IN THE HIGH COURT OF SINDH, CIRCUIT COURT,

LARKANA

 

Crl. Jail Appeal No. S- 05 of 2020.

 

Nazir Hussain Lashari.                                                        ……………...Appellant.

 

Versus

 

The State.                                                                               ..……….….Respondent.

           

 

            Mr. Muhammad Afzal Jagirani, Advocate for appellant.

            Mr. Aitbar Ali Bullo, Deputy Prosecutor General.

 

 

Date of hearing:                    07.08.2023.

Date of judgment:                07.08.2023.

Date of reasons:                   30.08.2023.

 

Judgment

 

Shamsuddin Abbasi, J-. This criminal appeal is directed against the impugned judgment dated 21.12.2019, passed by learned 1^st Additional Sessions Judge/ Model Criminal Trial Court Kamber, in Sessions Case No.320 of 2016, re; State v. Nazir Hussain Lashari and others, arisen out of F.I.R No.33 of 2016, registered with Police Station B-Section Shahdadkot for offence under Sections 365-B and 458 P.P.C, whereby the appellant was convicted for offence under Section 365-B Cr.P.C and sentenced to suffer rigorous imprisonment for “life” and fine of Rs.100,000/-; in default in payment of fine to undergo S.I for one year more.  However, benefit of section 382-B Cr.P.C. was extended to the appellant.

 

2.         The facts of the prosecution case as depicted from para 2 of the impugned judgment are reproduced hereunder:

 

            “That on 13.08.2016 complainant Muhammad Bux Lohar lodged F.I.R stating therein that on eventful day viz. 11.08.2016 at 2.00 a.m. the present accused accompanied by co-accused Muhammad Nawaz and Abdul Fattah Lashari and three unknown accused being duly armed with pistols formed an unlawful assembly entered his house and abducted his daughter Mst. Mona Begum aged about 21/22 years by taking her in a white car towards southern side intention to commit “Zina” with her.” 

 

3.         During course of trial, charge was framed against the appellant, to which he pleaded not guilty and claimed trial. Consequently, the prosecution examined PW-1 complainant Muhammad Bux Lohar at Ex.6; he produced F.I.R. PW-2 (eyewitness) Ghulam Fareed Lohar was examined at Ex.7. The author of F.I.R cum I.O of the case ASI Gulsher Soomro was examined at Ex.8; he produced certain entries and mashirnamas.  PW/ victim Mona Begum was examined at Ex.9; she produced on record her statement recorded under Section 164 Cr.P.C. PW-5 (Eyewitness) Rashid Lohar was examined at Ex.10. Mashir/ H.C Haji Khan at Ex.11. Mashir Muhammad Nawaz was examined at Ex.12. Then the prosecution closed its side vide Ex.13. The statement of appellant under Section 342 Cr.P.C was recorded, in which he denied all the allegations of prosecution leveled against him. He however neither examined himself on oath in terms of Subsection (2) of Section 340 Cr.P.C, nor led any evidence in his defence in disproof of the charge.

 

4.         After conclusion of the trial, the learned trial Court passed the impugned judgment and awarded conviction to appellant, as stated above. The appellant has filed instant appeal against the judgment.

 

5.         Learned counsel for the appellant has argued that the judgment passed by the trial Court is perverse and liable to be set-aside; that the trial Court has failed to appreciate the factual as well as legal aspects of the case while convicting the appellant. He next argued that the evidence adduced by the prosecution at the trial is not properly assessed and evaluated by the trial Court and that the evidence produced by the prosecution at trial was insufficient to warrant conviction of the appellant. Learned counsel empathized on the ground that, the statement of the victim Mona Begum, who is star witness of the case being full of contradictions is untrustworthy and unreliable. Learned counsel highlighted such contradictions in the statement of victim Mona Begum. Lastly, he has prayed for setting-aside the impugned judgment and acquittal of the appellant.

 

6.         Notices were issued to complainant repeatedly, but despite service of notice he did not appear. However, on 16.6.2023 he put his appearance and sought time to engage counsel. He was allowed time as last and final chance with note of caution that in case he shall not engage counsel the matter shall be proceeded with in accordance with law. However, afterward the complainant did not turn.

 

7.         Learned D.P.G. opposed grant of appeal, on the ground that the prosecution has fully established its case by producing trustworthy ocular as well as circumstantial and documentary evidence.

 

8.         I have heard the counsel for the parties and carefully perused the material available on record.

 

9.         The abductee Mona Begum being victim, is star witness of the case and her statement is very material piece of evidence. Her sole statement can be the basis for conviction or acquittal of the accused. A careful perusal of deposition of this star witness reflects that, she has not only contradicted her own version (as stated in 164 Cr.P.C statement), but also contradicted the contents of F.I.R and evidence of other prosecution witnesses on very material points.  

 

10.       For sake of convenience, statement of victim/ abductee Mona Begum recorded under Section 164 Cr.P.C, and her “deposition” are reproduced hereunder:

 

164 Cr.P.C statement of victim Mona Begum.

 

 

“I, state on oath that on 11.8.2016 in nigh time (2.00 a.m.), I was available in my house and I came down for tethering our goats and all of sudden accused Muhammad Nawaz and Nazir arrived there in car and accused Muhammad Nawaz while holding me from my arms forcibly made me to sit in the car and abducted me away and removed my glasses and kept me in some unknown place and none of the accused have committed forcible “zina” with me. Then, on 14.8.2016 the police raided and secured me and accused Muhammad Nawaz and Nazir and brought at police station. Now, I have come and state that accused persons had abducted me and presently I want to go with my father Muhammad Bux.  This is my statement.”

 

 

Deposition of victim Mona Begum.

 

“On 14.08.2016 police recovered me. I was available at Umar Shah Laaro awaiting transport wherefrom police recovered me. At that time accused Muhammad Nawaz, Nazir and two unidentified persons were available. I informed police that accused had abducted me with intent to commit zina. Police recorded my statement on the same day. I was produced before Court of law where I deposed same statement. I produce my statement recorded under Section 164 Cr.P.C at Ex.9-A and say that it is same, correct and bear my signatures. Accused Muhammad Nawaz and Nazir present in Court are same while unidentified accused are still absconders. On 10.08.2016 at about 2.00 a.m. in the mid night I was available in my house along with my father Muhammad Bux and cousin Rashid. At night time we went asleep on separate cots. At mid night time on hearing knock on entrance door my father opened the door and five persons entered into our house. The persons who entered into our house were identified as Muhammad Nawaz, Nazir, Abdul Fattah and two unidentified persons. All the accused pointed their pistols on inmates of the house. Accused Nawaz grabbed my arm, dragged me out of the house put me in white color car and took me towards southern side with intent to commit zina. Thereafter, I was recovered by police from Umar Shah Laro. The accused snatched my gold ornaments, which I was wearing at that time on my arms and ears. Accused Nawaz and Nazir present in Court are same.”

 

 

11.       Perusal of the F.I.R shows that, on 10.08.2016 five accused persons entered house of the complainant out of them three were identified to be Muhammad Nawaz, Abdul Fattah and Nazir Hussain, while two were unknown.  However, victim Mona Begum has contradicted version of F.I.R in respect of date of incident by stating in her 164 Cr.P.C statement that on 11.08.2016 incident took place. Further that only two accused, namely, Muhammad Nawaz and Nazir came at their door in a car and abducted her away. But at the same time, she in her deposition contradicted herself by deposing that five accused persons entered their house. Not only this, but she in her 164 Cr.P.C statement stated that at 2.00 a.m. she came down for tethering goats, but in her deposition she deposed that she was sleeping on cot when accused persons knocked their door and then entered their house. However, in her cross-examination she deposed that they were sleeping on separate cots on front-yard of the house. The alleged abductee Mona Begum on the point of her recovery had also contradicted herself, as according to her 164 Cr.P.C statement, she stated that on 14.08.2016 police raided the house, where accused persons had kept her and police secured her along with accused Muhammad Nawaz and Nazir and taken them to Police Station; whereas in her examination-in-chief she has deposed that on 14.08.2016 police recovered her, when she was available at “Umar Shah Laaro”, awaiting transport and at that time accused Muhammad Nawaz, Nazir and two unidentified persons were available with her. Not only this but she again taken “U” turn by deposing in her cross-examination that at the time of arrival of police, accused Muhammad Nawaz and Abdul Fattah were available with her. The mashirnama of recovery of alleged abductee speaks otherwise. It shows that, at the time of recovery of alleged abdcutee, only one accused was with her. Moreover, she has shown presence of two accused at time of her recovery from house and at the same time she has shown presence of four accused persons at the time of her recovery from “Umar Shah Laaro”, whereas mashirnama of recovery and deposition of I.O shows presence of only one accused at the time of recovery of alleged abductee. The alleged abductee Mona Begum in her examination-in-chief has exaggerated her version by deposing that the accused persons also snatched her gold ornaments, which she was wearing at that time. Furthermore, the alleged abductee has not alleged commission of rape with her by any of the accused.  The alleged abductee admitted in her cross-examination that the accused were not known to her prior to the incident and that she had no knowledge about names, parentage and addresses of accused prior to incident. The alleged abductee also went ahead by deposing in her cross-examination that it is correct that she deposed as per instructions of police. She further deposed that she is illiterate and do not remember whether she signed the statement under section 164 Cr.P.C or put her thumb impression on it. However, her 164 Cr.P.C statement bears her signature, though she stated that she is illiterate. 

 

12.       It is re-iterated that sole statement of victim can be the basis for conviction or acquittal of the accused.  However, perusal of material available on record in shape of deposition of this star witness, her 164 Cr.P.C statement and other material shows that she has not only contradicted her own version (as stated in 164 Cr.P.C statement), but also contradicted the contents of F.I.R and evidence of other prosecution witnesses on very material points, thus her testimony cannot be termed as trustworthy. When the evidence of star witness i.e. the victim of incident, is full of glaring contradictions in respect of material points and it is not worthy of reliance, while the rest of the evidence which is supportive in nature only, cannot be made basis for conviction.  

13.       In the circumstances discussed above, when statement of star witness i.e. victim of the case is untrustworthy, I am of the considered view that the prosecution has failed to prove it’s case against appellant beyond any reasonable doubt. It is well settled principle of law that for creating shadow of doubt, it is not necessary that there should be many circumstances, if a single circumstances creates reasonable doubt in the prudent mind, then its benefit has to be given to the accused, not as a matter of grace or concession, but as the matter of right. This dictum is laid down in the case of Tariq Pervez vs. The State (1995 SCMR 1345).

 

14.       For the foregoing reasons and discussion, I have come to the conclusion that the case of prosecution against appellant is not free from doubt, therefore, instant criminal appeal was allowed vide short order dated 07.08.2023, and the impugned judgment dated 21.12.2019 was set-aside; resultantly appellant  Nazir Hussain Lashari was acquitted from the charges. These are the reasons for short order.

 

 

                                                        Judge

Ansari