IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Criminal Appeal No.D-38 of 2016

Present:

Mr. Justice Zafar Ahmed Rajput,

Mr. Justice Irshad Ali Shah,

Appellant : Roshan s/o Ghulam Shabir Jhatial,

Through Mr.Sarfraz Khan Jatoi, Advocate

State : Through Mr.Sharafuddin Kanhar, A.P.G.

Date of hearing : 17.09.2018

Date of decision : 17.09.2018

JUDGMENT

IRSHAD ALI SHAH, J.-, The appellant by way of instant appeal has impugned the common judgment dated 30.05.2016, passed by learned Judge, Anti-Terrorism Court, Naushehro Feroz, in Special Case No.26 of 2015 and 27 of 2015, arisen out of Crime No.56/2015, registered under section 302, 324, 353, 399, 402 PPC r/w Section 7 A.T.A, 1997 and Crime No.78/2015, registered under section 25 of Sindh Arms Act, 2013, respectively at P.S Mehar, whereby he has been convicted and sentenced to undergo imprisonment for life and to pay fine of Rs.100,000/- (One Lac), in case of default thereof, to undergo R.I for 01 year, for an offence punishable u/s.302(b) PPC r/w Section 7 (a) of Anti Terrorism Act, 1997. He was also convicted and sentence to undergo R.I for ten years for an offence u/s. 23(i)(a) r/w Section 25 of Sindh Arms Act, 2013. Both the sentences, however, were ordered to run concurrently.

2. The facts in brief necessary for disposal of instant appeal, as narrated in the FIR, are that the appellant with rest of the culprits, allegedly being members of wandering gang associated/assembled for committing theft/dacoity, on being prevented from doing so, they deterred complainant/Inspector Karam Ali Zardari and his police party from performing their lawful duties as public servants, by making fires at them with intention to commit their murder, as a result thereof, PC Abdul Jabbar after sustaining fire shot injuries lost his life, for that the present case was registered.

3. During investigation, the appellant was arrested and from him police a secured repeater gun of 12 bore and after usual investigation he was challaned by the police before the Court of law to face the trial.

4. At trial, the appellant did not plead guilty to the charge, and the prosecution to prove it examined PW-01 Medical Officer Dr.Rasool Bux, who produced Lash Chakas Form, Carbon Copy of Letter and Postmortem report on the dead body of deceased, PW-02 Tapedar Wazir Soomro, who produced sketch of vardat, PW-03 SIO/Inspector Bashir Ahmed Ujjan, who produced roznamcha entries, memo of arrest of the appellant, carbon copy of his letter to learned Civil Judge & Judicial Magistrate, Mehar, for identification parade of the appellant, memo of recovery of pistol from accused Barkat alias Jani (now has died), copy of FIR Crime No.77/2015, memo of recovery of repeater gun from the appellant, report of chemical examiner, reports of Forensic Expert, copy of FIR Crime No.56/2015, letter of S.S.P Larkana, PW-05 Mashir/PC Zamir Hussain, who produced memo of place of incident, memo of recovery of official uniform of the deceased, memo of examination of dead body of the deceased, Danistnama on the dead body of the deceased. PW-06 Abdul Ghaffar, who produced carbon copy of receipt acknowledging delivery of dead body of the deceased, PW-07 Corpse Bearer/ASI Fida Hussain, PW-08 Mashir Sajjad Ali, PW-09 SIO/ASI Abdul Sattar, who produced Lash Chakas Form, memo of arrest of accused Barkat Ali alias Jani (now has died), PW-10 Mr.Ahmed Raza, the then Civil Judge & Judicial Magistrate, Mehar, who produced mashirnama of identification parade of the appellant and co-accused Barkat Ali alias Jani (now has died) and then closed the side.

5. The appellant during course of his examination u/s.342 Cr.PC denied the prosecution’s allegation by pleading innocence. He did not examine anyone in his defense or himself on oath in disproof of the prosecution allegation.

6. On evaluation of evidence, so produced by the prosecution, the learned trial Court convicted and sentenced the appellant as detailed above by way of judgment, which the appellant has impugned before this Court by way of instant criminal appeal.

7. It is contended by learned counsel of the appellant that the name and description of the appellant are not appearing in the FIR; that he has been involved in this case falsely by the police; that his identification parade was empty formality; that the repeater gun has been foisted upon the appellant and no specific injury to the deceased even otherwise has been attributed to the appellant. By contending so, he sought for acquittal of the appellant. In support of his contention, he relied upon case of Zeeshan alias Shani vs. the State (2012 SCMR-428).

8. Learned A.P.G for the State has sought for dismissal of the instant appeal by contending that the appellant has actively participated in commission of the incident.

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

10. As regard the charge against the appellant with regard to causing of murder of deceased PC- Abdul Jabbar, it is an admitted position that name and description of the appellant are not appearing in the FIR. He, as per complainant/Inspector Karam Ali and PW Zamir Ahmed, was seen by them in dark night under headlight of the vehicle. If it is believed to be so, then it was a weak piece of evidence. The identity of the appellant through identification parade held on 7th day of his arrest without any lawful explanation to such delay, are appearing to be doubtful one. PW Muhammad Azeem who allegedly identified the appellant during course of identification parade, was not examined by the prosecution. The inference which could be drawn of his non-examination would be that he was not going to support the case of prosecution. The identification of the appellant was not recorded on proforma of identification parade. There is no mashir of identification parade and no explanation to such omission is offered by the prosecution. In that situation, no much reliance could be placed upon memo of identification parade of the appellant. Besides, it is also an admitted position that no other person from either side has received any fire arm injury in the alleged encounter. It also appears that on examination of dead body of the deceased, PW-1 Dr. Rasool Bux, MLO secured a bullet, while as per prosecution case, police recovered a repeater gun from the appellant. Hence, in absence of fire shot injury with cartridge on person of the deceased, the appellant could hardly be connected with commission of alleged offence.

11. The appellant has also been convicted and sentenced for an offence under section 23(i) (a) of Sindh Arms Ordinance, 2013, in this regard it has been brought on record through evidence by prosecution that on 19.3.2015, the appellant during course of investigation volunteered to produce repeater gun allegedly used by him in commission of the offence and thus, vide entry No.20 at 1730 hours P.W-3 Inspector Bashir Ahmed, PW-9 ASI Abdul Sattar and PC- Raheem Bux proceeded to Gaji Khuhawar Road from where appellant led them to bushes and took out repeater gun in respect thereof he disclosed that the same was without license. In this regard, it is an admitted position that PW-3 Inspector Bashir Ahmed despite having prior information that the appellant was going to produce voluntarily the alleged repeater gun did not associate any private person to act as mashir of alleged recovery; as such, no credibility can be attached to alleged recovery of the repeater gun.

11. In these circumstances, the conviction and sentence recorded against the appellant could not be sustained, which are set aside.

12. Above are the reasons of our short order dated 17.09.2018, whereby the instant appeal was allowed and the appellant was ordered to be released forthwith.

JUDGE