2014 PLP 501 (MLD)

RIAZAT ALI SAHAR, J.

Respondents Rasool Bux, Ghulam Muhammad alias Jullan and Jindal Khan, all by caste Lashari, facing charge of committing robbery of cash amount, gold locket and mobile phone from appellant/complainant Ahmed Lashari, were acquitted vide order dated 11-6-2012 by the learned Assistant Sessions Judge, Mirwah, District Khairpur, in Sessions Case No.26/2010, re: State v. Rasool Bux and others, (Crime. No.153/2010 of Police Station Mirwah, under sections 392, 215, P.P.C.), by disbelieving the evidence of complainant and P.Ws Abdul Jabbar and Qadir Bux, said to be eye-witnesses of the alleged incident, holding that the case is false and vexatious and there is no probability of the accused being convicted of the alleged offence.

2. Appellant Ahmed Lashari through this acquittal appeal has called in question the above order of acquittal passed by the learned Assistant Sessions Judge, Mirwah.

3. The facts of the prosecution case, in brief, are that on 8-9-2010, at about 1030 hours, appellant/complainant Ahmed Khan Lashari lodged F.I.R at Police Station Mirwah, alleging therein that on 30-7-2010 he along with his brother-in-law Qadir Bux and one Abdul Jabbar, went to Mirwah town on his motorcycle in connection with personal work and after doing such work they were going back to their village through Mirwah-Village Kanchi link road; at about 7.30 p.m., at Mari bridge, they were intercepted by two persons, namely, Rasool Bux and Ghulam Muhammad, both armed with pistols. The accused persons snatched cash Rs.5000 from the complainant lying in his pocket and accused Ghulam Muhammad also snatched gold locket and mobile phone from the complainant. The complainant party did not resist due to fear and then the accused persons made their escape good.

4. It is, inter alia, contended by the learned counsel for the appellant that learned trial Court while acquitting the respondents/ accused has not properly appreciated the evidence of complainant, victim of robbery, which was fully supported by the evidence of eye-witness Abdul Jabbar, which has resulted in grave miscarriage of justice.

5. Conversely, the learned A.P.G., while opposing the plea of appellant contended that the impugned order passed by the learned trial Court is well-reasoned and speaking one, which does not call for interference by this Court.

6. I have considered the respective submissions of the learned Counsel for the appellant, learned A.P.G., and examined the record carefully.

7. In support of its case, prosecution examined complainant Ahmed Khan at Exh.3, P.W Abdul Jabbar at Exh.6, P.W Abdul Khalique at Exh.7 and P.W Qadir Bux at Exh.8, through whom prosecution produced documents viz., F.I.R vide Crime No.153/2010 of Police Station Mirwah at Exh.3/A and mashirnama at Exh.7/A. All the material witnesses have been examined except Investigating Officer A.S.-I. Dattar Dino. The respondents/accused moved application under section 265-K, Cr.P.C. on 9-2-2012 on the grounds that witnesses were not being produced by the prosecution, however due to issuance of coercive process by the learned trial Court, witnesses appeared and their evidence was recorded. The Investigating Officer, however, was avoiding to appear before the trial Court, therefore, an application under section 265-K, Cr.P.C. was entertained, whereby the respondents Nos.1 to 3/accused were acquitted.

8. The record reveals that the alleged incident had taken place on 30-7-2010, but it was reported on 8-9-2010, after the delay of more than a month without furnishing plausible explanation; on the contrary the complainant categorically stated in the F.I.R that after consultation with their Nekmard he lodged the F.I.R. The alleged pistol and robbed articles were not recovered from the respondents/accused. From the perusal of evidence of prosecution witnesses, it appears that Ghulam Shabir and Ghulam Muhammad were the material witnesses, but neither their names transpire in the F.I.R. nor their statements were recorded during course of investigation nor complainant could produce them before trial court for recording their evidence. The complainant admitted during cross-examination that there is civil dispute between the parties over the agricultural land. P.W Qadir Bux, who is an eye-witness of the prosecution case, deposed as under:-- "I do not know about incident, only Ahmed had disclosed about it. Ahmed advised me that he wanted to make me witness, I replied that I was not present with him at the time of incident." The record further reveals that this witness was not declared hostile and cross-examined by the prosecution in view of his above-quoted deposition, which also riddled the case of prosecution.

9. Another aspect of the case is that the complainant involved accused Jangal, aged about 80 years, along with his sons.

10. The Hon'ble Supreme Court while dealing with the appeal against acquittal was pleased to lay down the principle in the case of Muhammad Shafi v. Muhammad Raza and another, reported in 2008 SCMR 329, as under:-- "An accused is presumed to be innocent in law and if after regular trial he is acquitted he earns a double presumption of innocence and there is a heavy onus on the prosecution to rebut the said presumption. In view of the discrepant and inconsistent evidence led, the guilt of accused is not free from doubt, we are therefore, of the view that the prosecution has failed to discharge the onus and the finding of acquittal is neither arbitrary nor capricious to warrant interference. The petition having no merit is dismissed and leave is refused."

11. In another case reported as Farhat Azeem v. Asmat Ullah and 6 others, 2003 SCMR 1285, the honourable Supreme Court has reiterated the above principle in the following words:-- "Accused is presumed to be innocent and after his acquittal in trial or appeal he earns a double presumption of innocence and a heavy burden lies on the prosecution to rebut the said presumption."

12. From the perusal of entire material on record, it appears that the prosecution witnesses have contradicted each other on material points, which are borne out from the record. The learned trial Court seems to have dealt with the contradictions and defects in the prosecution evidence carefully and validly. It is well settled principle of law that for basing conviction against an accused there should be strong evidence before the trial Court and if the doubt, even slightest, arises in the prudent mind as to the guilt of the accused, benefit of the same has to be extended in favour of the accused.

13. Section 265-K, Cr.P.C. empowers the Court to acquit accused at any stage of the case, even before examination of the witnesses, just to protect the accused from agony of protracted trial. Accused can be acquitted under section 265-K, Cr.P.C, if from the evidence available on record there appears no probability of the accused being convicted of the offence he is charged with. However, the Court is under obligation to record such acquittal judiciously and not capriciously. In the instant case, all the material prosecution witnesses including the eye-witnesses of the incident were examined by the trial Court except the I.O. of the case and from the reasoning recorded by the learned trial Court it appears that there was no need for examining the I.O., especially in the light of the fact that the robbed articles were not shown to have been recovered from the possession of the accused. Had there been any chance of the accused being convicted in the case, the learned Court must have examined the I.O. of the case and the learned trial Court appears to have assigned valid reasons for non-examination of the I.O.

14. Moreover, one of the eye-witnesses, namely, Qadir Bux has denied to have witnessed the incident and he was not declared hostile and cross-examined by prosecution, therefore, his evidence at-least renders the prosecution case doubtful. The other stark reality is that there existed some civil dispute between the parties, which also indicates that the complainant and the accused were known to each other very well prior to the incident and it is highly improbable rather unconvincing that the culprits familiar to a person would rob him so as to be implicated easily in the crime. These facts were sufficient to record acquittal. Consequently, in my humble view, there appears no justification to interfere with the finding of acquittal recorded by the learned trial Court. In such circumstances, the instant appeal merits no consideration, which is accordingly dismissed. Nevertheless, while exercising the jurisdiction under section 561-A read with section 439, Cr.P.C. the directions recorded by the learned trial Court while concluding the impugned order to the extent of filing direct complaint against the appellant/complainant Ahmed Khan Lashai appear to have been passed in hasty manner, which are hereby set aside and the criminal proceedings, if any, culminated from above directions are also quashed. HBT/A-129/K Appeal dismissed.