IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Cr.Acq. Appeal No. D-37 of 2009
Before:
Mr. Justice Muhammad Iqbal Kalhoro
Mr. Justice Irshad Ali Shah
Appellant: None present.
State : Mr. Syed Sardar Ali Shah, Deputy Prosecutor General
Respondents: Ali Mohammad and Arbab have expired. Muneer Ahmed in person while Respondent No.3, Imdad through his Counsel Mr.Imdad Ali Mashori, Advocate
Date of hearing: 19.02.2018.
Date of judgment: 19.02.2018.
JUDGMENT
IRSHAD ALI SHAH, J.- The instant appeal is filed by the appellant/complainant against judgment dated 4th November, 2009 of learned 1st Additional Sessions Judge/Special Judge S.T.A, Garhi Yasin, thereby he acquitted the private respondents/accused of the charge u/s. 302,148,149 PPC for committing Qatl-e-Amd of deceased Khalid Hussain and Molvi Badaruddin.
The facts necessary for disposal of instant criminal appeal are that as per complainant Sultan Ahmed are that; his brother Asad Ali was declared as “Karo” by absconding accused Muhammad Salleh. They were attempting to settle such dispute through Nekmards of the brothery but accused Muhammad Salleh was avoiding to have such Faisla. On the night of incident as per FIR, Molvi Badaruddin came to visit the complainant party, complainant with his witnesses and deceased Khalid Hussain and Molvi Badaruddin, after having Katchehri when were sleeping in courtyard of the Primary School of their village, there at about 02.00 a.m, came accused Aijaz Ali, Muhammad Salleh, Ali Muhammad, Muneer Ahmed, Abdul Rehman, Arbab and Imdad Hussain, duly armed with their weapons, they asked the complainant party that; they have not been able to settle their dispute with them over “Karap”, therefore, they would be killed. By stating so as per FIR, accused Muhammad Salleh fired at Khalid Hussain and accused Abdul Rauf fired at Molvi Badaruddin. They sustained those fires and died. It is further stated in FIR by the complainant that accused Aijaz Ali by making aerial firing threatened him and others to keep silence and then they raised cries of murder, on that co-villagers came running and said accused went away by making aerial firing.
On investigation, accused Aijaz Ali, Ali Muhammad, Muneer Ahmed and Imdad Ali were arrested. From accused Ali Muhammad, Muneer Ahmed and Imdad Ali were secured guns. They after usual investigation were challaned to face trial for above said offence. It would be pertinent to mention here that accused Aijaz Ali died during pendency of the case while accused Arbab Ali joined the trial. The charge was amended accordingly by learned trial Court.
The prosecution in order to prove it’s case against the private respondents examined medical officer Dr.Khursheed Ahmed, produced through him postmortem report on the dead bodies of said deceased. Complainant Sultan Ahmed produced through him FIR of the present case. PW Aslam Parvez, PW Mehboob, PW Ramesh Kumar the then C.J & F.C.M Garhi Yasin, through him were produced photo stat copies of 164 Cr.PC statements of PWs Aslam Parvez and Mehboob Ali. PW/Mashir Sachal, through him were produced mashirnama of place of incident and examination of dead body of deceased, mashirnama of arrest and recovery of gun from accused Ali Muhammad, Muneer Ahmed and Imdad Ali, inquest reports on dead bodies of deceased Khalid Hussain and Molvi Badaruddin. SIO/SIP Inspector Barkat Ali Domki, through him were produced forensic report of the guns and recoveries and then prosecution closed the side.
The private respondents in their statements recorded by learned trial Court under section 342 Cr.PC denied the prosecution allegations by pleading innocence. They examined none in their defense or themselves on oath.
On evaluation of the evidence so produced by the prosecution, learned trial court acquitted private respondents of the charge by way of judgment dated 04th November, 2009, which the appellant/complainant has impugned before this Court by way of instant appeal.
Appellant/complainant together with his learned counsel is absent. No intimation is furnished on his behalf.
We have heard learned counsel for the parties who are before the Court and have perused the record with their assistance.
Complainant and PWs Aslam Parvez and Mehboob Ali during course of their examination before learned trial Court have inter-alia stated that; it was absconding accused Muhammad Salleh who fired and killed deceased Khalid Hussain while accused Abdul Rauf fired and killed deceased Molvi Badaruddin under the pretext that we were not going to settle the dispute with them over “Karap” allegation. If for the sake of arguments, it is believed that; accused Muhammad Salleh and Abdul Rauf fired and killed deceased Khalid Hussain and Molvi Badaruddin, then they alone are to be made responsible for such action. The involvement of private respondents/accused in this case, on the basis of vicarious liability under the pretext that; they too made aerial firing at the time of incident while making their escape good is appearing to be somewhat doubtful. No doubt, there is recovery of guns from accused Ali Muhammad, Muneer Ahmed and Imdad Ali and it is also supported by PW/Mashir Sachal and SIO/Inspector Barkat Ali Domki but such recovery is not enough to record conviction against the private respondents for an offence punishable u/s.302 r/w 149 PPC.
The learned Addl. Prosecution General being faced with the above situation was fair enough to support the impugned judgment.
Result.
The result of above discussion would be that the impugned judgment of acquittal of the private respondents is not calling for any interference by this Court by way of instant appeal, it is dismissed.
J U D G E
Ashfaq.S/**.