MUHAMMAD ISMAIL Versus State

ORDER

MALIK HAQ NAWAZ, J.--- The convict/petitioner was convicted under section 341, P.P.C. on the basis of FIR No. 08/2008 of Police Station Iskandarabad Nagar by the learned Judicial Magistrate Nagar vide judgment dated 20.12.2014.

2. Being dissatisfied by the judgment of learned Judicial Magistrate, he filed an appeal under section 408, Cr.P.C. before the learned Sessions Judge Hunza-Nagar and the learned Sessions Judge announced his verdict against the convict/petitioner on 07-12-2015 and maintained the conviction awarded by the learned Judicial Magistrate.

3. Being aggrieved by the judgments of both the Courts below, he approached this Court by filing an application under section 561A, Cr.P.C., which is being disposed of now.

4. The learned counsel for the convict/petitioner submitted that many civil/criminal litigations are pending between the complainant and the convict/petitioner and the hostility which was at peak between the parties was a cause of registration of the present FIR. The learned counsel further argued that there are material contradictions between the Court statement of PW, which goes to the very root of the case and there is material difference between the P.Ws. about the year of occurrence, which cannot be lightly ignored. He further stated that the right of the way between the complainant and the convict/petitioner is under dispute and the matter is sub-judice before the Court of competent jurisdiction and case of the parties is still to be adjudicated upon and then decided by the Court concerned.

5. On the other hand the learned Dy.A.G. rebutted the arguments raised at the bar by the learned counsel for the convict/petitioner and submitted that there is concurrent finding of facts by both the Courts below and sufficient incriminating evidence is available to connect the accused with the crime.

6. I heard both the learned counsel for the parties at length and gone through the record available on file.

7. In a case of restraint, prosecution is duty bound to prove that the complainant has a right to proceed to a particular way but where such a right was disputed, then abstraction in its exercise will not constitute an offence. The civil suit regarding the same issue is pending adjudication before a competent Court of jurisdiction and fate of which is still to be determined after recording of evidence, as stated by the learned counsel for the convict/petitioner and confirmed by the learned State counsel. Moreover, there are material contradictions between the statements of PWs and they have dented the prosecution case beyond repair.

8. Another important aspect of the case is that almost all P.Ws. differed about the date of obstructing the path, but they were not re-examined by the learned State's counsel. Over and above the PW-8 Hamid Hussain and PW-9 Ehsan Ali did not support prosecution but they were declared hostile by the learned prosecution and their evidence is still in field.

9. There is no cavil in the proposition of law that when two versions/theories are advanced by the prosecution in one and the same case, the theory/version favourable to the convict/petitioner is to be accepted. If the statements of these P.Ws. are believed, then the statement of the other P.Ws. cannot be believed. In such situation, I extend benefit of doubt to the convict/petitioner and acquit him from the charges. As a result of suspended sentence, he was on bail, his bail bonds are discharged and his sureties are relieved from their liabilities.

HBT/30/GB Application allowed.