IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Cr. Rev. Appln. No. S- 90 of 2008

Applicants:               Abdul Ghani and Abdul Karim, both through Mr. Ali Akber Narejo, associate of Mr. Sohail Ahmed Khoso, Advocate

Respondent:            The State, through Syed Sardar Ali Shah,

                                    Deputy Prosecutor General

 

Complainant:           Altaf Hussain, through Mr. Ghulam Shabbir Dayo, Advocate

Date of hearing:     28.01.2019

Date of decision:    28.01.2019

                       

ORDER

 

Irshad Ali Shah, J;- The applicants by way of instant criminal revision application have impugned judgment dated 08.10.2008 passed by learned 3rd Additional Sessions Judge Khairpur, whereby their Criminal Appeal No.85/2005 re- Abdul Ghani and another vs. The State was dismissed, whereby the conviction and sentence which was recorded against them by learned 1st Civil Judge and Judicial Magistrate Kotdiji, outcome of FIR Crime No.21/2014 of P.S Kotdiji vide judgment dated 13.10.2005 was maintained.

2.                    The facts in brief necessary for disposal of instant criminal revision application are that the applicants in furtherance of their common intention by insulting complainant Altaf Hussain caused kicks, fists and soti blows to him, for that they were booked and reported upon by the police.

3.                    At trial, applicants did not plead guilty to the charge and prosecution to prove it, examined complainant Altaf Hussain and his witnesses and then closed the side. Consequently, the applicants were convicted and sentenced by learned trial Magistrate as under:-

“I taking lenient view convict and sentence the accused to suffer R.I for two (2) years and to pay arsh of Rs.15000/- each for offence u/s 337-AIII, PPC, R.I for two years and Daman of Rs.5000/- five thousand each in section 337-F(iii), PPC and RI for one year and Daman of Rs.1000/ each for having committed the offence punishable u/s 337-L(ii) PPC.”

4.                    The applicants being aggrieved of the conviction and sentence awarded to them by learned trial Magistrate, preferred an appeal, it was dismissed by learned appellate Court, such dismissal of their appeal, the applicants have impugned before this Court by way of instant criminal revision application, as stated above.

5.                    It is contended by the learned counsel for the applicants that the applicants being innocent have been involved in this case falsely and learned trial and appellate Court have convicted and sentenced the applicants without any lawful justification, on the basis of improper assessment of evidence. By contending so, he sought for acquittal of the applicants.

6.                    Learned DPG by supporting the impugned judgments of learned trial and appellate Court has sought for dismissal of instant revision application while learned counsel for the complainant has recorded no objection to the acquittal of the applicants provided that the applicants would not harass the complainant in future.

7.                    In response to above, the applicants filed an statement, stating therein that they would never harass the complainant in future, such statement of the applicants is taken on record.

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

9.                    There is delay of about eighteen days in lodgment of FIR, such delay could not be overlooked, it is reflecting consultation. 161 Cr.P.C statement of the P.Ws as per SIO/ASI Qalander Bux were recorded on 09.3.2004. If it was so, then it was with delay of fourteen days even to FIR, such delay in recording 161 Cr.P.C statements of the P.Ws could not be lost sight of, which has made the version of the P.Ws to be doubtful. There is general allegation of the incident. The parties are disputed over installation of door. In that situation, the involvement of the applicants in this case is appearing to be doubtful. Learned counsel for the complainant has also recorded no objection to the acquittal of the applicants. In these circumstances, the conviction and sentence recorded against the applicants by learned trial and appellate Courts could not be sustained.

 10.                 In case of Abdul Khaliq vs. the State (1996 SCMR 1553), it was observed by Hon’ble Court that;

“----S.161---Late recording of statements of the prosecution witnesses under section 161 Cr.P.C. Reduces its value to nil unless delay is plausibly explained.”

 

11.              In case of Tarique Bashir vs. The State (1995 SCMR 1345), it has been held by Hon’ble Apex Court that;

“For giving benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt- if a simple circumstance creates reasonable doubt in a prudent mind about the guilt of the accused, then he will be entitled to such benefit not as a matter of grace and concession but as a matter of right.”

 

12.                  In view of the facts and circumstances discussed above, the impugned judgments of learned trial and appellate court are set aside and consequently, the applicants are acquitted of the offence for which they were charged, tried and convicted by learned trial and appellate Court. Their bail bonds stand discharged.

13.                  Instant criminal revision application stands disposed of in above terms.

Judge

 

ARBROHI