Obaidullah Jan vs State

Judgment Sheet

IN THE PESHAWAR HIGH COURT,

BANNU BENCH

JUDICIAL DEPARTMENT

JUDGMENT

Cr. A No. 207-B/2012 Date of hearing......09/02/2015

Ubaid Ullah Jan.....Vs.........Abdul Aziz etc.

Appellant(s) by: Mr. M. Ayaz Khan, Advocate.

Respondent/complainant (s)by: Mr. Umer Qayum Khan Advocate, State by Mr. Saif-ur-Rehman, Addl: AG.

ABDUL LATIF KHAN, J:- Through this single judgment, I intend to dispose of instant Criminal Appeal as well as connected Cr.A No.208-B of 2012 titled “Fida Ullah Vs The State” as both the appeals are outcome of one and same F.I.R and have been preferred against the impugned judgment dated 28.11.2012, passed by learned Addl: Sessions Judge,Lakki Marwat, whereby the appellants/convict Ubaid Ullah and Fida Ullah charged in case F.I.R No.38 dated 30.1.2007 u/s 379/34 P.P.C., P.S.Tajori, Lakki Marwat were convicted and sentenced to undergo Simple

imprisonment for six months alongwith a fine of Rs.30,000/- each or in default thereof to further undergo simple imprisonment for one month.

2.As per prosecution case, the

complainant Abdul Aziz was deprived from 121 bags of lentils/Masoor pulses by the appellant/convict Ubaid Ullah Jan alongwith other unknown accused, which were carrying by his driver Qismat Ullah (absconding co-accused) in a Truck No.4607/DNA to Irfan Dall Mills on 19.9.2006, for which the complainant reported on 30.9.2006 to DSP Naurang through written application. However on 16.10.2006 another application was moved by complainant to the DIG Bannu regarding same occurrence. Likewise, appellant Ubaid Ullah also moved an application to the DIG regarding outstanding amount of Rs.12,50,000/- against the complainant of instant case so an inquiry was conducted by joining all the three applications and it was reported in the said inquiry that the matter is of civil nature and not to be entertained by the police but the P.I & SDPO did not agree to the said report who recommended

the matter for registration of the case.

Consequently instant FIR was registered against accused.

3.After completion of investigation, initially challan u/s 512 Cr.PC was submitted against the appellants and co-accused Younas Khan, Qismat Ullah, Saleem Khan and all the accused were declared P.Os. However after surrender of appellants and co-accused Qismat Ullah supplementary challan was submitted in the Court of Judicial Magistrate who sent the same to the Court of Sessions being case of dacoity where co-accused Qismat Ullah again absconded while other co-accused Younas opted to appear as PW, against the appellants so he was discharged by the learned Trial Court vide order 16.6.2012 as Public Prosecutor and counsel for complainant applied for withdrawal of proceedings against him.

In order to prove its case against appellant the prosecution examined as many as six witnesses.

At conclusion of trial, the learned Trial Court convicted and sentenced the appellants through impugned judgment hence the instant criminal

appeal as well as connected criminal appeal have been filed by the appellants for their acquittal.

Arguments heard record perused.

4.Perusal of record reveals that the occurrence has allegedly taken place on 19.09.2006 while the matter was reported on 30.9.2006 after delay of 11 days whereas the F.I.R has been registered on 30.1.2007 after delay of 03 months and 11 days for which the complainant failed to offer any explanation.

5.It is pertinent to mention that the complainant had charged the appellants for snatching/stealing his 121 bags of lentils/Masoor pulses loaded in the Truck in question driven by Qismat Ullah (now absconder) but surprisingly he also charged the said driver alongwith owner of vehicle (Muhammad Younas) and other co- accused for commission of offence meaning that complainant is not the eye witness of the occurrence nor any offence of theft or snatching the articles has been committed by the appellants in his presence. Had it be a case of theft then he would have charge only the appellants and not the

driver alongwith owner of the vehicle. There is no eye witness of the occurrence who could depose regarding snatching/theft of above bags from the driver. The driver was the main person who could better draw the sketch of the occurrence but he was also charged by complainant which shows that no offence of theft or dacoity has been committed by the appellants. Admittedly for theft or committing dacoity, at least the accused should have been armed with firearms as for committing dacoity etc show of force is necessary which is not proved by prosecution. The appellants were empty handed at relevant time as per PW.2 (owner of the vehicle) so how an empty handed person can snatch or commit robbery of 121 bags compelling the driver to turn the vehicle as per his wishes which is not appealable to a prudent mind.

Besides, no source of connection of truck driver Qismat Ullah (absconding co-accused) with the appellants has been disclosed by the prosecution which means that the complainant was not sure about the actual culprits involved in the commission of offence.

6.It is also very strange that initially PW.2 Muhammad Younas (owner of the vehicle) was also charged by the complainant for commission of offence so how can an owner steal his vehicle alongwith its articles though he was lateron made a witness against the appellants and learned P.P. and counsel for complainant applied for withdrawal of proceedings against him meaning thereby that complainant was not sure that how many and which culprits had taken part in the commission of offence. Besides, PW.2 is also not an eye witness of the occurrence nor he has been made an approver in the instant case so first arraying him as an accused and lateron discharging him from the commission of offence without making him approver in the case, creates doubt in the prosecution case.

7.No recovery of alleged bags has been effected from the immediate possession of the appellants or at their instance. The prosecution also failed to produce the case property for exhibition of the same which were allegedly taken/snatched by the appellants so when case

property is not produced for exhibition before the Court and even if it was produced but has not been exhibited during trial then the same has no evidential value in the eye of law for which the appellants cannot be convicted. The Trial Court has termed Muhammad Younas (PW.2) as the only direct evidence which is highly misconceived and is evident of the fact that no other evidence available to connect the appellants with the commission of offence and statement of PW.2 was of no avail to prosecution’s case being against the set procedure and not admissible under the law.

8.Apart from above, admittedly there is dispute between the parties over loan outstanding against complainant due to which false involvement of the appellants in the commission of offence by the complainant cannot be ruled out.

9.So far as contention of learned counsel for complainant that the appellants have admitted taking/snatching of 121 bags before the I.O/local police and the Court is concerned, the same is misplaced, as the same plea was abandoned by the appellants at the time of recording their

statements u/s 342 Cr.PC. The accused can take several pleas during cross-examination but that will not strengthen the prosecution case as the prosecution case stands on its own evidence; that when there is no eye witness of the occurrence and the testimony of other witnesses was discarded then the appellants should have been acquitted instead of convicting them. If the appellants had taken such defence in their statement u/s 342 Cr.PC, then it could have been validly taken into consideration. Reliance is placed on the case of “Muhammad Shah Vs The State”

2010 SCMR 1009.

10.In the light of above, the prosecution has badly failed to bring any cogent or confidence inspiring evidence, showing any link or participation of the appellants in the commission of offence. The prosecution is bound to prove its case beyond any shadow of doubt, benefit of which must be extended to the appellant. For giving benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubts. If a simple

circumstance creates reasonable doubt in a prudent mind about the guilt of accused, then he will be entitled to such benefit not as a matter of grace and concession but as a matter of right. The judgment of conviction and sentence passed by learned trial Court is based on misreading, non- appreciation of evidence available on record which is against the law, facts on record and liable to be set aside. Thus the instant Criminal Appeal alongwith connected Cr. Appeal No. 208-B/2012 are allowed and the conviction and sentence passed by learned trial Court vide judgment dated 28.11.2012, is set aside and both the appellants are acquitted of the charges leveled against them.

They are on bail, their bail bonds stands cancelled and their sureties are discharged from the liability of bail bonds.

Announced.

Dt.09.02.2015.

JUDGE

“A.Qayum”