2004 P Cr (PLP)

The appellant has been convicted by IVth Additional Sessions Judge, Hyderabad under section 394, P.P.C. He has been sentenced to suffer R.I. for seven years and to pay a fine of Rs.5,000 with R.I. for six months more, in case of default in payment of fine.

2. The prosecution case was that the present appellant, alongwith some other culprits, attempted to commit dacoity of cattle of the complainant where the complainant apprehended and tied the present appellant. Other culprits were not identified by the complainant party and, therefore, the other accused persons have been acquitted by the trial Court. No robbery was practically committed. According to prosecution case, one of the culprits namely Sadiq was killed on the spot due to firing by other culprits.

3. Mr. Maula Bakhsh Khoso, learned counsel for the appellant, submits that no such incident took place and the appellant had gone to the complainant's house to inquire about the murder of his cousin Sadiq when he was apprehended and involved in this case. He submits that the complainant is an old man of 70 years who also admitted that he was a weak and infirm person and, therefore, it was not possible for him to overpower and tie the appellant, as claimed by him. Learned Assistant Advocate-General, Sindh, submits that; the appellant has been convicted mainly for the reason of his presence in the house of the complainant. He concedes that, an attempt or robbery was not proved on record.

4. The prosecution story suffers from many infirmities and the case is doubtful. According to the prosecution, the culprits were armed and they had gone to commit robbery of cattle of complainant, but they did not do so. There appears no reason why they went without taking away the cattle of the complainant if they had gone to that place for that purpose. The trial Court has acquitted all other co-accused persons but has convicted the present appellant under section 394, P.P.C. merely oft, the basis, that he was found present at the house of the complainant. For his presence, the appellant explained that he had gone there to inquire about the murder of his cousin Sadiq. Killing of this Sadiq, at the house of the complainant, is admitted by the complainant himself. Beyond that, there is no other evidence for proof of the alleged commission of offence by the appellant. There is a possibility of the version of the appellant being true which makes the case of the prosecution doubtful. The appellant is entitled to the benefit of doubt. Accordingly, the appeal is allowed and the conviction and sentence is set aside. The appellant be released in this case forthwith. H.B.T./46/FSC Appeal allowed.