IN THE HIGH COURT OF SINDH BENCH AT SUKKUR
Criminal Jail appeal No.D-31 of 2017.
Present. Mr.
JusticeNaimatullahPhulpoto.
Mr.
JusticeShamsuddinAbbasi.
For hearing of main case.
Date
of hearing .07.2018.
Date
of Judgment .07.2018,
Appellants: Allah
Dino through Mr.Shabir Ali BozdarAdvocate.
Respondent. The
State, Through Abdul RehmanKolachiD.P.G.
J
U D G M E N T
ShamsuddinAbbasi,J:. AppellantsChannessar
and Allah Dino haveassailed the judgment dated 28.02.2017passed by Special Judge
Anti-Terrorism Court,NaushehroFeroze. Appellants were tried in Special Case No.72-A/2016Re- State v.Chanessarand othersarising
out of Crime No.14/2015offenceunder Sections17/3, 17/2, of
Offence AgainstProperty (Enforcement of Hudood Ordinance), 1979, 337H(2) PPC
r/w Section-7 of ATA, 1997registered at Police Station,MuhbatDero.The learned trial Court has
convicted the appellants for offence punishable under Section 394, 34 PPC r/w
Section 7(1)(c)of ATA, 1997 and awarded sentence them to suffer R.I for Ten
years. They were also convicted for an offence punishable under Section337-A(iv),
34 PPC and awarded
sentence them to suffer R.I for Ten years as Ta’zir.However, benefit of Section
382-B Cr.P.C was extended to both the accused and it was ordered that sentence
awarded to the appellants shall run concurrently.
2. The brief facts of the prosecution case as per FIR
lodged by complainant Ghulam Mustafa are
that on 07.02.2015he along with his cousin Shuhban and maternal uncle Fida
Hussain went to Kandiaro town for personal work on the motorcycle of Fida
Hussain, motorcycle was being driven by Fida Hussain. After completing their
work while they were returning to village at about sunset time, when they
reached near garden of HabibullahTanwri, seven armed persons were standing
there. On show of weapons accused person forcibly stopped complainant party and
got them down from the motorcycle. Complainant party identified four accused
persons tobe Allah Dino Machi, ChanessarJatoi both armed with Kalashnikovs,
Nazoo alias Nazal Agro, Taimeer alias Gujar armed with pistols. Accused
Chanessar and Nazoor Agro and two unidentified accused took away complainant
and Subhan towards the left side of the road whereas three persons kept
standing with Fida Hussain on the righty side of the road. Accused Chanessar
robbed mobile phone of Nokia company, cash amount of Rs.3,000/- from the
complainant, one mobile phone and cash amount of Rs.4,000/- from Subhan.
Accused Allah Dino Machi and other tried to rob Fida Hussain on his resistance
accused Allah Dino Machi fired from his Kalashnikov on the face of Fida Hussain
who raised cry and fell down. The accused persons robbed mobile phone and cash
amount from his pocket. Thereafter all the accused persons fired in air in
order to create terror and then went away towards north in the garden.
Thereafter complainant saw Fida Hussain who sustained firearm injury on the
right side of chin which was through and through from left side and blood was oozing.
On inquiry Fida Hussain told complainant that A Q-Mobile and cash amount
Rs.8,000/- had been robbed from him. Complainant arranged vehicle went to
Police Station and after getting letter for treatment they took injured to
Taluka Hospital Kandiaro. Thereafter, injured was referred to PMCH Nawabshah
from where he again referred to Civil Hospital, Hyderabad. Complainant left PW
Suhban in the hospital appeared at Police Station where he lodged FIR to the
above effect.
After usual investigation Police submitted challan
against the appellants in learned trial Court.
3. The learned trial Court after receiving challan has framed
charge against the accused at Ex.03but they did not plead guilty and claimed for
trial.
4. The prosecution in order to prove
their case has examined PW-1 Inspector Noor Mohammad Suhryaniat Ex.06. PW-2
complainant Ghulam Mustafa Tanwri
examined at Exh-7, he produced copy of FIR
at Exh-7-A. PW-3 Fida Hussain examined at Ex-8. PW-4 Shuhban Ali
examined at Exh-9. PW-5Musharaf Ali examined at Ex.10. PW-6 HC Mohammad Motialexamined
at Ex.11, he produced carbon copy of letter to MLO for treatment of injured
Fida Hussain at Ex:11-A. PW-7 SHO Abdul MunainLarik examined at Ex.12, he
produced memo of arrest of both accused at Ex.12-A.PW-8 PC HizbullahSiyal examined at Ex.13. PW-09 Dr. Mohammad
ASgharShaikh examined at Ex.14. i.O Inspector Hamid Ali Jumani examined at Ex.15.
5. Thereafter, learned DDPP for the
State has closed his side vide statement
atEx.16.
6. Thereafter, the learned trial Court
has recorded the statement of accused U/s 342 Cr.P.c,at Ex.17& 18, in which
theyhave denied the allegations leveled by the prosecution against them but neither
they have examined themselves on oath nor lead any defence witness in their
defence.
7. The learned trial Court after hearing
both the sides have passed impugned judgment whereby the appellants were
convicted and sentenced as mentioned above.
8. During pendency of appeal, appellant Channessar S/o
DannahJatoi was expired inside Jail as reported by Senior Superintendnet
Central Prison, Sukkur and proceedings against him were abated while appeal
against appellant Allah Dino remains in field.
9. Learned Counsel for appellantshave contended that ---------
10. On
the other hand learned Deputy Prosecutor
Generalhas argued that---------------------------
11. Heard
learned Counsel for the appellants as well as learned Deputy Prosecutor General
and perused the material available on record.
12. We
have carefully scanned the evidence of prosecution witnesses which were rest
upon Inspector AsadNabiKhichi, PW-2 SIP Mazharuddin and PW-3 Inspector Mohammad
AmeenPathan.
12.PW-1---------------------
JUDGE
JUDGE
Ihsan