IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Criminal Appeal No.S-25 of 2018
Appellants : 1). Altaf Hussain s/o Gahi Khan Bhayo
2). Rustam Ali s/o Ahmed Abro
3). Abdul Jabbar s/o Abdul Kabir Shaikh Through Mr. Ali Azhar Tunio, Advocate
Complainant : Abdul Sami through Mr.Muhammad Ali Memon ,
Advocate
Crl.Revision Appln.No.S-18 of 2018
Applicant/complainant : Abdul Sami s/o Muhammad Waris Mahar
Through Mr.Muhammad Ali Memon , Advocate
Respondents : Through Mr. Ali Azhar Tunio, Advocate
for private respondents ,
The State through Mr. Aitbar Ali Bullo, D.P.G
Date of hearing : 26.11.2018
Date of decision : 26.11.2018
JUDGMENT
IRSHAD ALI SHAH, J-. The facts in brief necessary for passing of instant judgment are that as per complainant Abdul Sami, the private respondents with respondents of the culprits, after having formed an unlawful assembly and in prosecution of their common object, after keeping him under fear of death take away his Motorcycle-125 and PWs Zakir Hussain and Bilal Ali, kept them confined and then caused fire shot injuries to PW Zakir at his right leg, with intention to commit his murder, for that the present case was registered. On investigation, the case was recommended to be cancelled by the police under false “B” class. Its cognizance was taken by learned Magistrate having jurisdiction and then it was sent up to Court of Sessions for its trial in accordance with law. It was then assigned to learned 3rd Additional Sessions Judge, Shikarpur for its disposal in accordance with law.
2. At trial, the appellants and others did not plead guilty to the charge and the prosecution to prove it examined, PW-01 complianant Abdul Sami at Ex.10, produced through him his Misc.Application and order passed theroen by learned Ex-officio Justice of Peace, Shikarpur, the FIR of the present case, PW-02 injured Zakir Hussain at Exh.11, PW-03 Mashir/PC Noor Muhammad at EXh.12, produced through him memo of place of incident, PW-04 SIO/ASI Muzafar Ali Shah, produced through him roznamcha entries and list containing the cases registered against the complainant party and certain copies of FIRs, PW-05 medical officer Dr.Ramchand at Exh.15, produced through him medical certificate in respect of injuries sustained by PW Zakir Hussain with ancillary document and then closed the side.
3. The appellants and others in their statements recorded u/s 342 Cr.PC denied the prosecution’s allegation by pleading innocence. They produced certain documents to prove their innocence. They did not examine anyone in their defense or themselves on oath in disproof of the prosecution allegation.
4. On evaluation of evidence, the learned trial Court acquitted co-accused Muhammad Bux, Muhammad Aslam, Fayaz Ahmed and Abdul Hakeem by extending them benefit of doubt, while convicted and sentenced the appellant, as under;
“1. Under Section 148 PPC for fine of Rs.100,000/- (Rupees one hundred thousands only) each and in failure to make payment of fine all the accused persons shall serve six months simple imprisonment.
2. Under Section 324 PPC for period of five years R.I and fine of Rs.50,000/- each and in failure to make payment of fine all the accused persons shall serve 6 months simple imprisonment.
3. Under Section 337-F(iii) Qisas and Diyat Ordinance (PPC) for daman of Rs.100,000/- (one hundred thousand only) proportionally by all the accused persons to be paid to injured Zakir Hussain and sentences for period of one year as provided by Section 324 PPC read with Section 337-F(iii) PPC.
4. Under Section 506-B read with Section 149 PPC for 6 months R.I & fine of Rs.10,000/- each and in failure to make payment of fine S.I for one month”.
5. The appellants being aggrieved of conviction and sentenced recorded against them by learned Appellate Court by way of judgment dated 22.03.2018, has impugned the same before this Court with prayer to set aside the same, while complainant Abdul Sami has preferred the criminal revision application, for enhancement of the conviction and sentence recorded against the appellants by learned trial Court, which are being disposed of through single judgment.
6. It is contended by learned counsel of the appellants that the learned trial Court has convicted and sentenced the appellants without lawful justification. By contending so, they sought for their acquittal with dismissal of instant criminal revision application filed by the complainant for enhancement of the conviction and sentence recorded against the appellants.
7. Learned D.P.G and learned counsel for the complainant sought for dismissal of the appeal filed by the appellants with enhancement of conviction and sentence recorded against the appellants.
8. I have considered the above arguments and perused the record.
9. The FIR of the incident has been lodged with considerable delay to the incident, such delay could not be lost sight of in the circumstances of the present case. Complainant Abdul Sami was not able to disclose the registration number of the motorcycle allegedly robbed during course of incident. Nothing has been brought on record by the complainant, which may prove his ownership over the robbed motorcycle. In that situation, the robbery of motorcycle is appearing to be doubtful one. Complainant Abdul Sami has not witnessed causing fire shot injury to PW Zakir on his right leg by the appellants or others. In that situation, the evidence of the complainant could hardly be used by the prosecution to prove causing of injury to PW Zakir allegedly by the appellants and others. Complainant Abdul Sami and PW Zakir have contradicted each other on point of return from marriage. As per complainant they were going back after attending the marriage ceremony at Staurt Ganj area, while as per PW Zakir, they were going back after attending the marriage ceremony within Truck Adda. The contradiction between evidence of complainant and PW Zakir on point of return from marriage ceremony could not be lost sight of. The complainant was not able to disclose the name of groom, whose marriage ceremony he attended prior to coming at place of incident. PW Bilal Ali 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. PW Zakir as per the appellants was caused fire shot injury by his companions during encounter with the police, for that a separate FIR has been registered. In that context, it is being contended by learned counsel for the appellants that the lodgment of the FIR of the present case against the appellants and others on the part of complainant party was with a view to create pressure against the police personnel as they may not discharge their lawful duty. The very case on investigation was found to be false and was recommended to be cancelled by the police. It is true that the opinion of the police has got no binding effect on the Court yet the same could not be lost of sight altogetherly. In that context, it is rightly being contended by learned counsel for the appellants that the case of prosecution against the appellants is not free from doubt. What to talk of enhancement of conviction and sentence of the appellants.
10. The impugned judgment of the learned trial Court even otherwise is appearing to be self contradictory. The points for determination which were framed by learned trial Court was to the following effect;
1. Whether present accused persons have committed the offences as charged with vide charge sheet at Exh.2?
2. What offence, if any, committed by the accused?
11. The learned trial Court had disbelieved the case of prosecution to the extent of co-accused Muhammad Bux, Muhammad Aslam, Fayaz Ahmed and Abdul Hakeem, while has believed the case of prosecution so far the case of the appellants is concerned, on the basis of same evidence. In that context, it is rightly being contended by learned counsel for the appellants that the impugned judgment being self contradictory could not be sustained.
12. In case of Sardar Bibi and another vs. Munir Ahmed and others (2017 SCMR-344), it was held by the Hon’ble Court that;
“When the eye-witnesses produced by the prosecution were disbelieved to the extent of one accused person attributed effective role, then the said eye-witnesses could not be relied upon for the purpose of convicting another accused person attributed a similar role, without availability of independent corroboration to the extent of such other accused”.
13. Consequent upon above discussion, the conviction and sentence recorded against the appellants are set-aside, they are acquitted of the offence for which they were charged and convicted, their bail bonds stand cancelled and sureties are discharged.
14. Subject to above discussion, the Criminal Appeal filed by the appellants/accused against their conviction and sentence is allowed while Criminal Revision Application filed by the applicant/complainant for enhancement of the conviction and sentence is dismissed.
.. JUDGE