2014 PLP 463 (YLR)

ABDUL RASOOL MEMON, J.

By this order, I would like to dispose of this criminal revision application preferred against the judgment dated 28-2-2006 passed by learned 1st Additional Sessions Judge, Mirpurkhas in Criminal Appeal No.2 of 2004 maintaining the judgment dated 10-1-2004, passed by learned Civil Judge and FCM, Kot Ghulam Muhammad, whereby the present applicant along with one Muhammad Mubin was convicted and sentenced under section 430, P.P.C. to suffer R.I for two years.

2. The facts of the case are that on 6-5-2013 the complainant Muhammad Yousuf Darogha of Irrigation Department Sub-Division Kot Ghulam Muhammad posted at Dangan Distry along with P.Ws Muhammad Munir, Tanveer Hussain and Mir Hazar Khan, the Chairman, General Secretary and Treasurers of F.O (Farmer's Organization) respectively were on checking of the Watercourses of Dangan Distry when at about 10-00 a.m. they reached at Watercourse No.216/1, found it tempered as its module was 11 x 2 ft. beyond its sanctioned measurement where zamindar Muhammad Mubeen was present and disclosed that due to shortage of water he had tampered the Watercourse. After completing checking work, the complainant party returned back to the office of Chairman F.O. P.W Munir Ahmed situated at village Haji Muhammad Hanif, where he (Chairman) gave letter to the complainant for S.D.O Irrigation and ultimately on the letter of S.D.O. F.I.R. was registered on 7-5-2003 at 1845 hours.

3. Heard the learned counsel for the appellant and learned D.P.G. for the State.

4. Learned counsel for the applicant/ accused Allah Bachayo contends that the proceedings against the applicant Muhammad Mubeen have been abated by this Court as he has expired during the pendency of this revision application. Applicant Allah Bachayo was joined in this case on the statement of co-accused before the Irrigation Officer. He has contended that the present applicant was shown as Kamdar of the deceased accused Muhammad Mubeen hence, he was challaned in this case; per learned counsel, present applicant was neither present at the place of wardat nor any identification test was held through prosecution witnesses but simply shown to be companion of co-accused Muhammad Mubeen while tampering with the Watercourse. It is further contended that the statement of co-accused made before complainant in presence of witnesses can be termed as an extra-judicial confession for that purpose which cannot be used for co-accused and thus both the Courts below have not appreciated this aspect of the case and committed material illegality and irregularity calling for interference of this Court in revisional jurisdiction.

5. Learned D.P.G. Sindh does not support both the judgments below on the point that presence of present applicant at place of occurrence is not established and so also no ocular evidence is available on record to connect the applicant/accused in the commission of the alleged offence except extra-judicial confession of co-accused before P.Ws.

6. I have given careful consideration to the arguments of learned counsel for the applicant and learned D.P.G Sindh for the State and gone through the relevant record.

7. On death of applicant Muhammad Mubeen proceedings against him were abated during pendency of this revision application. The prosecution case against present applicant is based on extra-judicial confession of co-accused Muhammad Mubeen (now deceased) before the prosecu-tion witnesses. Neither the presence of present appellant Allah Bachayo is shown at place of wardat nor his name appeared in F.I.R. The extra-judicial confession of one of co-accused before prosecution witnesses cannot be used against the other co-accused except some strong corroborative evidence is brought by the prosecution to prove the said extra-judicial confession of co-accused, therefore, learned D.P.G. Sindh has rightly conceded that the Courts below have committed material illegality and irregularity.

8. In view of above circumstances, the conviction awarded by the Civil Judge and F.C.M. Kot Ghulam Muhammad is contrary to the principal of law ignoring the evidence brought on record, therefore, while exercising revisional jurisdiction both the impugned judgment are set aside and acquit applicant Allah Bachayo after extending benefit of doubt. He is present on bail before this Court. His bail bond stands cancelled and surety discharged.

9. Criminal revision application stands disposed of. MH/M-129/K Revision allowed.