IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Criminal Appeal No.S-35 of 2014

Appellant : Nasrullah s/o Wali Muhammad Rind

Through Mr. Safdar Ali Bhutto, Advocate

Complainant : Yakhtiar Ali Mangan in person

State : Mr.Raja Imtiaz Ali Solangi, A.P.G

Date of hearing : 16.07.2018

Date of decision : 16.07.2018

J U D G M E N T

IRSHAD ALI SHAH, J-. The appellant by way of instant appeal has impugned judgment dated 25.11.2014, of learned 5^th Additional Sessions Judge, Larkana, whereby he has been convicted and sentenced to undergo imprisonment for life and to pay fine of rupees One Lac and in default in payment whereof, to undergo R.I for 12 months with benefit of Section 382-B Cr.PC, for an offence punishable under section 365-B PPC.

2. The facts in brief necessary for disposal of instant appeal are that it is alleged that the appellant with rest of the culprits being armed with deadly weapons, by committing trespass into house of complainant Yakhtiar Ali, after keeping him and his witnesses under fear of death, abducted his niece Mst.Naila with intention to have rape with her, for that the present case was registered. The appellant on arrest was challaned by the police to face trial for the above said offence before the competent Court of law.

3. At trial, the appellant did not plead guilty to the charge, and prosecution to prove it examined PW-01 complainant Yakhtiar Ali, produced through him FIR of the present case, PW-02 Khalid, PW-03 Mashir Abdullah, produced through him mashirnama of place of incident, PW-04 HC Muhammad Ameen to identify the signatures of SIO/ASI Zameer Hussain on the documents which were produced by the prosecution at trial and then closed the side.

4. The appellant during course of his examination under section 342 Cr.PC denied the prosecution’s allegation by pleading innocence. He did not examine anyone in his defence or himself on oath in disproof of the prosecution’s allegation.

5. On evaluation of evidence so produced by prosecution, learned trial Court convicted and sentenced the appellant by way of impugned judgment, as stated above.

6. It is contended by learned counsel for the appellant that Mst.Naila has married of her own accord with co-accused Arif, the appellant being relative of co-accused Arif has been involved in this case falsely by the complainant party only to create pressure for return of Mst.Naila; the FIR has been lodged with delay of about eight days to the incident without plausible explanation to such delay; the evidence so produced by the prosecution was not transpiring confidence, it has been accepted by learned trial Court to record conviction and sentence against the appellant without lawful justification. By contending so, he sought for acquittal of the appellant.

7. Learned A.P.G who is assisted by the complainant has sought for dismissal of the instant appeal by contending that the appellant was rightly convicted and sentenced by learned trial Court, on proper evaluation of evidence.

8. I have considered the above arguments and perused the record.

9. It is stated by complainant Yakhtiar Ali and PW Khalid during course of their examination that the appellant with rest of the culprits, being armed with deadly weapons, by committing trespass in their house, after keeping them under fear of death abducted Mst.Naila. The specific role of dragging Mst.Naila out from their house is attributed by them to co-accused Arif and Mubeen, who as per record are still absconding. The simple presence of the appellant at the place of incident only to be armed with pistol is appearing to be doubtful. Be that as it may, during course of their cross examination, it was admitted by the complainant and his witness that Mst.Naila at present is residing with co-accused Arif at Karachi. If it is so, then it hardly constitutes a case of abduction. It was further stated by the complainant and his witness during course of their cross examination that they do not know about marriage of Mst.Naila with co-accused Arif. It apparently was improper reply on their part, otherwise they were having such knowledge even at the time when the appellant was released on bail by learned trial Court, on the basis of affidavit of Mst.Naila, which she sworn before learned 5^th Civil Judge & J.M, Karachi Central, wherein it was stated by her that she has not been abducted by anyone and she intends to marry with co-accused Arif. By furnishing improper reply perhaps knowingly about the marriage of Mst.Naila with co-accused Arif, the complainant and his witness obviously have reduced the evidentiary value of their version. If learned trial Court would have taken the judicial notice of above said affidavit of Mst.Naila being available in case file with verification report of learned Judicial Magistrate, who attested the same, then the result of the case would have been different. In these circumstances, the contention of learned counsel for the appellant that the involvement of the appellant in this case by the complainant party was only to create pressure against him to have return of Mst.Naila through him, could not be lost sight of. As per PW/Mashir Abdullah, the mashirnama of place of incident was prepared by the police at the spot. He in that respect was belied by the complainant by stating that it was prepared by the police at the gate of his house. SIO/ASI Zameer Hussain Chandio who has conducted the entire investigation was not examined by the prosecution on account of his death. No doubt, HC Muhammad Ameen was examined by the prosecution to verify the signatures of SIO/ASI Zameer Hussain on the documents which he prepared during course of investigation, but his evidence is not enough to make a conclusion that the prosecution has discharged its liability of proof of the above said documents, simply for the reason that HC Muhammad Ameen during course of his cross examination was fair enough to admit that he could not say by whom the FIR of the present incident was recorded.

10. The discussion involved a conclusion that the prosecution has not been able to prove its case against the appellant beyond shadow of doubt.

11. In view of the facts and reasons discussed above, the conviction and sentence which are recorded against the appellant by way of impugned judgment could not be sustained, it is set aside, the appellant is acquitted of the offence for which he was charged, tried and convicted by learned trial Court. The appellant shall be released forthwith if he is not required in any other custody case.

12. Above are the reasons of short order dated 16.07.2018, whereby the instant appeal was accepted and the appellant was acquitted of the offence for which he was charged, tried and convicted by learned trial Court.

J U D G E