IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Criminal Jail Appeal No.S-100 of 2012

 

                   

Appellant                            :   Ghulam Abbas son of Sadoro Mahar

           Through Mr. Athar Abbas Solangi, Advocate

 

State                                    :   Through Mr.Raja Imtiaz Ali Solangi,  A.P.G  &

 

                                                Mr.Noushad Ali Taggar, Advocate

for legal heirs of deceased Toufique Ali

 

 

Date of hearing                   :     22.10.2018                 

Date of decision                  :     22.10.2018                           

 

J U D G M E N T

 

IRSHAD ALI SHAH, J-. The appellant by way of instant appeal has impugned judgment dated 14.12.2012, passed by learned 3rd Additional Sessions Judge, Shikarpur, whereby he has been convicted and sentenced for offence punishable u/s 302 PPC r/w Section 34 PPC to undergo rigorous imprisonment for twenty years and for an offence punishable u/s 324 PPC r/w Section 34 PPC to undergo rigorous imprisonment for ten years. No compensation was order to be paid by the appellant, which is mandatory in terms of Section 544-A Cr.PC.  

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; committed Qatl-e-Amd of Toufique Ali by causing him fire shot injuries. The FIR of the incident was lodged by complainant Haji Behram with P.S Lakhi. In the meanwhile, the complainant gathered an impression that his case is being spoiled by the police. He therefore filed a direct complaint of the incident before the Court having jurisdiction. It was brought on record after requisite preliminary enquiry.

3.                At trial, the appellant did not plead guilty to the charge and the complainant to prove it examined himself, produced the direct complaint, his statement in P.E and FIR Crime No.56/2002, u/s.302, 324, 148, 149, 114 PPC of P.S Lakhi Ghulam Shah, PW-02 Abdul Rasheed, he produced his statement in P.E¸PW-03 Habibullah, he produced his statement in P.E, PW-04 medical officer Dr.Najamuddin, he produced his statement in P.E and postmortem report on dead body of deceased Toufique Ali, PW-05 SIO/DSP Imtiaz Ali, PW-06 HC Qadir Bux, he produced his statement in P.E and then the complainant closed his side.

4.                The appellant during course of his examination u/s 342 (2) Cr.PC denied the allegation by pleading innocence by stating that he has been involved in this case falsely by the complainant at the instance of his rival Gul Muhammad. He did not examine anyone in his defense or himself on oath in disproof of the prosecution allegation.

5.                On evaluation of evidence, 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, as stated above.

6.                It is contended by learned counsel for the appellant that the appellant has been convicted and sentenced by learned trial Court without lawful justification and on the basis of improper assessment of evidence.  By contending so, he sought for acquittal of the appellant.

7.                Learned A.P.G assisted by learned counsel for legal heirs of the deceased sought for dismissal of the instant appeal by contending that the appellant is fully involved in commission of incident on point of vicarious liability.

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

9.                There may not be any dispute with any one with regard to the death of deceased Toufique Ali being unnatural. The only thing which is to be examined is liability of the appellant towards the alleged incident. It was stated by complainant Haji Behram and PWs Abdul Rasheed and Habibullah during course of their examination before learned trial Court that on 31.05.2002, when they and deceased Toufique Ali reached adjacent to Primary School village Sulleman Shaikh, there they found available accused Abdul Rasool, Ali Gohar, Muhammad Nawaz, all armed with K.Ks, Ghulam Abbas (appellant), Abdul Qadeer, both armed with rifles and Shah Nawaz armed with gun. At the instigation of Abdul Rasool, rest of the accused fired at them with intention to commit their murder by declaring them to be their enemies. As result of such fires, Toufique Ali died at the spot. On their cries, the women from neighborhood came running and then all the accused ran away. Significantly, no injury to the deceased is attributed by the complainant and his witnesses to any of the accused specifically. No woman who allegedly came on cries at the place of incident was examined by the complainant. During course of his cross examination, it was stated by the complainant that the fires of accused Abdul Rasool, Muhammad Nawaz and Ali Gohar hit to deceased Toufique Ali. If it was so, then the involvement of the appellant in commission of incident on the basis of allegation of making ineffective firing at the complainant and his witnesses by way of instant direct complaint which is lodged with delay of more than two months to the incident, is appearing to be doubtful one.

10.              In view of the facts and reasons discussed above, the impugned judgment could not be sustained, 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.

11.              The instant appeal is disposed of in above terms.

 

 

                                                                                                JUDGE