2018 P Cr (PLP)

SYED MUHAMMAD FAROOQ SHAH, J.

The captioned Criminal Appeal is directed against the impugned judgment dated 05.11.2011, delivered in Sessions Case No. 929/2010 (FIR No.154/2010, under section 392/34, P.P.C., registered at Police Station Khokhrapar), by VIIIth Additional Sessions Judge, Karachi-East, whereby the appellant has been convicted for an offence punishable under section 392/454/34, P.P.C., to suffer R.I. for five [5] years and to pay fine of Rs. 10,000/-, in default thereof, to suffer SI for one month more; however, benefit of section 382-B, Cr.P.C. was extended to the accused. The appellant has prayed for setting aside the impugned judgment and for his acquittal from charge of this case, on the facts and grounds averred in the memo of appeal.

2. Contents of the aforesaid FIR reflects that the applicant along with absconder accused snatched mobile phone Nokia 112 and cash amount of Rs. 2000/- on gun point from the complainant Mst. Rasheeda, thereby the applicant was charged for an offence punishable under section 392/34, P.P.C. On submission of final report under section 173, Cr.P.C., the appellant was charge sheeted for aforesaid offence, to which, the appellant pleaded not guilty and claimed trial.

3. To substantiate its case, prosecution examined in all three witnesses. PW-1 Complainant Mst. Rasheeda, who produced FIR as Ex-5/A, memo of site inspection as Ex-5/B. PW-2 Atif son of Moula Dad as Ex-6. PW-3 Nisar Ali son of Muhammad Charial as Ex-9. PW-4 (ASI) Arshad Hussain Warsi, I.O. of the case, as Ex-10. On conclusion of prosecution evidence, statement of the accused was recorded under section 342, Cr.P.C., wherein he denied all the allegations leveled against him and pleaded his innocence beside false implication in this case.

4. Arguments heard. Record perused.

5. Syed Shahid Mushtaq, learned counsel for the appellant, inter alia, submits that the appellant has falsely been implicated in this case by the complainant party. He argued that the impugned judgment is result of misreading, non-reading and non-appreciation of evidence; moreso, no any description has been given regarding currency notes, which were snatched by the accused; beside no any proof has been produced by the Complainant with regard to Mobile phone as shown in the FIR as well as in the charge framed by the trial Court. Learned Counsel next submit there are material discrepancies and contradictions amongst prosecution witnesses, which cannot be brushed aside for safe administration of justice. Learned Counsel next argued that the learned trial judge ignored the fact that old enmity exists between the parties. To evaluate and thrash out the prosecution evidence, it may be advantageous to reproduce the depositions of PW-1 Complainant (Mst. Rasheeda), who in her cross-examination, stated that:- "It is correct to suggest that I know the accused Basharat for the Last six years. It is correct to suggest that the accused Basharat had purchased a piece of Land from my husband in the year, 2005. It is correct to suggest that I do not mention the name of hospital but I have mentioned the time at about 10:30 a.m. The tenant who was with me at the time of incident namely Atif. It is correct to suggest that Rickshaw driver is not the witness of the incident. The incident took place on 13.03.2010. It is correct to suggest that there was some quarrel between the accused and Atif on road. The road is in front of my house where the quarrel happened between them. I do not remember exact time but it was afternoon. It is correct to suggest that I do not disclose the description of currency note which were snatched by the accused."

6. Learned Counsel next argued that PW-2 Atif, who is also an eye-witness of the incident, did not support the Complainant in his cross-examination, by stating that:- "It is correct to suggest that I do not mention the time in my examination-in-chief. It is correct to suggest that the accused persons threatened the Complainant and tried to sit in his taxi. It is correct to suggest that I have not gone to any doctor. It is incorrect to suggest that there was some quarrel between me and accused Basharat on the day of incident. It is correct to suggest that I have not mentioned that the accused persons snatched cash amount from Complainant Rasheeda. It is correct to suggest that I have not mentioned the name of hospital where we were going at the time of incident".

7. Learned Counsel for the appellant further submitted that the evidence led by the prosecution is tutored one and versions are after thoughts and has been advanced after due consultation but the learned trial court without applying its judicial mind passed the impugned judgment in a hurried manner. Learned counsel next argued that material question with regard to recovery, beside other substantial evidence have not been questioned to the accused while recording his statement under section 342, Cr.P.C. Learned counsel lastly submitted that the prosecution case hings entirely on circumstantial evidence, then each piece of evidence collected must provide all links making out one straight chain.

8. Conversely, learned Prosecutor, without controverting the contradictions among the prosecution witnesses and discrepancies pointed out by the learned Counsel, supported the impugned judgment.

9. Suffice it to say that the prosecution case hings on testimony of two material witnesses namely Complainant Rasheeda and PW-2 Atif. Learned Counsel correctly pointed out that old enmity exists between the parties over the tenement, which was purchased by the applicant from the husband of the Complainant; beside, he submitted copy of FIR No. 251/2010, at P.S. Bin Qasim Town, lodged by the appellant against the complainant and others, who has been cited as prosecution witnesses in this case. It is also an admitted position that PW-2 Atif, who may be termed as star witness of the prosecution case, being tenant of complainant, did not support the version of the Complainant; however, learned trial Court, by passing the impugned judgment, did not consider the contradictions and discrepancies reflects from his cross-examination. It is also an admitted position that snatched property i.e. Mobile Phone, as mentioned in the FIR, has not been recovered from the possession of the appellant.

10. It has usually been observed that the trial Courts in likewise cases are not considering the cross-examination of witnesses. It need not to be reiterated that cross-examination is the great legal engine invented to unearth the truth from the statement of a witness. Opportunity to cross-examine contemplated by the law must be real, fair and reasonable. Cross-examination was not an empty formality, but a valuable right and best method for ascertaining the truth. The right of cross-examination has from times immemorial been held to be particularly in criminal cases a valuable right to the accused. It is a weapon which an accused person or an Advocate on his behalf can wield for the purpose of testing the veracity of the statement made by a witness. Moreso, expeditious disposal of trials was no doubt a good thing but it should not be at the cost of fair and just trial. It is settled principle of law that law leans adjudication on merits by providing fair opportunity to the accused.

11. A perusal of impugned judgment does not reflect that statement of accused under section 342, Cr.P.C. was put in juxtaposition as the accused has taken specific plea of his false involvement in this case by the complainant party, which fact got support from the evidence of Complainant, who has specifically stated in her cross-examination that appellant has purchased a piece of land from her husband; beside some quarrel was occurred in between the accused and PW-2 Atif. It is settled law that a piece of evidence not put to the accused person at the time of recording of his statement under section 342, Cr.P.C. cannot be considered against him.

12. Discrepancies, illegalities and contradictions in the prosecution witnesses are creating reasonable doubt as there are lot of loop holes and material contradictions in the prosecution case, which are sufficient to observe that the prosecution has failed to prove its case against appellant beyond any shadow of doubt; the benefit of which must go to the appellant. It is established law that for giving benefit of doubt to an accused, there need not be a number of circumstances to prove the innocence of accused; even single circumstance creating reasonable doubt is sufficient for the acquittal of an accused but the trial Court has failed to appreciate the evidence brought on record by convicting the appellant which is against the law. It is well known principle of appreciation of evidence that the benefit of all favorable instances in the prosecution evidence must go to the accused regardless to the fact as to whether he has taken any such defense plea or not.

13. Crux of the aforementioned discussion is that the impugned judgment is riot tenable in law as it does not base on direct or substantive evidence and therefore the guilt of accused cannot be based on high probabilities that may be inferred from evidence in this particular case.

14. By announcing a short order in Court, today, the appeal in hand was allowed and above are the reasons of the same. JK/M-132/Sindh Appeal allowed.