IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Criminal Jail Appeal No.S-112 of 2010
Appellant : Hamzo son of Joungal Jaffery
Through Mr.Safdar Ali Bhutto, Advocate
State : Through Mr.Raja Imtiaz Ali Solangi, A.P.G
Date of hearing : 20.07.2018
Date of decision : 30.07.2018
J U D G M E N T
IRSHAD ALI SHAH, J-. The appellant by way of instant appeal has impugned judgment dated 19.08.2010 of learned 5th Additional Sessions Judge, Shikarpur, whereby he was convicted and sentenced as under;
“I convict and sentence accused Hamzo under section 265-H(ii) Cr.PC to suffer rigorous imprisonment for life u/s.302 (b) PPC and to pay fine of Rs.50,000/-. In case of default of payment of fine, he shall suffer R.I for six months more”.
2. The narration of the incident is well disclosed in the FIR which was lodged by complainant Tagial with Police Station Stuart Ganj, Shikarpur, which reads as under;
“Complaint is that some time ago brother of Hamza Jafferi was murdered at District Khairpur and Hamza Jafferi and others for that murder were having suspicion over Manik Jafferi and others. They were found saying that they would kill Manik Jafferi. Today, I and my brother Manik came from our village at Shikarpur in connection with piece of work. After finishing work, we went at Stuart Ganj. Our co-villagers Bashir Ahmed s/o Jeehal and Niaz Ali s/o Shafi Muhammad both by caste Jafferi came there and met with us and then we proceeded together for our village. When we reached at Satta Bazar, there at about 02.00 hours, all of sudden there came behind us Hamza s/o Joungal by caste Jafferi, r/o Bangul Khan Jafferi near Khaman he was armed with T.T pistol, 2). Ghous Bux s/o Ghulam Mustafa by caste Jafferi, r/o village Bangul Khan Jafferi, he was armed with T.T Pistol, 3). Hidayatullah s/o Joungal Khan by caste Jafferi, r/o village Viram Khan Jafferi, he was armed with T.T pistol, 4). Bangul s/o Joungal by caste Jafferi, r/o village Bangul Khan Jafferi, he was armed with T.T pistol and three unknown culprits, their faces were open but could not be identified by us. They were seen by me and my witnesses properly and could be identified, if are seen by us again. They said that Manik is involved in murder, now he has not chance to make escape and would be killed. On instigation of accused Ghous Bux, accused Hamza fired directly with his pistol at Manik, which hit him bellow his throat (neck). Manik then tried to escape but accused Ghous Bux fired at him directly with his pistol, which hit him on his back and he by raising cry fell down. Thereafter, all the accused persons then fired at me and my witnesses with their respective pistols and guns with intention to kill us, but we saved ourselves by going towards street. No fire hit to me or my witnesses. Then accused went away towards western side street by making aerial firing and using filthy language. We then went back, Manik was found dead, he was found bleeding from the injuries which he sustained. I then leaving my above said witnesses over the dead body of my brother Manik, now have come at P.S to report that that the above named accused persons being armed with deadly weapons, after having formed an unlawful assembly and in prosecution of their common object, at the instigation of accused Ghous Bux, accused Hamza and Ghous Bux have killed my brother Manik by making fires at him with their pistols. They have also fired at me and my witnesses with intention to kill us. They have also insulted us. I am complainant, justice may be done”.
3. On investigation, appellant and three more culprits (Ghous Bux, Ranjhan and Arz Muhammad) were challaned by the police to face trial for the above said offence.
4. At trial, the appellant and rest of the culprits (Ghous Bux, Ranjhan and Arz Muhammad) did not plead guilty to the charge and prosecution to prove it examined PW-01 complainant Muhammad Tagial, produced through him FIR of the present case, PW-02 Bashir Ahmed, PW-03 Niaz Ali, PW-04 Mashir Makhano Khan, produced through him mashirnama of place of incident, examination of dead body of the deceased, recovery of blood stained earth and empties and mashirnama of recovery of crime weapon, PW-05 ASI Zulfiqar Ali, PW-06 Corpse Bearer PC Maqbool Ahmed, PW-07 SIO/SIP Abdul Hameed Khakhrani, produced through him further statement of the complainant, list of legal heirs of the deceased, mashirnama of arrest, PW-08 SIO/SIP Muhammad Yousif Brohi, PW-09 Dr.Karamullah (being well conversant with signature of medical officer Dr.Agha Saeed Ahmed who actually conducted the postmortem on the dead body of deceased), through him was produced postmortem report on the dead body of deceased and then prosecution closed its side.
5. The appellant and rest of the culprits (Ghous Bux, Ranjhan and Arz Muhammad) in their statements recorded u/s.342 Cr.PC denied the prosecution’s allegation by pleading innocence. They examined none in their defence. Excepting appellant none examined themselves on oath. They appellant produced copy of judgment of his acquittal in related 13-DAO case.
6. It was stated by appellant during course of his examination on oath that he has been involved in this case falsely by complainant Tagio, on account of his dispute with him over landed property.
7. On evaluation of evidence so produced by the prosecution, the learned trial Court acquitted co-accused Ghous Bux, Ranjhan and Arz Muhammad, by extending them benefit of doubt, while convicted and sentenced the appellant by way of judgment, which the appellant has impugned before this Court by way of instant appeal, as stated above.
8. It is contended by learned counsel of the appellant that the appellant being innocent was involved in this case falsely by the complainant party on account of previous enmity. The learned trial Court has disbelieved the evidence of prosecution in respect of one set of accused, while has believed the same in respect of other set of accused, which is against the spirit of natural justice. By contending so, he sought for acquittal of the appellant, as according to him, with the appellant the complainant party has now compounded the offence and such applications are pending adjudication before this Court.
9. Learned A.P.G has supported the impugned judgment.
10. I have considered the above arguments and perused the record.
11. The postmortem report on the dead body of deceased Manik was brought on record of the Court by prosecution through Dr.Kaleemullah for the reason that Dr.Saeed Ahmed who actually conducted postmortem report on the dead body of said deceased died of his natural death prior to his examination in the present case. Be that as it may, it is not denied by the appellant that the said deceased has not died of unnatural death. Now is to be examined the liability of the appellant to the present incident. It was stated by complainant Tagial and PWs Bashir Ahmed and Niaz Ali that on 07.09.2002, after attending their work at Shikarpur, when they and the said deceased were going back to their village Veeram Khan Jaffery, when reached at Satta Bazaar, there at about 1400 hours, they found coming the appellant, co-accused Hidayatullah, Bingo and three unknown culprits with their faces muffled, they were armed with T.T pistols and guns and asked the complainant party that they have come to avenge the death of Bijar, who was killed at Khairpur. It was further stated by the complainant and his witnesses that the appellant then fired at Manik who by sustaining that fire shot injury fell down on the ground and he (Manik) then was also fired at by one of unidentified culprit. It was further stated by the complainant and his witnesses that they raised cries and on their cries, accused ran away and then they reported the incident to police and the police came at place of incident and undertook the investigation. In end of their examination, excepting appellant, they did not implicate co-accused Ghous Bux, Ranjhan and Arz Muhammad in commission of the incident by stating that they were not amongst the culprits who committed the above said incident and for this reason the complainant was declared to be hostile to the prosecution while permission to declare hostile PWs Bashir Ahmed and Niaz Ali was declined by learned trial Court. Be that as it may, by stating so, the complainant and his witnesses expressly belied their version in FIR (further statement) and in their 161 Cr.PC statements, wherein it was stated by them that the appellant and co-accused Ghous Bux and others committed death of deceased Manik by causing him fire shot injuries. Why they did so? Apparently to favour co-accused Ghous Bux, Ranjhan and Arz Muhammad. In that situation, their evidence could not be said to be transpiring confidence, yet it was believed for recording conviction against the appellant and disbelieved for recording acquittal of co-accused Ghous Bux, Ranjhan and Arz Muhammad. It was to have been believed or disbelieved as a whole.
12. In case of Sardar Bibi and others vs. Munir Ahmed and others (2017 SCMR-344), it was held by the Hon’ble Court that;
“When the eye-witnesses produced by the prosecution were disbelieved to the extent of one accused person attributed effective role, then the said eye-witnesses could not be relied upon for the purpose of convicting another accused person attributed a similar role without availability of independent corroboration to the extent of such other accused”.
13. The recovery of pistol allegedly from the appellant could hardly be said to be corroborative piece of evidence simply for the reason that the appellant for the said recovery has already been acquitted by learned Court of competent jurisdiction which has attained finality. Even otherwise, there is nothing on record, which may suggest that the said pistol together with the empties was sent to the Forensic Expert for analysis.
14. In case of Sardar Bibi and others (supra), it was further observed by the Hon’ble Court that;
“no positive report of Forensic Science Laboratory was available regarding matching of any crime empty with the alleged recovered weapon, then the recovery of weapon from accused was inconsequential and could not be considered corroborative piece of evidence”.
15. In the said circumstances, the evidence of complainant and his witnesses could not be believed to hold conviction against the appellant.
16. The appeal against the appellant is being disposed of on merit; therefore, the applications filed by the parties for acquittal of the appellant by way of compromise having become in-fructuous are disposed of accordingly.
17. In view of the facts and reasons discussed above, the conviction and sentence recorded against the appellant by way of impugned judgment could not be sustained, it is set aside. Consequently, he is acquitted of the offence for which he was charged, tried and convicted by learned trial Court. He is on bail, his bail bond is cancelled and surety is discharged.
18. The instant appeal is disposed of accordingly.
JUDGE
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