2017 P Cr (PLP)

MUHAMMAD IQBAL MAHAR, J.

The appellant has challenged the judgment dated 10.12.2015 passed by learned. IInd Additional Sessions Judge Jacobabad in Sessions Case No. 27/2013 whereby he was convicted under sections 365-B, 34, P.P.C. and sentenced to suffer R.I. for ten years.

2. Precisely, the case of prosecution is that on 17.3.2013 complainant Atta Muhammad, his sons, namely, Babal, Abdul Ghani, his daughter Mst. Fareeda alias Ludhan and other inimates were available in their house and Mst. Fareeda was working there. At about 11.00 a.m. co-accused Attaullah, Karim Bux, appellant Muhammad Alim and two unknown persons armed with T.T. pistols entered the house of complainant; directed their weapons towards the complainant party and challenged them to keep quiet. In the meantime, accused Attaullah and Karim Bux dragged Mst. Fareeda and took her away in Rickshaw which was being driven by the appellant. The complainant them went to his Nek Mards, who were not available, however on their arrival, he informed them about the incident and they advised him to lodge FIR. Thereafter, complainant went to PS where he lodged his FIR at 2030 hours.

3. The Police after completing investigation submitted challan in the Court. The learned trial Court after completing legal formalities framed the charge against the appellant at Ex.8, to which he pleaded not guilty and claimed trial.

4. In order to prove its case, the prosecution examined PW-1 complainant Atta Muhammad at Ex. 10, PW-2 Babal at Ex: 11, he produced mashirnama of wardat at Ex.11-A, PW-3 Ghulam Sarwar at Ex. 13, PW-4 Ghulam Mustafa at Ex.14, PW-5 Mst. Fareeda at Ex.15, she produced 164, Cr.P.C. statement at Ex.15-A, PW.6 SHO Anees Ahmed at Ex.16, he produced roznamcha entries and letter for recording 164, Cr.P.C. statement at Ex. 16-A to 6-C and PW-7 Hyder Ali at Ex.17. Thereafter learned I/C ADPP closed the prosecution side vide statement at Ex 18.

5. The statement of appellant was recorded under section 342, Cr.P.C. at Ex. 19, in which he denied the allegations leveled against him and claimed his innocence, however he did not examine himself on oath and nor produced any witness in his defense.

6. The learned trial judge on evaluating the evidence brought on record and considering the arguments addressed at the bar by the learned counsel for the parties came to the conclusion that the prosecution has proved its case against the appellant therefore, awarded sentence as mentioned above.

7. Learned counsel for the appellant contended that the impugned Judgment is contrary to law and is based on surmises and conjectures. He further contended that prosecution evidence is deeply interested in prosecution and hostile towards the appellant and no independent person has been cited as witness. He also contended that there is delay in lodging the FIR, which is not properly explained. He added that there are major discrepancies in the evidence of eye-witnesses which have not been considered by learned trial Court, hence the prosecution has failed to prove its case against the appellant beyond reasonable doubt, therefore, impugned judgment passed by learned trial Court may be set aside and appellant may be acquitted.

8. On the other hand learned APG half heartedly supported the impugned judgment. However, he admitted that no circumstantial evidence was collected during investigation and there are discrepancies in the evidence of prosecution witnesses.

9. I have heard the learned counsel for the appellant, learned APG and have minutely examined the material.

10. Perusal of record reflects that the occurrence took place on 17.3.2013 at 11:00 a.m. but the FIR was got registered at 2030 hours with delay of 9.30 hours which has not been explained by the complainant in his evidence before the trial Court.

11. Furthermore, the prosecution evidence is interested and consists of complainant, and his sons who not only acted as PWs of the case but also the mashirs of the place of wardat and no other person of the locality was examined/cited by the prosecution.

12. Perusal of 164, Cr.P.C. statement of Mst. Fareeda (Ex:15-A) reflects that she was abducted and was kept in one house at Jacobabad at 01:00 p.m. and on next morning she was left at Quetta Road, thereafter, she went to P.S. Dil Murad but there is no allegation against the accused persons that they compelled her to marry any person against her will or seduced to her illicit intercourse and reason for her abduction has not been disclosed in 164, Cr.P.C. statement but she in her deposition. before learned trial Court after two years deposed that the accused persons were putting pressure upon her to contract marriage with accused Attaullah which appears an improvement/exaggeration.

13. Apart from that there are major discrepancies in evidence of complainant, PW Babal and Mst. Fareeda. The complainant in his evidence before learned trial Court deposed that at the time of incident he, his two sons, namely, Babal, Abdul Ghani, daughter Mst. Fareeda and inmates were available in the house but PW Babal deposed that he, PW Abdul Ghani, Mst. Fareeda and inmates of complainant were available in the house of complainant, he did not take the name of complainant while Mst. Fareeda in her 164, Cr.P.C. statement (Ex:15-A) stated that on the day of incident she was available in home, she was alone and all the family members had gone to land for work, she did not disclose the presence of complainant, PWs or inmates in the house at the time of occurrence. Not only this but complainant and PW Babal in their examination-in-chief deposed that five accused persons armed with pistols entered the house and abducted Mst. Fareeda but Mst. Fareeda in her 164, Cr.P.C. statement before learned Magistrate and deposition before learned trial Court stated that on the day of incident she was available in her house and at 11:00 a.m. she went outside the house for passing urine and saw two accused persons Attaullah and Karim Bux who closed her mouth and dragged her towards Rickshaw. Statement of star witness i.e. abductee Mst. Fareeda, delay in FIR and discrepancies in evidence of witnesses, clearly show that the complainant and his two sons have not witnessed the incident.

14. There is no sort of corroboration, as during investigation the Investigating Officer did not recover Rickshaw, crime weapon or the abductee from the custody of appellant, even the mashirnama of place of wardat is silent and does not show, foot prints of the accused or wheel marks of the Rikshaw at the place of incident.

15. Since, no allegation of Zina has been leveled against any of the accused nor abduction for compelling her to marry with any accused against her will has been alleged in 164, Cr.P.C. statement by the abductee nor she was recovered from the custody of the appellant but she appeared at PS voluntarily, so I am of the opinion that on such evidence appellant could not be convicted.

16. From the facts and circumstance as discussed above, I am persuaded to hold that the prosecution has badly failed to prove its case against the appellant beyond any shadow of doubt, therefore, while extending the benefit of doubt I accept the instant appeal and set aside the conviction and sentence recorded by learned 2nd Additional Sessions Judge Jacobabad vide Judgment dated 10.12.2015, as consequence whereof the appellant is acquitted of the charge and is directed to be released forthwith if he is not required in any other custody case. WA/M-187/Sindh Appeal accepte