IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR.
Criminal Appeal No.S- 53 of
2012.
Criminal Appeal No.S- 56 of 2012
Before:- Mr.Justice Salahuddin Panhwar, J.
Appellants : Shaman
@ Shaman, Ghulam Nabi @ Rato, Moula Bux
@ Moulo and Kashir @ Kashoo, through
Mr.Zulfiqar
Ali Naich, Advocate, in Criminal Appeal
No.S-
53 of 2012.
Appellant : Gulzar,
through Mr.Abdul Baqi Jan Kakar,
Advocate,
in Criminal Appeal No.S- 56 of 2012.
Respondent : The
State through
Mr.Abdul
Rehman Kolachi, A.P.G.
Date of hearing: 10th.
December, 2012.
Date of Decision: 10th. December, 2012
J U D G M E N T
SALAHUDDIN
PANHWAR, J- The
appellants/accused Shaman @ Shaman, Ghulam Nabi @ Rato, Moula Bux @ Moulo and Kashir @ Kashoo and Gulzar, have
preferred their respective Criminal Appeals No.S- 53 and 56 of 2012, arising
out of one and same Judgment dated 31.7.2012, passed by learned Vth. Additional
Sessions Judge, Sukkur in Session Case No. 185 of 2010 Re-S/v Gulzar and others for offence
punishable Under sections 395, 452, 337-A(i), 148, 149 PPC R/w Section 17(3)
Offences Against Property (Enforcement of Hudood) Ordinance, 1979 Crime No.
62/2010 of Police Station “B” Section, Sukkur, whereby the appellants were
convicted for offence U/s 395, P.P.C and
sentenced to suffer R.I for 04 years with fine of Rs.20,000/- and for offence U/s
457, P.P.C with fine of Rs.20,000/-. The appellant Shaman was ordered to pay
02. Relevant
facts of the case are that on 17.04.2010 at 5:00 p.m, complainant Mirzado
reported at Police Station, Newpind, that on 15.4.2010 at 4:30 a.m. (night) he
and other inmates were sleeping in their house located at Islam Colony,
Newpind, Sukkur, he woke-up on some noise and noticed seven persons having
pistols in their hands. Their faces were open. He identified two of them as
Moula Bux and Shaman alias Shamooo who reached near the cot of P.W Shahzado and
Mst.Sana. Accused Moula Bux pulled a chain of gold from the neck of PW Shahzado
and Shaman alias Shamooo also pulled chain of gold from the neck of Mst.Sana. She
resisted whereupon accused Shaman alias Shamoo clubbed on her head. It is
stated that the accused Moula Bux, Shaman alias Shamoo, Mukhtiar and Anwer
overpowered complainant and other witnesses while Gulzar, Kashmir alias Kashoo,
Ghulam Nabi alias Rato entered in the rooms and they robbed one complete set of
gold, four finger rings of gold (ladies), one finger ring (gents) and two chains
of gold with lockets, cash of Rs.85, 000/-, one licensed pistol No.32003823. It
is further stated that injured Mst.Sana was brought at Hospital as she was
bleeding from her head. The complainant shared the incident with his elders,
and also approached the elders of the accused persons for return of the
articles and on their refusal, he came at Police Station Newpind where his
complaint was written in Roznamcha which was transcribed in the FIR No.62 of
2010 at Police Station “B” Section, Sukkur.
03. During
investigation, appellants/accused Moula Bux alias Mouloo and Kashir were
arrested while rest of the accused persons remained absconder. After
investigation case was challaned. During proceedings of the case, the
absconding accused Ghulam Nabi, Shaman alias Shamoo were also arrested and
amended charge was framed.
04. To
substantiate the charge, prosecution examined P.W-1 HC Ali Muhammad Korai as Ex.25, he
produced mashirnama of arrest of accused Gulzar, Moula Bux and Kashmir alias
Kashu as Ex.25/A; P.W-2 ASI Fayyaz Ahmed as Ex.26 who produced attested copy of
Roznamcha entry No.9 & 12 as Ex.26/A and 26/B; P.W-3 Shahzado Lashari as
Ex.27 who produced memo of place of incident as Ex.27/A; memo of inspection of
injury of PW Mst.Sana as Ex.27/B; Complainant Mirzado was recalled and
re-examined as Ex.28; P.W Muhammad Eidan Kamanger as Ex.29; Injured witness
Mst.Sana was examined as Ex.30. Thereafter, learned DDPP for the State had
closed the side of prosecution.
05. The
appellants/accused persons were examined under section 342, Cr.P.C, wherein
they denied the allegations of the prosecution and disclosed that there was
dispute on the street, therefore, they have been implicated by the complainant
in this false case.
06. The
learned DDPP for State filed an application U/s 540, Cr.P.C, for calling SIP
Naeem, ASI Muhammad Hussain Siyal and Dr.Monika, the application was allowed
and SIP Naeem Ahmed was examined at Ex.38 who produced FIR No.62/2010 as
Ex.38/A; P.W Muhammad Hussain Siyal at Ex.39 who produced photocopy of memo of
production of pistol and bullets by accused Moula Bux as Ex.39/A, he further
produced photocopy of memo of production
of robbed licensed pistol of accused Gulzar as Ex.39/B and memo of arrest of
accused Anwer Ali as Ex.39/C. Dr. Monika at Ex.41 2 who produced medical
certificate of Mst.Sana as Ex.41/A. P.W Lal Dino as Ex.42 and he produced
Carbon copy of memo of arrest of accused Ghulam Nabi alias Rato as Ex.42/A and
also produced Revolver and 05 live bullets as Article A/1 to A/6, personal
search of accused Ghulam Nabi as Article B/1 to B/4 and robbed finger ring of
gold recovered from his personal search as Article C/1. HC Pir Bux appeared in
the witness box as Ex.43 and LPC Najamuddin was examined as Ex.44, then learned
DDPP for the State closed the side, again statements of accused were recorded
under section 342 Cr.P.C.
07. Heard
the counsels and perused the record.
08. M/s
Zulfiqar Ali Naich & Abdul Baqi Jan Kakar, learned counsels’ for the appellants/accused
inter-alia contended that the impugned
judgment is not maintainable under the law as the star witnesses namely
Shahzado and injured witness Mst.Sana have not deposed against the
appellants/accused; material discrepancies were found in the evidence of the
complainant but same were not considered by the trial court; prosecution has failed
to prove the case beyond reasonable shadow of doubt; this is a case
of no evidence; many dents were available in the prosecution case; and
even single dent in prosecution case is sufficient for acquittal of the accused
persons.
09. Mr.Abdul
Rehman Kolachi, learned A.P.G on behalf of State did not controvert that the
injured witness Mst.Sana and victim Shahzado both have not supported the
prosecution case; however, he further contended that sufficient evidence was
available against the appellants/accused, therefore, conviction recorded by the
trial Court is legal.
10. While
scanning the evidence, it has come on record that on ocular account the prosecution possessed
the evidence of three witnesses namely complainant Mirzado, P.W Shahzado and P.W/injured
Mst.Sana. I have examined the evidence of said witnesses. Complainant Mirzado
in his examination-in-chief has deposed that:-
“Sahzado is my elder brother; Mst. Sana is wife
of Shahzado. Eidan is my father-in-law. On 15.4.2010 it was4:30 a.m in the
night I on some noise woke-up and noticed four persons near my cot. My brother
Shahzado also woke-up. I identified them as Gulzar and Moula Bux, their faces
initially were muffled. My brother grappled with them, then their muffles were
removed and their faces became open. I further identified the accused persons
Shaman, Rato, accused Shaman caused clubbed blow of his pistol to Mst.Sana over
her head”.
In
his cross-examination he admitted that it is fact that accused Gulzar is
residing in our Muhalla and is known to me.”
11. P.W
Muhammad Eidan examined at Ex.29 in in
his examination-in-chief as under:-
“Mirzado complainant is
my relative, P.W Shahzado is my son-in-law. About one year back, I got
knowledge that some thieves entered into the house of Mirzado and looted
valuables and caused injury to Mst.Sana, my daughter. My statement was not
recorded by police, I have my CNIC No.45504-1131618-5 original seen and
returned, while photocopy is produced on record as Ex.29/A.”
12. P.W Shahzado in his examination-in-chief has deposed
“that accused present in
Court are not same who entered in our house and committed dacoity, their faces
were muffled, therefore, I could not identify any of them.”
13. P.W Mst.Sana in her
examination-in-chief, deposed that:
“ I cannot identify the accused persons
present in Court as the persons who entered in our house were muffled faces.”
14. I
am quite conscious of the legal position that question of guilt or innocence is
always to be decided on basis of the evidence brought on record through course
of trial and not on basis of the material through which one person is sent to
face his trial, it is settled principle of law that the substantive evidence of
a witness is his/her statement, which is recorded during the trial, where the
accused has mandatory right to cross-
examine the witness. Since from the perusal of ocular evidence, it is evident
that P.W Mst.Sana who was injured witness has not supported the version of
complainant Mirzado, similarly Shahzado (brother of complainant) and Muhammad
Eidan father-in-law of complainant does not support the version of complainant
Mirzado. On the contrary they have negated the evidence of complainant; meaning
thereby they have falsified the evidence of the complainant hence it is quite
safe to say that prosecution failed in establishing the charge against the
appellants / accused through ocular account beyond the reasonable shadow of
doubt.
15. Though
it is also well established principle of law that no conviction can sustain on
any other type of evidence, howsoever convincing it may be, unless direct or
substantive evidence is available in cases related to human body, regarding the
contention of learned A.P.G that recovery has been effected from accused persons,
it would suffice to say that admittedly the accused Gulzar was in lock-up and according
to prosecution, during interrogation he disclosed that pistol, used in the
crime, was concealed by him in graveyard near abandoned Lime Kiln and
thereafter he led the police party and produced the same. It is pertinent to
mention that place of recovery is open area and every one can safely go there,
therefore, in such circumstances recovery cannot be proved against the accused.
Even otherwise, mere recovery alone, being a corroborative piece of evidence in
nature, is not sufficient to prove the charge against the accused, as held in
the case of “Mohammad Afzal Vs. State, reported in 2009 SCMR 436, which is as
under:-
“12. After taking out from consideration
the ocular evidence, the evidence of
identification and the medical evidence, we are left with the evidence
of recoveries only, which being purely corroboratory in nature, in our view,
alone is not capable to bring home charge against the appellant in the absence of
any direct evidence because it is well-settled that unless direct or
substantive evidenced is available conviction cannot be recorded on the basis
of any other type of evidence howsoever convincing it may be.”
16. Regarding
the recovery of golden ring from appellant/accused Ghulam Nabi, it is
surprising that after one year of offence, accused was arrested and gold ring
was found in his pocket, it is quite unbelievable for a prudent mind to accept
such theory that a person who kept robbed article upto one year in his pocket.
17. So for
medical evidence, in instant case is
also not helpful to the prosecution; as the same cannot identify or locate the
perpetrators of the offence in a case , where the injured eye witness has not
supported the complainant version, and star eye witnesses have negated the
story of prosecution. Even otherwise ; the medical evidence is only of
supportive nature and the same looses its value, where there is no other
reliable evidence available on record.
18. Under
these circumstances, when ocular evidence is contradictory; two witnesses, who
were star witnesses of the incident have negated the evidence of complainant
and even have not identified the accused persons, therefore, it can be suffice
to say that prosecution has failed in establishing the charge beyond reasonable
doubts, thus, I am of the considered view that no sufficient evidence was
available against the appellants/accused to justify their conviction because system of Safe Criminal Administration of
Justice demands that a single reasonable dent is sufficient to make whole case
doubtful and the benefit thereof must be given to accused as a matter of right
and not as a matter of grace. Reference can be made to the case of Muhammad
Akram Vs. The State, reported in 2009 SCMR 230, moreover it is wise saying that
“miscarriage of justice may arise from
the acquittal of the guilty , no less from the conviction of the innocent”
19. Keeping
in view the above facts and circumstances, I am of the considered view that
prosecution has failed to prove the charge against the appellant consequently
the impugned Judgment passed by the learned trial Judge is based on misreading
and non-reading of the evidence, therefore, the same requires interference by
this Court, thus the appeals are allowed.
Above
are the reasons of my short order dated 10.12.2012., whereby impugned judgment
was set aside.
JUDGE
A.R.BROHI