IN THE HIGH COURT OF SINDH, BENCH AT
SUKKUR
Criminal Appeal No. D- 211 of 2016
Criminal Jail Appeal No.D- 246 of 2016
Before:-
Mr.Justice Muhammad Iqbal Mahar
Mr.Justice Irshad Ali Shah
Appellants: Gulzar and Sagar, in person
The State : Through Mr. Aftab
Ahmed Shar,
Additional
Prosecutor General
Date of hearing
: 11.04.2019
Date of decision
: 11.04.2019
JUDGMENT
Irshad Ali Shah, J; It is the
case of the prosecution that an FIR Crime No.28/2016 under Section 384,
337-H(2) PPC r/w Section 6/7 of Anti-Terrorism Act, 1997 was lodged by Dileep Kumar with Police Station Radhan.
On investigation of such FIR, the police party led by ASI Khuda
Bux went to arrest the appellants, who were said to
be nominated accused of the above said FIR, they resisted their arrest by
preventing the said police party from discharging their lawful duty as public
servants by causing them hatchet and lathi blows, for
that they were booked separately in present case and then were
reported upon by the police to face trial accordingly.
2. At
trial, the appellants did not plead guilty to the charge and the prosecution to
prove it; examined complainant ASI Khuda
Bux and his witnesses and then closed the side.
3. The
appellants during course of their examination u/s 342 Cr.PC,
denied the prosecution allegation by pleading innocence, they however did not
examine themselves on oath in disproof of the prosecution’s allegation or anyone
in their defense.
4. On
evaluation of evidence so produced by the prosecution, the learned trial Court vide
its judgment dated 29.10.2016 acquitted co-accused Saban
alias Muhammad Ibrahim while convicted and sentenced the appellants as under;
“I, therefore
convict accused Sagar, Gulzar,
Ali Sher and Gul Zaman for offence punishable u/s 324, 149 PPC r/w Section
7(1(h) of Anti-Terrorism Act, 1997 and sentence them to suffer R.I for five
years. They are also convicted for offence punishable u/s 353 PPC and sentenced
to suffer R.I for two years. I also convict accused Sagar
for offence punishable u/s 337-A(i),
337-L(2) PPC and sentence to suffer R.I for two years. I also convict accused Gulzar Ali for the offence punishable u/s 337-F(v) PPC and sentence to suffer R.I for five years. All the
sentences awarded to accused shall run concurrently with benefit of Section
382-B Cr.P.C.”
5. The
appellants by preferring two separate appeals have impugned the aforesaid
judgment before this Court; those now are being disposed of through single
judgment.
6. It
is contended by the appellants in person that they have been convicted and
sentenced by learned trial Court on the basis of improper assessment of
evidence, and co-accused Saban alias Muhammad Ibrahim
has already been acquitted by learned trial Court. By contending so, they sought
for their acquittal.
7. Learned
Additional PG for the State by supporting the impugned judgment has sought for
dismissal of the instant appeals.
8. We
have considered the above arguments and perused the record.
9. It is
stated by complainant ASI Khuda Bux,
PWs PC Nizakat Ali and PC Zulfiqar
Ali that on 19.04.2016 when they with rest of the police personnel were out for
investigation of FIR Crime No.27/2016 of Police Station Radhan,
they came to know through spy information that the accused wanted in said FIR
are available at Railway quarters. On such information, they proceeded to the
pointed place. If for the sake of arguments, it is believed that the
complainant and his witnesses proceeded to the pointed place on information
then they were under lawful obligation to have associated with them independent
person to have witnessed the possible arrest. It was not done by them for no obvious reason, which has made their proceeding to the
pointed place on information to be doubtful.
At pointed place, according to them they found available the appellants
having hatchet and lathies. Out of them, accused Sagar as per complainant caused him hatchet blow while
accused Gulzar caused lathi
blow to PW Nizakat and then all the accused caused lathi blows to them. As per Medical Officer Dr. Niaz Ali, the injuries sustained by the complainant were
found to be falling under section 337-A(i) and 337-L(ii) PPC, those are bailable
in nature. While injuries sustained by PWs Nizakat
Ali were found to be falling under section 337-F(v)
PPC. Such injuries could hardly be said to have been caused to the complainant
and PW Nizakat Ali allegedly by the appellants to
commit their murder. In that situation, the applicability of Section 324 PPC is
appearing to be somewhat doubtful. Dileep Kumar who
allegedly lodged FIR against the appellants for extortion of money from him
during course of his examination together with his witnesses Kelash Kumar and Haresh Kumar was
fair enough to say that the appellants are not same. If the appellants were not
same then the complainant and his witnesses were having no reason to have gone
over to them to make their arrest in the case which was allegedly lodged
against them by Dileep Kumar for extortion of money
from him. In these circumstances, the involvement of the appellants in this
case is appearing to be doubtful one and they are entitled to such benefit.
10. 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.”
11. Significantly on the basis of same
evidence co-accused Saban alias Muhammad Ibrahim has
been acquitted by learned trial Court. The acquittal of the one accused and
conviction of other accused on the basis of same evidence could hardly be
approved.
12. In case of Sardar Bibi and others
vs. Munir Ahmed and others (2017 SCMR-344), it
was held by the Hon’ble Court that;
“When
the eye-witnesses produced by the prosecution were disbelieved to the extent of
one accused person attributed effective role, then the
said eye-witnesses could not be relied upon for the purpose of convicting
another accused person attributed a similar role without availability of
independent corroboration to the extent of such other accused”.
13. For
what has been discussed above, the impugned judgment could not be sustained, it
is set aside; consequently appellants are acquitted of the offence for which
they were charged, tried and convicted by learned trial Court, they are present
in Court on bail, their bail bonds are cancelled and sureties are discharged.
14. The
instant criminal appeals are disposed of in above terms.
Judge
Judge
ARBROHI