IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Criminal Appeal No.S-38 of 2016
Appellant : Misri Khan son of Ali Murad Jatoi
Through Mr.Ali Nawaz Ghanghro, Advocate
State : Through Mr. Aitbar Ali Bullo, D.P.G
Date of hearing : 26.11.2018
Date of decision : 26.11.2018
JUDGMENT
IRSHAD ALI SHAH, J-. The appellant by way of instant criminal appeal has impugned the judgment dated 26.04.2016, passed by learned Special Judge Anti-Corruption (Provincial) Larkana, whereby the appellant has been convicted and sentenced as under;
“I therefore, convict the accused for offence u/s 161 PPC r/w Sec: 5(2) Act-II of 1947 and sentence him to suffer R.I for Three (3) years and fine of Rs.25,000/-, in case of non-payment of fine, the accused shall suffer R.I Three (3) months more”.
2. The facts in brief necessary for disposal of instant criminal appeal are that complainant Ahmed Shah was allotted a plot measuring to be 900 square feet, at Mushwani Muhalla Madeji, District Shikarpur, allegedly by Taluka Nazim, Municipal Administration, Garhi Yasin. He approached the appellant for making such entry in record of rights. It was done by the appellant after receipt of Rs.2000/- as bribe. Subsequently, complainant Ahmed Shah moved an application with Deputy Director, Anti-Corruption Establishment Larkana, for necessary action against the appellant. On the basis of such application, the FIR of the instant case was registered against the appellant by Inspector Qazi Sharafuddin. After usual investigation, the appellant was challaned before learned trial Court to face trial for the above said offence.
3. At trial, the appellant did not plead guilty to the charge and the prosecution to prove it, examined PW-01 complainant Ahmed Shah at Exh.04, produced through him copy of his application and copy of Village Form-II, PW-02 Fida Hussain Shah at Exh.05, PW-03 Arif Ali Shah at Exh.06, PW-04 Tapedar Abdul Qadir at Exh.07, PW-05 Inspector Qazi Sharafuddin at Exh.08, PW-06 HC Mukhtiar Hussain at Exh.12, PW-07 Inspector Abdul Wahab Buriro at Exh.13, and then closed the side.
4. The appellant during course of his examination u/s 342 Cr.PC, denied the prosecution’s allegation by pleading innocence. He did not examine anyone in his defense or himself on oath in disproof of the prosecution allegation.
5. On conclusion of trial and on the basis of evidence so produced by the prosecution, the learned trial Court convicted and sentenced the appellant, as detailed above.
6. It is contended by learned counsel of the appellant that the learned trial Court has convicted and sentenced the appellant without lawful justification, on the basis of improper assessment of the evidence which was doubtful in its character. By contending so, he sought for acquittal of the appellant.
7. Learned D.P.G sought for dismissal of the instant criminal appeal by contending that it is well reasoned.
8. I have considered the above arguments and perused the record.
9. The FIR of the incident has been lodged with delay of about one year; such delay could not be lost sight of in the circumstances of the present case. It is not made known by the prosecution through complainant Ahmed Shah or his witnesses Fida Hussain Shah and Arif Ali Shah, as to on what date, the appellant demanded and accepted the bribe from them for keeping the entry in record of rights in respect of plot allotted to them. The complainant Ahmed Shah has not been able to produce such allotment order. The entry as per PW Tapedar Abdul Qadir has already been made in record of rights in favour of complainant Ahmed Shah and it is attested by PW Kabeer Shah in capacity of Mukhtiarkar (Revenue) Garhi Yasin, PW Kabeer Shah being relative of the complainant has not been by the prosecution under the pretext that he is not supporting the case of prosecution. His non examination is appearing to be significant. Inspector Qazi Sharafuddin was not able to disclose as to on what date he recorded 161 Cr.PC statements of the PWs. By stating so, he made it to believe that the investigation conducted by him was nothing beyond casual. In these circumstances, it could be concluded safely that the prosecution has not been able to prove its case against the appellant beyond shadow of doubt.
10. In case of Faheem Ahmed Farooqui vs. The State (2008 SCMR-1572), it is held that;
“single infirmity creating reasonable doubt regarding truth of the charge makes the whole case doubtful.
11. For what has been discussed above, the impugned judgment could not be sustained, it is set aside. Consequently, the appellant is acquitted of the offence, for which he was charged, tried and convicted by learned trial Court, his bail bonds stand cancelled and surety discharged.
12. The instant criminal appeal is disposed off accordingly.
J U D G E