BHOJO Versus State
MUHAMMAD SALEEM JESSAR, J .---Through this appeal, appellants Bhojo and Dewan Das assailed the judgment dated 30.08.2012, penned down by learned Additional Sessions Judge, Umerkot, in Sessions Case No.91 of 2012 re: The State v. Bhojo and others, being outcome of Crime No.113 of 2011, registered at Police Station Umerkot, under sections 395, 337-A(i), F(i), 506(2), P.P.C.
2. The crux of prosecution case as per FIR lodged by complainant Bhojo Mal on 16.08.2011 at 2200 hours at Police Station Umerkot are that he is residing at above given address. Near to his house there is house of Bhojo son of Moto Malhi whom he has dispute over street. On 31.07.2011 in the morning he went for labour in the Mohallah. At about 3 PM he heard cries from his house he rushed towards his house and saw accused Bhojo armed with lathi, Dewan armed with hatchet, Chandan armed with gun, Parkash armed with Pistol, Pawan and Saroop also carrying lathis along with 6/7 unknown persons were standing in his house and were beating his wife Sh. Umedi, his sister Sh. Tulsi, brother-in-law Ghansham and nephew Omparkash, issued threats of dire consequences and robbed a golden locket weighing half tola valued at Rs.28,000/- from Umedi, Nokia Mobile Phone valued at Rs.1500/- and cash Rs.1700/- from Omparkash and also from the house a iron gate valued Rs.8000/-, two cots valued Rs.3,000/- utensils valued at Rs.1200/- total valued of Rs.43,400/- were robbed away. Thereafter FIR was registered.
3. After usual investigation police have submitted challan of the case before the Court concerned showing all accused on bail.
4. After having been received the present case trial Court framed a formal charge against the accused at Exh.2, to which they pleaded not guilty and claimed trial vide their pleas at Exhs. 2-A to 2-F respectively.
5. In order to prove its case, prosecution examined complainant Bhojo PW-1 at Exh.3, who produced FIR at Exh.3-A, Sh. Umedi PW-3 at Exh.4, she produced photograph at Exh.4-A, Sh. Tulsi PW-3 at Exh.5, she produced her photograph at Exh.5-A, Omperkash PW-4 at Exh.6. who produced his photograph at Exh.6-A, ASI Zulfiqar Ali PW-5 at Exh.7, who produced mashirnama of place of incident at Exh.7-A, Asan PW-6 at Exh.8, who produced memo of injuries at Exh.8-A, Dr. Leela Pardeep PW-7 at Exh.9, she produced letter at Exh.9-A, Medical Certificate of injured Sh. Tulsi at Exh.9-B and medical certificate of Sh. Umedi at Exh.9-C, Dr. Muhammad Jam PW-8 at Exh.10, who produced letter at Exh.10-A, Medical certificate of injured Omparkash at Exh.10-B. Then prosecution closed its side vide statement Exh.12.
6. The statements of accused recorded as Exh.13 to 18 respectively, wherein they denied the allegations levelled by prosecution against them and prayed for mercy.
7. Learned counsel for appellants submits that FIR is delayed for about 16 days and no plausible explanation has been furnished by the prosecution for such an inordinate delay. He further submits that there is existing dispute between the parties over a street, hence the complainant in order to exert pressure upon the appellants had cooked up instant case so that appellants may meet with his unjustified demand. He next submits that co-accused Chandan, Parkash, Pawan and Saroop against whom the specific role of causing injuries to injured/P.Ws and snatching of alleged robbed articles from them, was assigned, had been acquitted by the trial Court through said impugned judgment while the appellants have been convicted. He further submits that same set of evidence has been disbelieved by the trial Court in respect of aforementioned co-accused, whereas it has been taken into consideration against present appellants. He, therefore, submits that prosecution has failed to prove its case against appellants, hence they may be acquitted by extending benefit of doubt.
8. On other hand, learned D.P.G. after going through the record, does not oppose the appeal on the pretext that since co-accused Pawan was assigned specific role of causing injuries to Sh. Tulsi, co-accused Saroop was assigned role of causing lathi injury to Sh. Umedi and snatching of gold necklace from her; however, they were acquitted by the trial Court but no appeal has been filed by the complainant or by the prosecution against their acquittal, hence their acquittal attained finality.
9. Heard arguments, perused the record and gone through the material whatever is made available before me on record.
10. Admittedly, the appellants and co-accused, who have been acquitted by the trial Court, have been nominated in FIR, which was delayed for about 16 days and no plausible explanation has been furnished by prosecution for such an inordinate delay. The delay in criminal case(s) has always been held fatal by the superior Courts for prosecution. In this context reliance can be had from case of Ayub Masih v. The State reported in PLD 2002 SC 1048, wherein Honourable Supreme Court held as under:-
"The unexplained delay in lodging the FIR coupled with the presence of the elders of the area at the time of recording of FIR leads to the inescapable conclusion that the FIR was recorded after consultation and deliberation. The possibility of fabrication of a story and false implication thus cannot be excluded altogether. Unexplained inordinate delay in lodging the FIR is an intriguing circumstance which tarnishes the authenticity of the FIR, casts a cloud of doubt on the entire prosecution case and is to be taken into consideration while evaluating the prosecution evidence. It is true that unexplained delay in lodging the FIR is not fatal by itself and is immaterial when the prosecution evidence is strong enough to sustain conviction but it becomes significant where the prosecution evidence and other circumstances of the case tend to tilt the balance in favour of the accused."
11. In view of aforesaid unexplained delay occurred in the registration of FIR, possibility of deliberation and false implication of the accused could not be ruled out.
12. As far as alleged injuries sustained by P.Ws at the hands of appellants as well co-accused is concerned, ocular version has not been corroborated by the medical evidence, as nothing has been shown to have been recovered by the police or produced during investigation, which may connect them with the alleged offence. Even the Medico-Legal Officer, who was examined before the trial Court at Exh.10. has admitted in his cross-examination in the following term:-
I have not brought the admission chart today, therefore I cannot say that how many days injured Omparkash remain as indoor patient. It was lacerated injury. I admitted injured Omparkash in the ward. It is correct that that I have not mentioned regarding oozing of blood. Voluntarily says lacerated means blood due to rupture of wound. It is correct that I have not mentioned the word rupture of the wound in the certificate. It is correct that such injury could be caused by falling on hard blunt substance. It is not correct that due to such injury patient could not be admitted in the hospital."
13. Moreover, the charge against accused was framed under sections 395, 337-A(i), 337-F(i) and 506, P.P.C. and in impugned judgment trial Court after framing points for determination discussed the evidence adduced by parties and convicted the appellants Bhojo and Dewan Das under sections 337-A(ii) and 337-L(2), P.P.C. for which no charge was framed even no evidence has been led by prosecution. Per prosecution case, co-accused Pawan caused lathi blows to Sh. Tulsi and Saroop caused lathi blows to Sh. Umedi, but both accused have been acquitted by the trial Court while appellants have been convicted. It will be conducive to reproduce the concluding para as well discussion made by trial Court upon points Nos. 3, 4 and 5, which read as under:--
POINT NO.3.
This point is concerned for issuing of threats of dire consequences. On going through the evidence of complainant Bhojo he did not deposed even a single word that accused had given threats of murder nor Sh. Umedi has deposed, she only deposed that accused has threatened to leave the house but not threat of murder. The complainant in order to enhance the situation or planting serious circumstances has given the colour of dacoity and threats of murder whose ingredients in the present case are missing. This is only a dispute which resulted in causing injuries.
Reverting to the depositions of injured Sh. Umedi, Sh. Tulsi and Omparkash, no one comes to the court just for enjoyment or for passing the time, circumstances brought them. All three injured sustained injuries and they were medically examined and medical certificates were issued to them. Anyhow answer to this point in the negative.
POINT No.4.
Pursuant to above discussion I arrived to this conclusion that accused Bhojo and Dewan have committed offences punishable under sections 337-A(ii) and 337-L(2), P.P.C.
POINT No.5
Pursuant to the above discussion, the prosecution has succeeded to prove its case beyond the shadow of doubt to the extent of accused Bhojo and Dewan. Resultantly both accused are convicted under section 265-H(2), P.P.C., while giving the benefit of doubt accused Chandan, Parkash, Pawan and Saroop are acquitted under section 265-H(i), Cr.P.C. Accused Bhojo and Dewan are present on bail their bail bonds and surety are cancelled and they are taken in to custody and remanded to Central Prison Hyderabad. Accused Chandan, Parkash and Pawan are present, while accused Saroop is absent, his absence executed and he is also acquitted in absentia. Their bail bonds and sureties are discharged. Accused Bhojo and Dewan are awarded following sentence.
UNDER SECTION 337-A(2), P.P.C.: They are awarded rigorous imprisonment for 3 years and to pay compensation of Rs.10,000/- (Ten Thousand) to be paid to victims Sh. Umedi and Omparkash by each accused.
UNDER SECTION 337-L(2), P.P.C.: They are awarded rigorous imprisonment for 3 years and to pay Daman of Rs.5,000/- (Five Thousand) to be paid to victim Sh. Tulsi by each accused.
Both sentences will run concurrently. The accused never remained as under trial prisoners therefore question of extending benefit of section 382-B Cr. P. C does not arise."
14. The worth-importance point in this case is that although similar type of allegations, rather stronger, were levelled against co-accused Chandan, Parkash, Pawan and Saroop vis-a-vis the co-accused, since acquitted, but the trial Court while disbelieving the evidence of the prosecution witnesses against said co-accused, on the basis of same set of evidence, convicted the present appellants which is in clear violation of rule of consistency'. Needless to emphasize that rule of consistency demands that if prosecution evidence has been disbelieved in respect of a co-accused, the same cannot be relied upon for convicting other accused.
15. On point of rule of consistency, it would be advantageous to refer the judgment of Honourable Supreme Court of Pakistan passed in the case of Muhammad Asif v. The State reported in 2017 SCMR 486 wherein it was held as under:
" It is a trite of law and justice that once prosecution evidence is disbelieved with respect to a co-accused then, they cannot be relied upon with regard to the other co-accused unless they are corroborated by corroboratory evidence coming from independent source and shall be unimpeachable in nature but that is not available in the present case."
16. In another case reported as Umar Farooque v. The State (2006 SCMR 1605) Honourable Supreme Court of Pakistan held as under:
"On exactly the same evidence and in view of the joint charge, it is not comprehendible, as to how, Talat Mehmood could be acquitted and on the same assertions of the witnesses, Umer Farooque could be convicted."
17. In case of Muhammad Asif v. The State reported in 2017 SCMR 486 it was held by Honourable Supreme Court of Pakistan that once prosecution witnesses were disbelieved with respect to a co-accused then, they could not be relied upon with regard to the other accused unless they were corroborated by corroboratory evidence which came from an independent source and was also unimpeachable in nature. In another case reported as Muhammad Akram v. The State (2012 SCMR 440) the Apex Court while holding that same set of evidence which was disbelieved qua the involvement of co-accused could not be relied upon to convict the accused on a capital charge, acquitted the accused. In view of this legal position, appellant should have also been extended same benefit as given to the acquitted accused which was not done.
18. In view of above discussion, I have no hesitation to hold that prosecution has failed to prove its case against appellants. It is well settled proposition of law that to extend benefit of doubt to an accused it is not necessary to gather many circumstances, if there is a single circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused then he will be entitled to such doubt in his favour. In the case reported as Tariq Pervaiz v. The State (1995 SCMR 1345) the Honourable Supreme Court of Pakistan held as under:--
"The concept of benefit of doubt to an accused person is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right."
19. The upshot of above discussion as well defective evidence produced by prosecution, it has miserably failed to prove its case against present appellants and the trial Court has acted in haphazard manner while awarding sentences to appellants. Consequently, instant appeal is allowed. Consequently, the judgment dated 30.08.2012, penned down by learned Additional Sessions Judge, Umerkot, in Sessions Case No.91 of 2012 re: The State v. Bhojo and others, being outcome of Crime No.113 of 2011, registered at Police Station Umerkot, under sections 395, 337- A(i), F(i), 506(2) P.P.C. is hereby set aside to the extent of conviction and sentences awarded to appellants Bhojo and Dewan only. Resultantly, appellants Bhojo and Dewan, who are present before the Court on bail are acquitted of the charge and their bail bonds stand cancelled and surety(ies) furnished by them is discharged.
JK/B-5/Sindh Appeal accepted.