IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Criminal Jail Appeal No.S-142 of 2011

Appellant : Audho son of Sodho by caste Janwari

Through Messers. Safdar Ali Ghouri &,

Sharjeel Sattar, Advocate(s)

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

Date of hearing : 06.12.2018

Date of decision : 06.12.2018

J U D G M E N T

IRSHAD ALI SHAH, J-. The appellant by way of instant criminal Jail appeal has impugned judgment dated 19^th October, 2011, passed by learned Additional Sessions Judge, Shahdadkot, whereby the appellant has been convicted and sentenced as under;

“Accused Audho is therefore, hereby convicted under section 302 (b) r/w Section 149 PPC and sentenced to suffer imprisonment for life as Tazir. The accused is also ordered to pay fine of Rs.100,000/-, as compensation which is to be paid to the legal heirs of both the deceased persons in equal shares, as required under section 544-A Cr.PC or in default of payment of such fine the accused will have to suffer R.I for six months more’.

2. The facts in brief necessary for disposal of instant criminal jail appeal are that the appellant with rest of the culprits allegedly after having formed an unlawful assembly and in prosecution of their common object, committed Qatl-e-Amd of Badal and Jaffer by causing them fire shot injuries and then went away by making aerial firing to create harassment, for that the appellant was booked and challaned accordingly.

3. At trial, the appellant did not plead guilty to the charge and the prosecution to prove it, examined PW-01 ASI Nayar Hussain (author of FIR), produced through him FIR of the present case, PW-02 Tapedar Abdul Fattah, produced through him sketch of vardat, PW-03 complainant Kaley Bux, PW-04 Himath Ali, PW-05 Mashir Mehboob Khan, produced through him memo of dead body of deceased Jaffar and place of incident, PW-06 SIO/ASI Muhammad Mujtaba, PW-07 PC/corpse bearer Moula Bux, PW-08 medical officer Dr. Mushtaq Ahmed Brohi, produced through him inquest reports and postmortem reports on dead bodies of deceased Jaffer and Badal and then closed the side.

4. The appellant in his statement recorded u/s 342 Cr.PC denied the prosecution’s allegation by pleading innocence by stating that he has been involved in this case falsely. He did not examine anyone in his defense or himself on oath in disproof of the prosecution’s allegation.

5. On evaluation of evidence, the learned trial Court has convicted and sentenced the appellant, on point of vicarious liability, with the following observation;

“I have come to the conclusion that the prosecution has been able to prove its case against the present accused beyond any shadow of reasonable doubt, whereby it has been proved that the present accused Audho being armed with a gun accompanied to co-accused and thereby he has shared the common intention with the principle accused who made fire shots which proved fatal and took the lives of both deceased persons. I have therefore, decided to convict present accused Audho accordingly. But before awarding conviction to him, I would like to mention here that since the present accused is not alleged to have made any fire shot at the deceased persons and the prosecution has also failed to prove the motive as such a lenient view is required to be taken against him”.

6. It is contended by learned counsel of the appellant that the appellant has been involved in this case falsely by the complainant party, the learned trial Court has convicted and sentenced the appellant without lawful justification, ignoring the fact that no active role in commission of the incident has been attributed to him even by the complainant party. By contending so, they sought for acquittal of the appellant.

7. Learned A.P.G has sought for dismissal of the instant appeal by contending that the appellant has shared the common intention in commission of the incident.

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

9. The unnatural death of deceased Badal and Jaffar is proved of evidence of medical officer Dr. Mushtaq Ahmed Brohi, which even otherwise is not disputed by the appellant. Now is to be examined the liability of the appellant towards the alleged incident. The FIR of the incident has been lodged with delay of about ten hours that too after consultation with advice of one Muhammad Ameen, that Muhammad Ameen has not been examined by the prosecution, for no obvious reason. In that situation, the delay in lodgment of the FIR could not be lost sight of. It has been stated by complainant Kaley Bux and PW Himath Ali that on 17.04.2005, they, PW Parvez and deceased Badal and Jaffar went at their lands adjacent to village Dodo Khan Chandio, there at about 06.00 a.m, came from water course, accused Sodho armed with K.K, Allah Dino with K.K, Gaji Bux armed with K.K, Audho armed with gun, Misri armed with gun, Madad armed with gun, and Ghulam armed with gun and stated that as we have failed to return wife of Qaim, therefore, we would not be spared. By saying so, as per them, accused Allah Dino and Sodho fired at Badal and Jaffar who by sustaining those fire shot injuries fell down on the ground. On that, they raised cries and then accused ran away by making aerial firing. If evidence of complainant Kaley Bux and PW Himath Ali is believed to be true then role attributed by them to the appellant in commission of the incident is only to the extent of making aerial firing allegedly at the time of incident. None indeed would go to his enemies to settle his dispute with them only to make aerial firing to create harassment that too after actual occurrence. In that situation, the involvement of the appellant in commission of the incident on the basis of allegation of aerial firing is appearing to be doubtful one. PW Parvez who as per complainant and PW Himath Ali was with them at the time of occurrence, has not been examined 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. Co-accused Madad and Ghulam Ali on investigation were let-off by the police finding them to be innocent, which prima facie indicates that the complainant party attempted to widen the net to involve the innocent persons in the incident. Inspector Sher Muhammad Gopang, who as per ASI Ghulam Mujtaba conducted further investigation of the case, has not been examined by the prosecution, without any lawful justification. His non-examination prima facie indicates that the appellant has been deprived of his valuable right of defense. In these circumstances, the conviction and sentence which are recorded against the appellant by learned trial Court could not be sustained, those are 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.

10. The instant criminal jail appeal is disposed of accordingly.

J U D G E