IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Criminal Appeal No.S-76 of 2018
Appellants : 1). Farhan Ali s/o Khadim Hussain Khuhawar
2). Abdul Nabi @ Cotton s/o Shafi
Muhammad @ Shaffan Mugheri,
3). Wazir Ali @ Nang s/o Noor Muhammad
Khuhawar
4). Muhammad Umar @ Tajal Faqir s/o
Noor Muhammad Khuhawar
Through Mrs.Akhtiar Begum, Advocate
State : Through Mr.Raja Imtiaz Ali Solangi, A.P.G
Date of hearing : 17.10.2018
Date of decision : 17.10.2018
J U D G M E N T
IRSHAD ALI SHAH, J-. The appellants by way of instant appeal has impugned judgment dated 28.08.2018, passed by learned 4th Additional Sessions Judge, Larkana, whereby they were convicted and sentenced as under;
“Under Section 324/148 PPC to suffer R.I for one year and to pay fine of Rs.10,000/-, under section 353/149 PPC to suffer R.I for six months and to pay fine of Rs.10,000/-. In case of default in payment of fine accused shall suffer S.I for two months more”.
2. The facts in brief necessary for disposal of instant appeal are that the appellant with rest of the culprits after having formed an unlawful assembly and in prosecution of their common object, duly armed with deadly weapons, deterred the police party of P.S Taluka, consisting of ASI Zulfiqar and others, from discharging their lawful duty as public servant by making fires at them with intention to commit their murder and then made their escape good leaving behind one amongst them namely Farhan, who was apprehended by the police at the spot and from him was secured one sack containing 05 K.Gs of Hemp, for that they were booked and challaned in the present case.
3. At trial, the appellants did not plead guilty and prosecution to prove the charge against them, examined PW-01 complainant ASI Zulfiqar Ali at Exh.10, produced through him roznamcha entries, memo of arrest and recovery from appellant Farhan, memo of arrest of appellant Abdul Nabi alias Cotton and FIR of the present case, PW-02 PC Oshaq Ali at Exh.11, produced through him memo of arrest of appellant Wazir Ali and then prosecution closed its side vide statement at Exh.12.
4. The appellants in their statements recorded under section 342 Cr.PC denied the prosecution’s allegation by pleading innocence by stating that they have been involved in this case falsely at the instance of “Waderas”. They did not examine anyone in their defence or themselves on oath in disproof of the prosecution’s allegation.
5. On evaluation of evidence so produced by prosecution, learned trial Court convicted and sentenced the appellants by way of impugned judgment, as stated above.
6. It is contended by learned counsel for the appellants that the appellants being innocent have been convicted by learned trial Court without lawful justification. By contending so, she sought for acquittal of the appellants.
7. Learned A.P.G for the State supported the impugned judgment.
8. I have considered the above arguments and perused the record.
9. It was stated by the complainant ASI Zulfiqar Ali and PW/Mashir PC Oshaq Ali that on the date of incident, they with rest of the police personnel when were conducting patrol, when they reached at “Khedkar” road, there they came to know through spy information that five culprits with weapons and sack are sitting at Tajal Fakir “Mehkhana”. On such information, they proceeded to the pointed place. If for the sake of arguments, it is believed that the complainant and his witness proceeded to the pointed place on information, then they were under lawful obligation to have associated with them independent person to witness the possible arrest and recovery. It was not done by them for no obvious reason, which has made the very proceedings by them to the pointed place on information to be doubtful. It was further stated by them that they reached at place of incident, there they found five culprits available. The said culprits with no loss of time fired at them with intention to commit their murder. They also fired at the culprits in self defense. That firing continued for about ten minutes. Significantly, the same according to them proved to be ineffective, which has made the allegation of firing to be doubtful one. It was further stated by the complainant and his witness that the culprits then made their escape good excepting one, who was apprehended. On enquiry he disclosed his name to be Farhan. On search from him was secured Rs.50/- and a sack containing 05 K.Gs of Hemp, it was sealed. No recovery of crime weapon from appellant Farhan signifies that he at the time of incident was empty handed, which has made the allegation of firing against him to be doubtful. It was further stated by the complainant and his witness that a memo of arrest and recovery then was prepared at the spot and the appellant Farhan with the recovery so made was then taken to P.S Taluka, there the present case was registered against the appellants and others. The perusal of the FIR did not contain the name and description of appellant Abdul Nabi alias Cotton. The involvement of the appellant Abdul Nabi alias Cotton at subsequent stage without any lawful justification has made his involvement in the case to be doubtful one. Appellant Farhan has already been acquitted of the charge for being in possession of 05 K.Gs of Charas by learned trial Magistrate. Such acquittal apparently has attained finality. In these circumstances, it could be concluded safely that the case of prosecution is not free from doubt.
10. In view of the facts and reasons discussed above, the impugned judgment could not be sustained, it is set aside. Consequently, 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 sureties are discharged.
11. The instant appeal is disposed of in above terms.
JUDGE
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