IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Criminal Appeal No. D – 44 of 2017

Before;

Mr. Justice Muhammad Iqbal Mahar

Mr. Justice Irshad Ali Shah

Appellants : Abdul Razak alias Amanullah and

Sanaullah, through Mr.Muhammad Akram Jhamat, Advocate

Complainant : Attaullah Phulpoto, through Mr. Shabbir Ali

Bozdar, Advocate

The State, through Mr. Aftab Ahmed Shar

Additional Prosecutor General

Date of hearing : 26.02.2019

Date of decision: 26.02.2019

JUDGMENT

IRSHAD ALI SHAH, J:- The appellants by way of instant Criminal Appeal have impugned judgment dated 01.04.2017 passed by learned Judge, Anti-Terrorism Court Khairpur, whereby they have been convicted and sentenced as under;

“I, therefore, convict both the present accused Abdul Razaq @ Amanullah Pathan and Sanaullah Pathan for the offence punishable under section 384 R/w Section 34 PPC and sentence them to suffer R.I for three years each and to pay the fine of Rs.15000/- (Rupees fifteen thousand) each and in case of default in payment of fine they shall suffer further R.I for two months each. I also convict both the said accused namely Abdul Razaq @ Amanullah and Sanaullah Pathan for the offence punishable under section 385 R/w Section 34-PPC and sentence them to suffer R.I for two years each and to pay the fine of Rs.10,000/- (Rupees ten thousand) each and in case of default in payment of fine they shall suffer further R.I for one month each. I also convict both the said accused namely Abdul Razaq @ Amanullah Pathan and Sanaullah Pathan for the offence punishable under section 506/2 R/w Section 34-PPC and sentence them to suffer R.I for seven years each and to pay the fine of Rs.25,000/- (Rupees twenty five thousand) each and in case of default in payment of fine they shall suffer further R.I for four months each. I also convict both the said accused namely Abdul Razaq @ Amanullah Pathan and Sanaullah Pathan for the offence punishable under section 337-H2 R/w Section 34-PPC and sentence them to suffer R.I for three months and to pay the fine of Rs.3000/- (Rupees three thousand) each and in case of default in payment of fine they shall suffer further R.I for 15 days. I also convict the said accused namely Abdul Razaq @ Amanullah Pathan and Sanaullah Pathan for the offence punishable under Section 7 ATA, 1997 and sentence them to suffer R.I for seven years each and to pay the fine of Rs.25,000/- (Rupees twenty five thousand) each and in case of default in payment of fine they shall suffer further R.I for four months each.”

2. It is alleged that the appellants with rest of the culprits demanded Rupees Five lac as “Bhatha” from the complainant, he then paid them Rupees Fifty thousand and promised to pay them the remaining amount at later stage, which he failed to pay, consequently he was threatened by the appellants and others of dire-consequences and then they went away by making aerial firing to create harassment, for that they were booked and reported upon by the police.

3. At trial, the appellants did not plead guilty to the charge and prosecution to prove it, examined PW-1 complainant Attaullah (Ex.4), he produced order of learned Ex-Officio Justice of Peace Khairpur and FIR of the present case; PW-2 Sultan Ahmed (Ex.5); PW-3 Mashir Zulfiqar Shar (Ex.6), he produced memo of place of incident; PW-4 SIO/SIP Khalil Ahmed Soomro (Ex.7) and then closed the side.

4. The appellants during course of their examination u/s 342 Cr.P.C denied the prosecution allegation by pleading innocence. They did not examine any one in their defence or themselves on oath in disproof of the prosecution allegation.

5. On the basis of evaluation of evidence, so produced by the prosecution, learned trial Court convicted and sentenced the appellants, as stated above.

6. It is contended by learned counsel for the appellants that the appellants being innocent have been involved in this case falsely by the complainant in order to satisfy his enmity with them over landed property, there is delay of about two months in lodgment of FIR which is not explained plausibly by the complainant, the evidence of the prosecution being inconsistent has been relied upon by the learned trial Court without lawful justification. By contending so, he sought for acquittal of the appellants.

7. Learned Additional PG for the State did not support the impugned judgment and conceded for acquittal of the appellants while learned counsel for the complainant sought for dismissal of instant criminal appeal by contending that the prosecution has been able to prove its case against them beyond shadow of doubt.

8. We have considered the above argument and perused the record.

9. As per complainant, the FIR of the incident was not recorded by the police, he therefore, by way of an application u/s 22-A Cr.P.C sought for direction against the police to record his FIR and then he lodged the FIR of the incident with police 03.03.2014. It was done on fourth day of issuance of such direction. No plausible explanation to such delay has been furnished by the complainant which could not be lost sight of. It smells of something wrong on the part of complainant.

10. In case of Mehmood Ahmed & others vs. the State & another (1995 SCMR-127), it was observed by the Hon’ble Court that;

“Delay of two hours in lodging the FIR
in the particular circumstances of the case had assumed great significance as the same could be attributed to consultation, taking instructions and calculatedly preparing the report keeping the names of the accused open for roping in such persons whom ultimately the prosecution might wish to implicate”.

11. As per FIR, PW Sultan Ahmed is Hari of the complainant. As per PW Sultan Ahmed he has never remained Hari of the complainant, which appears to be significant. As per complainant three / four cases are registered against him and PWs Sultan Ahmed and Muharram are his witnesses in another case against Mumtaz and others. If it is so, then PWs Sultan Ahmed and Muharram Ali are appearing to be stock witnesses of the complainant. No stock witness could be relied upon to base conviction. PW Muharram Ali has not been examined by the prosecution. There is no recovery of any sort from the appellants. The conclusion which could be drawn of the above circumstances would be that the involvement of the appellants in the case is not free from doubt.

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 above the conviction and sentence recorded against the appellants by way of impugned judgment could not be sustained, it is set aside. Consequently, the appellants are directed to be released forthwith, if they are not required in any other case.

14. Above are the reasons of short order dated 26.02.2019, whereby the instant Criminal Jail Appeal was disposed of.

Judge

ARBROHI