IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Criminal Appeal No.S-51 of 2018

Appellant                             :     Madoo alias Madad son of Yousif Khokhar

Through Mr.Zahid Hussain Chandio, Advocate 

State                                      :     Through Mr.Muhammad Noonari, D.P.G

Date of hearing                  :     17.12.2018                  

Date of decision                :     17.12.2018                              

J U D G M E N T

IRSHAD ALI SHAH, J-. The appellant by way of instant criminal appeal has impugned judgment dated 30.06.2018, passed by learned 4^th Additional Sessions Judge, Larkana, whereby the appellant has been convicted and sentenced as under;

“therefore, accused Madoo alias Madad son of Yousif Khokhar is convicted under section 265-H(ii) Cr.PC and sentence him under section 399/148 PPC to suffer R.I for 03 years and to pay fine amount of Rs.5000/- u/s 402 PPC to suffer R.I for 01 year and to pay fine amount of Rs.2000/-, u/s 324 PPC to suffer R.I for 03 years and to pay fine amount of Rs.5000/-, u/s 353/149 PPC to suffer R.I for one year and to pay fine amount of
Rs.5000/-. In case of default in payment of fine amount, accused shall suffer S.I for one month more”.  

2.                    The facts in brief necessary for disposal of instant criminal appeal are that the appellant with rest of the culprits, assembled with intention to commit dacoity and in that way deterred the police party of P.S Dokri, led by ASI Hamid Ali, from discharging their lawful duty as public servant by making fires at them with intention to commit their murder and then made their escape good, for that he was booked and challaned in the present case.

3.                    At trial, the appellant did not plead guilty to the charge and prosecution to prove it examined PW/HC Mukhtiar at Exh.04, PW/SIO/ASI Abdul Jabbar at Exh.06, PW/Complainant ASI Hamid Ali at Exh.08, PW ASI Kashif Ali at Exh.09, he produced memo of arrest of appellant and recovery of pistol from him and thereafter, prosecution closed its side.

4.                    The appellant in his statement recorded under section 342 Cr.PC denied the prosecution’s allegation by pleading innocence. He did not examine anyone in his defence or himself on oath in disproof of the prosecution’s allegation.

5.                    On conclusion of the trial, learned trial Court convicted and sentenced the appellant by way of impugned judgment, as stated above.

6.                    It is contended by learned counsel for the appellant that the he being innocent has been convicted by learned trial Court without lawful justification, on the basis of improper assessment of the evidence. By contending so, he sought for acquittal of the appellant as according to him co-accused Waheed and Muhammad Yaqoob have already been acquitted by learned trial Court.

7.                    Learned D.P.G for the State by supporting the impugned judgment sought for dismissal of the instant criminal appeal.

8.                    I have considered the above arguments and perused the record.                     

9.                   It was stated by complainant ASI Hamid Ali and PW/Mashir HC Kashif Ali that on 17.07.2014, they with rest of the police personnel were conducting patrol under roznamcha entry No.4 of P.S Dokri. Such roznamcha entry they have not been able to produce before learned trial Court and its non-production has prima facie made their allegation of patrolling to be doubtful one. It was further stated by them that when they reached at village “Ahsan Wahan”, there they came to know through spy information that seven culprits are standing by Fish Farm of Saleem Jessar with intention to commit some offence. On such information, they proceeded to the pointed place. If they proceeded to the pointed place on information, then they were under lawful obligation to have associated with them independent person to witness the possible arrest and recovery. It was not done by them, which has made their proceedings to the place of incident on information to be doubtful one. At the place of incident as per them they found seven culprits available with intention to commit offence and then they deterred them from discharging their lawful duty by making fires at them with intention to commit their   murder and culprits were also fired at in self defence. Significantly such firing proved to be ineffective, in all respects, which has made the allegation of firing at the place of incident to be doubtful one. These factors collectively have made the case of prosecution to be doubtful     one and perhaps were considered by learned trial Court while      recording acquittal of co-accused Waheed and Muhammad Yaqoob, which has attained the finality. In that situation, there was hardly a need for learned trial Court to have taken another view other than the one, which was taken already.

10.                 In case of Faheem Ahmed Farooqui Vs. The State (2008 SCMR-1572), it is held that;

“single infirmity creating reasonable doubt regarding truth of the charge makes the whole case doubtful”.

11.                  In view of the facts and reasons discussed above, the impugned judgment is set aside. Consequently, the appellant is acquitted of the offence for which he was charged, tried and convicted by learned trial Court. The appellant shall be released forthwith, if he is found to be in custody in present case.

12.                  The instant criminal appeal is disposed of in above terms.

                                                                                                                        JUDGE

-