IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Crl. Revision Appln. No. S- 36 of 2010.

1.       Khalil Bhagio.

2.       Sattar Chibhar.

                                                                   …...………...Applicants.

Versus

The State.                                                   ...…...…..….Respondent.

          Mr. Shafi Muhammad Mahar, Advocate for the applicants.

          Mr. Sharafuddin Kanhar, A.P.G.

Date of hearing:             07.05.2018.

Date of judgment:          07.05.2018.

JUDGMENT

Amjad Ali Sahito, J-.   Through this criminal revision the applicants have challenged the judgment dated 05.07.2010 passed by learned Additional Sessions Judge, Kandhkot, whereby he has maintained the conviction and sentence awarded to applicants by learned 1^st Civil Judge and Judicial Magistrate, Kandhkot, vide judgment dated 20.05.2010. 

2.       The applicants were tried by the learned 1^st Civil Judge and Judicial Magistrate, Kandhkot, in the case vide Crime No.161 of 2009, Police Station A-Section Kandhkot, for offence under Sections 337-A (ii), 337-F (ii), 147, 148 and 504 P.P.C., who convicted applicants, as under:

Appellant Khalil was convicted for offence under Section 337-F (i) P.P.C and sentenced to imprisonment for six months and payment of Rs.5000/- as fine of “Daman” to injured complainant Nazir Ahmed.

                   Appellant Sattar was convicted for offence under Section 337-A (ii) P.P.C and sentenced to imprisonment for one year and pay 5 % of Diyat amount as Arsh to injured complainant Nazir Ahmed.

3.       The applicants and co-accused Qurban preferred appeal before learned Sessions Judge, Kashmore @ Kandhkot vide Criminal Appeal No.01/2010, which was made over to learned Additional Sessions Judge, Kandhkot, who after hearing the parties dismissed the appeal of the applicants by maintaining their conviction and sentence recorded by the learned trial Court; however he allowed appeal of co-accused Qurban and acquitted him from the charge by extending benefit of doubt.

4.       Being aggrieved, the applicants have filed present criminal revision application before this Court.

5.       The facts of the prosecution case as unfolded in the F.I.R lodged by complainant Nazir Ahmed with P.S A-Section Kandhkot on 16.6.2009 are that he has enmity with Ibrahim Noonari and others over matrimonial affairs, due to which accused person were extending him threats of dire consequences. That on the fateful day, complainant after attending meeting was going towards his house, when at 08.45 p.m. he reached near the house of Noor Muhammad Khoso in the street, meantime he noticed six persons on two motorcycles, who were identified to be Ibrahim, Khalil, Hakim Ali alias Ghulam Hyder, Qurban, Sattar and Niaz, out of them Qurban and Sattar were having pistols in their hands, while other wither having “lathis”. The accused persons challenged the complainant and accused Qurban caused pistol butt blow to complainant on his neck, accused Sattar caused him butt blow of pistol on his head, while Ibrahim caused him lathi blow on his right arm elbow; accused Khalil caused lathi blow to complainant on his left arm elbow; accused Hakim caused lathi blow to complainant on his back side of left hand. The complainant fell down by raising cries and then all the accused started giving him fists and kicks blows and in the meantime P.Ws Illahi Bux and Allahdad reached the spot; they entreated the accused, as such they went away by boarding on their motorcycles. The complainant found that his CNIC and service card were missed during incident. Thereafter, he went to police station and lodged report to the above effect.

6.       During course of trial, formal charge was framed against the applicants and co-accused at Ex.02 by the learned trial Court, to which accused pleaded not guilty and claimed trial and at trial the prosecution examined in all five witnesses, namely, H.C Ghulam Bahoo, ASI Nagar Ali Soomro, complainant Nazir Ahmed, PW Illahi Bux Noonari, Medical Officer Dr. Abdul Subhan Dayo and PW Rafique Ahmed. Thereafter the prosecution side was closed vide statement by Prosecutor as Ex.11.

7.       The statements of applicants and co-accused were recorded under Section 342 Cr.P.C at Ex.12 to Ex.15, in which they denied the allegations leveled against them and pleaded their innocence.

8.       Learned counsel for applicants argued that, the prosecution has totally failed to prove its case against the appellants for the offence for which the applicants have been convicted and sentenced. Per learned counsel, on the basis of evidence produced at trial the applicants cannot convicted and sentenced as the evidence was insufficient and not inspiring confidence. He further submitted that on same set of evidence the learned trial Court acquitted co-accused Niaz and in appeal the learned appellate Court also acquitted another co-accused namely, Qurban by extending benefit of doubt, as such the present applicants are also entitled for same benefit. Lastly, he prayed for acquittal of applicants in the case.

9.       On the other hand, learned A.P.G. appearing for the State supported the impugned judgments passed by learned trial Court as well as appellate Court. 

10.     I have heard the learned counsel for applicants, as well as learned A.P.G and have gone through the entire record.

11.     It is matter of record that, learned trial Court acquitted the co-accused Niaz and learned appellate Court acquitted another co-accused, namely, Qurban by considering the evidence of same set of witnesses. The learned trial Court acquitted co-accused Niaz on the ground that no specific role was assigned to him, though his presence was shown at the spot by the complainant and his witnesses, but trial Court acquitted him of the charge meaning thereby learned trial Court discarded evidence in respect of co-accused Niaz, but at same time it believed the same evidence in respect of applicants.

12.     Likewise, the learned appellate Court acquitted another co-accused, namely, Qurban while observing that, he was alleged to have caused a butt blow of pistol which landed on left shoulder of complainant and it is not corroborated by the medical evidence, as medical legal certificate reveal no injury on shoulder of complainant. It was further observed by learned appellate Court that the trial Court was not sure that whether injury assigned to accused Qurban was on shoulder of injured or on his neck and by giving benefit of this inconsistency between ocular and medical evidence co-accused Qurban was acquitted of the charge.

13.     The learned trial Court as well as learned appellate Court have dis-believed and discarded the evidence of complainant and his witnesses in respect of two co-accused and acquitted both of them by extending benefit of doubt, but at same time both the Courts below have believed the evidence of same set of witnesses in respect of present applicants. In my view, the benefit of same doubt should have also been extended in favor of present applicants.

14.     It is also matter of record that, PW Allahdad who is said to be eyewitnesses of the alleged incident, was not examined by the prosecution during trial. As such, in view of Article 129 (g) of the Qanun-e-Shahadat, 1984, the presumption would be that, since said witness was unfavorable to prosecution and not going to support their case, therefore, he was not examined by the prosecution. 

15.     Moreover, perusal of judgment passed by learned appellate Court reveals that the prosecution has also brought on record opinion of medical board constituted for re-examination of injured Nazir Ahmed and same has been submitted with statement of Prosecutor, which shows that the medical board has suspended the opinion of medical officer in respect of injuries of injured Nazir Ahmed. This means that medical evidence was also not in consonance with ocular evidence.

16.     In these circumstances, it is concluded that the learned trial Court as well as learned appellate Court have not evaluated the evidence in its true perspective and thus reached to erroneous conclusions in respect of present applicants by holding them guilty of the offence. Accordingly, for the foregoing reasons, the instant criminal revision is allowed; the impugned judgments of learned trial Court and appellate Court are set aside and applicants are acquitted from the charge. The applicants are present on bail, their bail bonds stand cancelled and surety discharged.

                                                                JUDGE

Ansari/*