IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Crl. Jail Appeal No.D- 21 of 2014

 

                        Before;

                        Mr. Justice Muhammad Iqbal Mahar

                             Mr. Justice Irshad Ali Shah

 

Appellants:          Sikander S/o Mazan Chandio, through Syed Gulzar Ali Shah, Advocate

 

Respondent:        The State, through Syed Sardar Ali Shah,

                             Deputy Prosecutor General

 

Date of hearing:  13.02.2019

Date of decision: 13.02.2019

 

 

J U D G M E N T

 

IRSHAD ALI SHAH, J-. The appellant by way of instant Criminal Jail appeal has impugned Judgment dated 07.01.2014 passed by learned Judge Anti-Terrorism Court Naushahro Feroze, whereby he for an offence punishable under section 302(b) r/w Section 149 PPC r/w Section 6/7 (a) of Anti-Terrorism Act, 1997 has been convicted and sentenced to undergo imprisonment for life and to pay fine of Rs.50,000/- in case of his failure to make payment of fine to undergo SI for three months, he was further directed to pay compensation of Rs.300,000/- to the legal heirs of the deceased and in case of his failure to make payment whereof to undergo SI for six months with benefit of Section 382-B Cr.P.C.

 

2.                The facts in brief necessary for disposal of instant appeal are that as per FIR on 04.05.2010 when complainant ASI Subhan Ali and PC Wazir Ali were on their duty were intimated by HC Abdul Razak of Police Station Khairpur Nathan Shah through phone that accused Bashir Ahmed Chandio with his four companion has not only committed murders of Shamsuddin and Mehmood Ali but has also caused fire shot injuries to Andal Junejo with intention to commit his murder and is now going by the side of Boriri road. On such information, complainant ASI Subhan Ali and PC Wazir Ali were asked to come at the place of incident. ASI Subhan Ali then intimated the incident to SHO Police Station Khairpur Nathan Shah and then he and PC Wazir Ali proceeded towards Boriri on their motorcycle, when reached at a “Musafirhana” adjacent to village Sahib Khan Khoso, there at about 1720 hours they found coming five culprits on two motorcycles they were identified to be Bashir Ahmed Chandio with G-3 Rifle, Sikander Ali with Kalashnikvo, Ali Gohar with Kalashnikov, Rasheed with Kalashnikov and Jalal with Kalashnikov. The said accused as per FIR after taking position fired at complainant Subhan Ali and PC Wazir Ali with intention to commit their murder. In the meanwhile, PC Wazir Ali by raising hakal that he sustained fire shot injury. On hearing so, as per complainant ASI Subhan Ali, he by taking rifle of PC Wazir Ali fired at the said culprits and then they fled away. In the meanwhile there came police party led by HC Abdul Razak they also fired at the said culprits yet they made their escape good by resorting to indiscriminate firing. PC Wazir Ali was found dead, in the meanwhile police party of P.S Kakar led by SHO Inayatullah Qureshi and SIP Pir Allah Bachayo came at the place of incident and they removed PC Wazir Ali to hospital for that the FIR of the present case was registered.

2.                At trial, the appellant did not plead guilty to the charge and prosecution to prove it, examined PW-1 Medical Officer Dr. Abdul Hameed (Ex.9), he produced lash chakas forum and postmortem report on the dead body of deceasdd Wazir Ali, PW-2 Inspector Abdul Razak (Ex.11); PW-3 complainant ASI Subhan Ali (Exh.12), he produced FIR of the present case, roznamcha entry; PW-4  HC Abdul Razak (Exh.13), he produced receipt whereby dead body of deceased was delivered to his relative, danistnama, memo of injuries, memo of recovery of clothes of the deceased; PW-5 ASI Allahditto (Ex.14), he produced letter written to Medical Officer and carbon copy of lash chakas forum; PW-6 Muhammad Saleh (Ex.15), he produced memo of place of incident; PW-7 SIP Nazir Ahmed (Ex.16); PW-8 Tapedar Abdul Shakoor (Ex.17), he produced sketch of vardhat and then closed the side by way of statement producing thereby report of Chemical Examiner.

3.                The appellant during course of his examination u/s 342 Cr.PC denied the prosecution’s allegation by pleading innocence. He did not examine himself on oath or any one in his defence in disproof of the prosecution’s allegation.

4.                On the basis of evidence, so produced by the prosecution, the learned Judge Anti-Terrorism Court Naushahro Feroze convicted and sentenced the appellant as stated above.

 

5.                It is contended by learned counsel for the appellant that the appellant being innocent has been involved in this case falsely by the police without lawful justification, on the basis of an FIR which has been lodged with delay of two days, the evidence which the prosecution has produced before learned trial court being inconsistent and untrustworthy has been believed by learned trial Court without assigning cogent reason and the appellant has nothing to do with the alleged incident. By contending so, they sought for acquittal of the appellant.

7.                Learned DPG for the State by supporting impugned judgment has sought for dismissal of instant appeal.

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

9.                Complainant ASI Subhan Ali is alleged to be the only eyewitness of the actual incident; he has not been able to explain the circumstances which prevented him from lodging the FIR of the incident promptly, which has been lodged with delay of two days which has not been explained properly by the prosecution.

10.              In case of In case of Mehmood Ahmed and others vs. The State and others (1995 SCMR 127), it has been held by Hon’ble Apex Court that;

“that delay of two hours in lodgment of FIR in the particular circumstances of the case has assumed great significance as the same could be attributed to consultation, taking instruction and calculatedly preparing the report keeping the names of accused open for roping in such person whom ultimately the prosecution might wish to implicate.”

 

11.              It has, inter-alia, been stated by complainant ASI Subhan Ali during course of his examination that when he and PC Wazir Ali reached at ‘Musafirkhana’ adjacent to village Sahib Khan Khoso, there they undertook an encounter with accused Bashir Ahmed, Sikander Ali (appellant), Ali Gohar, Rasheed and Jalal, as a result of such encounter PC Wazir Ali after sustaining fire shot injury died. If the evidence of complainant ASI Subhan Ali is believed to be true then it is contrary to the FIR wherein specific role of committing death of deceased Wazir Ali by causing him fire shot injury is attributed to absconding accused Bashir Ahmed. In these circumstances, the evidence of complainant ASI Subhan Ali being inconsistent and doubtful in its character could hardly be relied upon to hold conviction against the appellant from whom significantly nothing has been secured by the police during course of investigation.

12.              In case of Faheem Ahmed Farooqui vs. The State                      (2008 SCMR 1572), It has been held by Hon’ble Apex Court that;

“Single infirmity creating reasonable doubt in the mind of a reasonable and prudent mind regarding the truth of the charge makes the whole case doubtful.”

 

13.               Above are the reasons of short order dated 13.2.2019, whereby the instant Criminal Jail Appeal was allowed with the following observation;

“Heard arguments of learned counsel for the appellant and Deputy Prosecutor General. For the reasons to follow, instant Criminal Jail Appeal is allowed, impugned judgment dated 07.01.2014 passed by learned Judge Anti-Terrorism Court Naushahro Feroze is set-aside and the appellant is acquitted from the charge. The appellant Sikander Chandio is in custody, he shall be released forthwith, if not required in any other criminal case.”

 

         

 

Judge

Judge

 

ARBROHI