IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR.

 

Criminal Appeal No.S- 53 of 2012.

Criminal Appeal No.S- 56 of 2012

 

 

                                    Before:-         Mr.Justice Salahuddin Panhwar, J.

 

 

 

Appellants    :           Shaman @ Shaman, Ghulam Nabi @ Rato, Moula Bux

@  Moulo and Kashir @ Kashoo, through

Mr.Zulfiqar Ali Naich, Advocate, in Criminal Appeal

No.S- 53 of 2012.

 

 

Appellant      :           Gulzar, through Mr.Abdul Baqi Jan Kakar,

                                    Advocate, in Criminal Appeal No.S- 56 of 2012.

 

 

Respondent   :           The State through

                                    Mr.Abdul Rehman Kolachi, A.P.G.

 

 

Date of hearing:         10th. December, 2012.

Date of Decision:      10th. December, 2012

 

J U D G M E N T

 

 

SALAHUDDIN PANHWAR, J-        The appellants/accused Shaman @ Shaman, Ghulam Nabi @ Rato, Moula Bux @  Moulo and Kashir @ Kashoo and Gulzar, have preferred their respective Criminal Appeals No.S- 53 and 56 of 2012, arising out of one and same Judgment dated 31.7.2012, passed by learned Vth. Additional Sessions Judge, Sukkur in Session Case No. 185 of 2010  Re-S/v Gulzar and others for offence punishable Under sections 395, 452, 337-A(i), 148, 149 PPC R/w Section 17(3) Offences Against Property (Enforcement of Hudood) Ordinance, 1979 Crime No. 62/2010 of Police Station “B” Section, Sukkur, whereby the appellants were convicted  for offence U/s 395, P.P.C and sentenced to suffer R.I for 04 years with fine of Rs.20,000/- and for offence U/s 457, P.P.C with fine of Rs.20,000/-. The appellant Shaman was ordered to pay Daman of Rs.1000/- to injured witness Mst.Sana.

 

02.                   Relevant facts of the case are that on 17.04.2010 at 5:00 p.m, complainant Mirzado reported at Police Station, Newpind, that on 15.4.2010 at 4:30 a.m. (night) he and other inmates were sleeping in their house located at Islam Colony, Newpind, Sukkur, he woke-up on some noise and noticed seven persons having pistols in their hands. Their faces were open. He identified two of them as Moula Bux and Shaman alias Shamooo who reached near the cot of P.W Shahzado and Mst.Sana. Accused Moula Bux pulled a chain of gold from the neck of PW Shahzado and Shaman alias Shamooo also pulled chain of gold from the neck of Mst.Sana. She resisted whereupon accused Shaman alias Shamoo clubbed on her head. It is stated that the accused Moula Bux, Shaman alias Shamoo, Mukhtiar and Anwer overpowered complainant and other witnesses while Gulzar, Kashmir alias Kashoo, Ghulam Nabi alias Rato entered in the rooms and they robbed one complete set of gold, four finger rings of gold (ladies), one finger ring (gents) and two chains of gold with lockets, cash of Rs.85, 000/-, one licensed pistol No.32003823. It is further stated that injured Mst.Sana was brought at Hospital as she was bleeding from her head. The complainant shared the incident with his elders, and also approached the elders of the accused persons for return of the articles and on their refusal, he came at Police Station Newpind where his complaint was written in Roznamcha which was transcribed in the FIR No.62 of 2010 at Police Station “B” Section, Sukkur.

 

03.                   During investigation, appellants/accused Moula Bux alias Mouloo and Kashir were arrested while rest of the accused persons remained absconder. After investigation case was challaned. During proceedings of the case, the absconding accused Ghulam Nabi, Shaman alias Shamoo were also arrested and amended charge was framed.

 

04.                   To substantiate the charge, prosecution examined  P.W-1 HC Ali Muhammad Korai as Ex.25, he produced mashirnama of arrest of accused Gulzar, Moula Bux and Kashmir alias Kashu as Ex.25/A; P.W-2 ASI Fayyaz Ahmed as Ex.26 who produced attested copy of Roznamcha entry No.9 & 12 as Ex.26/A and 26/B; P.W-3 Shahzado Lashari as Ex.27 who produced memo of place of incident as Ex.27/A; memo of inspection of injury of PW Mst.Sana as Ex.27/B; Complainant Mirzado was recalled and re-examined as Ex.28; P.W Muhammad Eidan Kamanger as Ex.29; Injured witness Mst.Sana was examined as Ex.30. Thereafter, learned DDPP for the State had closed the side of prosecution.

 

 

05.                   The appellants/accused persons were examined under section 342, Cr.P.C, wherein they denied the allegations of the prosecution and disclosed that there was dispute on the street, therefore, they have been implicated by the complainant in this false case.

 

 

06.                   The learned DDPP for State filed an application U/s 540, Cr.P.C, for calling SIP Naeem, ASI Muhammad Hussain Siyal and Dr.Monika, the application was allowed and SIP Naeem Ahmed was examined at Ex.38 who produced FIR No.62/2010 as Ex.38/A; P.W Muhammad Hussain Siyal at Ex.39 who produced photocopy of memo of production of pistol and bullets by accused Moula Bux as Ex.39/A, he further produced photocopy of  memo of production of robbed licensed pistol of accused Gulzar as Ex.39/B and memo of arrest of accused Anwer Ali as Ex.39/C. Dr. Monika at Ex.41 2 who produced medical certificate of Mst.Sana as Ex.41/A. P.W Lal Dino as Ex.42 and he produced Carbon copy of memo of arrest of accused Ghulam Nabi alias Rato as Ex.42/A and also produced Revolver and 05 live bullets as Article A/1 to A/6, personal search of accused Ghulam Nabi as Article B/1 to B/4 and robbed finger ring of gold recovered from his personal search as Article C/1. HC Pir Bux appeared in the witness box as Ex.43 and LPC Najamuddin was examined as Ex.44, then learned DDPP for the State closed the side, again statements of accused were recorded under section 342 Cr.P.C.

 

 

07.                   Heard the counsels and perused the record.

 

08.                   M/s Zulfiqar Ali Naich & Abdul Baqi Jan Kakar, learned counsels’ for the appellants/accused  inter-alia contended that the impugned judgment is not maintainable under the law as the star witnesses namely Shahzado and injured witness Mst.Sana have not deposed against the appellants/accused; material discrepancies were found in the evidence of the complainant but same were not considered by the trial court; prosecution has failed to prove the case beyond reasonable shadow of doubt;  this is a case  of no evidence; many dents were available in the prosecution case; and even single dent in prosecution case is sufficient for acquittal of the accused persons.

 

 

09.                   Mr.Abdul Rehman Kolachi, learned A.P.G on behalf of State did not controvert that the injured witness Mst.Sana and victim Shahzado both have not supported the prosecution case; however, he further contended that sufficient evidence was available against the appellants/accused, therefore, conviction recorded by the trial Court is legal.

 

10.                   While scanning the evidence, it has come on  record that on ocular account the prosecution possessed the evidence of three witnesses namely complainant Mirzado, P.W Shahzado and P.W/injured Mst.Sana. I have examined the evidence of said witnesses. Complainant Mirzado in his examination-in-chief has deposed that:-

 

“Sahzado is my elder brother; Mst. Sana is wife of Shahzado. Eidan is my father-in-law. On 15.4.2010 it was4:30 a.m in the night I on some noise woke-up and noticed four persons near my cot. My brother Shahzado also woke-up. I identified them as Gulzar and Moula Bux, their faces initially were muffled. My brother grappled with them, then their muffles were removed and their faces became open. I further identified the accused persons Shaman, Rato, accused Shaman caused clubbed blow of his pistol to Mst.Sana over her head”.

 

In his cross-examination he admitted that it is fact that accused Gulzar is residing in our Muhalla and is known to me.”

 

11.                   P.W Muhammad Eidan examined at Ex.29 in  in his examination-in-chief as under:-

 

 

“Mirzado complainant is my relative, P.W Shahzado is my son-in-law. About one year back, I got knowledge that some thieves entered into the house of Mirzado and looted valuables and caused injury to Mst.Sana, my daughter. My statement was not recorded by police, I have my CNIC No.45504-1131618-5 original seen and returned, while photocopy is produced on record as Ex.29/A.”

 

 

 

 

12.                   P.W Shahzado  in his examination-in-chief  has deposed                

“that accused present in Court are not same who entered in our house and committed dacoity, their faces were muffled, therefore, I could not identify any of them.”

 

13.                   P.W Mst.Sana in her examination-in-chief, deposed that:

 

“ I cannot identify the accused persons present in Court as the persons who entered in our house were muffled faces.”

 

14.                   I am quite conscious of the legal position that question of guilt or innocence is always to be decided on basis of the evidence brought on record through course of trial and not on basis of the material through which one person is sent to face his trial, it is settled principle of law that the substantive evidence of a witness is his/her statement, which is recorded during the trial, where the accused  has mandatory right to cross- examine the witness. Since from the perusal of ocular evidence, it is evident that P.W Mst.Sana who was injured  witness has not supported the version of complainant Mirzado, similarly Shahzado (brother of complainant) and Muhammad Eidan father-in-law of complainant does not support the version of complainant Mirzado. On the contrary they have negated the evidence of complainant; meaning thereby they have falsified the evidence of the complainant hence it is quite safe to say that prosecution failed in establishing the charge against the appellants / accused through ocular account beyond the reasonable shadow of doubt.

 

15.                   Though it is also well established principle of law that no conviction can sustain on any other type of evidence, howsoever convincing it may be, unless direct or substantive evidence is available in cases related to human body, regarding the contention of learned A.P.G that recovery has been effected from accused persons, it would suffice to say that admittedly the accused Gulzar was in lock-up and according to prosecution, during interrogation he disclosed that pistol, used in the crime, was concealed by him in graveyard near abandoned Lime Kiln and thereafter he led the police party and produced the same. It is pertinent to mention that place of recovery is open area and every one can safely go there, therefore, in such circumstances recovery cannot be proved against the accused. Even otherwise, mere recovery alone, being a corroborative piece of evidence in nature, is not sufficient to prove the charge against the accused, as held in the case of “Mohammad Afzal Vs. State, reported in 2009 SCMR 436, which is as under:-

 

“12. After taking out from consideration the ocular evidence, the evidence of  identification and the medical evidence, we are left with the evidence of recoveries only, which being purely corroboratory in nature, in our view, alone is not capable to bring home charge against the appellant in the absence of any direct evidence because it is well-settled that unless direct or substantive evidenced is available conviction cannot be recorded on the basis of any other type of evidence howsoever convincing it may be.”

 

16.                   Regarding the recovery of golden ring from appellant/accused Ghulam Nabi, it is surprising that after one year of offence, accused was arrested and gold ring was found in his pocket, it is quite unbelievable for a prudent mind to accept such theory that a person who kept robbed article upto one year in his pocket.

 

17.       So for medical evidence,  in instant case is also not helpful to the prosecution; as the same cannot identify or locate the perpetrators of the offence in a case , where the injured eye witness has not supported the complainant version, and star eye witnesses have negated the story of prosecution. Even otherwise ; the medical evidence is only of supportive nature and the same looses its value, where there is no other reliable evidence available on record.

 

18.                   Under these circumstances, when ocular evidence is contradictory; two witnesses, who were star witnesses of the incident have negated the evidence of complainant and even have not identified the accused persons, therefore, it can be suffice to say that prosecution has failed in establishing the charge beyond reasonable doubts, thus, I am of the considered view that no sufficient evidence was available against the appellants/accused to justify their conviction because system of Safe Criminal Administration of Justice demands that a single reasonable dent is sufficient to make whole case doubtful and the benefit thereof must be given to accused as a matter of right and not as a matter of grace. Reference can be made to the case of Muhammad Akram Vs. The State, reported in 2009 SCMR 230, moreover it is wise saying that “miscarriage of justice may arise from the acquittal of the guilty , no less from the conviction of the innocent”

 

19.                   Keeping in view the above facts and circumstances, I am of the considered view that prosecution has failed to prove the charge against the appellant consequently the impugned Judgment passed by the learned trial Judge is based on misreading and non-reading of the evidence, therefore, the same requires interference by this Court, thus the appeals are allowed.

 

                        Above are the reasons of my short order dated 10.12.2012., whereby impugned judgment was set aside.

 

 

JUDGE

 

 

A.R.BROHI