositions second time dated 10th November, 2014, they owned their 164 Cr.P.C statements. These are the exaggerations made by the complainant and his witnesses; as such their testimony on this score is not worth reliable and cannot be made basis of conviction.
14. Another very crucial aspect of the case is that, though appellant Qurban was not nominated in F.I.R, but his name was taken by complainant as well as his witnesses in their depositions and identified him in Court to be the same accused, but all of them did not identify rest of three co-accused present in Court, to be the accused. And, both the witnesses were declared as hostile by the Prosecutor and cross-examined but nothing favorable to prosecution come out from their month. And, on same set of evidence the trial Court has awarded conviction to the appellant and acquitted co-accused.
15. Moreover, statements of the complainant and his witnesses are full of contradictions on material points. In F.I.R the complainant has mentioned that eight armed persons came at place of occurrence and out of them they identified four persons, to be Muhammad Sallah Malik, Laloo, Sheroo Bangulani and Morio, while four were unidentified. Whereas, in his deposition complainant has mentioned about arrival of only four accused, namely, Qurban, Muhammad Ali, Kouro and Bilawal and he has mentioned totally different names. Whereas, both the witnesses Karim Bux and Ghulam Yasin have contradicted the complainant so also contents of F.I.R by deposing that seven culprits duly armed arrived at place of occurrence and out of them they identified only four accused to be Qurban, Muhammad Ali, Kouro Brohi and Bilawal. They have further deposed that faces of rest of accused were muffled. The witnesses have also taken different names of accused persons. All this, again definitely causes doubt in truthfulness of the prosecution case.
16. The testimony of the complainant and his witnesses is un-realistic, full of contradictions on main points as well as self-explanatory and tainted with doubts and it could not be relied upon, as such it was in-sufficient for awarding conviction but even the trial Court has passed conviction against appellant. Though these factors created serious doubt in the case of prosecution, but trial Court failed to act upon well-settled principle of law that benefit of even slightest doubt must go in favour of the accused.
17. In view of all these factors, it is observed that the learned trial Court has not evaluated the above evidence in its true perspective and thus reached to an erroneous conclusion by holding the appellant guilty of the offence.
18. Accordingly, in view of above the instant appeal was allowed. The conviction and sentence awarded to the appellant Qurban son of Ghulam Nabi Kandrani was set-aside and he was acquitted of the charge by extending him benefit of doubt.
19. These are the detailed reasons for the short Order dated 17.05.2018 announced by us.
JUDGE
JUDGE