IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Crl. Jail Appeal No. S- 91 of 2017.
Appellant: Sikander Ali Lashari, through Messrs Ameer Ahmed Narejo and Muhammad Munaf Shaikh Advocates.
Respondent: The State, through Raja Imtiaz Ali Solangi, A.P.G.
Date of hearing: 11.05.2018.
Date of Judgment: 11.05.2018.
J U D G M E N T
Amjad Ali Sahito, J-. Through this Criminal Appeal, Sikander Ali son of Pahalwan Lashari has impugned the judgment 30.03.2015, passed by learned Additional Sessions Judge-I, Shikarpur, in Sessions Case No.454 of 2013, Re; St. v. Sikander and others, arisen out of Crime No.82 of 2013 registered with Police Station, New Foujdari, Shikarpur; whereby the appellant was convicted for offence punishable u/s.365-B PPC and sentenced to suffer life imprisonment and further to pay fine in the sum of Rs.50,000/- and in default of payment of fine to undergo six months more S.I. However, he was also extended benefit of Section 382-B Cr.PC.
2. The facts of the prosecution case are that on 28.4.2013 complainant Zahid Ali Chukhro appeared at P.S New Foujdari Shikarpur and reported that he was married with Mst.Zakia aged 24/25 years and from said wedlock he has two daughters namely Sitara aged 03 years and Sana aged 5/6 months, who felt ill, as such complainant alongwith his wife Mst.Zakia, his father-in-law Nazir Ahmed and their relative Gul Hassan proceeded from their village on donkey-cart for taking medicines, as such at about 2.00 p.m, a white color car came across and stopped in front of them, out of which accused Roshan Ali, Sikander armed with T.T pistols, Gul Muhammad accompanying one unknown culprit alighted therefrom and all of them on show of force of weapons abducted his wife Mst.Zakia with his/her both daughters. On completion of usual investigation, the police submitted report u/s. 173 Cr.PC before the concerned Court of law.
3. The charge against accused/appellant was framed at Exh.06, to which he pleaded not guilty and claimed trial. The prosecution in prove its case examined PW-01 ASI Iqbal Ahmed at Exh.7, he produced F.I.R at Exh.7-A, mashirnama of arrest of accused Sikander at Exh.7-B and mashirnama of inspection of place of vardat at Exh.7-C. PW-02 complainant Zahid Ali at Exh.8. PW-3 Nazir Ahmed at Exh.9. PW-4 Gul Hassan at Exh.10 and PW-5 Mashir Niaz Muhammad at Exh.11. Thereafter, the learned Prosecutor closed side of prosecution vide statement at Exh.12.
4. Statement of the accused/appellant was recorded under Section 342 Cr.PC at Exh.13, wherein he denied the prosecution allegations leveled against him and further submitted that the alleged abductee had left the house of her father on her own and contracted freewill marriage with co-accused Roshan Ali (who happens to be brother of appellant). However, he neither examined himself on oath nor led any evidence in his defence.
5. I have heard learned counsel for the appellant, learned A.P.G and perused the entire record with their assistance.
6. Learned counsel for the appellant argued that the impugned judgment is against the law and facts of the case; that the present appellant is innocent and has falsely been implicated in this case; that all the eye-witnesses of the case are closely related inter-se and no any independent person was cited or examined by the prosecution and that evidence of witnesses examined at trial is unrealistic, full of contradictions, tainted with doubts and could not be relied upon; as such it was in-sufficient for awarding conviction. Per learned counsel that the alleged abductee was not examined at the time of trial of the present appellant; however during trial of co-accused after the passing of conviction to appellant the alleged abductee appeared before the learned trial Court and recorded her statement, thereby she did not implicate any of the accused including present appellant in the case and ultimately the learned trial Court acquitted rest of two co-accused namely Roshan and Gul Muhammad in terms of Section 265-K Cr.PC, vide separate Orders dated 29.9.2015 and 23.11.2015. He further contended that the defence plea if put in juxta-position, it carries more weight than the prosecution case. Learned counsel submitted that, when star witness of the case i.e. alleged abductee has negated the case of prosecution and did not implicate any accused; then this sole factor create serious doubt in the prosecution case, and it is well settled principle of law that benefit of even a slightest doubt must go in favour of the accused. He lastly prayed for acquittal of the appellant.
7. On the contrary, the learned A.P.G appearing for the State half heartedly supported the impugned judgment. However, he did not controvert the above submissions made by learned counsel for the appellant.
8. I have heard the learned counsel for the parties and have gone through the record with their assistance.
9. It has borne out from the record that during course of trial of the present appellant, the alleged abductee Mst.Zakia being star witness of the case was not examined by learned trial Court but on the basis of evidence of complainant and his two witnesses the appellant was convicted. However, later-on co-accused Roshan was arrested by the police and he joined the trial but during course of trial, the alleged abductee Mst.Zakia was examined by the learned trial Court, who in her evidence did not implicate any of the accused cited in the FIR including present appellant; and further denied her abduction or detention by anybody, she also deposed that she had contracted freewill marriage at her own with co-accused Roshan Ali. Thus, the learned trial Court in view of statement of abductee Mst.Zakia acquitted co-accused Roshan Ali under section 265-K Cr.PC vide Order dated 29.09.2015. Likewise, another co-accused Gul Muhammad was also acquitted u/s.265-K Cr.PC of the charge by the learned trial Court vide Order dated 23.11.2.2015.
10. Now, the question arises whether the evidence recorded in successive proceedings can be applied and considered upon earlier proceedings. In this regard, provision of Article 47 of the Qanun-e-Shahadat, 1984, is very much clear. In this context, it is appropriate to reproduce the relevant article hereunder;
47. Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated. Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court consider unreasonable;
Provided that;
the proceeding was between the same parties or their representatives-in-interest; the adverse party in the first proceeding had the right and opportunity to cross-examine; the question in issue were substantially the same in the first as in the second proceeding.
Explanation. A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this Article.
11. By virtue of Article 47 of Qanun-e-Shahadat Order, 1984, evidence given by a witness in a judicial proceeding or before any person authorized by law to take it, is relevant for the purpose of proving in a subsequent judicial proceeding or in a later stage of the same judicial proceeding. Since, the star witness of case i.e. alleged abductee Mst.Zakia appeared before learned trial Court and in her evidence she did not implicate any of the accused including the present appellant as nominated in the FIR by complainant and also denied her abduction or detention by anybody and further deposed about her freewill marriage with co-accused Roshan Ali on her own, as such the prosecution has failed to bring home the guilt against the present appellant beyond any reasonable doubt and it is well settled principle of law that for creating shadow of doubt, it is not necessary that there should be many circumstances. If a single circumstance creates reasonable doubt in the prudent mind, then its benefit is to be extended in favour of the accused not as a matter of grace or concession, but as the matter of right. The reliance is placed on the case of Muhammad Masha v. The State (2018 SCMR-772), wherein the Hon’ble Supreme Court of Pakistan has held that:
4.--- Needles 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 accused, then 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 guilt persons be acquitted rather than one innocent person be convicted”. Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State(1995 SCMR-1345), Ghulam Qadir and 2 others v. The State(2008 SCMR-1221), Muhammad Akram v. The State(2009 SCMR-230) and Muhammad Zaman v. The State(2014 SCMR-749).
12. Accordingly, in view of above position, the instant appeal is allowed. The conviction and sentence awarded to the appellant is set-aside and he is acquitted of the charge by extending him benefit of doubt.
13. These are the detailed reasons of short order dated 11.05.2018, announced by me.
J U D G E
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