IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Cr. Rev. Appln. No. S- 110 of 2016

 

Applicant:                 Mahar S/o Darya Khan Shar through Mr.Ghulam Shabbir Dayo, Advocate

Respondent:            The State, through Syed Sardar Ali Shah,

                                    Deputy Prosecutor General

 

Date of hearing:     28.01.2019

Date of order:         28.01.2019

                       

ORDER

 

Irshad Ali Shah, J;- The facts in brief necessary for disposal of instant criminal revision application are that the applicant  and others were reported upon by police to face trial for an offence punishable under sections 337-F(ii), 337-A(ii), 147, 148, 149 PPC, outcome of FIR Crime No.111/2013 of P.S Ubauro.

2.                    The prosecution in order to prove the charge against the applicant and others, examined complainant Mawali and others and on conclusion of the trial learned 2nd Civil Judge and Judicial Magistrate Ubauro finding the applicant and others to be guilty convicted and sentenced them as under;

“Hence the point under discussion is answered as proved, all the accused persons convicted u/s 245(ii) Cr.P.C namely Malhoo son of Waris Dino, Ali Bux son of Muhammad Bux, Mahar son of Darya Khan, Noor Hassan son of Malhoo, and Peer Bux son of Muhammad Bux all by caste Shar committed offences under section 337-F(ii) PPC, and sentence them to suffer S.I for two years and fine of Rs.3000/- each. In case of default, the accused suffer S.I for three months more. The accused are also sentenced for the offence punishable under section 337-A(ii) PPC, to suffer for two years, and fine of Rs.3000/- each. In case of default, the accused suffer S.I for three months more. The accused also convicted for the offence u/s 147, 148, 149 PPC and sentenced them to suffer S.I for six months and fine of Rs.3000/- In case of default, the accused shall suffer S.I for six months more.”

3.                    The applicant and others impugned the conviction and sentence recorded against them by learned 2nd Civil Judge and Judicial Magistrate Ubauro by way of filing an appeal whereby all the accused were acquitted excepting the applicant. His appeal was dismissed by learned Additional Sessions Judge Ubauro with the following modification and observation;

“Case of appellant Mahar is little different from all other appellant. From the evidence of complainant, and injured it is proved that injury No.6 mentioned in the medical certificate which fall u/s 337-F(i) PPC was caused by accused/appellant Mahar. Although no charge for this offence has been framed, but as the offence u/s 337-F(i) PPC provides lesser punishment than the offence u/s 337-F(ii) PPC, therefore, he can be convicted for offence u/s 337-F(i) PPC. The said offence provides punishment of Daman and imprisonment for either description for a term which may extend to one year as Tazir. The appellant has been convicted and sentenced to suffer S.I for two years for offence u/s 337-F(ii) PPC, but as mentioned above punishment u/s 337-F(ii) PPC cannot be maintained and as the appellant Mahar has actually committed offence u/s 337-F(i) PPC, therefore, his conviction is modified and he is convicted for offence under section 337-F(i) PPC. So far awarding sentence is concerned, said offence is punishable for Daman and imprisonment to the extent of one year. Daman cannot be determined for the reason that record shows that no evidence regarding expenses incurred on treatment of victim has been brought on record nor there is any evidence that as result of injury caused by appellant Mahar, the victim has suffered any disability or loss in the functioning or power of the arm on which the said injury was caused by the appellant Mahar. In view of this kind of evidence determination of the Daman is not possible as provided by section 337-Y PPC. Appellant Mahar has faced trial for about three years, and has undergone rigors of trial and entitled for some compensation. He is sentenced to suffer S.I for six months.”

 

4.                    The applicant being aggrieved of dismissal of his appeal with the modification by learned appellate Court has impugned the same before this Court by way of instant criminal revision application.

5.                    It is alleged that the applicant with rest of the culprits after having formed an unlawful assembly and in prosecution of the common object, caused butt, lathies and hatchets blows to PW Ghulam Nabi, for that they were booked and reported upon by the police.

6.                    It is contended by the learned counsel for the applicant that the applicant being innocent has been involved in this case falsely by the complainant party in order to satisfy their enmity with him over rotation of irrigation water, the same evidence has been disbelieved while recording acquittal of co-accused while it is believed for convicting the applicant by learned appellant Court. By contending so, he sought for acquittal of the applicant as he according to him the applicant has been convicted for the offence by the learned appellant Court for which he was not charged at all.

7.                    Learned DPG for the State has recorded no objection to acquittal of the applicant.

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

9.                    There is two delays delay in lodgment of FIR, such delay could not be overlooked. Significantly evidence of the prosecution has been disbelieved by learned appellate Court while recording acquittal of co-accused Pir Bux alias Peero, Ali Bux alias Aloo, Noor Hassan and Malhar while it has been believed in respect of applicant that too with the modification of the sentence. It in the circumstances of the case was to have been believed or disbelieved as a whole and not in parts.

 

10.                  In case of Sardar Bibi and others vs. Munir Ahmed and others (2017 SCMR-344), it was held by the Hon’ble Court that;

“When the eye-witnesses produced by the prosecution were disbelieved to the extent of one accused person attributed effective role, then the said eye-witnesses could not be relied upon for the purpose of convicting another accused person attributed a similar role without availability of independent corroboration to the extent of such other accused”.   

 11.                 Be that as it may, the applicant has been convicted and sentenced by learned appellate Court for an offence punishable under section 337-F(i) PPC for which he was not charged at all by learned trial Magistrate. In that way, the applicant has been deprived of right of his lawful defence at trial. There is no recovery of any sort from the applicant. The parties are already disputed over water rotation. If the involvement of the applicant is examined in that context, then it appears to be doubtful.

 

12.              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.”

 

13.                  In view of the facts and circumstances discussed above, the impugned judgments of learned trial and appellate court are set aside and consequently, the applicant is acquitted of the offence for which he was charged, tried and convicted by learned trial and appellate Court. His bail bond stand discharged.

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

Judge

 

ARBROHI