IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Criminal Jail Appeal No. S – 57 of 2013

 

Appellants           :         Muhib Ali Arejo, through

Mr. Ali Nawaz Jagirani Advocate

 

Complainant       :         Iqbal Hussain, through Syed Imtiaz Hussain

                                      Shah, Advocate

 

Respondent     :            The State, through Syed Sardar Ali Shah, Deputy

                                      Prosecutor General

 

Date of hearing :           04.02.2019

Date of decision:          15.02.2019

JUDGMENT

IRSHAD ALI SHAH, J:-   The appellant by way of instant Criminal Jail Appeal has impugned judgment dated 31.07.2013 passed by learned Sessions Judge Khairpur, whereby he has been convicted and sentenced as under;

(i)      “I hereby exercising powers conferred under section 265-II(2) Cr.P.C convict the accused Muhib Ali Arejo for the offence punishable u/s 302(b) PPC as Tazir and sentence him suffer rigorous imprisonment for life and to pay compensation of Rs.100,000/- (rupees one lac only) under section 544-A Cr.P.C. In case of default in payment of such compensation he shall also undergo simple imprisonment for further six months.”

2.                 The facts in brief necessary for disposal of instant criminal Jail Appeal are that the appellant allegedly with rest of the culprits during course of robbery not only committed Qatle-amd of Insaf Ali but caused fire shot injury to PW Matloob Hussain with intention to commit his murder for that he was reported upon by the police to face trial for the above said offence.

3.                 At trial, the appellant did not plead guilty to the charge and prosecution to prove its case, PW-1 Medical Officer Dr. Aziz-u-Rehman (Ex.04), he produced letter of police and postmortem report on the dead body of the said deceased; PW-2 complainant Iqbal Hussain (Ex.05), he produced FIR of the present case; PW-3 injured Matloob Hussain (Ex.06); PW-4 SIO/SIP Ghulam Shabbir (Ex.07), PW-5 Mashir Saleem Raza (Ex.08), he produced memo of place of incident, memo of recovery, memo of injuries, memo of recovery of clothes of the deceased and memo of arrest of appellant Muhib Ali; PW-6 SIO/SIP Zulfiqar Ali Soomro (Ex.09), he produced roznamcha entries and list of property, PW-7 SIO/SIP Ali Raza (Ex.11), he produced inquest report; PW-8 PC Barkat Ali (Ex.12), he produced receipt whereby the dead body of the deceased was handed over to his cousin; PW-9 Tapedar Ali Bux (Ex.13), he produced sketch of vardhat, PW-10 Mr. Raz Muhammad Lashari, Reader (to the Magistrate who conducted identification parade of the appellant), he produced letter of the police and list containing the names of the dummies and then closed the  side.

4.                 On evaluation of evidence so produced by the prosecution, learned trial Court convicted and sentenced the appellant by way of impugned judgment, as stated above.

5.                 It is contended by learned counsel for the appellant that the name and description of the appellant are not taking mention in FIR, he has been involved in this case falsely by the complainant party, on the basis of identification test allegedly conducted by the Magistrate, who has not been examined by the prosecution, the complainant was the chance witness to the incident, the recovery, if any, has been foisted upon the appellant, the evidence which the prosecution has produced at trial being inconsistence and doubtful has been believed by learned trial Court without lawful justification.  By contending so, he sought for acquittal of the appellant. In support of his contentions, he relied upon cases of Qurban and another vs. The State (1994 P Cr. L J 150), and Farman Ali vs. The State (1997 SCMR 971).

6.                 Learned DPG for the State and learned counsel for the complainant have sought for dismissal of the instant appeal by contending that the impugned judgment is well-reasoned.

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

 

8.                The name and description of the appellant are not taking mention in FIR. No doubt, complainant Iqbal Hussain has named the appellant during course of his examination, but it appears to be an act of improvement on his part, which could not be overlooked. As per PW Matloob Hussain, the appellant was identified by him during identification parade, during such test according to him, the appellant was found standing at serial No.2. By stating so, he belied the contents of memo of identification parade, wherein it is written that the appellant at the time of identification test was found standing at Serial No.4. Memo of identification test also contains a note that as per appellant he has already been seen by the complainant and his witnesses. The complainant was not called upon to identify the appellant during course of his identification test, such omission on the part of prosecution could not be lost sight of. Mr. Abul Ala Jatoi, the then 2nd Civil Judge and Judicial Magistrate Khairpur, who allegedly conducted the identification test of the appellant, has not been examined by the prosecution under the pretext that he has gone abroad for Higher Education. His non‑examination could safely be resolved in favour of the appellant as it has prejudiced the appellant in his defence seriously. The recovery of crime weapon and certain robbed articles has been made from the appellant on 3rd day of his arrest, such recovery as such could safely be judged with doubt. PW Ghulam Abbas being independent witness to the incident has been given up by the prosecution under the pretext that he has been won over by the accused person. His non‑examination could safely be resolved in favour of the appellant. No question has been put to the appellant during course of his examination u/s 342 Cr.P.C with regard to the recovery of crime weapon and certain robbed articles from him to have his explanation. The appellant as such could hardly be connected with such recovery.

9.                In case of Muhammad Ashfaq versus The State                    (2014 P Cr.L J 1531), it has been held by Hon’ble Court that:-

“Section 342 Cr.P.C – Effect- If any incriminating piece of evidence was not put to accused in his statement recorded under section 342 Cr.P.C for his explanation, then same could not be used against him for his conviction.”

 

10.              Co-accused Abdul Samad, Abdul Karim, Abdul Qadeer and Kaman were let off by the police during course of investigation finding them to be innocent, such fact could not be overlooked.

11.              The appellant admittedly was charged for committing death of deceased Insaf Ali (302 PPC) for causing fire shot injury to PW Matloob Hussain with intention to commit his murder (324 PPC) and for committing robbery of Rs.11,50,000/- (392 PPC). On conclusion of trial, as detailed above, the appellant has been convicted and sentenced only for offence punishable under section 302 PPC, which prima facie indicates that the appellant impliedly has been acquitted for offence punishable u/s 324 and 392 PPC, even by learned trial Court.

12.              The discussion involved a conclusion would be that the prosecution has not been able to prove its case against the appellant beyond shadow of doubt.

13.               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.”

 

14.               For what has been discussed above, the conviction and sentence recorded against the appellant by learned trial Court by way of impugned judgment could not be sustained, it is set aside. Consequently, the appellant is acquitted of the offence for which he was charged, tried and convicted by learned trial Court, he shall be released forthwith in present case.

15.               The instant appeal is disposed of in the above terms.

 

Judge

ARBROHI