IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Crl. Jail Appeal No.D- 115 of 2015

 

                        Before;

                        Mr. Justice Muhammad Iqbal Mahar

                             Mr. Justice Irshad Ali Shah

 

Appellants:          1- Mureed S/o Sher Muhammad Chandio,Sikander 2- Dur Muhammad @ Dural S/o Jaro Chandio

3- Khadim S/o Dhani Bux Chandio,

    All the appellants present in person

 

Respondent:        The State, through Mr. Aftab Ahmed Shar,

                             Additional Prosecutor General

 

Date of hearing:  17.04.2019

Date of decision: 17.04.2019

 

J U D G M E N T

 

IRSHAD ALI SHAH, J-. The appellants by way of instant Criminal Jail appeal have impugned Judgment dated 14.12.2015 passed by learned Judge Anti-Terrorism Court Khairpur, whereby they have been convicted and sentenced as under;

“I, therefore convict the accused Mureed Chandio, Khadim Chandio and Dural Chandio for the offence punishable under section 395 R/w Section 149 PPC and sentence them to suffer imprisonment for ten years each and to pay the fine of Rs.50,000/- (Rupees Fifty thousand) each. In case of default in payment of fine they shall suffer further imprisonment for six months each. I, also convict all the abovenamed present accused for the offence punishable u/s 436 R/w Section 149 PPC and award sentence them to suffer imprisonment for ten years each and to pay fine of Rs.50,000/- ( Rupees Fifty Thousand) each, in case of default in payment of fine, they shall suffer further R.I for six months each.

I, also convict the above named accused Mureed Chandio, Khadim Chandio and Dural Chandio for the offence punishable U/s 7 of ATA, 1997 and sentenced them to suffer R.I for ten years each and to pay fine of Rs.50,000/- (Rupees Fifty thousand) each. In case of default in payment of fine, they shall suffer further imprisonment for six months each.”

 

 

2.                The facts in brief necessary for disposal of instant Criminal Jail appeal are that the appellants with rest of the culprits allegedly after having formed an unlawful assembly and in prosecution of their common object take away cattle and other articles belonging to complainant Mst. Kouri and her witnesses Soomar, Moula Bux and Akan alias Bakhshan from their respective houses by committing mischief, for that they were booked and reported upon by the police to face the trial.

3.                At trial, the appellants did not plead guilty to the charge and prosecution to prove it, examined PW-1 LPC Mumtaz Ali at (Ex.19); PW-2 SIP Javed Ali at (Ex.20), he produced memo of place of incident; PW-3 complainant Mst. Kouri at (Ex.21); PW-4 Akan laias Bakhshan at (Ex.22); PW-5 SIP Zafar Abbas at (Ex.23); PW-6 PC Nasrullah at (Ex.24), he produced roznamcha entry and memo of arrest of accused Dur Muhammad alias Dural and then closed the side.

4.                The appellants in their statements recorded under section 342 Cr.PC denied the prosecution’s allegation by pleading innocence by stating that they have been involved in this case falsely by the complainant party on account of previous enmity, they, however, did not examine themselves on oath or any one in their defence.

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

 

6.                It is contended by the appellants in person that they being innocent have been involved in this case falsely by the complainant and they have been convicted by learned trial Court on the basis of sole evidence of the complainant which is not supported by any one. By contending so, they sought for their acquittal.

7.                Learned Additional PG for the State recorded no objection to the acquittal of the appellants by contending that their involvement in the case is not free from doubt.

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

9.                No doubt, complainant Mst. Kouri during course of her examination has supported the case of prosecution to some extent but there could be made no denial to the fact that the FIR of the incident which she lodged with the police was with delay of 13 ˝ hours, such delay could not be lost sight of as it reflects consultation and deliberation and it has made the version of the complainant to be doubtful one.

10.              In case of Mehmood Ahmed & others vs. the State & another (1995 SCMR-127), it has been observed by Hon’ble Apex 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.              PWs Soomar and Moula Bux, the prosecution could not be able to examine, on account of their death while PW Akam alias Bakhshan when was examined, on account of his failure to support the case of the prosecution was declared hostile to the prosecution. No proof is brought on record by the complainant which may prove her ownership over the property allegedly taken away by the appellants. There is no recovery of any sort from any of the appellants. The enmity between the parties is admitted. In that situation, it would be safe to conclude that the prosecution has not been able to prove its case against the appellants beyond shadow of doubt.

12.              In case of Tarique Pervez 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 reasons discussed above, the conviction and sentence recorded against the appellants by learned trial Court through impugned judgment could not be sustained and are set aside. Consequently, the appellants are acquitted of the offence for which they were charged, tried and convicted by learned trial Court. The appellants are present in Court on bail, their bail bonds are cancelled and sureties are discharged.

14.              The instant Criminal Jail Appeal is disposed of in above terms.

 

 

Judge

Judge

 

ARBROHI