KHAMISO vs STATE
The criminal appeal assailed the judgment of the 2nd Additional Sessions Judge Sanghar, whereby the appellant Khamiso was convicted and sentenced under Section 392 and Section 342 of the Pakistan Penal Code 1860. The prosecution case arose from an FIR lodged regarding an alleged robbery of a Datsun vehicle and other articles, where the appellant and others were implicated following a delayed report and subsequent identification during a private search. The Federal Shariat Court heard the appeal and, vide its short order, allowed the appeal, set aside the trial court's judgment along with the conviction and sentence, and acquitted the appellant of the charges, directing his immediate release if not required in any other case. The judgment evaluates the prosecution's evidence regarding the delayed FIR and identification, resulting in the acquittal of the accused.
- Whether the conviction under Section 392 of the Pakistan Penal Code 1860 is sustainable when the prosecution fails to establish identity and timely reporting?
- Can an amended charge be framed during the trial under Section 227 of the Code of Criminal Procedure 1898?
- What is the evidentiary value of an FIR lodged with a considerable delay after the alleged occurrence of robbery?
- Section 392, Pakistan Penal Code 1860
- Section 342, Pakistan Penal Code 1860
- Section 17(3), Offences Against Property (Enforcement of Hudood) Ordinance 1979
- Section 227, Code of Criminal Procedure 1898
- Section 212, Pakistan Penal Code 1860
The above titled criminal appeal was disposed of vide short order dated 07.06.2017 which reads as under: "Heard learned counsel for the appellant and the learned prosecutor General Sindh for the State.
For reasons to be recorded later, Criminal Appeal No, 17/K of 2016 is allowed. The Judgment dated 30.06.2015 passed by the learned 2nd Additional Sessions Judge Sanghar is set aside so also the conviction and sentence awarded to appellant Khamiso S/o Pir Dino Khaskheli and he. is acquitted of the charges. He may be released forthwith if not required in any other custody case".
Following are the reasons of the above order.
2. The appellant Khamiso through this Criminal Appeal has assailed the judgment dated 30.06.2015 passed by the learned 2nd Additional Sessions Judge Sanghar, whereby he was convicted and sentenced under Section 392, P.P.C. for Seven years R.I. and to pay fine of Rs, 10000/-; in case of default in payment of fine to suffer S.I. for three months. He was also sentenced under Section 342, P.P.C. to suffer R.I. for one year and to pay fine of Rs,3000/-, in default thereof to suffer S.I. for one month. The Sentences awarded to him were ordered to run concurrently.
3. The facts as narrated in the F.I.R. by complainant Ali Hassan are that his uncle Moula Bux owned a Datsun vehicle bearing Registration No, BHB:1754, which was driven by him, and Nabi Bux Khaskheli was its Cleaner. On 12.05.2012 in the evening he was asked by Ustad Muhammad Bachal Malokhani to take ten cooked cauldrons for delivery in marriage ceremony aLTando Adam. At about 6.00 p.m. he took food from Otaq of Rehan Talpur and proceeded towards Tando Adam. At about 1200 hours they were on their way back in Datsun along with empty cauldrons, when at 0100 hours they reached near Suhni Dharti Bus Stop Road, suddenly four culprits armed with weapons intercepted them. They snatched keys of Datsun and robbed Cell Phones from the complainant and Cleaner.
They were with open faces and two black colour motorcycles of culprits were also parked there.
The culprits took them towards sugarcane crops and tied their hands and legs. One of the culprits started Datsun pick up while three drove away on their motorcycles and all went towards Tando Adam side. At about 0400 hours the complainant and Cleaner untied themselves and came to main road from where they took lift in a truck and reached home. They disclosed above story to their uncle Moula Bux and relative Mumtaz and kept on searching the robbers. During search they came to know that Haroon Majeedano, Lakhadino Majeedano, Ghaffar Majeedano and Khamiso Khaskheli had robbed Datsun along with other articles. They made complaint to Dadlo Majeedano and Inayat Majeedano, who ensured them to settle the issue and return robbed Articles but finally on 16.08.2012 they refused to return the robbed property. Thereafter on 17.08.2012 complainant lodged the FIR. at P.S. Jhol, District Sanghar. Police after usual investigation submitted challan before the Court of law against accused Dadlo and Inayat while showing four accused as absconders. Subsequently accused Kharniso was arrested while the rest of the accused were declared as proclaimed offenders.
4. Charge in the present crime was framed against accused Dadlo, Inayat Ali and Khamiso on 31.12.2012 for offences punishable under Section 17(3) Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and Section 342, P.P.C. to which they pleaded not guilty and claimed trial.
5. Prosecution in support of its case examined complainant Ali Hassan as Ex.11 who produced F.I.R. as Ex.11/A. PW-2 Nabi Bux as Ex.12. P.W. Moula Bux as Ex.13. At this stage an application under Section 227, Cr.P.C. was moved by DDPP for amendment in the charge which was allowed and Amended Charge was framed on 16.04.2017 wherein Section 212, P.P.C. was added. Prosecution further examined PW.4 Anwar Sadat as Ex.20. Investigation officer of this case Additional SHO Arbab Ali was examined as Ex.21, who produced Mushirnama in respect of documents of Datsun as Ex.21/A, Mushirnama of Sarzamin as Ex.21B PW-6 Mumtaz Ali was examined as Ex.22. Thereafter prosecution closed its side vide statement dated 07.04.2015 as Ex.23.