2019 P Cr (PLP)

SYED MUHAMMAD FAROOQ SHAH, J.

This Criminal Appeal against conviction was received by way of transfer from the High Court of Sindh, Circuit Court, Hyderabad, for want of jurisdiction. The Appellant above named was convicted by learned lst Additional Sessions Judge, Dadu vide impugned judgment pronounced on 23.12.2017 and sentenced for an offence under section 396, P.P.C. to suffer R.I. for 04 years and to pay fine of Rs. 25,000/- in default thereof to suffer R.I for three months more with benefit of section 382-B, Cr.P.C. It is pertinent to mention that in the same crime, co-accused persons namely (i) Shaman, (ii) Peeral alias Peero, (iii) Misri and (iv) Qasim alias Ghulam Qasim were acquitted by the same trial Court vide judgment dated 22.12.2011, while case against absconder accused/appellant Azizullah a Hero was kept on dormant file. Later on, the appellant/ accused Azizullah was arrested and convicted as mentioned above.

2. While narrating facts of the alleged incident, Complainant Imam Bux alleged in complaint lodged at P.S. Khudaabad in daily diary Entry No. 05 at Exh:20, which was incorporated in the FIR, that on 11.12.2010, he (Complainant) along with his relatives Ghano Khan, Dil Murad and wife of Dil Murad was going to Bhan for the purpose of delivery of wife of Dil Murad in Pothohar Jeep, which was driven by Zamindar Imam Bux Channa and at 8:15 p.m., they reached near 'Chak' on link road leading from 'Johi' to 'Bhan' where they saw six armed persons, signaled the driver of Jeep to stop; the persons holding Kalashnikov fired straight on their vehicle from the southern side, the bullet hit Zamindar Imam Bux; Ghano Lund was also crying as he was also hit by the bullet and the culprits made their escape good. Due to bullet injury, Zamindar Imam Bux has died and treatment to 'Ghano' was provided.

3. Trial commenced after framing of charge. On same set of evidence, co-accused Shaman, Peeral, Misri and Qasim have been acquitted. The Complainant challenged the acquittal judgment dated 22.12.2011 before this Court vide Acquittal Appeal No. 01-K/2012 and the same had been dismissed in limine vide judgment pronounced on 25.10.2018. The appellant Azizullah @ Hero, was later on arrested and faced trial, has been convicted and sentenced mainly on the reasons that on 06.01.2010, he was identified by the witnesses and Complainant before 2nd Civil Judge and Judicial Magistrate Dadu; more particularly, on the basis of confessional statement recorded by the learned Judicial Magistrate. The learned trial Court has also observed that the appellant Azizullah @ Hero has remained absconder/fugitive of law for more than six (06) years without any explanation.

4. Arguments advanced by Mr. Habib Ahmed, learned counsel for the Appellant and Mr. Khadim Hussain Khooraho, Additional Prosecutor General, are considered. Evidence on record, beside other material have also carefully been perused.

5. Mr. Habib Ahmed, learned Counsel for the appellant argued that the name of the appellant did not transpire in the FIR nor any features/description 'hulia' or height etc. of the culprits have been mentioned, therefore, prosecution evidence is full of doubts, improbabilities, inspiring no confidence and untrustworthy as there are material contradictions in the prosecution evidence; more particularly, on same set of evidence, co-accused Shaman, Peeral, Misri and Qasim have been acquitted on 22.12.2011 by the learned trial Court after considering that the prosecution had failed to prove the charge against them. While the appellant, Azizullah alias Hero has been convicted without considering the fact that no legal sanctity is attached to the alleged confessional statement, wherein in reply to different questions Nos. 2, 3, 5, 9 and 11, the appellant Azizullah replied that police had pressurized, threatened him and therefore he made the confession under duress. He has categorically stated that police had threatened him to confess otherwise he will be involved in this case. In reply to question No. 11, the appellant has stated in Sindhi language that he know nothing . Learned counsel argued that under no stretch of imagination, the said confession is admissible mainly on reasons that the evidence of concerned scriber/magistrate has not been recorded and the said so-called confessional statement cannot be termed as admission of crime; moreso, the appellant Azizullah was not confronted to the said identification or confessional statement while recording his statement recorded under section 342, Cr.P.C. As per contention of Mr. Habib Ahmed, neither the appellant committed robbery of any valuable nor attempted to snatch the vehicle or any other valuable from the Complainant party.

6. Conversely, learned Additional Prosecutor General was found unable to controvert or rebut worthy submissions advanced by learned Counsel for the appellant. On the contrary, the learned Prosecutor has developed consensus that no legal sanctity is attached to the so-called confessional statement, as admittedly the concerned Magistrate did not put himself in the witness box. Learned Additional Prosecutor General has also admitted that remaining co-accused armed with firearm weapons caused injuries had been acquitted by the learned trial Court. He has also admitted that at the time of commission of offence, the appellant was having stick in his hand.

7. After a careful analysis, I reached at the irresistible conclusion that prosecution has miserably failed to prove any case against the appellant, who has been convicted and sentenced merely on the basis of confessional statement, having no legal sanctity. Insofar as the question of absconsion of appellant is concerned, the abscondence by itself not a substantive piece of evidence and can be used unless it is corroborative by other cogent evidence as held in the case of Aminullah v. The State (PLD 1976 SC 362). In the case of Rohtas Khan v. The State (2010 SCMR 566), in paragraph 12 the Hon'ble Supreme Court of Pakistan held as under:- "The learned High Court gave importance to the abscondence of the appellant. No doubt it is a relevant fact but it can be used as a corroborative piece of evidence, which cannot be read in isolation but it has to be read along with substantive piece of evidence. This Court in the case of Asadullah v. Muhammad Ali (PLD 1971 SC 541) observed that both corroborative and ocular evidence are to be read together and not in isolation. As regards abscondence this Court in the case of Rasool Muhammad v. Asal Muhammad (1995 SCMR 1373) observed that abscondence is only a suspicion circumstance. In the case of Muhammad Sadiq v. Najeeb Ali (1995 SCMR 1632) this Court observed that abscondence itself has no value in the absence of any other evidence. It was also held in the case of Muhammad Khan v. The State (1999 SCMR 1220) that abscondence of the accused can never remedy the defects in the prosecution case. In the case of Gul Khan v. The State (1999 SCMR 304) it was observed that the abscondence per se is not sufficient to prove the guilt but it can be taken as a corroborative piece of evidence. In the cases of Muhammad Arshad v. Qasim Ali (1992 SCMR 814), Pir Badshah v. The State (1985 SCMR 2070) and Amir Gul v. The State (1981 SCMR 182) it was observed that conviction on abscondence alone cannot be sustained. In the present case, substantive, piece of evidence in the shape of ocular account has been disbelieved; therefore, no conviction can be based on abscondence alone."

8. Since the prosecution has miserably failed to prove allegation of charge against the appellant beyond shadow of reasonable doubt, therefore, this Criminal Appeal is allowed. Conviction and sentence recorded through impugned judgment is set-aside and the appellant is acquitted of the charge levelled against him. Appellant Azizullah alias Hero be set at liberty forthwith, if he is not required in any other custody case. JK/8/FSC Appeal allowed.