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