2010 P Cr L J 1172

[Karachi]

Before Abdul Rasheed Kalwar, J

MOUJ ALI----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.163 of 2006, decided on 17th October, 2008.

Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979)---

----S. 17(3)---Penal Code (XLV of 1860), Ss.337-A(iii), 337-L(ii) & 392---Haraabah and
robbery---Appreciation of evidence---Benefit of doubt---F.I.R. and statement of
complainant was based on hearsay---Neither the complainant was an eye-witness nor his
statement was relevant for the purpose of assessing ocular account of the incident--F.I.R.
had been lodged after 3 months of occurrence without any plausible explanation---Despite
the fact that the F.I.R. was not direct narration of the injured, it had not specifically
mentioned that accused had inflicted butt blows to the injured---Injured prosecution
witness in his examination-in-chief had not specifically stated about causing injuries to him
by accused---Injured witness though had previous acquaintance with the accused but he had
not levelled allegation of causing injuries to him by the accused---Both the injured
witnesses had narrated the incident in different manner with different particulars of the
transaction; they were not consistent about the number of assailants and the role played by each
culprit---Place of vardat had been inspected about 3 months and 25 days after the incident and
no incriminating evidence was collected from there---Statement of medico-legal officer and
the contents of medico-legal certificate would not ipso facto establish guilt against accused
in absence of confidence-inspiring evidence sufficiently connecting accused with the
commission of offence---None of the prosecution witnesses had ever said that accused had
robbed articles and money from them---Co-accused had been acquitted on the same set of
evidence---Incident had taken place near Dargah and in presence of persons at Dargah, no
independent witness had been examined by the prosecution to establish the offence---Smell
of professional jealousy between accused and injured was also traceable from the evidence---
Commission of offence by accused was doubtful and by extending benefit of doubt,
impugned judgment and sentence awarded to accused by the Trial Court, was set aside, in
circumstances.

Jawaid I. Bukhari for Appellant.

Bilawal Ali Ghunio, State Counsel.

Date of hearing: 15th October, 2008.

ORDER

ABDUL RASHEED KALWAR, J.---The appellant Mouj Ali son of Lal Bux Lund, along
with co-accused Ali Dino, Mohib Shaikh and an unknown culprit was booked under section
17 (3) Offences Against Property (Enforcement of Hudood) Ordinance, 1979, vide Crime
No.167 of 2004, Police Station Kotri. The F.I.R. was lodged on 30-10-2004 at 1515 hours,
whereas the incident had taken place on 5-7-2004 at 2200 hours, at place of incident near
the Dergah of Mahmood Shah Bukhari Karachi Wah about 2 and half kilometers away from
the police station. The appellant and co-accused Ali Dino were not arrested by police as
they had obtained pre-arrest bail, whereas co-accused Mohib Ali absconded. However,
after completing of investigation the case was challaned in the Court of 1st Civil Judge and
Judicial Magistrate Jamshoro on 17-2-2005, wherefrom it was sent up to the Court of
Additional Sessions Judge Kotri on 20-2-2005. Learned Additional Sessions Judge Kotri
charged the appellant and co-accused Ali Dino under sections 337-A (iii), 337-L (ii) and
392 P.P.C. vide charge dated 20-2-2006 and after holding trial acquitted accused Ali Dino
and convicted the appellant and sentenced him to undergo rigorous imprisonment for 7-
years for 337-A (iii) P.P.C. and to pay arsh being 10% of Diyat i.e. Rs.47200/- and in
default he was ordered to undergo simple imprisonment for 6 months more. The appellant
was also convicted and sentenced to undergo rigorous imprisonment 2 years for 337-L (i)
P.P.C. and rigorous imprisonment 7 years for 392 P.P.C. All the sentences were ordered to
run concurrently and benefit of section 382-B Cr.P.C. was not extended, as the appellant
had not remained in the jail. Being aggrieved by the conviction and sentences awarded vide
judgment dated 18-8-2006, passed by Additional Sessions Judge Kotri, the appellant
preferred appeal before this Court.

2. The prosecution story starts with the lodgment of the F.I.R. containing the complaint of
one Ghulam Rasool son of Muhammad Younis Channa resident of Daryabad Colony, Kotri,
that on the day of incident he was present at this P.C.O. shop, when one Mir Ahmed Junejo
came to his shop and asked his son Asad Ali to accompany him for video recording of the
programme at Karachi Wah, whereupon Asad Ali accompanied him. On the day of incident
at 2230 hours one neighbourer informed the complainant that his son was lying
unconscious in Taluka Hospital Kotri, he rushed to the Taluka Hospital where he was
informed that his son was taken to Civil Hospital Hyderabad as his condition was serious.
The son of the complainant regained his sense after about 48 hours and then he was able to
narrate the facts of incident to the complainant. The injured son told his father that two
persons took them towards Karachi Wah when they alighted from Rikshaw at Karachi Wah
and crossed the Railway lines, a person behind them asked them about their identity,
whereupon the complainant's son and Mohib Shaikh replied, showing familiarity, when
they reached near Dergah Mahmood Shah Bukhari another person also came closer to them
and at that place the son of complainant and Mir Ahmed were attacked by four persons. Out
of the assailants, one was having pistol in his hand, who inflicted butt blow to Mir Ahmed
and the son of the complainant. Out of them, three were identified as Ali Dino, Mouj Ali
and Mohib Shaikh and forth person was unknown; but it has been claimed that the injured
would identify him if he saw him again. Due to butt blow, the complainant's son and his
companion went unconscious and after regaining sense, they saw that they were bathed into
blood. The complainant's son saw that his companion was tied with the wire of the video
camera. Later on, he was untied by the complainant's son. The complainant's son and his
companion found that, their video camera, their two watches and Rs.400 were missing.
Thereafter both the injured slowly walked up to road. From there, they sat in a Suzuki and
went to Police Station. They obtained the letter from police for their treatment. The injured
first went to Taluka Hospital Kotri, thereafter the complainant's son was advised to have
dressing from Civil Hospital Hyderabad, which had been having on daily basis for about
one and half month.

3. After receiving challan documents were supplied to appellant and co-accused Ali Dino
on 5-12-2005 vide Exh. 9 and the charge was framed on 20-2-2006 vide Exh. 10, to which
appellant and co-accused Ali Dino pleaded not guilty and their pleas were recorded at
Exhs. 11 and 12. Then prosecution examined P. W/complainant Ghulam Rasool on 27-3-
2006 at Exh.13, who produced copy of F.I.R. No.167 of 2004 at Exh.14. On the same day
Court examined P.W.-2 Mir Ahmed at Exh.15, Asad Ali at Exh.16, P.W.4 Muhammad Arif
at Exh.17. On 29-5-2006 P.W.-5 Shamsuddin S.M.O. Taluka Hospital Motri was examined
at Exh.18, who produced Medico legal certificates in respect of Mir Ahmed and Asad Ali
Exhs. 19 and 20, respectively, and provisional Medico legal certificate of Asad Ali at
Exh.21; P.W-6 Muhammad Hussain was examined at Exh.22, who produced notice dated
13-12-2004 at Exh.23; P.W.7/Mashir Imtiaz Hussain was examined at Exh.24, who
produced mashirnama of place of incident at Exh.25 and mashirnama of injuries at Exh.26.
On 27-6-2006 Investigating Officer Abdul Majeed was examined as P.W.8 at Exh.27, on
the same day prosecution closed its side. On 7-7-2006 both the accused were examined
under section 342 Cr.P.C., who termed the prosecution story false and claimed that their
enmity with the P.Ws was a motive for deposing against them. Besides it, they pleaded
innocence. Neither did they opt for examining any witness in their defence nor did they
want to record statement under section 340(2) Cr.P.C. After hearing the Advocate for the
accused, D.D.A. for the State and Advocate for the complainant learned Additional
Sessions Judge Kotri acquitted accused Ali Dino and convicted the appellant in Sessions
Case No.5 of 2005 vide the impugned judgment, as stated above.

4. Learned Advocate for the appellant has assailed the impugned judgment on following
grounds:

a) On same set of evidence co-accused Ali Dino was acquitted, in this manner learned
trial Court has disbelieved this evidence for co-accused Ali Dino and believed for
the present appellant.

b) No charge has been proved against the appellant, yet, the learned trial Court has
awarded punishment separately under all heads of charge.

c) Complainant is not eye-witness.

d) There is unexplained delay of more than three months in lodging of F.I.R.

 e) The appellant and the injured were already known to each other, but from the record
it appears that they have been assaulted by some unknown persons.

f) There is professional jealousy between the appellant and the injured, that is why,
appellant has been falsely implicated.

g) No specific allegation has been levelled against the appellant.

h) Allegation of robbery has not been levelled against the appellant.

i) Nothing has been recovered from the place of vardat.

j) Injuries sustained by the injured have been examined by the police after three
months, which carry no evidentiary value.

k) The doctor has opined that the injury may have been sustained during course of
accident.

l) The prosecution story is improbable and doubtful.

6. Conversely, learned State counsel has strongly opposed the appeal and supported the
impugned judgment saying that there is no contradictory material in the prosecution
evidence, prosecution case has been fully proved against the appellant and the appellant has
been rightly convicted.

7. Heard. Advocate for the appellant and learned Asst: A.G. and gone through R&Ps and
paper book, The F.I.R. and statement of complainant is based on hearsay as the story was
told to him by his son Asad Ali. Neither the complainant is eye-witness nor his statement is
relevant for the purpose of assessing ocular account of the incident. The F.I.R. had been
lodged after 3 months without any plausible explanation. Despite the fact that the F.I.R. is
not direct narration of the injured, yet it has not specifically mentioned that the appellant
had inflicted butt blows to Asad Ali or Mir Ahmed. Injures P.W. Asad Ali in his
examination in chief has not specifically stated about causing injuries to him or to Mir
Ahmed by the appellant. The relevant part of his statement is reproduced as under:-

As soon as we crossed the Dargah and proceeded a little, the person who was
coming behind us started causing injuries with the butt of the pistol on my head. The
person who was in front of us caused injuries to Mir Ahmed Junjeo with some
substance perhaps pistol. As I saw at my back, I saw accused Mouj Ali, meanwhile I
went unconscious...

Further in examination-in-chief he said as under;-

Accused Mouj Ali present in Court is same as was seen by me at place of wardat
whereas accused Ali Dino present in Court was not seen by me at the place of
incident...
 In cross-examination, the said witness has admitted as follows:--

I was assistant of Mir Ahmed. A person who had given Hakals was not identified by
me nor he was identified by me previously. We were not given chance by accused
persons to do anything in our defence. We were beaten by accused persons for about
4/5 minutes…….

It is a fact that accused are also engaged in said profession of making movie.
Accused Mouj Ali was known to me even prior to incident. It is incorrect that
accused are know to me since long, and that professional tussle with each other...

It is clear that, in spite of having previous acquaintance with the appellant injured Asad Ali
has not levelled the allegation of causing injuries to him or Mir Ahmed by the appellant.
P.W Mir Ahmed in his examination-in-chief has stated as under:-

After crossing railway track, when we proceeded further we heard voice that who
were us to which the person who were with us informed that they were belonging to
them, when we proceeded further and crossed the dargah, persons who were behind
us came running, started beating us meanwhile another person joined them and all
the three persons started beating me and Asad Ali Chana. They had beaten us with
butts of pistols and caused injuries on our heads by butts and stones. Myself and
Asad Ali became unconscious...

It appears that at the instance of Trial Court P.W. Mir Ahmed has pointed out towards
Mouj Ali and stated as under:-

P.W. pointed towards an accused as the same, who had been seen by him at place of
incident, on inquiry said person disclosed his name as Mouj Ali.

Accused who had disclosed his name as Mouj Ali had caused injuries to Asad Ali
Chana whereas I was beaten by two other persons, they were the same who had
come to take me, from my house...

In his cross-examination he has said as under;-

I identified accused Mouj Ali when he had come near to us and started beating Asad
Ali Chana. Out of three persons one person of short height who had also come to my
house had pistol in his hand. The others caused injuries with stone...

This part of statement of P.W. Mir Ahmed has not been corroborated by the injured Asad
Ali as well as this statement does not find support from the contents of F.I.R. which had
been lodged by his father of his narration of the fact of the incident. Under a situation when
P: W. Mad Ali himself is not implicating the appellant the statement of witness Mir Ahmed
becomes unreliable. Both the injured witnesses have narrated the incident in different
manner with different particulars of the transaction. They are not consistent about the
number of assailants and the role played by each culprit. The place of wardat has been
inspected on 31-10-2004, about 3 months and 25 days after the incident and no
incriminating evidence was collected from there. The healed scares of both the injured
P.Ws. were inspected by the police on 31-10-2004. The statement of medicolegal officer
and the contents of medico legal certificate shall not ipso facto establish guilt against the
appellant in the absence of confidence inspiring evidence, sufficiently connecting the
accused with the commission of offence. Yet the doctor has opined in cross-examination as
under:-

....The nature of injuries could also have been caused to some accident....

None of the prosecution witnesses have ever said that the appellant has robbed articles and
money from them. Co-accused Ali Dino had been acquitted on the same set of evidence.
Since the incident had taken place near Dargah and presence of persons at Dargah in the
evidence yet no independent witness has been examined by the prosecution to establish the
offence. The smell of professional jealousy between the appellant and injured is also
traceable from the evidence. The appellant has all along denied the allegation at the time of
framing of charge as well as during his statement recorded under section 342 Cr.P.C. The
prosecution was .duty bound to prove the case against the appellant beyond reasonable
about.

In the circumstances the commission of offence by the appellant is doubtful and by

extending benefit of doubt to him this Court had set aside the impugned judgment and
sentence awarded by the trial Court and acquitted him vide short order dated (sic) and these
are the reasons thereof.

H.B.T./M-68/K Appeal allowed.