IN THE HIGH COURT OF SINDH CIRCUIT COURT LARKANA

Criminal Revision No. S- 39 of 2013

Present:- Naimatullah Phulpoto, J

Applicant : Noor-ud-din s/o Imam-ud-din Magsi, through Mr.Mazhar Ali Mangan, Advocate.

Respondents : The State through Mr. Khadim Hussain Khooharo, DPG.

Date of Hearing : 27.02.2015

JUDGMENT

Naimatullah Phulpoto,J:. Applicant Noor-ud-din and Yar Muhammad were tried by learned Assistant Sessions Judge, Kamber under Sections 324, 353, 392, 34, PPC of PS Mahi Makol. After full dressed trial, both accused were found guilty and were convicted and sentenced as under:-

(a) Under section 324, PPC for two years R.I.

(b) Under Section 353, PPC One year R.I.

Convict Yar Muhammad filed Criminal Appeal No.10/2012 before learned Additional Sessions Judge, Kamber, which was allowed by learned Additional Sessions Judge, vide judgment dated 21.02.2014 consequently, accused Yar Muhammad was acquitted of the charge. Applicant Noor-ud-din had also filed appeal before the learned Additional Sessions Judge, Kamber but his appeal was not admitted to regular hearing on the ground of delay in filing of appeal and same was dismissed vide order dated 11.07.2013. Thereafter, in the above stated circumstances revision application has been filed.

2. Brief facts of the prosecution case leading to filing instant revision application are that on 03.08.2011 complainant ASI Munwar Ali left Police Station along with his subordinate staff vide Roznamcha entry No.5 for patrolling duty. When at 1230 hours police party reached at katcha path leading from village Rato Mugheri towards Peer Barija near Mian Ishaque Fakeer where police saw a person namely Akhtiar Ali @ Motor son of Sain Rakhio who was raising cries and told the police that accused Yar Muhammad and Noor-ud-din have snatched motorcycle from him. They were driving motorcycle to the western side. On such information, police party along with Akhtiar Ali followed the accused persons. At about 1250 hours police party reached at link road leading from Kot Ghulam Shah towards Hasila where they saw accused persons. Thereafter, accused while seeing the police party left the motorcycle on the road and started firing upon the police party. Police also fired in self defence. Firing lasted for five minutes. Thereafter, accused persons surrendered before the police and they were arrested. On enquiry, accused persons disclosed their names as Yar Muhammad and Noor-ud-din. From personal search of both the accused persons unlicensed pistols were recovered. Regarding motorcycle, both the accused persons admitted that they had snatched the motorcycle from one Akhtiar Ali alias Motor. Mashirnama of arrest and recovery was prepared in presence of mashir. Thereafter, police brought both the accused persons to the police station where FIR was lodged against the accused persons on behalf of State vide Crime No. 49/2011 under sections 324, 353, 392, 34, PPC. Separate 13(d) cases were also registered against the accused on behalf of State. After usual investigation challan was submitted against the accused. Case was sent up and it was made over to learned Assistant Sessions Judge, Kamber for disposal according to law. On the conclusion of trial, both the accused persons were convicted and sentenced as stated above.

3. Both accused filed appeals before the learned Sessions Judge, Kamber separately. Appeal of applicant Noor-ud-din was not admitted to the regular hearing and it was dismissed by Learned Additional Sessions Judge, Kamber vide order dated 11.07.2013 on the ground that it was barred by nine months.

4. Appeal of co-convict Yar Muhammad was allowed by learned Additional Sessions Judge vide judgment dated 21.02.2014, mainly on the ground that there were legal infirmities and discrepancies in the prosecution case and pistols allegedly recovered from accused Yar Muhamad and Noor-ud-din were neither sealed at spot nor sent to the Ballistic Expert. Relevant portion of the judgment is reproduced as under:-

“11. After hearing the arguments, I have perused the record and proceedings and found that the PWs have supported the prosecution case, but there are legal infirmities and discrepancies in the prosecution case. The pistols allegedly recovered from accused Yar Muhammad and Nooruddin were neither sealed by the police nor sent to the expert for opinion as to whether the said weapons were in working condition or not, but in the case in hand, ASI Munawar Ali have not taken pain to seal the recovered pistols and to send it for the Forensic/Ballistic expert for the above purpose. It is well settled proposition of law that the conviction cannot be based unless the weapon allegedly recovered were sealed at the spot and the opinion for Forensic/Ballistic Expert is produced on record to prove that the weapons as recovered, in fact, functional and the said weapons fell to be the pistols. Thus such lacuna on the part of prosecution has given fatal blow to the prosecution case, such lacuna has not been considered by the learned trial Court.

5. Mr. Mazhar Ali Mangan, learned counsel for applicant Noor-ud-din has mainly contended applicant Noor-ud-din had filed appeal against his conviction and sentence along with co-accused Yar Muhammad and dismissal of the appeal of Noor-ud-din on the ground of delay in filing of the appeal was not justified. He has further submitted that co-convict Yar Muhammad was acquitted. It is argued that learned Additional Sessions Judge, was legally bound to acquit the applicant Noor-ud-din as his case was on same footings. He has also argued that learned Additional Sessions Judge should have given benefit of the judgment of co-accused Yar Muhammad and the applicant should have been acquitted. In support of his contentions , reliance has been placed on the case of Sabir Hussain v. The State 2014 SCMR 794, Amin Ali and another v. The State 2011 SCMR 323 and Hussain Haider Shah and others v. The State 2013 YLR 1932.

6. Mr. Khadim Hussain Khooharo, learned DPG conceded that case of accused Yar Muhammad was identical to the case of applicant Noor-ud-din but opposed the revision application on the ground that appeal was filed by accused Noor-ud-din by delay of nine months it was dismissed and prayed that case may be remanded back for hearing appeal of accused Noor-ud-din on merits.

7. I have carefully heard the learned counsel for the parties and scanned the entire evidence available on record.

8. It appears that learned Additional Sessions Judge, while deciding appeal of accused Yar Muhammad by judgment dated 21.02.2014 has mentioned that there are legal infirmities and discrepancies in the prosecution case and pistols recovered from accused Yar Muhammad and applicant Noor-ud-din were neither sealed at spot nor were sent to the Ballistic Expert for opinion. It was further observed that investigating officer also failed to associate with him private persons of the locality to witness the recovery. Learned appellate court has also noticed that arrival and departure entries were not produced before the trial Court and non production of such entries cuts the roots of the prosecution case and made entire episode doubtful. It is admitted by learned DPG that case of applicant Noor-ud-din is identical to the case of accused Yar Muhammad who has been acquitted. Appeal was also filed by applicant Noor-ud-din. Learned Additional Sessions Judge should not have dismissed the appeal on the ground of delay in filing of the appeal. Better/safe course for appellate court was to decide the appeal of Noor-ud-din along with Yar Muhammad on merits. It is evident that accused Yar Muhammad has been acquitted and his case is identical to the case of applicant Noor-ud-din. In such circumstances, it is the requirement of law that premium should be granted to applicant Noor-ud-din who failed to assail the judgment against him by getting his appeal decided on merits.

9. No doubt section 439 (5) of The Code of Criminal Procedure, 1898 clearly debarring the remedy of revision petition, where under the “Code” an appeal lies but no appeal is preferred. However, this prohibition cannot oust the Suo Motu jurisdiction of this Court due to use of words or which otherwise come to its knowledge “ in section 439(1) of The Code of Criminal Procedure, 1898, and use of expression “No proceedings by way of revision shall be entertained at the instance of the party who could have appealed” used in section 439(5) of The Code, clearly suggests that embargo has been put upon the party and not upon Court. While exercising revisional jurisdiction, this Court can exercise any of the powers conferred on the court of appeal. In the present case, appeal was preferred by Noor-ud-din, the same was not entertained on the ground of delay in filing of appeal.

10. In the case of Inayatullah Khan v. The State 1994 P.Cr.L.J 858 benefit of doubt was granted to the convict who did not prefer appeal while exercising Suo Moto revisional powers under section 439 of The Code of Criminal Procedure, 1898.

11. After examining the provisions of Section 561-A of The Code of Criminal Procedure, 1898, I am convinced that premium should be granted to the convict Noor-ud-din whose appeal against conviction was not decided on merits. Powers under section 561-A of The Code of Criminal Procedure, 1898 can be exercised to prevent the abuse of process of the Court or otherwise to secure the ends of justice.

Scope of section 561-A of The Code of Criminal Procedure, 1898, can be summarized as under:--

(a) The said provision should not be understood to provide an additional or alternative remedy;

(b) The powers can be used to make departure from the normal course prescribed by law only and only in exceptional circumstances of extra-ordinary nature and,

The said powers cannot be used when the powers have been expressly taken by any law.

The jurisdiction is extra-ordinary in nature and is designed to do substantial justice.

12. Keeping in view facts of the case, mainly that appeal of co-convict has been allowed and appeal of applicant Noor-ud-din was dismissed on the ground of delay, there can be no two opinions that omission to exercise jurisdiction will cause grave injustice to the convict i.e. Noor-ud-din. Legally the accused persons similarly placed are to be treated alike.

13. Pursuant to the above discussion, I have come to the conclusion that benefit of the judgment recording acquittal in favour of co-accused Yar Muhammad has to be extended in favour of applicant Noor-ud-din as such while extending benefit of doubt convict Noor-ud-din, is also acquitted of the charge. He is present on bail, his bail bond stands cancelled and surety is hereby discharged.

14. Revision applications is disposed of.

Judge

Abid H. Qazi/**