2020 PLP 119 (YLRN)

KHADIM HUSSAIN M. SHAIKH, J.

The captioned appeal is directed against the judgment dated 29.06.2015, passed by the learned 2nd Additional Sessions Judge, Sanghar, in Sessions Case No.84 of 2015 re: The State v. Abdul Kareem alias Khairo, emanating from FIR No.22 of 2015 for offence under Section 412, P.P.C., registered at Police Station Sanghar, whereby, appellant Abdul Kareem alias Khairu son of Muhammad Sulleman Shar was convicted for offence punishable under Section 412, P.P.C. and sentenced to undergo R.I. for five years and to pay fine amount of Rs.10,000/- [Rupees Ten thousand only] and in default thereof to further undergo SI for three [03] months, extending him benefit of Section 382-B, Cr.P.C.

2. Briefly the facts of the case, as per complainant ASI Miandad, are that on 09-02-2015, he along-with his subordinate staff left police station Peerumal in Government vehicle No.SP:3603, for patrolling purpose, and when they reached at Khipro-Wah Ji Mori, at 1600 hours, they saw one person, standing there with 125 Motorcycle, who seeing police party, tried to run away on motorcycle, but the complainant party apprehended him in suspicion, who on enquiry disclosed his name as Abdul Kareem alias Khairo son of Muhammad Sulleman Shar. The police party secured 125 Motorcycle of black colour, No. NHH:9576, Chassis No:U:279520, Engine No:3595786, Model 2011, suspected to be robbed property in Crime No.26 of 2014, registered at Police Station Peerumal, for offence under sections 397, 337-F(vi), P.P.C, and hence the said accused was arrested and brought at Police Station, where the subject FIR was registered at the instance of complainant ASI Miandad. After the investigation accused Abdul Karim alias Khairu ("the appellant"), was sent up with the challan to face his trial.

3. After completing all the legal requirements, a formal charge was framed against the appellant at Ex.02, to which he pleaded not guilty and claimed his trial vide his plea at Ex.03. At the trial, the prosecution examined PW-1 ASI Miandad Rajar at Ex.4, who produced memo of arrest and recovery at Ex.4/A, attested Photostat of daily diary entry No.21 at Ex.4/B, FIR at Ex.4/C; PW-2 PC Budhal Khan at Ex.05, who produced memo of the place of vardhat at Ex.5/A; PW-3 ASI Manzoor Ahmed at Ex.06, who produced attested Photo copy of daily diary entry No.32 at Ex.6/A; and, PW-4 Khalid Laghari at Ex.08. Thereafter, the prosecutor closed the prosecution side vide statement at Ex.09.The statement of appellant Abdul Kareem alias Khairu under Section 342, Cr.P.C. was recorded at Ex.10, wherein he denying all the allegations, professed his innocence, saying that he was sitting at hotel of one Soomar Shar from where two constables took him to the police station and then he was booked in the subject case. He also examined himself on oath as required under the provisions of section 340(2), Cr.P.C. and DWs Soomar Shar and Mehmood at Exs.12 and 13 respectively. At the conclusion of the trial, the learned trial Court after hearing the appellant in person and learned Deputy District Public Prosecutor, convicted and sentenced the appellant as discussed in paragraph-1 [supra]. Hence the appellant has preferred this appeal.

4. The learned counsel for the appellants has mainly contended that the appellant is innocent and he has not committed the offence alleged against him; that there are major contradictions in the evidence adduced by the prosecution at the trial, but the learned Trial Court did not pay any heed to them while examining the evidence; and, that the appellant has been falsely implicated in this case by the complainant at the instance of some influential person of the locality. Learned counsel prays for acquittal of the appellant.

5. Learned Deputy Prosecutor General has mainly contended that the prosecution has proved its case against the appellant by examining complainant ASI Miandad and three [03] PWs including the mashir, who per him, have supported the prosecution case. Learned Deputy Prosecutor General, therefore, prays that the appeal may be dismissed.

6. I have considered the submission of the learned counsel for the appellant, learned Deputy Prosecutor General, Sindh and have gone through the record.

7. From a perusal of the record, it would be seen that the appellant was not represented by any Advocate and needless to say that cross-examination of an accused, who is a layman, cannot be the substitute of cross-examination of an Advocate; even otherwise there are material contradictions, in the evidence led by the prosecution in as much as that PW-4 Khalid Laghari has deposed that "One Meeran, Mukro and Qasoo all by caste Shar had snatched my motorcycle from me and on the next day of occurrence, I lodged such FIR at Police Station Perumal... Accused present in Court is not known to me nor did he snatch motorcycle from me... the chassis and engine numbers of my Motorcycle are not in my memory; it was purchased by me in the name of my nephew Muhammad Arif; PW-3 Investigating Officer, ASI Manzoor Ahmed, has deposed that "the documents of Motorcycle in question were also got verified by me from Excise and Taxation Officer, District Mirpurkhas, who confirmed the ownership of Motorcycle in the name of Khalid Laghari, but no such document of verification was produced in evidence, the said PW in his cross-examination has stated that "You are not nominated in Crime No:26/2014 of Police Station Perumal; the place of Wardhat is situated on Sanhar to Khipro link road; village Dalel Shar is about 15/16 acres away from place of Wardhat; there are about 100 houses in Village Dalel Shar; two persons had met with us near Village Dalel Shar; PW-2 Mashir PC Budhal Khan in his cross-examination has stated that "village Dalel Shar is at the distance of about 4/5 acres from place of Wardhat; ASI had asked 2/3 persons, who had come at the place of Wardhat to act as mashir; and, PW-1 complainant ASI Miandad Rajar in his cross-examination has stated that "the owner of Motorcycle has not been seen by me..... the place of Wardhat is situated on the link road which leads towards Chotiaryun; moreover, the prosecution case is lacking in ingredients of section 412, P.P.C., for, neither the prosecution has brought on record any evidence to establish that the appellant dishonestly received the subject Motorcycle to be the robbed property from any of the accused allegedly involved in Crime No.26 of 2014, registered at Police Station Peerumal nor did the prosecution adduce any evidence to prove that the appellant has committed the offence alleged against him. Apart from the aforementioned infirmities, discrepancies and dishonest and deliberate improvements etc., by the prosecution during the trial, rendering its case highly doubtful and the evidence of PWs not confidence inspiring, there are many other infirmities and discrepancies etc., in the prosecution case, which need not to be mentioned here just to save the space, and the same were not at all attended to by the learned trial Court, while passing the impugned judgment dated 29.06.2015; furthermore, the appellant was unrepresented and in such a state the learned Trial Court was obliged to intervene into the matter at the time of recording of the evidence by putting the relevant material questions, more particularly, to the P.Ws. Nos. 1, 2 and 3, who being police officials, were expert witnesses and the learned Trial Court was also obliged to take into consideration the entire material placed before it in arriving at the conclusion whether a fact was proved or not because the proof of a fact depends upon the probability of its having existed. In such view of the matter, the impugned judgment dated 29.06.2015, patently suffers from misreading and non-reading of the evidence. In the case of Muhammad Ilyas v. The State (1997 SCMR 25), the Hon'ble Supreme Court of Pakistan has held that:- "It is well-settled principle of law that where evidence creates doubt about the truthfulness of prosecution story, benefit of such a doubt had to be given to the accused without any reservation. In the result, there is no alternative but to acquit the appellant by giving him benefit of doubt". In the case of Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), the Hon'ble Supreme Court of Pakistan has held that:- "

16. It needs no reiteration that for the purpose of giving benefit of doubt to an accused person, more than one infirmity is not required, a single infirmity creating reasonable doubt in the mind of a reasonable and prudent mind regarding the truth of the charge-makes the whole case doubtful. Merely because the burden is on the accused to prove his innocence it does not absolve the prosecution from its duty to prove its case against the accused beyond any shadow of doubt end this duty does not change or vary in the case. A finding of guilt against an accused person cannot be based merely on the high probabilities that may be inferred from evidence in a given case. Mere conjectures and probabilities cannot take the place of proof. Muhammad Luqman v. The State PLD 1970 SC 10." In the case of Muhammad Akram v. The State (2009 SCMR 230), the Hon'ble Supreme Court of Pakistan has held that:- "It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrued in favour of accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as matter of grace and concession but as a matter of right.

8. In view of what has been discussed above, I am of the considered opinion that the prosecution has failed to prove its case against the appellant beyond a reasonable doubt, therefore, the appeal deserves to be allowed and conviction and sentence awarded to the appellant vide impugned judgment dated 29.06.2015, is liable to be set-aside.

9. Above are the reasons of short order passed by me on 23.04.2019, whereby, the appeal was allowed and the conviction and sentence awarded to the appellant was set aside and the appellant was acquitted of the charge. SA/A-181/Sindh Appeal allowed.