IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Criminal Rev. Application No. S-86 of 2021

 

Applicants:                              Hakim Ali and Abdul Qadir, through

                                                Mr. Qudratullah Rajput, Advocate

 

Complainant:                           Shamsuddin Narejo, through

                                                Noor Muhammad Leghari, Advocate

 

The State:                                Through Ms. Shabana Naheed

                                                Assistant Prosecutor General

                                               

Date of hearing:                       04.02.2022

Date of decision:                       04.02.2022.

 

 

J U D G M E N T

ZULFIQAR ALI SANGI, J:-       Through this Criminal Revision Application, Applicants/accused Hakim Ali  and Abdul Qadir both sons of Ameer Bux Narejo, have challenged the Judgments of two courts below; (i) dated 31.07.2021 passed by learned Civil Judge and Judicial Magistrate-III Gambat whereby both the applicants were convicted u/s 506/2, 431 PPC two years for each offence, in Criminal Case No.94/2020 Re-“The State v/s Hakim Ali and another” arising out of Crime No.98/2020 registered at Police Station Khuhra and (ii) judgment dated 30.08.2021, passed by learned Additional Sessions Judge Gambat, in Criminal Appeal No.21/2021 Re-“Hakim Ali and another v/s The State”,  whereby the impugned judgment passed by learned Magistrate was maintained, however sentences were reduced from two years to one year for each of two offences.

2.              Succinctly the facts of the prosecution case are that on 05.12.2020, complainant along with his brother Abdullah and nephew Tasleem Ahmed Narejo were going towards Khuhra city, when at about 1400 hours  they reached near the lands of Hakim Ali Narejo they saw that accused Hakim Ali and Abdul Qadir Narejo were digging/damaging the road. Complainant restrained them from doing so to which they took out pistols and issued threats of murder to him. Thereafter complainant approached the Nekmard who was not available at his residence and on the next day when he met with Nekmard and disclosed him the facts, he advised him to lodge a report, therefore, the complainant lodged such FIR.

3.              Learned counsel for the applicants has contended that both the courts below have passed the impugned judgments in a hasty manner and did not apply their judicious minds. He next contended that the learned Judicial Magistrate has grossly erred in believing the version of prosecution witnesses without independent corroboration and the learned 1st appellate court despite admitting the dents in the case only reduced the sentence instead of acquitting the applicants/accused. He also contended that the prosecution has failed to prove its case beyond a reasonable doubt. He further contended that there are material contradictions in the evidence of PWs. He further contended that no cogent and sound reason has been assigned in the impugned judgments to justify the conviction and sentence of the applicants. Lastly, he contended that the impugned Judgments are against the law, facts, principles of natural justice and equity and both the courts below have erred in convicting the applicants by not taking into consideration the entire material and thus the impugned Judgments are liable to be set aside.

4.              On the other hand, learned counsel for the complainant has contended that the prosecution has proved its case against the applicants beyond any reasonable shadow of a doubt by producing trustworthy inspire confident evidence. He next contended that no major contradiction has been pointed out by the defence counsel in the evidence of prosecution witnesses and learned trial court has rightly convicted the applicants and learned 1st appellate court without assigning cogent reason has reduced the sentence of the applicants though the applicants do not deserve any leniency. Lastly, he prayed that the revision application of the applicants may be dismissed and sentenced awarded by the trial court may be maintained.

5.              Learned A.P.G appearing for the state has supported the arguments advanced by learned counsel for the complainant as well as supported the impugned judgment of 1st appellate court and further contended that there appears no illegality or irregularity in the impugned judgment which is well reasoned and does not require any interference of this court.

6.                I have heard learned counsel for the applicants. Learned counsel for the complainant and learned Assistant Prosecutor General and have gone through the material available on the record with their able assistance.

 7.               On reassessment of the entire evidence produced by the prosecution, it is established that the prosecution had failed to prove the case against the applicants beyond a reasonable doubt by producing reliable, trustworthy and confidence-inspiring evidence.

8.                The complainant in his chief-examination deposed that After FIR they returned back to their village, where ASI Sultan called them to show the place of incident and at 5:30 pm ASI came at place of incident where they were already available. The Mashir namely Umed Ali during his cross-examination stated that Complainant was already available at the place of incident when I.O came at 5 pm and they were at the distance of 100/150 fts away from the place of incident. The complainant, PW-2 Tasleem and the mashir namely Umed Ali had not deposed a single word in their examination-in-chief in respect of photographs that the investigation officer took photographs of the place of incident, however in cross-examination the mashir stated that I.O took photographs of the place of incident. The investigation officer in his chief-examination produced the documents received from the road deportment which includes photographs of the place of incident which reflects that the mashir is telling lie. The investigation officer also admitted during cross-examination that the documents and the photographs which he exhibited in his evidence are not mentioned in the challan sheet.

9.                The investigation officer had not recovered any material from the place of incident which suggests that the road was broken and such fact he has admitted during cross-examination. The mashir also stated during his cross-examination that road was broken for about 55 fts and the investigation officer stated during his cross-examination that he had not measured the road. In such circumstances if it is believed that road was broken for about 55 fts then non recovery of material i-e stones, crash and Bitumen (Damber) etc by the investigation officer creates very serious doubt in the case of prosecution.

10.              The complainant admitted during his cross-examination that a civil suit is pending before the Senior Civil Judge Gambat in respect of said road. PW Tasleem admitted during his cross-examination that the road is situated in between the lands of Hakim Ali (applicant). Learned counsel has brought on record one later dated: 09-12-2020 issued by the Assistant Engineer Highway Sub-Division Gambat which was issued on the application of PW Tasleem to the SHO police station Gambat in which no name of any body is mentioned as accused who broken the road.

11.              Record reflects that Mukhtiarkar Gambat wrote a letter to the Assistant Commissioner Gambat in respect of an application filed by the applicant Hakim  which reads as under:-  

“It is submitted that in the above referred matter, detailed report has been called from Tapedar of the beat Munshi Mulazim Hussain Meerasi, who has reported that as per VF-VII-A Entry No.08 applicant’s father namely Ameer Bux s/o Mehar Narejo owned S.No.245/3-22, 246/2-33, 247/2-15, moreover as per Map of Deh, there is no any mark of path/way from the land of applicant.

That apart from this the applicant produced work order of the year, 2010-11 issued by Works and Services Department, Khairpur regarding construction of road from Village Adur Narejo to Village Muhammad Ilyas Narejo area 01 mile, which does not acquire a single inch of the applicant’s land, but the opponent Shamsuddin @ Shaman Narejo has illegally loaded stones in the land of applicant Ameer Bux to occupy his land through illegal manner.

That in this context the Tapedar has also recorded statements of two notables of the area namely (i) Gul Muhammad Narejo & (ii) Wazir Hussain Narejo, they have also supported version of applicant, from which it appears crystal clear that the acts of opponent Shamsuddin @ Shaman Narejo are illegal and based on malafide.

The report of Tapedar alongwith relevant material is annexed herewith for kind perusal.”

 

From the report of Mukhtiarkar it is clear that complainant party forcibly wanted to occupy the land of the applicant’s party for the construction of road and no land for the construction of road was acquired.

 

12.              Though it is alleged by the complainant that the Government road was broken by the applicants but no body from the road deportment made any complaint nor they are the witness or mashir of the case, the private person lodged the FIR who has inimical terms with the applicants party and even has no locus standi to register the FIR. No record in respect of the construction of road is produced by the prosecution which even established that at the place of incident there is a road constructed by any of the deportments of Government of Sindh which too make the case of prosecution as doubtful.

 

13.            It is well settled by now that the prosecution is bound to prove its case against the accused beyond any shadow of reasonable doubt, but no such duty is cast upon the accused to prove his innocence. It has also been held by the Superior Courts that conviction must be based and founded on unimpeachable evidence and certainty of guilt, and any doubt arising in the prosecution case must be resolved in favour of the accused. In the case of Wazir Mohammad v. The State (1992 SCMR 1134), it was held by Honourable Supreme Court that "In the criminal trial whereas it is the duty of the prosecution to prove its case against the accused to the hilt, but no such duty is cast upon the accused, he has only to create doubt in the case of the prosecution." Honourable Supreme Court in another case of Shamoon alias Shamma v. The State (1995 SCMR 1377), held that "The prosecution must prove its case against the accused beyond reasonable doubts irrespective of any plea raised by the accused in his defence. Failure of prosecution to prove the case against the accused entitles the accused to an acquittal. The prosecution cannot fall back on the plea of an accused to prove its case.......Before, the case is established against the accused by prosecution, the question of burden of proof on the accused to establish his plea in defence does not arise."

 

14.              It is a settled principle of law that for extending the benefit of the doubt, there doesn't need to be multiple circumstances creating doubt. If a single circumstance, which creates reasonable doubt in a prudent mind about the guilt of accused, then he will be entitled to such benefit not as a matter of grace and concession, but as a matter of right, as has been held in the case of Tariq Pervez v. The State (1995 SCMR 1345), wherein the Hon'ble Supreme Court has held as under:-

 

"The concept of benefit of doubt to an accused persons is deep-rooted in our country for giving him benefit of doubt, 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 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".

 

15.              Thus based upon the above facts and the circumstances of the case the above Criminal Revision Application is allowed and the impugned judgment dated: 31.07.2021, passed by learned Civil Judge and Judicial Magistrate-III Gambat in Crl. Case No. 94 of 2020 Re- (State v/s Hakim Ali and another) arising out of FIR crime No. 98 of 2020 registered at police station Khuhra U/S 506/2, 431 and 34 PPC, and the Judgment dated: 30-08-2021 passed by the Court of Additional Session Judge Gambat in  Cr. Appeal No. 21 of 2021 are hereby set aside. The applicants are acquitted from the charges.

 

16.              These are reasons for my short order dated: 04-02-2022, which reads as under:-

1.         Since listed application is not maintainable, therefore, the same is dismissed.

 

2 to 3, For the reasons to be recorded later on, instant Cr. Revision Application is allowed.Consequently, applicants are hereby acquitted from the charges. They are present on bail. Their bail bonds stand cancelled and Surety discharged. 

 

 

JUDGE