GUHRAM KHAN Versus BASHIR AHMED
ORDER
AFTAB AHMED GORAR, J.--- Through this acquittal appeal the appellant/complainant, namely, Ghuram Khan Gabole has impugned the judgment dated 04.02.2017 passed by IVth Additional Sessions Judge, Mirpur Mathelo in Sessions case No.38/2015 arising out of Crime No.335/2014 under sections 452, 395, P.P.C. Police Station, A-Section, Ghotki District, Ghotki, whereby the respondent Bashir Ahmed, Yaseen, Ghulam Mohammad alias Ghulam, Saddam and Tariq were acquitted by extending benefit of doubt to them.
2. Brief facts of the prosecution case are that on 07.12.2014 at 1500 hours complainant Ghuram Khan got registered the FIR at Police Station, `A'-Section, Ghotki stating therein that on 24.11.2014 he along with his son Noor Ahmed and other family members were available in the house at about 05:00 p.m, accused Bashir Ahmed, Yaseen, Ghulam Mohammad alias Ghulam, Saddam and Tariq armed with sophisticated weapons entered into his house. It is alleged that accused Bashir Ahmed robbed cash of Rs. 50,500/- while accused Ghulam Mohammad alias Ghulam robbed Q-Mobile, accused Saddam robbed three tola golden ornaments, five pairs of clothes and valuable documents from the complainant on the show of force. The complainant party raised cries which attracted the PWs and all the accused persons went away along with robbed amount and articles. Hence, complainant appeared at Police Station and lodged the FIR.
After investigation the charge-sheet against accused/respondents was presented in trial Court.
3. In support of their case prosecution examined PW-1 Complainant Ghuram at Ex.07 who produced true copy of order dated 05.12.2014 of Sessions Judge Ghotki at Ex.7/A, copy of FIR at Ex.7-B. PW-2 Ghulam Akber was examined at Ex.9, PW-3 Noor Ahmed was Ex.10 who produced copy of memo of place of wardat at Ex.10/A. PW-4/SIP Abdul Khalique was examined at Ex.11. Thereafter, learned ADPP closed the prosecution side at Ex.12, and then statements of accused were record under section 342, Cr.P.C.
4. Heard learned Counsel for appellant, learned DPG for the State, respondents and perused the record.
5. Learned counsel for appellant submits that the judgment of the trial Court is perverse, non-speaking and contrary to the evidence brought on the record therefore, it is liable to be set-aside. He further submitted that dispute is going on between complainant and respondents over landed property which is admitted. He further submitted that complainant and his PWs have fully supported the case of prosecution and prosecution has fully established its case for conviction but learned trial Court did not give any weight and acquitted the respondents mere on presumption hence, same is liable to be set-aside and conviction may be awarded to the respondents.
6. Learned counsel for respondent supported the impugned judgment. He submitted that during investigation the IO. has recommended the case under "B"-class but learned Magistrate did not approve the summary took cognizance and issued BWs against the respondent. He contended that evidence of complainant and PWs is contradictory and there is huge discrepancies in their evidence. He submitted that learned trial Court has rightly acquitted the respondents. He prayed for dismissal of instant Crl. Acquittal appeal.
7. Learned DPG for the State while supporting the impugned judgment submitted that there un-explained delay of about one day in lodging the FIR. He submitted that the prosecution has failed to prove the guilt of the respondent to the hilt, as such the trial Court had no option but to acquit the respondents of the charge, therefore he prayed that instant acquittal appeal may be dismissed.
8. I have carefully considered the material available on record and have gone through the relevant evidence.
9. I have heard the arguments advanced by the respective parties and have scanned the material available on record. It is admitted that the alleged incident occurred on 24.11.2014 at 1700 hours but FIR was lodged on 07.12.2014 at 1500 hours after thirteen days delay of the incident but there is no explanation for such delay, which alone is fatal to the prosecution case as it gives presumption to mediation, consultation and false implication of innocent persons. Perusal of record reflects that complainant has failed to point out the denomination of notes. The prosecution has examined only PW Ghulam Akber who in his examination-in-chief deposed that Police only obtained his signature and LTI on blank paper but did not record his statement under section 161, Cr.P.C. statement. He also deposed in his cross-examination that there is 50/60 houses situated in Shahbaz Colony but no one was attracted on the cries of complainant. He further submitted that he did not saw accused while committing robbery. Apart from above, the prosecution has given-up another eye-witness Imamuddin alias Baboo and he did not examine for the reasons best known to them. Furthermore, the case was recommended under `B'-class by the I.O. during investigation and enmity is admitted between complainant and respondent Ghulam Yaseen over registration of criminal case against complainant. The learned trial Court in para No.17 has clearly observed that evidence furnished by prosecution is not inspiring confidence to connect the respondents in the alleged commission of offence. For the sake of convenience, the para No.17 is being reproduced as under;
"The evidence as furnished by the prosecution is not inspiring confidence and cannot be relied upon safely. It was for the prosecution to prove the case beyond any reasonable shadow of doubt against the accused but the case in hand the prosecution has completely failed to prove its case against the accused. It is well settled law that any single circumstances creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefit, not as a matter of grace and concession but as a matter of right. Not necessary that many reasons should exist for creating doubt, even a single infirmity creating a reasonable doubt was sufficient to discredit the prosecution story and benefit thereof was to be extended to accused. Even a single circumstance which creates doubt in the mind of reasonable and prudent person is sufficient for acquittal. This is a case of no evidence."
10. After considering the material available in the file I have come to the conclusion that the impugned judgment passed by learned IVth Additional Sessions Judge, Mirpur Mathelo is based on proper appreciation of the evidence which is not fanciful. Needless to mention that when an accused person is acquitted by a Court of competent jurisdiction, then double presumption of innocence is attached to its judgment, with which the superior Courts in numerous cases do not interfere unless the impugned judgment appears to be vague, perverse and arbitrary or against the record.
11. In the above circumstances, I am of the view that trial Court has rightly come to the conclusion that reasonable doubt has been created in the prosecution case and its benefit has rightly been extended to the respondents, therefore, learned IVth Additional Sessions Judge, Mirpur Mathelo was fully justified for equating the respondents hence, this Crl. Acquittal Appeal being devoid of merits is dismissed.
SA/G-36/Sindh Appeal dismissed.