ABDUL RASOOL MEMON, J.---This appeal is directed against the judgment dated 05.5.2014, passed by learned Additional Sessions Judge, Kashmore in Sessions Case No.139/2012 (Re: The State v.
Allah Bux and others) arising out of Crime No.134/2012 registered at Police Station Kashmore under section 365-B, P.P.C., whereby the respondents Nos.1 and 2/accused Allah Bux and Atta Muhammad were acquitted .Under section 265-H(i), Cr.P.C.
2. The relevant facts, briefly stated, are that on 07.1.2012, complainant Sirajuddin, his cousins Nizakat Ali and Ali Nawaz, his sisters Mst. Zeenat and Mst. Meenat were present in the house, when accused Allah Bux, Atta Muhammad, Aslam, Zahid, Shahbaz, Abdul Jabbar, Ghulam Abbas and Muhammad Ramzan armed with K. Ks came in a Datsun Pick-up; entered the house of complainant. Accused.
Shahbaz on gun point caught Mst. Meenat while Zahid caught Mst. Zeenat got them sit in Datsun pickup and went away. Due to fear complainant party could not offer resistance. However, complainant approached to the accused for return of abducees but could not succeed and then he went to P.S and lodged FIR on 04.7.2012. After completing investigation, the case was challaned in the court of law. Case was proceeded against accused Allah Bux and Atta Muhammad (respondent) while accused Aslam, Zahid, Shahbaz, Abdul Jabbar, Ghulam Abbas and Muhammad Ramzan were declared absconders.
3. At the trial prosecution examined complainant Sirajuddin, who produced FIR, PW Nizakat Hussain, eye-witness, P.W Wazir Ahmed, mashir and P.W. ASI Khan Muhammad, Investigation Officer, who produced mashiranama of place of wardat, thereafter closed its side.
4. In their statements recorded under section 342, Cr.P.C. Accused/respondents denied the allegations and pleaded their innocence. They, however, did not examine themselves on oath in disproof of the allegations as required under section 340(2), Cr.P.C. Nor produced any witness in their defence. The trial Court acquitted the accused/ respondents and case was kept on dormant file against the absconder accused.
5. Learned counsel for the appellant/complainant has argued that the judgment of the trial Court is perverse and is based on misreading and non-reading of the material evidence and no case of creation of benefit of doubt was made out even then accused/respondents were acquitted. He has further submitted that the trial Court has taken into consideration the documents viz. Nikahnama and freewill of the alleged abductees produced with simple statenient, which had not been tendered in evidence. He has also argued that both the alleged abductees have not been recovered and are in captivity of the accused, therefore, acquittal of the respondents was not warranted in the law, and the impugned judgment is liable to be set aside. Lastly he has prayed for admission of appeal.
6. Learned D.P.G. For the State has supported the impugned Judgment. He has contended that there was inordinate and unexplained delay of about seven months in lodging the FIR and evidence of complainant as well as eye-witness contained major contradictions on material points, which created serious doubt in the prosecution case, as such learned trial Court rightly acquitted the accused/respondents in view of the case law reported in 1985 SCM R 1345.
7. I have given my patience hearing to the arguments advanced at bar. It is settled principle of law that accused after acquittal from criminal charge enjoys double presumption of innocence. One before trial and second after his acquittal, thus while dealing with an acquittal appeal duty is cast upon the court to examine whether Court below had not ignored any evidence on record or had discarded any evidence for reasons not recognized by law, if any law is needed. On this point reliance may be placed on case of Barkat Ali v. Shoulcat Ali and others (2004 SCM R 249).
8. It is correctly, argued by the learned counsel for the appellant/complainant that any document produced through statement carries no evidentiary value unless is produced through a witness or in statement recorded under section 342, Cr.P.C. I have gone through the impugned judgment and observed that the trial Court has not acquitted the accused only on the basis of copies of freewill affidavits and Nikahnama of alleged abductees with co-accused produced with statement but , for the reasons that the evidence produced by the prosecution contained major and material contradictions and was not inspiring confidence.
9. It is the case of prosecution that at the time of alleged incident P.Ws Nizakat Ali and Ali Nawaz were already sitting with complainant in his home. P.W Ali Nawaz was not examined the reasons best known to the prosecution. Only P.W Nizakat Ali was examined. He is real cousin of the complainant. He has not supported the version of complainant to the extent of his sitting with him at the time of incident in his house. This P.W Nizakat Ali has clearly deposed that at the time of alleged incident he was present in his own house, which is adjacent to, the house of complainant.
There is also contradiction in the statement of this star witness of the prosecution and complainant. Complainant Sirajuddin deposed that at the time of alleged incident he was sitting with his both sisters (alleged abductees) on one and same cot/CHARPAI in the room and witnesses were sitting on an other cot/CHARPAI but P.W Nizakat Hussain has stated that sisters of complainant were sitting separately on the cot/CHARPAI lying in the Courtyard. He has not said if at the time of incident complainant and his both sisters were sitting on one and same cot/CHARPAI in side the room of the house. Had these P.Ws present together on the wardat then there should have been no such contradictions on material points. It indicates that either these witnesses were not present together at the time of alleged incident or the incident had not occurred as alleged by the prosecution.
10. In the circumstances discussed above I am of the humble view that the prosecution case is not free from doubt. It is an axiomatic principle of law that in case of doubt, the benefit must go in favour of the accused. No positive material has been brought on record for D reversing the acquittal judgment passed by the trial Court in favour of respondents, therefore this appeal being devoid of merits is dismissed in limine.