Judgment Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Cr. Appeal No. S – 90 of 2018

Date of hearing : 13.09.2019.

Mr. Rafique Ahmed Baloch, Advocate for appellants / accused.

Mr. Allah Bux Gabol, Advocate for complainant.

Mr. Zulfiqar Ali Jatoi, Additional Prosecutor General.

J U D G M E N T

NAIMATULLAH PHULPOTO, J. – Appellants Zaheer Ahmed, Zameer Ahmed, Mujahid and Abdul Rasheed were tried by learned Additional Sessions Judge, Pano Aqil for offences under Sections 395, 337-J, 457, 147, 148, 149, PPC. After regular trial, appellants were convicted under Section 457, PPC and sentenced to four years R.I and to pay the fine of Rs.5,000/- each. In case of the default in the payment fine, they were ordered to suffer S.I for one month. Appellants were also convicted under Section 337-J, PPC and sentenced to five years R.I and to pay the fine of Rs.5,000/- each. In case of the default thereof, they have been ordered to suffer S.I for one month. Appellants have further been convicted under Section 395, PPC and sentenced to five years R.I and to pay the fine of Rs.5,000/- each. In case of the default thereof, they have been ordered to suffer S.I for one month. All the sentences were ordered to run concurrently. Appellants have been extended benefit of Section 382-B, Cr.P.C.

2. Brief facts leading to the filing of the appeal are that on 18.09.2013, complainant Nisar Ahmed along with his brother Israr Ahmed, maternal cousin Abdul Hafeez, his mother Mst. Khakul (victim in this case) and other family members were sleeping in the house. There was a commotion at 0030 hours. Complainant party woke up and saw on the bulb lights that accused (1) Zaheer Ahmed armed with gun; (2) Zameer Ahmed, (3) Zafar, (4) Bashir Ahmed armed with pistols; (5) Mujahid armed with Kalashnikov, all by caste Kalwar and (6) Abdul Rasheed by caste Channa armed with pistol had trespassed into house. It is further alleged that accused Zafar and Zaheer forced Mst. Khakul, the mother of the complainant, for eating the sweet. Complainant party remained calm as accused were armed with deadly weapons. It is further alleged that Mst. Khakul had taken the sweet by use of force of the accused. Thereafter, accused snatched ornaments of gold from her and cash of Rs.20,000/- from the complainant. Thereafter, FIR of the incident was lodged on 29.09.2013 at 1810 hours at P.S Baiji Sharif under Sections 457, 148, 149, 337-J, 395, PPC.

3. After usual investigation, challan was submitted against the accused under the above referred sections.

4. Trial Court framed the charge against the accused / appellants at Ex.05. Accused pleaded not guilty and claimed to be tried. During trial, accused Zafar expired and proceedings were abated against him.

5. At the trial, prosecution examined eight (08) prosecution witnesses. Thereafter, prosecution side was closed.

6. Statements of accused were recorded under Section 342, Cr.P.C at Ex.22 to 25, in which accused claimed false implication in this case and denied the prosecution allegations. Accused did not lead evidence in defence and declined to give statement on oath in disproof of prosecution allegations.

7. Trial Court, after hearing the learned counsel for the parties and assessment of the evidence available on record, vide judgment dated 15.08.2018 convicted and sentenced the appellants as stated above. Hence, this appeal.

8. Learned advocate for the appellants mainly contended that it was night time incident. Source of the light has been shown as bulbs’ light, but those bulbs were not secured by the Investigation Officer during investigation. It is further contended that prosecution story appears to be unnatural and unbelievable. While elaborating his contentions, he submitted that complainant / PWs, who are the sons of Mst. Khakul, but they did not intervene / rescue their mother and their conduct was unnatural in the view of Article 129 of the Qunun-e-Shahadat Order. He further submitted that there was inordinate delay in lodging of the FIR for which no plausible explanation has been furnished. He further submitted that medical evidence does not support the case of prosecution. Lastly, it is contended that prosecution case is highly doubtful and prayed for acquittal of the appellants / accused.

9. Mr. Zulfiqar Ali Jatoi, Additional Prosecutor General assisted by advocate for the complainant, in the view of the contentions raised by the learned advocate for the appellant and evidence on record, did not support the case of prosecution.

10. After hearing the learned counsel for the parties, I have carefully perused the evidence available on record. Record reflects that incident had occurred in the house of the complainant on 18.09.2013 at 0030 hours, but it was reported to the police on 29.09.2013 at 1810 hours, whereas, the distance between the house of the complainant and Police Station was 6-7 kilometers. Delay in lodging of the FIR has not been plausibly explained. I have also examined the prosecution evidence in the light of Article 129 of the Qanun-e-Shahadat Order, it is the case of the prosecution that sons of the victim / old lady Mst. Khakul were present, but they remained calm. No effort whatsoever was made by them to rescue the dignity and honour of the mother. It clearly shows that presence of the complainant and other witnesses at the relevant time was highly doubtful. Additional P.G submits that incident had occurred on 18.09.2013, but SHO, P.S Baiji Sharif referred Mst. Khakul to the hospital on 17.09.2013. This ambiguity could not be resolved at trial and it goes in favour of the appellants. So far the prosecution story is concerned, it appears to be unnatural and unbelievable. It is well-settled principle of law that where evidence creates doubt about the truthfulness of the prosecution story, its benefit has to be given to the accused without any reservation. The concept of benefit of doubt to an accused person is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right. Reliance is placed upon the case of Tariq Pervez v. The State (1995 SCMR 1345).

11. The upshot of above discussion is that there being no satisfactory basis for upholding the conviction and sentence of the appellants, appeal is allowed, conviction and sentence of the appellants recorded by the trial Court vide judgment dated 15.08.2018 is set aside, and appellants are acquitted of the charge. They are present on bail; their bail bonds stand cancelled and the surety is hereby discharged.

J U D G E

Abdul Basit