2004 PLP 1906 (YLR)

Abdul Rehman Bhutto for Appellant. Altaf Hussain Surahiyo for Respondent No.1. Mushtaque Ahmed Kourejo for the State. Date of hearing: 26th August, 2003. The appellant through this appeal has challenged the judgment dated 9-4-2003 passed by the learned Civil Judge and F.C.M., Shikarpur whereby the respondent No. 1, was acquitted from the charge under section 382, P.P.C.

2. The brief facts of the prosecution case are that on 31-1-1996 appellant Barkat Ali filed direct complaint in the Court having jurisdiction. The said Court examined the complainant on oath under section 200, Cr.P.C. in which he stated that on 23rd January, 1996, he was in the High Court at Karachi and he returned on 26th January, 1996 in his village Bado. On that day his Munshi Fazal Muhammad Solangi informed him that his paddy was taken away by Mazar Lolai, Babul Jakhrani, Kaloo Jakhrani, Shoukat Jakhani, Akbar Jakharni and the same paddy was taken to Rand Mill, Garhi Yasin. It is disclosed in the complaint that weight of paddy was about 2400/2500 mounds as it was' lying in `Dera' on 20th January, 1996. It is also disclosed in the statement and deposition that his Kamdar also informed him that Kamdar Muhammad Saleh Rind and Munshi Fazal Muhammad Solangi also arrived and saw that Kaloo, Bobi, Babul, Shoukat, Akbar and others were armed with guns and they witnessed the incident. It is further disclosed in the complaint, statement and in the deposition that one Ghazanfar Ali Essani was also with the culprits and at his instance the paddy was taken away by the accused party. The appellant/complainant approached the Police Station, Golodaro on 25th January, 1996 but S.H.O. did not record his F.I.R. and he approached several times at Police Station. On 27th January, 1996, he sent telegrams to S.P. and D.C., Shikarpur but there was no progress at all. Due to the act of S.H.O. Golodaro the appellant/ complainant filed direct complaint in the Court having jurisdiction. The preliminary enquiry was conducted in which statement of witnesses Fazal Muhammad and Muhammad Saleh were recorded by an order dated 3-3-1996, the said Court observed that prima facie offence against the accused person has been trade out and the complaint was admitted registered and bailable warrants were issued. This case was transferred from the Court of Judicial Magistrate Shikarpur by the, learned Sessions Judge and it was entrusted to the learned Civil Judge and F.C.M.. Garhi Yasin. The said Court framed the charge against the accused in offence under section 382, P.P.C. at E-2 and pleas of all the accused were recorded whereby they pleaded not guilty and claimed to be tried. In support of charge, prosecution examined Barkat Ali Essani, Fazal Muhammad Solangi and Muhammad Saleh Rind as P.Ws. 1, 2 and 3 respectively and on 23-4-1997 counsel for complainant closed the side of prosecution through statement at E-11.

3. During the pendency of the trial respondent No.1 preferred an application stating therein that accused Kaloo has expired whereas the other co-accused are already shown absconders and it is observed by the trial Court that the case of proclaimed offenders shall be kept on dormant file until they are arrested. It is contended by Mr. Abdul Rehman Bhutto, learned counsel for appellant that the trial Court has not considered the evidence of the witnesses as well as the record-of-rights which are stand in the name of complainant as 60 paisas share-holders. Mr. Bhutto is unable to explain who are the other co-sharer in respect of 40 paisas. it was further argued that there was sufficient material available on record against the accused that attorney of Ghazanfar Ali has admitted before the Court of IInd Senior Civil Judge in Suit No.34 of 1994 for lifting the paddy from the 'dera'. It is further pointed out, by the learned counsel that learned Judicial Magistrate has mentioned in his certificate on deposition that in deposition of P.W.3 certain words are missing. This fact has been verified from the perusal of the original documents but in vernacular of P.W.3 the missing word has been verified to be Kaloo. It is also verified from the said deposition that at page.4 at 8th line second last word has also been found as 'Munshi . At the same page at 9th line missing line has been found to 'that no any'. It is lastly urged by learned counsel that the acquittal judgment is maintainable and is liable to be set aside.

4. Conversely Mr. Altaf Hussain Surahiya, Advocate for respondent No.1 has disputed their factual and legal position and submits that the judgment is based upon the evidence adduced by the prosecution and there is no illegality or infirmity in the acquittal judgment. He has read the evidence of P.Ws.1, 2 and 3 and submits that there is no corroboration as the evidence of P.W.1 is hearsay evidence and evidence of P.W., Muhammad Saleh Rind and, P.W. Fazal Muhammad Solangi are contradictory and no reliance can be made on such evidence. Learned counsel for respondent, No.1 has read out the entire evidence and several contradictions, have been pointed out. It is further urged by the learned counsel for the respondent that Ghazanfar Ali is co-sharer in the land where the 'dera' of green rice was heaped and it is stated in the complaint that the said Ghazanfar Ail instigated the co-accused person for taking away the paddy under show of force. It is further urged that the respondent No.1 and other absconding accused were armed with guns and at the instigation of Ghazanfar Ali they took away 2400/2500 mounds of paddy from `dera'.

5. Mr. Mushtaque Ahmad Kourejo, learned State counsel has supported the acquittal judgment and submits that the trial Court has rightly acquitted the accused from the charge while extending the benefit of doubt as there was no tangible evidence to convict the respondents for the charge under section 382, P.P.C. From the perusal of statements accused under section 342, Cr.P.C. denied the allegations of prosecution as he has been involved in this case falsely by the complainant as there is enmity between complainant and his other brothers and relatives over the landed property as the complainant wants to usurp the same land and is order to make the land of his brother barrens as he is Hari of Munawar Ali Essani the brother of complainant.

6. Having gone through the evidence adduced by the prosecution and other material available on record learned Joint Civil Judge and F.C.M. passed the judgment which has been challenged through this acquittal appeal. I have heard Mr. Abdul Rehman Bhutto learned counsel for the appellant, Mr. Altaf Hussain Surahiyo, Advocate for respondent No.1. Syed Mushtaq Ahmad Kourejo, learned State counsel and have gone through the evidence adduced by prosecution.

7. Mr. Altaf Hussain Surahiyo learned counsel for respondent No.1 has mainly relied that there is hearsay evidence which is weakest type of evidence and the same cannot be relied upon against the respondents and the evidence of Muhammad Saleh Rind has not supported the prosecution case and hid evidence is contradictory with the evidence of P.Ws., Fazal Muhammad Solangi and complainant. In order to sum up evidence of prosecution witnesses it can be observed that the incident is un witnessed and the F.I.R. was not lodged after the commission of the incident by eye-witnesses if they have reached at the place of incident. There is word of the complainant that he approached S.H.O. on several occasions beet his F.I.R. was not recorded. Learned counsel for the appellant has conceded that no application was made to the higher authorities about the conduct of S.H.O. for non-recording of F.I.R. but he submits that only telegram was sent to S.S.P. and D.C., Shikarpur. The complainant presented his direct complaint on 31st January, 1996 as per complainant the offence as alleged was A committed on 20-1-1996. It is manifest than the case of the prosecution is lacking with regard to ocular testimony and in that event the benefit of doubt is to be extended to the accused. In support of the hearsay evidence there is an authority as reported in case of Raboo v. The State KLR 2002 Criminal (H/abed) 51.

8. The narration of the evidence available on record reveals that there is conflict in the evidence of complainant Barkat Ali Essani and P.W., Muhammad Saleh Rind and Fazul Muhammad Solangi. The concept of benefit of doubt to accused person is deep rooted in our country. For giving the benefit of doubt it is not necessary that there should be many circumstances creating doubts. In the statement under section 200, Cr.P.C. and in the deposition in the Court the complainant .has specifically stated that the respondent No.1 alongwith the absconding accused arrived at the land duly armed with guns and on the instigation of Ghazanfar Ali Essani who happens to be uncle of complainant has not been cited as accused in the direct complaint against whom it is alleged that at his instigation the other co-accused committed the offence. If there is circumstance which creates B reasonable doubt in a prudent mind about the guilt of accused then the accused will be entitled to the benefit not as a matter of grace but as a matter of right Mr. Mushtaque Ahmed Kourejo learned State counsel has also not supported the acquittal appeal and submits that the acquittal judgment is based on proper appreciation evidence.

9. In view of the foregoing reason I intend to follow the case of Muhammad Ilyas v. The State 1997 SCMR 25, it has been held by the Honourable Apex Court that benefit of doubt where evidence creates doubt about the truthfulness of the prosecution story, its benefit has to be given to the accused without any reservation. In case of Tariq Pervez v. The State 1995 SCMR 1345 a dicta has been laid, down by the Honourable Supreme Court of Pakistan that benefit of doubt is a right of accused. Learned counsel for the appellant is unable to cite any illegality or infirmity or non-appreciation of evidence by the trial Court. The view taken by the learned trial Court is based on proper appreciation of fact and law. There was conflicting evidence regarding commission of offence. The acquittal judgment cannot be set aside unless there is misreading of evidence or any other illegality committed by the trial Court while holding the trial. In view of the merits of the care and the case law as cited above. I see no merits in this acquittal appeal and the same is dismissed in limine. H.B.T./B-6/K Appeal dismissed.