IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Criminal Appeal No. S – 67 of 2014

 

Appellants           :         Malhar alias Mehwal S/o Muhammad Essa

                                      Kalhoro,

Bahadur S/o Muhammad Essa Kalhoro, through Mr. Dareshani Ali Hyder ‘Ada’ Advocate

 

Complainant       :         Ali Khan, through Mr. Muhammad Raza Soomro,

                                      Advocate

 

Respondent     :            The State, through Syed Sardar Ali Shah, Deputy

                                      Prosecutor General

 

Date of hearing :           14.01.2019

Date of decision:           18.01.2019

 

JUDGMENT

IRSHAD ALI SHAH, J:-   The appellants by way of instant Criminal Appeal have impugned judgment dated 25.10.2014 passed by learned 1st Additional Sessions Judge Khairpur, whereby they have been convicted sentenced as under;

(i)      “I convict the accused Malhar alias Mehwal son of Muhammad Essa Kalhoro and sentence him to suffer R.I for 25 years for the offence under section 460 PPC and he has also to pay compensation/fine of Rs.50,000/- under section 544-A Cr.P.C to the legal heirs of deceased Yar Muhammad and in case of default in payment of compensation amount then accused will suffer S.I for six months more. The case against accused Bahadur son of Muhammad Essa has also proved that he had fired at the time of incident in air in order to create harassment though he was armed with KK but he had not played the role of effective  firing, therefore, I taking lenient view and convict accused Bahadur son of Muhammad Essa Kalhoro and sentence him to suffer R.I for 10 years for the offence 460/34 PPC and he has also to pay compensation/fine of Rs.50,000/- under section 544-A Cr.P.C to the legal heirs of deceased Yar Muhammad and in case of default in payment of compensation amount then accused will suffer S.I for six months more.”

2.                 The facts in brief necessary for disposal of instant criminal appeal are that the appellants allegedly with rest of the culprits being armed with deadly weapons committed lurking trespass by night into house of complainant Ali Khan with an intention to commit theft of his cattle and on resistance fired and killed his brother Yar Muhammad for that the present case was registered. On investigation, police reported the cancellation of FIR of the present case under ‘A’ class but learned trial Magistrate disposed of the same under ‘C’ class vide his order dated 16.03.2012 which reads as under:-

“Since there is no evidence against the accused persons as disclosed by the SIO, hence the case is disposed of in ‘C’ class (lack of evidence) instead of ‘A’ class.”

3.                 The order so passed by learned Magistrate was impugned by complainant Ali Khan before this Court by way of filing Criminal Miscellaneous Application No.S-166/2012. It was disposed of by this Court vide order dated 21.05.2012, the operative part whereof reads as under;

“I have seen the order which has been passed in a slipshod manner without discussing any material collected during the course of the investigation and the learned Judicial Magistrate has merely endorsed the view of investigating officer without adverting the material and even nothing has been observed as to why the matter is disposed of in ‘C’ class.”

4.                 On the basis of observation so made by this Court, learned trial Magistrate passed the fresh order took the cognizance of the case / offence by making the following observation;

“The complainant produced his witnesses and they fully corroborated the contention of the complainant and assigned and attributed the specific role to the accused persons and there is sufficient direct evidence is available as per spirit of article 71 of Qanun-e-Shahdat 1984. During this process Mr.Muhammad Tarique Maitlo seek some time with intimation that the compromise talks are in progress, but subsequently he argued his case. And I have also heard Mr. Sarmad Qurban Jiskani for accused persons and I am of the sound view that there is sufficient evidence available with the prosecution to connect all the accused persons in the offence as per FIR. With these findings, I take cognizance of this case under section 190(2) Cr.P.C.”

5.                 At trial, the appellants did not plead guilty to the charge and prosecution to prove its case, PW-1 complainant Ali Khan (Ex.07), he produced FIR of the present case, PW-2 Muhammad Panjal (Ex.08), PW-3 Medical Officer Dr. Inayat Ali (Ex.10), he produced postmortem report on the dead body of deceased Yar Muhammad, PW-4 Mashir Qurban Ali (Ex.13), he produced memo of place of incident, inquest report, memo of recovery of clothes of deceased, PW-5 PC-Abbas Ali (Ex.14), he produced letter of police for postmortem on the dead body of the deceased and receipt, whereby he delivered the dead body of the said deceased to his legal heirs, PW-6 Tapedar Wali Muhammad (Ex.15), he produced sketch of vardhat, PW-7 SIO/SIP Jamshed Ali (Ex.16), he produced roznamcha entries, letter to Chemical Examiner, report of Chemical Examiner and order of learned trial Magistrate directing him to submit challan of case and then prosecution closed the side.

6.                 On evaluation of evidence so produced by the prosecution, learned trial Court convicted and sentenced the appellants by way of impugned judgment.

7.                 It is contended by learned counsel for the appellants that there is delay of about 13 hours in lodgment of FIR which has not been explained by the complainant plausibly, the appellants on investigation were found to be innocent by the police, they were called upon to face trial without lawful justification by learned Magistrate, the evidence which is produced by the prosecution at trial being inconsistent have been relied upon by learned trial Court without lawful justification. By contending so, he sought for acquittal of the appellants. In support of his contentions, he relied upon cases of Mouj Ali vs. The State (2012 P Cr.L J 1538), (2) Abdul Razak and others vs. The State (2013 Y L R 788) and (3) Khalid alias Khalidi and 02 others vs. The State (2012 SCMR 327).

8.                 Learned DPG for the State and learned counsel for the complainant have sought for dismissal of the instant appeal by contending that the impugned judgment is well-reasoned.

9.                 Contrary to their counsel, complainant Ali Khan and PW Muhammad Panjal together with Mst. Izat Khatoon and Jan Muhammad, who happened to be father and mother of deceased Yar Muhammad by filing their respective affidavits have recorded no objection to the acquittal of the appellant by stating therein that in private faisla they have found to be innocent.

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

11.               It is stated by complainant Ali Khan and PW Muhammad Panjal during course of their examination before learned trial Court that on 26.02.2012 when they, PW Zameer Hussain and deceased Yar Muhammad were sleeping in their house, there at about 0030 hours they woke up on some voice and under the light of bulbs found available in their cattle shed six persons, out of them they were able to identify three culprits to be Malhar alias Mehwal, Bahadur and Mazhar armed with Kalashnikovs while rest of three culprits who were armed with Kalashnikovs and guns could not be identified by them. The said culprits according to them tried to commit theft of their cattle on that they raised ‘hakals’ on that appellant Malhar alias Mehwal fired point blank at deceased Yar Muhammad who by sustaining the fire shot injury at his nipple fell down on the ground and died. On that they raised cries and then all the culprits fled away. They took the dead body of deceased Yar Muhammad to Rural Health Center Pir-jo-Goth for postmortem and thereafter they reported the incident to police. The incident as per FIR of the present case was reported to police after 13 hours. As per roznamcha entry No.13 dated 27.02.2012 of police station Ahmedpur, which is produced before learned trial Court by SIO/SIP Jamshed Ali, the police came to know of the incident at about 0040 hours with no loss of time.

12.               In case of Mehmood Ahmed and others vs. The State and others (1995 SCMR 127), it has been held by Hon’ble Apex Court that;

“that delay of two hours in lodgment of FIR in the particular circumstances of the case has assumed great significance as the same could be attributed to consultation, taking instruction and calculatedly preparing the report keeping the names of accused open for roping in such person whom ultimately the prosecution might wish to implicate.”

13.               Nothing has been brought on record which may suggest that which circumstance prevented the police or the complainant Ali Khan from recording / lodging the FIR of the incident soon after incident even after information. In that situation the delay of 13 hours in lodgment of the FIR could not be lost sight of.

14.               As per complainant Ali Khan and PW Muhammad Panjal, they identified the appellants under the light of bulb. Neither there is disclosure of any bulb in mashirnama of place of incident nor same is secured by the police during course of investigation by the Investigating Officer without just explanation.

15.               In case of Muhammad Ashraf Javed vs. Muhammad Umar & ors (2017 SCMR 1999), it has been held by Hon’ble Apex Court that;

“Investigating Officer did not take into possession the bulb allegedly lit at the crime spot and no reason had been shown for such omission which was the only source of identification.”

16.               PW Zameer Hussain was given up by the prosecution for the reason that he was not going to support the case of prosecution. His non-examination being independent witness as such could not be lost sight of.

17.               There is no recovery of any sort from the appellants. No question is asked from the appellants by learned trial Court during course of their examination under section 342 Cr.P.C with regard to the empties and blood stained earth from place of incident, as such, they could hardly be connected with recovery of empties and blood stained earth from the place of incident.

18.               In case of Muhammad Ashfaq vs. The State (2014 P Cr.L J 1531), it has been held by Hon’ble Court that:-

“Section 342 Cr.P.C – Effect- If any incriminating piece of evidence was not put to accused in his statement recorded under section 342 Cr.P.C for his explanation, then same could not be used against him for his conviction.”

19.               It was stated by SIO/SIP Jamshed Ali during course of his examination before learned trial Court that the appellants as per his investigation were found to be innocent. The innocence of the appellants now is also confirmed by the complainant and his witness, together with father and mother of the deceased Yar Muhammad by filing their affidavits before this Court as stated above. In these circumstances, it would be hard to maintain the impugned judgment of conviction.

20.               In case of Faheem Ahmed Farooqi vs. The State (2008 SCMR 1572), It has been held by Hon’ble Apex Court that;

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

21.               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 present case.

22.               The instant appeal is disposed of in the above terms.

Judge

ARBROHI