IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Cr. Rev. Appln. No. S- 34 of 2015.

Applicants: Nisar Khaskheli and others through Mr. Ameenuddin Khaskheli, Advocate

Respondent: The State, through Syed Sardar Ali Shah,

Deputy Prosecutor General

Date of hearing: 20-05-2019

Date of decision: 20-05-2019

ORDER

Irshad Ali Shah, J;- The facts in brief necessary for disposal of instant Cr. Revision Application are that the applicants (one amongst them Nisar has now died) robbed complainant Nisar Ahmed and his witnesses of their motorcycle, mobile phone and cash for that they were booked and challaned. At trial, they did not plead guilty to the charge and prosecution to prove it, examined the complainant Sher Muhammad and his witnesses and then closed the side. On conclusion of trial, they for an offence punishable u/s 392 and 506/2 PPC were convicted and sentenced to undergo R.I (36) months and (24) months respectively with fine by learned IIIrd Civil Judge and Judicial Magistrate Naushehro Feroze by way of judgment dated 13-10-2014 which they impugned by way of filing an appeal, it was dismissed by learned Additional Sessions Judge Naushehro Feroze vide judgment dated 19-03-2015 which they have impugned before this Court by way of instant Criminal Revision Application.

3. It is contended by learned counsel for the applicants that they being innocent have been involved in this case falsely by the complainant party. The FIR of the incident has been lodged with the delay of about 11 days, the evidence which the prosecution has produced being inconsistence and unreliable has been believed by learned trial Magistrate and appellate Court without lawful justification. By contending so, he sought for acquittal of the present applicants.

4. Learned DPG for the State has sought for dismissal of the instant Cr. Revision Application by supporting the judgments of the learned trial Magistrate and appellate Court.

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

6. The first information report of the incident has been lodged with delay of about eleven days, such delay has not been explained plausibly by the complainant, same as such could not be over looked, it is reflecting consultation. PWs Muhammad Ali and Qamarddin were fair enough to admit they could not identify the applicants at the time of incident. It was night time incident, therefore the identity of the applicants at the time of incident by the complainant alone is appearing to be doubtful. The complainant was fair enough to admit that he is not having the document of ownership of motorcycle. If it is so, then complainant could hardly be said to be having the motorcycle which allegedly was robbed from him at the time of incident. In these circumstances it would be safe to conclude that the prosecution has not been able to prove its case against the present applicant beyond shadow of doubt.

7. 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”.

8. 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.”

9. For what has been discussed above, the judgments of learned trial Magistrate and appellate Court are set-aside. Consequently, the applicants (excepting Nasir who has died during pendency of instant revision applicant) are acquitted of the offence for which they were charged, tried and convicted, they are present in Court on bail, their bail bonds are cancelled and sureties are discharged.

10. Instant Criminal Revision Application stands disposed of in above terms.

Judge

Naseem