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