IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Crl. Jail Appeal No.D- 28 of 2017

Before;

Mr. Justice Muhammad Iqbal Mahar

Mr. Justice Irshad Ali Shah

Appellants: 1- Nazir alias Loti, through Mr. Habibullah Chandio, Advocate

2- Dhani Bux, through Mr. Zulfiqar Ali Panhwar Advocate

Respondent: The State, through Mr. Abdul Rehman Kolachi,

Deputy Prosecutor General

Date of hearing: 02.04.2019

Date of decision: 02.04.2019

JUDGMENT

Irshad Ali Shah, J; The appellants by way of instant Criminal Jail Appeal have impugned the judgment dated 25.02.2017, passed by learned Judge, Anti-Terrorism Court Naushahro Feroze, whereby they have been convicted and sentenced as under;

“I, therefore, convict them for the offence punishable under section 302(b), 149 PPC r/w Section 17(1)(a) of Anti-Terrorism Act, 1997 and sentence them to R.I for life imprisonment. Both accused shall also pay compensation of Rs.100,000/- (Rupees one lac) each as contemplated under section 544-A Cr.P.C to the legal heirs of deceased ASI Ghulam Sarwar Mashori, in case of default of payment of the compensation, both accused shall suffer further R.I for one year. They are also convicted for the offence punishable u/s 404 PPC and sentenced to suffer R.I for two years. Both the sentences shall run concurrently with benefit of section 382-B Cr.P.C.”

2. The facts in brief necessary for disposal of instant appeal are that the appellants with rest of the culprits allegedly after having formed an unlawful assembly and in prosecution of their common object, committed Qatl-e-amd of ASI Ghulam Sarwar, for that they were booked and reported upon by the police.

3. At trial, the appellants and co-accused Aadil denied the charge and prosecution to prove it, examined PW-1 Dr. Ghulam Mustafa (Ex.14), he produced postmortem report on the dead body of said deceased; PW-2 Tapedar Ghulam Rasool (Ex.15), he produced sketch of vardhat; PW-3 PC Budhal Khan (Ex.16), he produced carbon copy of receipt whereby he delivered the dead body of said deceased to his legal heirs; PW-4 ASI Manzoor Ali (Ex.18), he produced memo of examination of dead body of the said deceased, danistanama and copy of FIR; PW-5 complainant Ghulam Yaseen (Ex.19); PW-6 Pervez Ahmed Mashori (Ex.20); PW-7 Abdul Haque Mashori (Ex.21); PW-8 mashir Aftab Ahmed (Ex.22), he produced memo of place of incident, memo of recovery of uniform of the deceased, memo of recovery of pistol, memo of recovery of the clothes of the deceased; PW-9 Inspector Hamid Ali (Ex.23), he produced roznamcha entries of the departure of deceased, photocopy of arms licence of the deceased and true copy of deposition which the deceased made before the Court on the date of incident, carbon copy of memo of arrest and recovery, report of chemical Examiner, criminal record of accused Nazir alias Loti, report of Ballistic expert and then closed the side.

4. The appellants and co-accused Aadil during course of their examination u/s 342 Cr.P.C denied the prosecution’s allegation by pleading innocence, they did not examine themselves on oath or any one in their defence.

5. On the basis of evidence, so produced by the prosecution, the learned trial Court acquitted co-accused Aadil while convicted and sentenced the appellants, 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, the FIR of the incident was lodged with one day delay without any plausible explanation, co-accused Aadil has already been acquitted on same set of evidence, the evidence which the prosecution has produced being inconsistent and doubtful in its nature has been believed by learned trial Court without lawful justification only to record conviction against the appellants. By contending so, they sought for acquittal of the appellants.

7. Learned DPG for the State by supporting impugned judgment has sought for dismissal of instant appeal by contending that the appellants have rightly been convicted by learned trial Court on proper evaluation of evidence.

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

9. There may not be denial to the fact with anyone with regard to the death of deceased being unatural, same even otherwise is proved by the prosecution through evidence of medical officer Dr. Ghulam Mustafa. Only thing which remains to be examined by this Court is liability of the appellants towards the alleged incident. It has , inter alia, been stated by complainant Ghulam Yaseen and P.Ws Pervez and Abdul Haque during course of their examination before learned trial Court that deceased Ghulam Sarwar was ASI in police department, he undertook several encounters with criminals, therefore, he was being threatened by them of dire-consequences. On 16.12.2013 the deceased went to record his evidence before the Court of learned Civil Judge and Judicial Magistrate Moro and then called them and PW Abdul Wahab at Moro to make purchase of fertilizer for wheat crop. Accordingly, they and above said witness went to the deceased and when reached at Moro bypass there they made contact with the deceased who asked them to stay there and he is coming towards them, within ten minutes the deceased came to them and then asked them to proceed with him to Naushahro Feroze to make purchase of fertilizer, when they were going towards Naushahro Feroze through their motorcycles, they were confronted by accused Ali Bux, Dhani Bux and Nazir alias Loti, they with no loss of time fired at the deceased who by sustaining those fires fell down and died. By stating so, they have belied their version in their FIR and 161 Cr.P.C statements wherein they in all have disclosed the number of the accused to be ten with their specific role in commission of the incident. The complainant was declared to be hostile to the prosecution, on account of his failure to disclose name of co‑accused Aadil, Jaffer, Talib, Porho alias Rasool Bux, Ghulam Hyder, Zulfiqar, Bhutto alias Kirrir. Not only this, but the complainant was fair enough to state that the said co-accused were not seen by him making fires at the deceased. By stating so, he contradicted his own FIR wherein he has named the said accused with specific role. PW ASI Manzoor was fair enough to admit that the complainant party did not arrive at the place of incident at the time when he reached there, they according to him came afterward at P.S Sadhuja. So was the case with PW PC Budhal Khan. If the evidence of PW ASI Manzoor Ali and Pw PC Budhal Khan is believed to be true then it makes the availability of the complainant and his witness at the place of incident and at the time of incident to be doubtful. It was what which perhaps caused delay in lodgment of FIR by the complainant at least by one day, such delay could not be overlooked.

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. The conclusion which could be drawn of the above discussion is that the prosecution has not been able to prove its case against the appellants beyond shadow of doubt and they are appearing to be entitled to such benefit.

13. For what has been discussed above, the appellants are acquitted of the offence for which they were charged, tried and convicted by learned trial Court; they are in custody they shall be released from custody forthwith in the present case.

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

Judge

ARBROHI