IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Criminal Appeal No.S-37 of 2017

Appellant                      :     Rajib son of Mahi Khan Chandio

      Through Mr.Azizullah Buriro, Advocate 

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

Date of hearing            :     31.10.2018             

Date of decision           :     31.10.2018                       

J U D G M E N T

IRSHAD ALI SHAH, J-. The appellant by way of instant criminal appeal has impugned judgment dated 11.03.2017, passed by learned            1^st Additional Sessions Judge, Mehar, whereby he has been convicted and sentenced as under;

“Therefore, accused Rajib s/o Mahi Khan and Abdul Sattar s/o Mumtaz @ Imam Bux are convicted u/s.302 (b) r/w section 114 & 34 PPC rigorous imprisonment for life as Tazir and also to pay amount of Rs.50,000/- each as required u/s.544-A Cr.PC. The amount is ordered to be paid to the LRs of deceased and in case of default they shall suffer S.I for 6 months more”. 

2.                The facts in brief necessary for disposal of instant criminal appeal are that the appellant with rest of the culprits, in furtherance of their common intention, duly armed with deadly weapons, committed Qatl-e-Amd of deceased Gulsher, by causing him fire shot injuries and then went by making aerial firing to create harassment, for that the present case was registered.

3.                At trial, the appellant and co-accused Sattar did not plead guilty and prosecution to prove the charge against them, examined PW-01 complainant Ghulam Mustafa, produced through him FIR of the present case, PW-02 Shafi Muhammad, PW-03 Mashir Ashiq, produced through him memos of examination of dead body of deceased and place of incident, PW-04 SIO/ASI Mumtaz Ali, produced through him Lash Chakas Form, Danistnama, police letter, receipt, memo of recovery of clothes of deceased and memo of arrest of accused Rajib, PW-05 medical officer Dr.Niaz Ali, produced through postmortem report on the dead body of deceased Gulsher and then closed the side.

4.                The appellant and co-accused Sattar 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 by the complainant party due to matrimonial dispute. The appellant and co-accused Sattar did not examine themselves on oath or anyone in their defence.

5.                On evaluation of evidence, the learned trial Court convicted and sentenced the appellant and co-accused Sattar. The appellant by way of instant appeal has impugned the said judgment, as stated above.

6.                It is contended by learned counsel for the appellant that the appellant being innocent has been involved in this case falsely by the complainant party only to satisfy their matrimonial dispute with him, there is unexplained delay of about two hours in lodgment of the FIR, 161 Cr.PC statement of the PWs are recorded with further delay of three days to FIR, no role in commission of the incident is attributed to the appellant excepting that of his alleged presence at the place of incident. By contending so, he sought for acquittal of the appellant.

7.                Complainant expressed full confidence over learned A.P.G for the State. It was contended by learned A.P.G that the appellant has rightly been convicted and sentenced by learned trial Court on point of vicarious liability. By contending so, he sought for dismissal of the instant appeal.               

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

9.                 The unnatural death of deceased Gulsher is proved of   un-rebutted evidence of medical officer Dr. Niaz Ali. Now is to be examined the liability of the appellant towards the present incident. As per FIR, the place of incident is situated at distance of two furlongs from P.S Radhan yet the FIR is lodged with delay of two hours, it is not explained plausibly, such delay in lodgment of the FIR could not be lost sight of. It was stated by complainant Ghulam Mustafa and PW Shafi Muhammad that on 04.01.2012, when they with their womenfolk went at Wagon Stand Radhan to board on a Wagon, there at about 10.00 A.M, came accused Basar alias Shah Nawaz with pistol, 2). Sojhro with repeater gun, 3). Sattar and 4). Rajib (appellant). At the instigation of accused appellant, accused Shah Nawaz fired at Gulsher with his pistol, who by sustaining those fire shot injuries fell down on the ground, while accused Sojhro made aerial firing to create harassment and then all the accused went away. During course of his cross examination, it admitted by the complainant that appellant and accused Sattar were empty handed. If it is believed to be so, then it is not appealing to judicial conscience that the appellant would go towards his enemies to satisfy his enmity with them over the matrimonial dispute being empty handed. In that situation, the involvement of the appellant in this case on the basis of mere allegation of instigation is appearing to be doubtful. It was further stated by the complainant during course of his cross examination that he took the dead body of deceased Gulsher to hospital through a cot. The complainant in that respect was belied by PW Shafi Muhammad by stating that the dead body of the deceased was taken to the hospital through a Rickshaw. Such inconsistency between the evidence of complainant and PW Shafi Muhammad on point of removal of dead body of deceased Gulsher to hospital could not be lost sight of, as it signifies a fact that at-least one amongst them came at the place of incident later-on. It was stated by PW Shafi Muhammad during course of his cross examination that his 161 Cr.PC statement was recorded on 07.01.2012. If it was so, then it was on 3^rd day of the incident. No explanation to such delay in recording 161 Cr.PC statement of the PW Shafi Muhammad has been offered by the prosecution. It is settled by now that 161 Cr.PC statement of the PWs, if record with unexplained delay, then it reduces the evidentiary value of such witness to nil.

10.              In case of Abdul Khaliq v. the State (1996 SCMR-1553), it is held that;

“late recording of statement of witness under section 161 Cr.PC, reduces its value to nil unless delay is plausibly explained”.

11.              PW Roshan Ali was given up by the prosecution without any lawful justification; the inference which could be drawn of his non examination would be that he was not going to support the case of prosecution. Mashir Ashiq Ali was fair enough to admit that he is resident of Larkana. If it is believed to be so, then he was having hardly a reason to be available at Dadu to be mashir in the case whenever a need for mashir arose with the police.

12.              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.

13.               For whatever has been discussed above, the conviction and sentence recorded against the appellant by learned trial Court for his being involved in commission of the incident on point of common intention could not be sustained, it is set aside. Consequently, the appellant shall be released forthwith in the present case.

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

                                                                                                JUDGE

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