IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Criminal Appeal No. D-46 of 2017
Before:
Mr. Justice Muhammad Iqbal Kalhoro
Mr. Justice Irshad Ali Shah
Appellants: Niaz Ali son of Deedar Hussain Jalbani, 2.Talib Hussain @ Rajib Ali son of Sahib Khan Bapar and 3.Raban son of Mehrab Machhi, through Mr.Habibullah Ghouri, Advocate
State : Through Ms.Rubina Dhamrah, A.D.P.P on behalf of Addl. Prosecutor General.
Date of hearing: 21.02.2018.
Date of judgment: 21.02.2018.
J U D G M E N T
IRSHAD ALI SHAH, J.- The instant appeal is directed against the judgment dated 16th September, 2017 of leaned 3rd Additional Sessions Judge/Special Judge ATA Larkana, whereby the appellants/accused were convicted under section 265-H (ii) Cr.P.C, in proof of the offence u/s. 353,452,427, & 511 PPC and sentence them to undergo for term of one year rigorous imprisonment (R.I) and fine of Rs.10,000/- for offence u/s. 353 PPC; three years rigorous imprisonment (R.I) and fine of Rs.20,000/- for offence u/s. 452 PPC; one year rigorous imprisonment and fine of Rs.10,000/- for offence u/s. 427 PPC and fine of Rs.100,000- for offence u/s. 511 PPC. Each accused shall pay fine of Rs.100,000/- separately. Each accused in default of payment fine amount for offence u/s 353 PPC shall suffer simple imprisonment for one month, for offence u/s. 452 PPC- two months simple imprisonment, for offence u/s. 427 PPC, one month simple imprisonment and for offence u/s. 511 PPC five months simple imprisonment with benefit of section 382-B Cr.P.C. Those have neither been ordered to concurrently or consecutively which appears to significant and could not be lost sight of.
2. As per FIR, the present appellants/accused with rest of the culprits after having formed an unlawful assembly and in prosecution of their common object, demolished the boundary wall of newly constructed bungalows of Judicial Officers at Ratodero with intention to make encroachment over it. On being prevented from doing so, they fired at complainant Aitbar Ali who was deputed there as Chowkidar, with intention to commit his murder thereby hindered him from discharging of his lawful duty as a public servant. For that they were booked and challaned in the present case.
3. The present appellants/accused denied the charge. The prospection to prove it, examined PW Ameer Bux. PW Nizamuddin. Complainant Aitbar Ali, produced through him FIR of the present case. SIO/SIP Mumtaz Ali, produced through him application of complainant Aitbar Ali with forwarding letter of incharge Civil Judge & J.M, Ratodero, mashirnama of place of incident, mashirnama of arrest of appellants/accused Niaz and Rabban, order of the Senior Superintendent of Police Larkana whereby he constituted a joint investigation team and suspension order of appellants/accused Rajib Ali alias Talib and Rabban Machhi, which were issued by C.M.O, Municipal Committee Ratodero. ASI Akhtiar Ali. PW/Mashir PC Niaz Hussain. PW Ali Mardan and then closed the side.
4. The present appellants/accused in their statements recorded u/s.342 Cr.PC denied the prosecution allegations by pleading innocence. They examined none in their defense or themselves on oath.
5. On evaluation of the evidence, learned trial Court convicted and sentenced the present appellants/accused to undergo various terms vide its judgment dated 16th September, 2017, which is impugned by them before this Court by way of instant appeal, as stated above.
6. It is contended by learned counsel for the present appellants/accused that they being innocent have been involved in this case falsely, there was no evidence with the prosecution which may have connected them with the commission of the incident. They have been convicted by learned trial Court on the basis of no evidence. By contending so, he sought for acquittal of the present appellants/accused.
7. Learned ADPP by supporting the impugned judgment has sought for dismissal of the instant appeal.
8. We have considered the above arguments and perused the record.
9. It was stated by the complainant during course of his examination that on the night of incident he found the present appellants/accused and rest of the culprits demolishing the wall of a bungalow of Judicial Magistrate. On the next morning, he made such complaint to the Honourable District & Sessions Judge, Larkana, who visited the place of incident and then ordered the SHO to arrest the accused person(s). By stating so, he belied his own FIR wherein it was stated by him that he was fired at by the present appellants/accused with intention to commit his murder at the time of incident when he prevented them from demolishing the boundary wall of bungalow of Judicial Officer, which appears to be significant and could not be lost sight of. Be that as it may be, during course of cross examination it was further stated by the complainant that the boundary wall was already found demolished. If it was so, then the narration made by the complainant in his FIR that the boundary wall of the bungalow of the Judicial Officer at Ratodero was being demolished allegedly by the present appellants/accused with rest of the culprits in his presence is appearing to be doubtful one. Be that as it may be, PWs Nizamuddin and Ameer Bux during course of their examination did not support the case of prosecution by failing to recognize the present appellants/accused. If what was stated by them before learned trial Court is believed to be true then it belies the complainant that the incident was committed by the present appellants/accused with rest of the culprits in presence of above said witnesses.
10. It was stated by PW/ASI Akhtiar Ali that on 28.07.2016, he was duty officer at P.S Ratodero. The complainant came there and produced a letter of the Honourable Court alongwith application which was found containing the facts of incident and then lodged FIR. It was read over to the complainant and on it his signature was obtained. He in that respect was belied by complainant Aitbar Ali by stating that Honourable Judges were sitting in the Court where FIR was recorded and he then was ordered to put his signature on it. PW Ali Mardan came with a different version, as according to him, the complainant narrated the incident to him at night time. He then advised him to narrate the incident to Mr.Zafarullah Jakhrani, Incharge Civil Judge. He then forwarded the application of complainant Aitbar Ali for registration of his FIR. The manner in which the FIR of the incident is recorded as discussed above is appearing to be inconsistent, such inconsistency could not be lost sight of in the circumstances of the case.
11. There is no recovery of crime weapon or any other thing like “Belcha or Spade”, from any of the appellants/accused, which they allegedly used at the time of incident. In these premises, it could be concluded safely that the prosecution has not been able to prove its case against the present appellants/accused beyond shadow of doubt.
12. Needless to state that the evidence of SIP/SIO Mumtaz Ali and PW/Mashir PC Niaz Hussain hardly needs any discussion in the circumstances of the case.
13. The plea of innocence, which the present appellants/accused have taken before learned trial Court during course of trial and in their statements recorded u/s.342 Cr.PC ought not to have been lost sight of by learned trial Court in the circumstances of the case.
Result.
14. In view of the facts and reasons, discussed above, the conviction and sentence which is recorded against the present appellants/accused by way of impugned judgment could not be sustained, it is set-aside. Consequently, the present appellants/accused are acquitted of the offence, for which they were tried, charged and convicted by learned trial Court. They are present in Court on bail, their bail bonds are cancelled and sureties are discharged.
15. The instant appeal is disposed of in above terms.
J U D G E
Ashfaq.S/