ORDER SHEET

THE HIGH COURT OF SINDH CIRCUIT COURT AT LARKANA

Criminal Revision Application No.S-53 of 2016

Date	Order with signature of Judge

For hearing of case.

17.12.2018

Mr. Ali Nawaz Ghanghro, Advocate for applicant.

Mr.Muhammad Noonari, D.P.G for the State.

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            The facts in brief necessary for disposal of instant criminal revision application are that the applicant being Clerk in Revenue Department at Jacobabad on 10.02.2015, obtained from complainant Magsi Khan Brohi rupees Sixteen Lacs, to arrange three jobs for him, which he failed to arrange. Consequently, the complainant lodged FIR against the applicant for an offence punishable u/s 420, 406 PPC.

            At trial, the applicant denied the charge and prosecution to prove it examined complainant Magsi Khan (Exh.04), PW Altaf Hussain Bapar (Exh.05), PW Altaf Hussain Brohi (Exh.06), PW ASI Muhammad Azeem Soomro (Exh.07), PW SIP Ali Muhammad Odho (Exh.09) and then closed its side.

                        The applicant in his statement recorded u/s 342 Cr.PC denied the prosecution allegation. He did not examine himself on oath or anyone in his defence.

            On conclusion of trial, the learned Civil Judge & Judicial Magistrate, Thull, vide judgment dated 09.04.2016, convicted and sentenced the applicant as below;

“I convict accused and sentence for offence U/Ss: 406 PPC to suffer R.I for One and half year and to pay fine of Rs.5000/-. In default to payment of fine accused shall suffer S.I for (02) months and I also convict accused and sentence for offence U/Sec 420 PPC R.I for One year and pay fine of Rs.5000/-. In default of payment of fine accused shall suffer S.I for (02) months more”.

            The applicant being aggrieved of the conviction and sentence awarded to him by learned trial Magistrate, by way of above said judgment, impugned the same by preferring an appeal, it was dismissed by learned 2^nd Additional Sessions Judge, Jacobabad, by making the following observation;

“The record of learned trial Court shows that the version of the complainant is fully corroborated by other witnesses. The record further appears that the P.Ws and complainant were subjected to cross examination but their evidence was not shattered. It also appears that no specific enmity of complainant with present accused prior to this incident is alleged nor proved. In this circumstance, I find that the learned trial Court has passed impugned judgment legally and lawfully and is not suffering from any illegality or irregularity and as such is not requiring any interference”.

                        The applicant being aggrieved of dismissal of his above said appeal by learned Appellate Court by way of above said judgment, has impugned the same before this Court by way of preferring the instant criminal revision application.

                        It is contended by learned counsel for the applicant that the applicant being innocent has been involved in this case falsely by the complainant party, otherwise he has nothing to do with the appointment procedure. By contending so, he sought for acquittal of the applicant.

                        The learned D.P.G for the State sought for dismissal of instant criminal revision application by supporting the impugned judgment, while none has come forward to argue the instant criminal revision application on behalf of the complainant.

                        I have considered the above arguments and perused the record.

                        There is no denial to the fact that, the posts in public sector if are falling vacant, are to be filled in by adopting the procedure which is prescribed by law by inviting the applications from eligible candidates through wide publicity. In the instant matter, no post was advertised to be filled in. No selection committee was constituted. The complainant or his relatives never applied for the post for their appointment by way of making any application. The applicant being Clerk was not competent to make an appointment. In that situation, making payment of rupees Sixty Lacs to the applicant by the complainant for three jobs without determining their eligibility for the appointment was uncalled for. The involvement of the applicant in this case by the complainant that too with delay of about one year is appearing to mysterious, as such the same could not be lost sight of, which has made the case of the prosecution to be doubtful one.  

                        In case of Faheem Ahmed Farooqui Vs. The State (2008 SCMR-1572), it is held by the Honourable Apex Court that;

“single infirmity creating reasonable doubt regarding truth of the charge makes the whole case doubtful”.

                        For what has been discussed above, the impugned judgment of learned trial Magistrate and Appellate Court could not be sustained, those are set aside. Consequently, the applicant is acquitted of the offence for which he was charged, tried and convicted. The applicant shall be released forthwith, if he is found to be in custody in the present case.  

                        The instant Crl.Revision application is disposed of accordingly.

                                                                                                                   JUDGE

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