IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Criminal Jail Appeal No.D-44 of 2014

Present:

Mr. Justice Zafar Ahmed Rajput,

Mr. Justice Irshad Ali Shah,

Appellant : Bangul son of Ali Sher Kharos,

Through Mr .Ahsan Ahmed Qureshi, Advocate

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

Date of hearing : 25.09.2018

Date of decision : 04.10.2018

JUDGMENT

IRSHAD ALI SHAH, J.-, The appellant by way of instant appeal has impugned the judgment dated 16.09.2014, passed by learned Judge, Anti-Terrorism Court, Shikarpur, whereby he convicted and sentenced the appellant for offence u/s. 302(b) r/w Section 149 PPC to undergo imprisonment for life and to pay fine of Rs.50,000/- and in default thereof to undergo S.I for a period of three months, for offence punishable u/s.324 PPC r/w Section 149 PPC, convicted and sentenced him to suffer R.I for a period of ten (10) years and to pay fine of Rs.10,000/-. In case of default of payment of fine to undergo S.I for two months, for offence punishable u/s.353 r/w Section 149 PPC convicted and sentenced him to suffer R.I for a period of two (02) years and for offence punishable under section 148 PPC convicted and sentenced to suffer R.I for a period of 02 years, and for offence punishable under section 7 of Anti Terrorism Act, 1997 convicted and sentenced him to suffer rigorous imprisonment for life with forfeiture of his property in favour of the state, in Special Case No.56/2011, outcome of FIR Crime No.204/2011 of P.S New Faujdari, Shikarpur.

2. The facts in brief necessary for disposal of the case are that the appellant with rest of the culprits, allegedly after having formed an unlawful assembly and in prosecution of their common object, being armed with deadly weapons, by resorting to terrorism, deterred the police party consisting of PC Iqbal Ahmed and PC Ali Gohar, from discharging their lawful duty as public servants by making fires at them with intention to commit their murder, as result whereof, PC Iqbal Ahmed died while PC Ali Gohar sustained fire shot injuries and then made their escape good while taking away with them the official rifle of PC Ali Gohar, besides making fires at police party consisting of SIP Ayaz Ahmed Pathan with intention to commit their murder, thereby the police mobile sustained damage, for that the present case was registered.

3. On investigation, the appellant was arrested and then after usual investigation was challaned before the learned trial Court to face trial for the above said offence.

4. At trial, the appellant did not plead guilty to the charge, and the prosecution to prove it examined PW-01 Tapedar Nadeem Parvez at Exh.08, who produced sketch of vardat, PW-02 medical officer Dr.Syed Zubair Ali Shah at Exh.09, who produced Lash Chakas Form on the dead body of the said deceased, postmortem report on the dead body of said deceased, letter for examination of injuries of the said injured, provisional and final medical certificates in respect of injuries sustained by the said injured, PW-03 HC Ali Akbar Umrani at Exh.10, who produced photo stat/attested copy of memo of arrest of the appellant and FIR Crime No.11/2005 of P.S New Faujdari, relating to death of co-accused Suhno Sundrani, PW-04 PC Ali Akbar Dayo at Exh.11, PW-05 SIO/SIP Ayaz Ali Pathan at Exh.12, who produced FIR of the present case, Danistnama, memo of dead body of the said deceased, memo of place of incident and recovery of empties, memo of examination of police mobile, memo of examination of injuries of the said injured, memo of recovery of clothes of the said deceased, memo of house search of the accused involved in the incident, photo stat copies of roznamcha entries and report of chemical examiner, PW-06 ASI Hafeezullah at Exh.13.

5. The appellant during course of his examination u/s.342 Cr.PC denied the prosecution’s allegation by pleading innocence by stating that he has been involved in this case falsely at the instance of Javed Allam Odho, DIG Police. He produced photo stat copies of four FIRs to prove such enmity. He however, 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 appeal.

7. It is contended by the learned counsel of the appellant that the appellant being innocent has been involved in this case falsely by the police at the instance of Mr.Javed Allam Odho, DIG Police, only to settle enmity with “Kharos and Odha” tribes; that the identity of the appellant at night time under search light and headlight of passerby Mazda pickup is weak piece of evidence; that the evidence of the complainant and PW Hafeezullah being doubtful in its character is not transpiring confidence; that there is no recovery of any sort from the appellant and he has been convicted and sentenced by learned trial Court on the basis of improper appraisal of the evidence. By contending so, he sought for acquittal of the appellant. In support of his contentions, he relied upon cases of Amin Ali and another Vs. The State (2011 SCMR-323), 2). The State Vs. Hakim and others (1996 PCr.LJ-231), 3). Zeeshan @ Shani Vs. The State (2012 SCMR-428), 4). Basar Vs. Zulfiqar Ali and others (2010 SCMR-1972), 5). Gul Muhammad Jamali Vs.The State (2009 YLR-697), 6). Muhammad Hayat Vs. The State (2007 MLD-1543), 7). Ishaq Masih Vs.The State (1991 SCMR-2392) and 8). Umar Hayat and others Vs.The State (1997 SCMR-1076).

8. Learned A.P.G has supported the impugned judgment.

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

10. As per complainant SIO/SIP Ayaz Ahmed and PW Hafeezullah, they at night of the incident with rest of the police personnel were conducting patrol, when reached at abandoned “Tool Plaza”, there on hearing of fire shot reports, went at police picket “Gawaz Wah”, there they were fired at by the appellant and others who then made their escape good, there they found lying PC Iqbal and PC Ali Gohar in injured condition, they on enquiry told them the appellants and other culprits while firing at them have also taken away one of their service rifle. During course of cross examination, it was stated by the complainant SIO/SIP Ayaz Ali that the distance between the place of incident and abandoned tool “Plaza” is about ¾ (muno) or 01 kilometer. It was stated by PW/PC Hafeezullah that he with rest of the police personnel reached at place of incident within 05/10 minutes of hearing fire shot reports. If the police party consisting of the complainant and his witnesses reached at place of incident within 05/10 minutes of hearing fire shot reports and both the said police constables were found sustaining injuries before their arrival, then their arrival at the place of incident was at the time when the incident was over, which as per PW/injured PC Ali Gohar lasted for 02/03 minutes. In that situation, their evidence could hardly be relied upon to hold conviction. Now there remains the evidence of PW/PC Ali Gohar who happened to be injured witness of the incident. It was stated by him that he identified the appellant and others under headlight of passerby Mazda pickup and search light that too from the distance of 100 yards. The identity of the appellant and others at night time, under headlight of passerby Mazda pickup and search light, that too from the distance of 100 yards is appearing to be weak piece of evidence. No specific role of causing fire shot injury to the deceased or injured is attributed to either of the accused. No police mobile which allegedly sustained damage at the time of incident was produced at trial by the prosecution. In that situation, the involvement of the appellant in commission of the incident on the basis of general allegation is appearing to be doubtful.

11. In case of Faheem Ahmed Farooqui vs. the State (2008 SCMR-1572), it was held by the Hon’ble Supreme Court of Pakistan that;

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

12. In view of the facts and reasons discussed above, the conviction and sentence recorded against the appellant cannot be maintained, it is set aside. Consequently, the appellant is acquitted of the offence, for which he was charged, tried and convicted by learned trial Court, he shall be released forthwith in the present case, if he is no more required in any other custody case.

The instant appeal stands disposed of.

JUDGE