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

ARBROHI