HIGH COURT OF SINDH AT KARACHI
Criminal Appeal No.155 of 2017
Appellants : Tajan son of Muhammad Siddiqui Mallah, Ramzan son of Usman @ Essa Parheri and Muhammad Sharif son of Haji Muhammad Soomro.
Through Mr. Faisal Ahmed A. Memon, Advocate.
Respondent : The State through Ms. Seema Zaidi, D.P.G.
Date of hearings : 07.05.2019
Date of Judgment : 07.05.2019
J U D G M E N T
Abdul Maalik Gaddi, J.– Through this appeal, the appellants have assailed the legality and propriety of the judgment dated 14.03.2017 passed by the learned IInd Additional Sessions Judge, Thatta in Sessions Case No.355/2013 (Re: The State v. Allah Dino and others), in Crime No.54/2013 registered under Section 324, 353, 399, 337-A(i), 337-F(iii) PPC at police station Jati, whereby the learned trial Court after full dressed trial, convicted and sentenced the appellants as stated in point No.2 of the judgment. For the sake of convenience, it would be proper to reproduce the relevant portion of impugned judgment, which reads as under:-
“Point No.2.
For the above reasons, I have come to the conclusion that the evidence of prosecution witness is trustworthy and reliable and prosecution successfully made out the case against the accused persons hence they are convicted under section 265-H(ii) Cr.PC and sentenced under section 324 PPC to suffer R.I for two years and fine of Rs. 10,000/- each and in failure of payment they further undergo S.I for three months more. All accused are also convicted under section 353 PPC R.I for one year, under Section 399 PPC R.I for two years with fine of Rs.10,000/- each and in failure of payment they further undergo S.I for three months more and under Section 337-F(iii) PPC R.I for one year and daman of Rs. 50,000/- and under Section 337-A(i) R.I for one year and Daman of Rs.20,000/-. All sentences shall run concurrently. However, benefit of section 382-B Cr.PC is also extended to the accused persons. They are present on bail. Their bail bond stand cancelled and surety discharged, They are taken into custody and remanded to the concerned Jail Authority to serve out the sentences awarded to them“
2. It appears from the record that accused Allah Dino was convicted and sentenced by the trial Court in terms as stated in para-2 of the Judgment but he did not file any appeal. However, on completion of his conviction and sentence, he has been released by Jail Authorities. Whereas, one of the accused Ali Khan filed Appeal No. 265/2017 but his appeal was dismissed as not pressed and he has also been released by the Jail Authorities after completion of his sentence.
3. The brief facts of the prosecution case are that complainant Subedar Fida Hussain lodged FIR at police station Jati on 23.09.2013 at 1230 hours alleging therein that he is Subedar in Pakistan Army (M.I). Hawaldar namely Mumtaz Hussain alias Ahmed Arain was also in his duty in the same department with him. They often discharge their duty in the area of Chuhar Jamali and Jati. ON 14.09.2013 he and Hawaldar Mumtaz Hussain rode government 125 motorcycle of red colour and left M.I office Makli and came at Chuhar Jamali for secret duty and when they were going towards Jati town, when reached at road Mori near Duho lake at Deh Duho Taluka Jati they saw two motorcycle standing on road. Two persons were standing at the left side of road and three persons were standing at the right side of the road and the road was under construction, they slowed their motorcycle, in the meanwhile at 1300 hours all persons aimed their T.T pistols at them, shouted and compelled them to stop. Hawaldar Mumtaz Hussain alias Ahmed Arain was riding the motorcycle applied the brakes and all the five persons dominated them. They identified them as Ramzan, Tajan, Allah Dino, Ali Khan and Shareef tried to rob motorcycle from them. When they resisted at which accused Ramzan Parhari made straight fire from his pistol at Hawaldar Mumtaz Hussain with intention to kill him which hit him on his right thigh and Mumtaz Hussain robbed the pistol from accused person. After that accused Tajan Bachani made straight fire with his pistol at Mumtaz Hussain which hit him on his left calf and Allah Dino made straight fire to Mumtaz which hit him on his right arm between the wrist and elbow. Accused Ali Khan and Shareef made fires but the same were missed but hit to front tire of their motorcycle. Mumtaz Hussain fell down and taken to hospital for treatment, hence this case.
4. It also appears from the record that after registration of FIR, the investigation was carried out and accused persons were challaned.
5. The charge was framed against the appellants/accused by the learned trial Court, to which appellants/accused pleaded not guilty and claimed to be tried.
6. At trial, in order to establish accusation against appellants/accused, prosecution had examined PW-1 Complainant Fida Hussain at Ex.6, who produced FIR at Ex.6/A, PW-2 Mumtaz Hussain at Ex.7, PW-3 Dr. Wazir Ali at Ex.10, who produced letter of P.S Jati for treatment and certificate of injured Mumtaz at Ex.10/A, provisional medico legal certificate at Ex.10/B, three prescription slips at Ex.10/C to Ex.10/E, letter issued to Commandant CMH Hyderabad for opinion at Ex.10/F, covering letter alongwith photocopies of investigation of specialist report (21 papers) at Ex.10/G and final medico legal certificate at Ex.10/H, PW-4 SIP Zahid Hussain at Ex.14, who produced entry No.7 at Ex.14/A, memo of injuries at Ex.14/B, entry No.10 at Ex.14/C, entry No.12 at Ex.14/D, memo of place of incident at Ex.14/E, memo of motorcycle at Ex.14/F, entry No.7 at Ex.14/G, memo of arrest at Ex.14/H, entry No.5 at Ex.14/I and memo of arrest at Ex.14/J, PW-5 Muhammad Hassan at Ex.16. These witnesses were cross-examined by the counsel for accused.
7. Statement of appellants/accused were recorded under Section 342, Cr.P.C, in which they have denied the allegations as leveled by the prosecution by stating that they are innocent and falsely been involved in this case. The present appellants neither examined themselves on Oath nor led any evidence in their defence.
8. Learned counsel for the appellants has argued that the case against the present appellants is false and has been registered due to enmity; that FIR is delayed by eight days for which no satisfactory explanation has been furnished. As such according to him false implication of the present appellants in this case with due deliberation could not be ruled out; that the learned trial Court has committed gross material illegality in passing impugned judgment to the effect that complainant Fida Hussain and injured Mumtaz Hussain produced before the trial Court when the appellants No.1 & 2 in this appeal were absconders and after arresting the appellants No. 1 & 2 charge was amended by the trial Court and issued notices to the complainant and injured for cross-examination but they did not produce before the trial Court and the appellants No. 1 & 2 did not cross-examine the complainant and injured; that the trial Court has also committed material illegality in passing the impugned judgment that PW SI Zahid Hussain, author of the FIR in his examination-in-chief stated that “on 13.09.2013 I was present at PS Jati where complainant Subedar Fida Hussain appeared at 1230 hours and narrated facts of cognizable offence and I have written FIR on his verbatim”, while the date of incident is 14.09.2013, it clearly shows that prior to alleged incident complainant met with police inclusion and lodged this false FIR; that trial Court has failed to appreciate the major contradictions of the statement of all the witnesses and the prosecution has failed to prove its case against the appellants but the trial Court convicted the appellants without any valid reason, hence he prayed that this appeal may be allowed and the appellants may be acquitted from the charge.
9. On the other hand, learned D.P.G has supported the impugned judgment by arguing that the impugned judgment is perfect on law and facts and there is not contradiction in between the statement of the prosecution witnesses. According to her, the present appellants have played their active role in the commission of the offence, therefore they are not entitled for any relief.
10. I have carefully heard the learned counsel for the parties and scanned the entire evidence and documents available on record.
11. After hearing the parties’ advocates, I have come to the conclusion that prosecution has proved its case against appellant Ramzan son of Usman @ Essa Parheri for the reasons that the name of Ramzan is appearing in FIR with specific allegation that at the time of incident he was available at the place of incident alongwith co-accused duly armed with pistol who by the dint of pistol tried to rob the motorcycle and personal belongings to the complainant and injured Mumtaz Hussain. It appears from the record that this appellant has made direct fire from his pistol which was hit to PW Mumtaz Hussain on his right thigh. Injured PW Mumtaz Hussain in his evidence in clear terms implicated the Ramzan one of the culprit who caused fire arm injury to him. The version of the complainant has also been found supported from the medical evidence. No inimical terms of the appellant with complainant party exist. It is not the case of self-suffered injury. The other prosecution witnesses including Doctor who provided medical treatment to injured Mumtaz Hussain and complainant, have also supported the prosecution case. Medical certificate is on record showing that PW injured Mumtaz Hussain received fire arm injuries at his right thigh, prima facie shows the involvement of this appellant in the commission of the offence. It is argued by the learned counsel for the appellant that appellant Ramzan is innocent and involved due to enmity but in this connection neither the appellant Ramzan has examined himself on oath nor led any evidence in his defense. Even otherwise, nobody can let off his real culprits. As per police papers and evidence on record, serious allegations have also been leveled against appellant Ramzan. During the course of arguments, I have specifically asked the question from learned counsel for the appellants to point out any illegality in the impugned judgment as far as the case of appellant Ramzan is concerned, he has no satisfactory answer with him; however, he submits that the FIR is delayed by eight days, therefore, false implication of this appellant in this case could not be ruled out. Reverting to the contentions as raised by the learned counsel for the appellants, it is suffice to say that this is no ground particularly in a scenario that in this matter PW Mumtaz Hussain received fire arm injury at the hands of this appellant and FIR has been lodged after obtaining Medico legal certificate and thereafter FIR was lodged, therefore, delay, if any, in lodging of FIR has been satisfactorily explained. Since there is direct evidence against appellant Ramzan, therefore, in view what I have observed above, the appeal filed by appellant Ramzan is dismissed. However taking lenient view, the conviction and sentences awarded to appellant Ramzan is reduced under section 324 PPC from two years to one and half year and under section 399 PPC from two years to one and half year with same fine as awarded by the trial Court; however, amount of daman in both offences is reduced from total Rs.70,000/- to 35,000/-. He is taken into custody and remanded back to Jail to serve out the aforementioned sentences. In case of non-payment of fine, appellant Ramzan shall undergo S.I for one month more in each offence, whereas, conviction to appellant Ramzan under section 353, 337-F(iii) & 337-A(i) are maintained. All the sentences shall run concurrently. However, benefit of section 382-B Cr.PC is extended to appellant Ramzan.
12. As far as the case of appellants Muhammad Shareef and Tajan is concerned, though they are named in FIR and armed with pistols but nobody has received injury from their weapons. The evidence so brought on record against these appellants are contradictory to the effect that in FIR it is mentioned that accused Muhammad Shareef fired at Mumtaz but it was hit to tyre of the motorcycle. No mark of bullet was shown to the tyre of the said motorcycle. Nothing was recovered from this appellant. This appellant has also no past criminal history against him. As far as the case of appellant Tajan is concerned, it is alleged in FIR that he caused fire arm injury to Mumtaz to his left thigh but in evidence complainant Fida Hussain says that though Tajan fired but he does not know whether it was hit to Mumtaz or not; whereas, Mumtaz says that Tajan fired but it was missed. Nothing was recovered from appellant Tajan. No past criminal history against Tajan is placed on record. Under these circumstances and in view of contradictory evidence against appellants Tajan and Muhammad Shareef, I come to this conclusion that prosecution has failed to prove its case against the appellants Tajan and Muhammad Shareef, I therefore, giving them benefit of doubt. Allowed the appeal filed by Tajan and Muhammad Shareef, who are present on bail and set-aside the Judgment against them. They are acquitted from the charge, their bail bonds stand cancelled and sureties are discharged.
13. This appeal was heard in open Court today, whereby, the appeal filed by appellant Ramzan was dismissed and appeal filed by appellants Tajan and Muhammad Shareef was allowed by short order and these are the detailed reasons thereof.
JUDGE