IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Criminal Appeal No. D – 151 of 2018

Before;-

Mr.Justice Muhammad Iqbal Mahar

Mr.Justice Irshad Ali Shah

 

Appellant             :         Abdul Ghafoor and Allah Warrayo, through

                                      Mr. Pervez Ali Siyal, Advocate

                                     

Respondent         :         The State, through Mr. Aftab Ahmed Shar,

                                      Additional Prosecutor General

                  

Date of hearing :           19.03.2019

Date of decision:          19.03.2019

JUDGMENT

IRSHAD ALI SHAH, J:-   The appellants by way of instant Criminal Appeal have impugned judgment dated 29.11.2018 passed by learned Judge, Anti-Terrorism Court at Khairpur, whereby they have been convicted and sentenced as under;

“I therefore; convict both the present accused Abdul Ghafoor Siyal and Allah Warayo Siyal for the offence punishable u/s 148 PPC and sentence them to suffer R.I for three years each and to pay fine of Rs.20,000/- (Rupees twenty thousand) each and in case of default in payment of fine, they shall suffer further R.I for three months each. I also convict both the above named present accused for the offence punishable u/s 387 R/w Section 149 PPC and sentence them to suffer R.I for seven years each and to pay the fine of Rs.25000/- (Rupees twenty five thousand) each and in case of default in payment of fine they shall suffer further R.I for three months each. I, further convict both the present accused for the charge punishable u/s 506/2 PPC and sentence them to suffer R.I for seven years each and to pay the fine of Rs.25,000/- (Twenty Five thousand) each. In case of default in payment of fine, they shall suffer further R.I for three months each. I also convict both the aboenamed present acused for the offence punishable u/s 337-A(i) R/w Section 149 PPC and sentence them to suffer R.I for two years each. I also convict both the above named present accused for the offence punishable u/s 337-F(i) R/w Section 149 PPC and sentence them to suffer R.I for one year each. I also convict both the above named present accused for the offence punishable u/s 337-L(ii) R/w Section 149 PPC and sentence them to suffer R.I for two years each. I also convict both the above said present accused for the offence punishable u/s 337-H(ii) r/w Section 149 PPC and sentence them to suffer R.I for three months each and to pay fine of Rs.1000/- (Rupees one thousand) each and in case of default in payment of fine they shall suffer further R.I for fifteen days.

I also convict the said accused Abdul Ghafoor Siyal and Allah Warrayo Siyal for the offence punishable u/s 7-ATA, 1997 and sentence them to suffer R.I for seven years each and to pay the fine of Rs.25,000/- (Twenty five thousand) each and in case of default in payment of fine, they shall suffer further R.I for three months each.

All the above said sentences to the above named accused shall run concurrently with the benefit of Section 382-B Cr.P.C.”

 

2.                 The facts in brief necessary for disposal of instant criminal appeal are that the appellants with rest of the culprits after having formed an unlawful assembly in prosecution of their common object demanded bhata from complainant Faiz Ali for cultivating his land on his refusal to pay the same caused him and his witnesses Muhammad Bux and Muzafar lathi blows and then went away by making aerial firing to create harassment for that the present case was registered. On investigation, the appellants were reported upon by the police to face the trial in the above said offence.

3.                 At trial, the appellants did not plead guilty to the charge and prosecution to prove it, examined PW-1 Muhammad Bux (Ex.11); PW-2 Muzafar Ali (Ex.13); PW-3 Mashir/HC Muhammad Malook (Ex.14), he produced memo of arrest of appellants; PW-4 Medical Officer Dr. Yar Muhammad (Ex.16), he produed provisional and final medical certificates in respect of the injuries sustained by the complainant and his witnesses; PW-5 ASI Manzoor Ali (Ex.17), he produced FIR of the present case; PW-6  Mashir Amjad Ali (Ex.18), he produced memo of injuries; PW-7 SIO/DSP Altaf Hussain (Ex.19), he produced memo of place of incident and then closed the side.

4.                 The appellants during course of their examination u/s 342 Cr.P.C denied the prosecution allegation by pleading innocence, they in support of their innocence have produced affidavit of complainant Faiz Ali and PWs Muzafar Ali and Muhammad Bux whereby they were exonerated of the incident, they did not examine themselves on oath or anyone in their defence.

5.                On the basis of evidence so produced by the prosecution, learned trial Court convicted and sentenced the appellants by way of impugned judgment as stated above.

6.                 It is contended by learned counsel for the appellants that the appellants being innocent have been involved in this case falsely by the complainant party in order to settle their dispute with them over landed property, there is delay of about twenty days in lodgment of FIR, complainant could not be examined by the prosecution on account of his death while evidence of PWs Muzafar Ali and Muhammad Bux was not enough to have been relied upon to base conviction. By contending so, he sought for acquittal of the appellants.

7.                 Learned Additional PG for the State was fair enough to say that the evidence which is produced by the prosecution was not enough to base conviction. By stating so, he recorded no objection  to acquittal of the appellants.

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

9.                 The FIR of the incident has been lodged with unexplained delay of twenty days, same could not be lost sight of. The complainant has not been examined by the prosecution on account of his death, it is true that death is a natural action but there could be made no denial to the fact that it has deprived the appellants in their defence seriously. PW Muhammad Bux was fair enough to state that his 161 Cr.P.C statement was not recorded. If it is believed to be so then he could hardly be treated as witness of the prosecution. PW Muzafar Ali was declared to be hostile to the prosecution on account of his failure to support the case of the prosecution. Medical Officer Dr. Yar Muhammad was fair enough to admit that the injuries sustained by the injured can be caused on account of accident. In these circumstances, it could rightly be concluded that the prosecution has not been able to prove its case against the appellants beyond shadow of doubt.

10.              In case of Mehmood Ahmed & others vs. the State & another (1995 SCMR-127), it was observed by the Hon’ble Court that;

“Delay of two hours in lodging the FIR in the particular circumstances of the case had assumed great significance as the same could be attributed to consultation, taking instructions and calculatedly preparing the report keeping the names of the accused open for roping in such persons whom ultimately the prosecution might wish to implicate”.      

 

11.               In case of Tarique Pervez vs.The State (1995 SCMR 1345), it has been held by Hon’ble Apex Court that;

“For giving benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt- if a simple circumstance creates reasonable doubt in a prudent mind about the guilt of the accused, then he will be entitled to such benefit not as a matter of grace and concession but as a matter of right.”

12.               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 appellants are acquitted of the offence for which they were charged, tried and convicted by learned trial Court; they shall be released forthwith in the present case.

13.               The instant Criminal Appeal is disposed of in the above terms.

 

Judge

Judge

 

 

ARBROHI