IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Crl. Jail Appeal No.D- 88 of 2018.

 

Before:-

                                                                                Mr. Justice Muhammad Iqbal Mahar

                                                Mr. Justice Irshad Ali Shah.

 

Appellants:               1. Imam Dino son of Ghulam Nabi.

2. Bhai Khan @ Dildar son of Jaral.

3. Panjal son of Datar Dino.

4. Papan @ Papu son of Panjal.

5. Hussain Bux # Hussain Dino son of Imam Bux

6. Nazeer @ Katoo son of Nawaz Ali.

     All bycaste Phulpoto.

Through Mr. Syed Jaffer Ali Shah advocate.

 

Respondent:            The State, through Mr. Zulfiquar Ali Jaoti,

                                    Additional Prosecutor General.

 

Date of hearing:     22-05-2019

Date of decision:    22-05-2019

 

JUDGMENT

 

IRSHAD ALI SHAH, J; The appellants by way of instant Crl. Jail Appeal have impugned judgment dated 31-07-2018 passed by learned Anti-Terrorism Court Khairpur whereby they have been convicted and sentenced as under;

“Therefore, convict all the present accused Imam Dino, Pappan, @ Papu, Bhai Khan @ Dildar, Nazeer # Ktoo, Panjal and Hussain Bux @ Hussain Dino for the offence punishable under section 148-PPC and sentence them to suffer R.I for three years each and to pay the fine of Rs. 20,000/- (Rupees Twenty Thousand) each and in case of default in payment of fine they all suffer further R.I for three months each. I also convict all the above named present accused for the offence punishable under section 386 r/w section 149-PPC and sentence them to suffer R.O for ten years each and to pay the fine of Rs. 30,000/- (Rupees Thirty Thousand) each and in case of default in payment of fine they shall suffer further R.I for four months each. I also convict all the above named present accused for the offence punishable under section 387 r/w Section 149-PPC and sentence them to suffer R.I for seven years each and to pay the fine of Rs. 25,000/- (Rupees Twenty thousand) each and in case of default in payment of fine they shall suffer further R.I for three months each. I also convict all the above named present accused for the offence punishable under section 427 r/w section 149-PPC and sentence them to suffer R.I for two years each and to pay the fine of Rs. 10,000/- (Rupees Ten Thousand) each and in case of default in payment of fine they shall suffer further R.I for two months each. I also convict all the above named present accused for the offence punishable under section 429 r/w section 149 PPC and sentence them to suffer R.I for five years each and to pay the fine of Rs. 20,000/- (Rupees Twenty thousand) each and in case of default in payment of fine they shall suffer further R.I for three months each. I also convict all the above said present accused for the offence punishable under section 337/H2 r/w section 149-PPC and sentence them to suffer R.I for three months each and to pay the fine of Rs.1,000 (One Thousand) each and in case of default in payment of fine they shall suffer further R.I for 15 days.

                        I also convict the said accused namely Imam Dino, Pappan @ Papu, Bhai Khan, Nazeer @ Katoo, Panjal and Hussain Bux @ Hussain Dino for the offence punishable under section 7 ATA, 1997 and sentence them to suffer R.I for ten years each and to pay the fine of Rs.30,000/- (Rupees Thirty thousand) each and in case of default payment of fine they shall suffer further R.I for four months each.”

 

2.                    Briefly the facts of the case are that the appellants and others allegedly were found demanding ransom from complainant Yar Muhammad and on account of his failure to pay them, they attacked upon the complainant and his witnesses with intention to commit their murder and then went away by committing mischief by causing damage to watch tower and injuries to cattle for that they were booked and reported upon.

3.                    At trial the appellants did not plead guilty to the charge and prosecution to prove it examined PW/1 complainant Yar Muhammad Phulpoto at (Ex. 11), he produced the Fir No. 103/2015 and his further statement u/s 162 Cr.P.C, PW/2 Imran Phulpoto at (Ex.12), PW/3 Imdad Ali Phulpoto at (Ex. 13), he produced the memo of inspection of injuries of buffalos, memo of inspection of pace of incident and memo of arrest of accused Imam Dino and 03 others, PW/4 SIP Zahid Pervez Wirk at (Ex. 14), PW/5 SIO/Inspector Muhammad Ameen Pathan at (Ex. 15), he produced the roznamcha entry, one letter duly addressed to veterinary doctor for treatment of injured buffalos, one letter duly addressed to SSP Khairpur for checking the explosive material, Technical report issued by I/C B.D Squad & Explosive Examiner, Special Brach, Sukkur Region and Ballistic Expert Report. Thereafter learned APG for State closed the side vide statement at (Ex.17).

4.                    The appellants in their statements recorded u/s 342 Cr.P.C denied the prosecution allegation by pleading innocence by stating that they have been involved in this case falsely by the complainant party on account of previous enmity, matrimonial and land dispute, they did not examine any one in their defence or themselves on oath.

5.                    On conclusion of the trial, learned trial Court convicted and sentenced the appellants as stated above.

6.                    It is contended by learned counsel for the appellants that the appellants being innocent have been involved in this case falsely by the complainant party in order to satisfy their previous enmity with them; the FIR of the incident has been lodged with the delay of one day; none from either side sustained fire shot injury; no medical certificate with regard to the injuries sustained by the cattle has been brought on record; PW Imdad Ali on account of his failure to support the case of prosecution has been declared hostile by the prosecution and complainant and his witnesses have been believed by learned trial Court without lawful justification. By contending so, they sought for acquittal of the appellants.

7.                    Learned APG for the State has sought for dismissal of instant appeal by contending that the prosecution has been able to prove its case against the appellants beyond shadow of doubt.

8.                    We have considered the above arguments and perused the record.

9.                    It is inter-alia stated by the complainant that the appellants and others were allegedly found demanding ransom from him, which he failed to pay them. No specific date for making such demand is disclosed by the complainant, which appears to be surprising. It was further stated by the complainant that on the date of incident, when he and PWs Imran and Usman were on “Chowkidari” of their house, they were fired at the appellants and others with intention to commit their murder, as they failed to pay them ransom. The appellants and others as per complainant were also fired in self defence and such firing continued for about 25/30 minutes. No fire shot hit to any person, which appears to be significant. In the meanwhile as per the complainant there came the police party and then appellants and others fled away. Their foot prints were chased. If the appellants and others were identified by the complainant then there was hardly a need with him to have chased the foot prints marks of the appellants and others. The FIR of the incident as per the complainant, he lodged on the next date of incident. Why it was lodged on the next date of incident, when the police party came at the place of incident soon after occurrence? No plausible explanation to such delay is offered by the prosecution.

10.              In case of Mehmood Ahmed & others vs. the State & another (1995 SCMR-127), it was observed by the Hon’ble Court that;

“Delay of two hours in lodging the FIR
in the particular circumstances of the case had assumed great significance as the same could be attributed to consultation, taking instructions and
calculatedly preparing the report keeping the names of the accused open for roping in such persons whom ultimately the prosecution might wish to implicate”.

 

11.                  Names of appellants Panjal and Pappan @ Papu were disclosed by the complainant by way of further statement. Further statement could hardly be treated as part of FIR. On further investigation, which was conducted by Inspector Ghulam Ali Jumani as per SIO/Inspector Muhammad appellant Bhai Khan @ Dildar and co-accused Abdul Majeed were found to be innocent. The complainant was fair enough to admit his enmity and relationship with good number of accused. PW Imran who happened to be nephew of the complainant denied the existence of enmity of the complainant party with accused, such statement, contrary to what was admitted to be by the complainant has put PW Imran within ambit of interested witness. PW Usman has not been examined by the prosecution without lawful justification. Inference which could be drawn of his non-examination would be that he was not going to support the case of prosecution. PW/mashir Imdad Ali on account of his failure to support the case of prosecution has been declared hostile to the prosecution by learned DDPP. PW SIP Zahid Pervez was fair enough to admit that the FIR book is not available at PS Economic Zone. If it is so, then how the FIR of the incident was recorded by him at police station Economic Zone on prescribed form on appearance of the complainant. SIO/Inspector Muhammad Ameen was fair enough to state that interim challan submitted before the Court was treated to be final. If it was so, then the appellants have been subjected to trial on the basis of incomplete investigation. No cattle which allegedly sustained injuries during course of incident has been subjected to medical examination by police, such omission could not be over looked. In these circumstances, it would be safe to conclude that the prosecution has not been able to prove its case against the appellants beyond shadow of doubt. 

12.                  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.”

13.                  In view of the facts and reasons discussed above, the impugned judgment is set-aside, consequently, the appellants are acquitted of the offence for which they have been charged, tried and convicted by learned trial Court, they are is in custody and shall be released forthwith in the present case.

14.                  The instant Crl. Jail Appeal is disposed of in above terms. 

 

Judge

                                                Judge

 

Nasim/P.A