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
Judge
ARBROHI