IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Crl. Jail Appeal No.D- 85 of 2016.

 

                                   

Appellant                  :           Nazeer @ Loti son of Akan Birhamani.

Through Mr. Wazeer Ahmed Ghoto advocate.

 

Respondent             :           The State, through Mr. Abdul Rehman Kolachi,

                                                Deputy Prosecutor General

 

Date of hearing       :           30-05-2019

Date of decision      :           30-05-2019

 

 

JUDGMENT

 

IRSHAD ALI SHAH, J; The appellant by way of instant Criminal Appeal has impugned judgment dated 30-04-2016 passed by learned Anti-Terrorism Court Naushehro Feroze, whereby the appellant has been convicted and sentenced as under;

“I, therefore convict him for offence punishable u/s 324 PPC r/w Section 7 (1)(h) of Anti-Terrorism Act 1997 and sentence him to suffer R.I for five years. He is further convicted for the offence punishable u/s 337F(iii) PPC to suffer R.I for three years and to pay Rs. 30,000/- as daman to the victim. In case of failure in payment, accused shall suffer S.I for three months more. He is also convicted for offence punishable u/s 353 PPC and sentenced to suffer R.I for two years.” 

2.                The facts in brief necessary for disposal of instant appeal are that the appellant and others allegedly signaled the police party of PS Fareed Dero led by PC Pervez Ali Mashori with intention to rob them, they were asked by the police party to surrender, on that they fired at the members of the police party with intention to commit their murder, the appellant and others were also fired at by the police party in self defence. Consequent upon such firing PC Shahanwaz sustained fire shot injuries for that the present case was registered and on due investigation, the appellant was reported upon to face trial for the above said offence.

3.                At trial, the appellant did not plead guilty to the charge and the prosecution to prove it examined PW/1 Dr. Riaz Ali Lakho at (Ex. 11), he produced police letter and medical certificate, PW/2 Complainant Pervez Ali at (Ex. 12), he produced copy of FIR, PW/3 PC Shahnawaz at (Ex. 13), PW/4 Ali Akbar at (Ex. 14), he produced memo of inspection of injuries, memo of inspection of place of incident, PW/5 I.O Inspector Hamid Ali Jumani at (Ex. 16) and PW/6 SIP Ghulam Ali Shar at (Ex. 17), thereafter learned DDPP for the State closed the side of prosecution vide statement at Ex. 30.

4.                The appellant in his statement recorded u/s 342 Cr.P.C denied the prosecutions’ allegation by pleading innocence, however neither the appellant examined himself on oath nor anyone in his defence.

6.                    It is contended by learned counsel for the appellant that the appellant being innocent has been involved in this case falsely by the police, the identity of the appellant at night time under the light of vehicle/torch is weak piece of evidence; that the FIR of the incident has been lodged with the delay of about four days without any lawful justification; no empties secured from the place of incident, no injury to the injured is attributed to the appellant specifically and evidence of the prosecution being doubtful in character has been believed by learned trial Court without lawful justification. By contending so, he sought for acquittal of the appellant.

7.                Learned DPG for the State by supporting the impugned judgment has sought for dismissal of the appeal.

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

9.                Admittedly the FIR of the incident has been lodged with delay of about four days, such delay has not been explained plausibly, same as such could not be over looked. The identity of the appellant as per FIR was based under the light of vehicles, which is appearing to be a weak piece of evidence. No injury to the injured is attributed to the appellant either by the complainant or by any of the witnesses specifically. As per mashirnama of place of incident no empty was secured from the place of incident. Non recovery of empty from the place of incident has made the allegation of police encounter at the place of incident to be doubtful one. No independent person was examined or associated in investigation by the police. In these circumstances, it could be concluded safely that the prosecution has not been able to prove its case against the applicant beyond shadow of doubt.

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.              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.”

12.              In view of the facts and reasons discussed above, the impugned judgment is set-aside, consequently, the appellant is acquitted of the offence for which he was charged, tried and convicted by learned trial Court, he is in custody and shall be released forthwith in the present case.

13.              The instant appeal is disposed of in above terms. 

Judge

                                                          Judge                  

 

Nasim/P.A