IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Criminal Appeal No.S-74 of 2016

Appellants : Through Mr.Shabir Ali Bozdar, Advocate

State : Through Mr.Gulzar Ahmed Malano, A.P.G

Date of hearing : 20.08.2018

Date of decision : 20.08.2018

J U D G M E N T

IRSHAD ALI SHAH, J-. The appellants by way of instant appeal have impugned judgment dated 14.04.2016 passed by learned 1^st Additional Sessions Judge, Naushehro Feroz, whereby he has convicted and sentenced the appellants as under;

“they are convicted u/s.265-H(ii) Cr.PC for offence U/S.148 R/W Section 149 PPC and sentenced to suffer R.I for one year as Tazir. It has also been proved from evidence on record that on above date, time and place, accused abused the complainant party, hence they are convicted for offence u/s.504 R/W Section 149 PPC and sentenced to suffer R.I for one year, as Tazir. It is also proved from the evidence on record that aforesaid accused with their common intention committed straight firing upon complainant party with intention to commit Qatl-e-Amd, as they caused firearm injury on person of injured/PW Muhammad Yasin, hence they are further convicted and sentenced for offence u/s.324 r/w Section 149 PPC to suffer R.I for five years as Tazir and to pay Rs.10,000/- each as Arsh to the injured/PW Muhammad Yasin. In case of non-payment, accused shall be dealt with under the provisions of Section 337-X(2) PPC. The accused also caused firearm injury to injured/PW Yasin on his left thigh which was declared by competent Medical Officer as Jurh Ghayr Jaifah Mutalahimah, hence, they are further convicted and sentenced for offence u/s.337-F(iii) R/W Section 149 PPC to suffer R.I for 18 months as Tazir and to pay amount of Rs.5000/- each as Daman to injured/PW Muhammad Yasin. In case of failure, the accused shall be dealt with under the provision of 337-Y(2) PPC. It has also been proved from evidence on record that accused at the time of incident committed aerial firing on spot to endanger human life, hence they are also convicted and sentenced for offence u/s.337-H(ii) R/W Section 149 PPC to suffer S.I for one month more”.

2. The facts of the case are well disclosed in the FIR, which was lodged by complainant Muhammad Hanif with P.S Naushehro Feroz, which inter-alia reads as under;

“Complaint is that I have got land Survey No.128 in Deh Karap, wheat crop was planted therein. We were having dispute with Muhammad Hassan Jatoi and others. Today, me, my labourer Muhammad Yasin Korai, Shamsuddin Jatoi and Ali Asghar Kalhoro when were harvesting the wheat crop. There at about 1200 hours, came accused Muhammad Hussain with repeater, Manzoor with Kalashnikov, Shamsuddin with gun and four unknown culprits with guns. Muhammad Hassan by abusing us said that we would not be spared today. Then all of the accused fired at us. Muhammad Yasin by raising cries fell down on the ground. We beseeched the said accused and they then went away by making aerial firing to create harassment. Muhammad Yasin was found sustaining fire shot injury on his left leg, he then was taken to P.S and now I am lodging the report of the above incident. The investigation to be conducted”.

3. After due investigation, the appellants were challaned by the police before the Court of law to face trial for the above said offence. They did not plead guilty and the prosecution to prove the charge against the appellants, examined PW-01 injured Muhammad Yasin, PW-02 Muhammad Hanif, produced through him FIR of the present case, PW-03 Shamsuddin, PW-04 Medical Officer Dr.Riaz Ali, produced through medical certificate in respect of injuries sustained by the injured, PW-05 ASI Ghulam Qasim, PW-06 Mashir Manthar Ali, produced through him memo of place of incident, PW-07 SIO/ASI Manzoor Ali and the closed the side.

4. The appellants during course of their examination u/s.342 Cr.PC denied the prosecution’s allegation by pleading innocence by stating that they have been involved in this case by the complainant in order to usurp their property. They produced photo stat copy of registered sale deed and Village Form-VII-B. They did not examine anyone in their defense or themselves on oath in disproof of the prosecution allegation.

5. On evaluation of evidence so produced by the prosecution, the learned trial Court convicted and sentenced the appellants as detailed above by way of judgment, which the appellants have impugned before this Court by way of instant appeal, as stated above.

6. It is contended by learned counsel of the appellants that the appellants being innocent have been involved in this case falsely by the complainant on account of his dispute with them over landed property, no injury to the injured was attributed to any of the appellants specifically, there is delay of about six hours in lodging of the FIR and the injured now by filing his affidavit has raised no objection to acquittal of the appellants. By contending so, he sought for acquittal of the appellants.

7. Learned A.P.G did not support the impugned judgment and conceded for acquittal of the appellants.

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

9. The incident as per FIR has taken place at about 1200 hours. It was reported by the complainant to the police at about 1930 hours, with delay of about 06 ½ hours, such delay in reporting the incident to police without any plausible explanation could not be lost sight of. Indeed, it is reflecting consultation. The injury sustained by the injured as per medical certificate was examined by medical officer Dr.Riaz Ali at about 2030 hours. Its duration was about 13 ½ hours. If it was so, then the injury obviously was sustained by the injured at least six hours back to the time of incident which is disclosed by the complainant his FIR, such a controversy has not been explained by the prosecution, which smells of foul play. There is no recovery of empty from the place of incident, which belies the allegation of causing fire shot injury to the injured and making of aerial firing allegedly by the appellants and others at the place of incident, which makes to believe that the alleged incident has taken place in a manner other than the one as is alleged to be by the complainant and his witnesses. As per the complainant, he was having dispute with the appellants. If it is believed to be so, then the appellants, if any, were having a motive against the complainant and not against PW Muhammad Yasin, who allegedly came at the place of incident as a labourer to harvest the wheat crop. The injury was not on vital part of the body of injured. It was not attributed to any of the appellants specifically. In these circumstances, the involvement of the appellants in this case is appearing to be doubtful. Be that as it may, the injured now has raised no objection to acquittal of the appellants by filing his affidavit which could not be lost sight of and learned A.P.G has also not supported the impugned judgment, which could not be sustained, it is set aside.

10. In case of Faheem Ahmed Farooq vs.The State (2008 SCMR-1572), it is held that;

“single infirmity creating reasonable doubt regarding truth of the charge makes the whole case doubtful.

11. Consequent upon above discussion, the appellants are acquitted of the offence for which they were charged, tried and convicted by learned trial Court. They are present in Court on bail, their bail bonds are cancelled and the sureties are discharged.

12. Above are the reasons of short order dated 20.08.2018, whereby the instant appeal was accepted and the appellants were acquitted of the charged offence.

JUDGE