IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Criminal Appeal No.S- 149 of 2019.

DATE OF HEARING

ORDER WITH SIGNATURE OF JUDGE.

For hearing of main case.

Appellant. Through Mr. Zulfiqar Ali Panhwar Advocate.

Complainant. Through Mr. Abdul Wahab Shaikh, Advocate.

The State. Through Mr. Aftab Ahmed Shar Additional Prosecutor General.

Date of hearing. 11.11.2019.

Date of Judgment . 25.11.2019.

J U D G M E N T

AFTAB AHMED GORAR, J; Appellants Sikandar Ali, Imtiaz Ali, Mumtaz Ali, Talib and Budhal have challenged the judgment dated 29.07.2019 passed by learned II-Additional Sessions Judge, Naushehro Feroze in Sessions case No.45/2015 arising out of crime No.313/2014 registered at Police Station, Naushehro Feroze/Abran, whereby appellants were convicted for offence u/s 452 PPC and sentenced them to suffer R.I for One year each and to pay fine of Rs.5,000/- each, in case of default in payment of fine to suffer S.I for three months more. Appellants were also convicted for offence u/s 395 PPC and sentenced to suffer R.I for Four years each and to pay fine of Rs.10,000/- each, in case of default in payment of fine to suffer S.I for two months more. The appellant were further convicted for offence u/s 506/2 PPC and sentenced to undergo R.I for six months each and to pay fine of Rs.2500/- each, in case of default in payment of fine to suffer S.I for eight days each. However benefit of section 382-B Cr.P.C was extended to them.

2. Precisely, prosecution case is that the on 11.12.2014 complainant Mst. Pari lodged FIR at Police Station Naushehro Feroze/Abran stating therein that she lodged FIR bearing crime No.03/2014 for offence u/s 302, 34 PPC at Police Station Mitha Khan against accused Sikandar and others, on which they annoyed and extended threats of murder to them, as such complainant migrated from her native place towards Village Ali Mohammad Khaskheli. On 25.06.2014 she along with her husband Mohammad Ismail and other house inmates after taking dinner went to sleep. At about 12:00 hours of night accused Sikandar, Imtiaz, Mumtaz, Talib and Budhal armed with guns entered into the house of complainant, they inflicted kicks and fists blows to complainant and her husband, accused Imtiaz and Talib broke the iron box and took out golden earring and cash Rs.7000/- complainant party raised cries, on which Nadir and Ghaffar came there, they also saw accused persons and identified them. The PWs rescued complainant party by giving names of Almighty Allah to accused persons thereafter they ran away by extending threats. Complainant after obtaining order from learned Justice of Peace, lodged FIR.

3. The Police after usual investigation submitted challan in the Court of law. A formal charge was framed against the appellants at Ex.2, to which they pleaded not guilty and claimed trial, such pleas were obtained at Ex.3 to 7.

4. In order to establish the case, prosecution examined PW-1/complainant Mst. Pari W/o Mohammad Ismail at Ex:08, she produced FIR at Ex.8-A, order dated 01.11.2014 at Ex.8-B. PW-2 Abdul Ghaffar at Ex.09, PW-3 Ghulam Mustafa at Ex.10 who produced memo of place of incident at Ex.10-A. PW-4 Qurban Ali was examined at Ex.11 who produced roznamcha entries of departure and arrival at Ex.11-A and 11-B. Thereafter learned ADPP for the state closed the prosecution side vide statement at Ex.10.

5. After conclusion of the prosecution evidence, learned trial Court recorded statement of the appellants/accused as required U/s 342 Cr.P.C at Ex.13 to 17 in which they denied the allegations, claimed innocence and further stated that they have falsely been implicated in the case. Neither they examined themselves on oath nor led evidence in their defence.

6. The learned trial Court after hearing learned Counsel for the parties and appraising the evidence passed impugned judgment.

7. Learned Counsel for the appellant contended that the impugned judgment passed by learned trial Court is against the law and facts of the case; that the impugned judgment is not sustainable under the law; that the appellants are innocent and have falsely been involved in this case by the complainant of main case; that there are material contradictions in the evidence of prosecution witnesses, which create doubt. He lastly concluded that the prosecution has failed to prove its case against the appellants beyond shadow of doubt, hence the appellants are entitled for acquittal. In support of his contention, learned counsel for the appellant relied upon case of MASHOOQ ALI MALLAH v. The STATE (2016 P.Cr.L.J Note 8).

8. Learned Deputy Prosecutor General assisted by learned Counsel for complainant supported the impugned judgment and submitted that all the prosecution witnesses have fully supported the case, hence according to him the prosecution has proved its case beyond any reasonable doubt, therefore appellants are not entitled for acquittal.

9. I have carefully considered the submissions made by learned counsel for the appellants, learned Counsel for complainant and leaned DPG for the State, examined the evidence adduced by prosecution before learned trial Court.

10. Perusal of record reflects that the prosecution examined four witnesses, i.e. complainant Mst. Pari W/o Mohammad Ismail, PW Abdul Ghaffar, PW Ghulam Mustafa and PW AS Qurban author of FIR also I.O. of the case.

11. I have heard the arguments advanced by the respective parties and have scanned the material available on record. It is admitted that the alleged incident occurred on 25.06.2014 at 12:00 night while complainant got directions from learned Justice of Peace on 01.11.2014 whereas FIR was lodged on 11.12.2014 after about 06 months delay of the incident as well as One month’s 11 days after getting directions from learned Justice of Peace but no explanation for such along delay of the incident has been furnished, which alone is fatal to the prosecution case as it gives presumption to mediation, consultation and false implication of innocent persons. In case of Mehmood Ahmed & others vs. the State & another (1995 SCMR-127), it was observed by the Hon’ble Supreme Court that;

“Delay of two hours in lodging the FIR in the particular circumstances of the case had assumed great significance as the same could be attributed to consultation, taking instructions and calculatedly preparing the report keeping the names of the accused open for roping in such persons whom ultimately the prosecution might wish to implicate”.

12. From the perusal of evidence of the Complainant and PWs, there are material contradictions and lacunas. The complainant deposed that outer wooden door is fixed in eastern side and PWs have deposed that wooden door is fixed in the southern side of the house of complainant while memo of place of wardat shows that there is no door is fixed and street is open. The mashir further deposed that his signature was only obtained on one paper which was written. Complainant in his deposition said that 10/12 persons of village reached there while mashir Ghulam Mustafa deposed that 4/5 persons were present at wardat. The complainant in FIR has mentioned that her husband Mohammad Ismail and other inmates were available in the house and I.O. ASI Qurban also deposed in his cross examination that complainant came at Police Station with her husband but being star witness the said Mohammad Ismail prosecution has failed to examine him. Furthermore, the complainant deposed that there is 4/5 houses surrounding his house but I.O in his deposition deposed that there is only house of complainant and no other house was surrounding the house of the complainant. No recovery of robbed articles has been effected from the present appellants. The discrepancies and lacunas stated above cannot be ignored while deciding the case and on the basis whereof, no conviction could be recorded but the learned trial Court has not taken into consideration while passing impugned judgment.

13. For what has been discussed above, I am of the opinion that the prosecution has failed to prove its case against the appellants beyond any shadow of doubt and it is settled law that benefit of doubt if any arising would go to the accused. In this regard reference can be made to case of TARIQ PARVEZ v. The STATE (1995 SCMR 1345) and MUHAMMAD AKRAM v. THE STATE (2009 SCMR 230), wherein it has been held by Honourable Supreme Court that:

"For giving benefit of doubt to appellant it is not necessary that there should be many circumstances creating doubts. If there is a single 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 matter of right".

14. Keeping in view the aforesaid circumstances and precedents of Honourable Supreme Court, instant Criminal appeal was allowed and impugned judgment dated 29.07.2019, passed by learned 1Ind Additional Sessions Judge, Naushehro Feroze, was set aside. The appellants/accused persons were acquitted of the charge and they were ordered to be released forthwith if not required in any other criminal case. The above are the reasons of my short order dated 11.11.2019.

J U D G E

Ihsan