IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Criminal Appeal No. S – 147 of 2018.

 

Appellants             :           1. Zulfiquar son of Shah Muhammad @ Shahban.

                                                2. Amanullah son of Shah Muhammad @ Shah.

                                                3. Shah Bux @ Shah Baib son of Shahzado.

                                                4. Salar son of Shah Muhammad. Bycaste lmani.

 

Through Mr. Amanullah G.Malik Advocate

 

Respondent     :                The State, through Abdul Rehman Kolachi, Deputy

                                                Prosecutor            General

 

Date of hearing :             08-04-2019.

Date of decision:                        08-04-2019.

 

JUDGMENT

IRSHAD ALI SHAH, J:-   The appellants by way of instant Criminal Appeal have impugned judgment dated 27-11-2018 passed by learned Additional Sessions Judge Pano Aqil, whereby they have been convicted and sentenced as under;

(i)               “Consequently present accused persons namely 1. Zulfiquar son of Shah Muhammad, 2. Amanullah son of Shah Muhammad, 3. Shah Bux @ Shah Baig son of Shahzado and 4. Salar son of Shah Muhammad all bycaste Almani are hereby convicted u/s 265-H(II) Cr.P.C for the charge u/s 302 and 148, 149 PPC. They are setnecned for life imprisonment as provided u/s 302-B Cr.P.C. The benefit of Section 382-B Cr.P.C is extended to the accused persons, they are present on bail, their bail bonds cancelled and sureties are discharged.”

2.                    The facts in brief necessary for disposal of instant criminal appeal are that the appellants and others allegedly with deadly weapons formed unlawful assembly and in prosecution of their common object by making trespass in to house of complainant Muhammad Luqman committed qatl-e-amd of his brother Riaz Ali by causing him fire shot injuries for that they were booked and reported upon by the police to face the trial according.

3.                    At trial, appellant did not plead guilty to the charge and prosecution to prove it, examined PW-1 complainant Luqman at Ex. 11, he produced FIR at Ex. 11/A, PW/2 Ehsan at Ex. 12, PW/3 Khair Muhammad at Ex. 13, he produced receipt at Ex. 13/A, PW/4 Sub Inspector/SHO Zulfiquar Ali at Ex. 14, he produced chemical examiner report at Ex. 14/a, PW/5 Pathan alias Shoukat at Ex. 15, he produced mashirnama of examination of dead body of deceased at Ex. 15/A, mashirnama of clothes at Ex. 15/B, memo of inspection of place of vardat and recovery at Ex. 15/C, Danish Nama at Ex. 15/D, PW/6 Dr. Riaz Hussain at Ex. 16, he produced let at Ex. 16/A, postmortem report at Ex. 16/B, Provincial Medicolegal certificate at Ex. 16/C, PW/7 Muhammad Bux at Ex. 17, he produced memo of arrest of accused at Ex. 17/A, PW/8 Nisar Ahmed at Ex. 18, he produced entry No. 2 at Ex. 18/A to Ex. 18/D, thereafter learned DDPP for the State filed statement at Ex. 19 whereby he give up PW Tapedar Abdullah and PW/9 Aqeel Ahmed at Ex. 20, he produced entry No. 26 and 6 at Ex. 20/A. thereafter, learned prosecutor closed the evidence of prosecution vide Ex. 21.

4.                    Appellants, during course of their examination u/s 342 Cr.P.C, denied the prosecution allegation by pleading innocence, they did not examine themselves on oath or anyone in their defence. During the course of trial, the accused Shahzado was expired and proceedings against him was abated vide order dated 20-10-2018.

5.                    It is contended by learned counsel for the appellants that they being innocent have been involved in this case falsely by the complainant in order to satisfy his dispute with them over landed property; there is nine hours delay in lodging of the FIR; 161 CrPC statements have been recorded with further delay of ten days; the identity of the appellant at night time was doubtful; the specific role of causing death of deceased even otherwise is attributed to co-accused Shahzado who now has died; the evidence which was produced by the prosecution was in consistent and doubtful, yet it has been believed by learned trial Court without lawful justification. By contending so, sought for acquittal of the appellants.

6.                    Learned Deputy Prosecution General for the State, who is assisted by the complainant in person by supporting the impugned judgment sought for dismissal of the instant appeal by contending that the appellants are veraciously liable for commission of incident.

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

 

 

8.                    Unnatural death of deceased Riaz Ali is proved of evidence of Medical Officer Dr. Riaz Hussain.  Now is to be examined the liability of the appellants to the present incident. It is stated by complainant Muhammad Luqman, PW Ehsan and Khair Muhammad that on 09-10-2013 they and the deceased were sleeping in their house, there at about 2200 hours they found coming the appellants and co-accused Shahzado in their house duly armed with weapons, out of them Shahzado caused fire shot injury to Riaz Ali, who after sustaining that fire shot injury died and then accused fled away and then they reported the incident to police. The incident as per FIR has been reported to police with delay of nine hours. No plausible explanation to such delay has been explained by the prosecution. In that situation the delay in lodgment of FIR could not be over looked. It admittedly was night time incident. The identity of culprits under the light of bulb is appearing to be a weak peace of evidence. If for the sake of arguments, it is believed that the complainant and his witnesses were able to identify the culprits properly even then the specific role of committing death of deceased by causing him fire shot injuries is attributed to co-accused Shahzado, who now has died.  The parties admittedly are disputed over landed property, in that situation the involvement of the appellants in this case on the basis of mere presence is appearing to be doubtful one.

9.                    In case of Faheem Ahmed Farooqui vs. The State (2008 SCMR 1572) it has been held by Honourable Apex Court that;

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

10.                  For what has been discussed above, the conviction and sentence recorded against the appellants 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.

11.                  Both the instant appeals are disposed of in above terms.

 

            Judge                        

ARBROHI