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