IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Crl. Jail Appeal No. D– 242 of 2019.

 

                        Before;

                                                            Mr. Justice Naimatullah Phulpoto

                                                            Mr. Justice Irshad Ali Shah

 

Appellant:           Wali Muhammad @ Waloo son of Allah Wadhayo Rajar,

 through Mr. Haji Shamsuddin Rajper, Advocate

 

Respondent:            The State, through Mr. Zulfiquar Ali Jatoi,

                                    Additional Prosecutor General

 

Date of hearing:     03-06-2020.

Date of decision:    03-06-2020.

 

J U D G M E N T

 

IRSHAD ALI SHAH, J; The appellant by way of instant Criminal Appeal has impugned judgment dated 22-10-2019 passed by learned Judge, Anti-Terrorism Court, Khairpur, whereby the appellant has been convicted and sentenced as under;

“For an offence punishable u/s 148 PPC accused convicted and sentence to suffer R.I for three years. For an offence punishable u/s 149 PPC accused was convicted and sentenced to suffer R.I for ten years and to pay the fine of Rs. 50,000/- (Rupees Fifty thousand) and in case of default in payment of fine he shall suffer further R.I for six months. For an offence punishable under section 353 R/W Section 149 PPC accused convicted and sentenced to suffer R.I for two years. For an offence punishable under section 399 R/W Section 149 PPC accused convicted and sentenced to suffer R.I for ten years and to pay the fine of Rs. 50,000/- (Rupees Fifty thousand) and in case of default in payment of fine he shall suffer further R.I for six months. For an offence punishable u/s 402 R/W Section 149 PPC accused convicted and sentenced to suffer R.I for seven years and to pay the fine of Rs. 25,000/- (Rupees Twenty five thousand) and in case of default in payment of fine, he shall suffer R.I for three months. For an offence punishable u/s 7 of ATA, 1997 accused was convicted and sentence to suffer R.I for ten years and to pay the fine of Rs.50,000/-( Rupees fifty thousand) and in case of default in payment of fine, he shall suffer further R.I for six months.”

          All the sentences awarded to the appellant have been ordered to run concurrently with benefit of section 382-B Cr.P.C.  

2.       The facts in brief necessary for disposal of instant Criminal Jail Appeal are that the appellant allegedly with rest of the culprits after having formed an unlawful assembly and in prosecution of their common object being armed with deadly weapons, assembled and/or made preparation to commit dacoity and on being prevented from doing so, they fired at police party of PS “Kumb” led by SIP Ghulam Sarwar Dreho with intention to commit its murder, as a result of such firing PC Zulfiquar Ali Sangi sustained fire shot injuries on his left leg, and one of the culprit said to be Irshad @ Irshoo Gopang also lost his life after sustaining fire shot injuries while rest of the culprits made their escape good by taking the advantage of darkness, for that the present case was registered.

3.       On investigation the appellant was apprehended and then was reported upon by the police to face the trial for the above said offence. At trial the appellant did not plead guilty to the charge and prosecution to prove it, examined in all seven witnesses including complainant SIP Ghulam Sarwar and then closed the side.

4.       The appellant in his statement recorded u/s 342 Cr.P.C denied the prosecution allegation by pleading innocence by stating that he has been involved in this case falsely by the police only to show its efficiency. However appellant did not examine anyone in his defence or himself on oath to disprove the charge.

5.       On evaluation of evidence so produced by the prosecution, learned trial Court convicted and sentenced the appellant as detailed above by way of impugned judgment.

6.       It is contended by learned counsel for the appellant that the appellant being innocent has been involved in this case falsely by the police only to show its efficiency; it was night time incident, therefore the identity of appellant was doubtful, PC Zulfiquar Ali has reported his arrival at hospital with delay of about 08 days, which has not been explained plausibly by the prosecution and evidence of the prosecution witnesses being doubtful in its character has been believed by learned trial Court without assigning cogent reasons. By contending so he sought for acquittal of the appellant.

7.       Learned APG for the State by supporting the impugned judgment has sought for dismissal of instant appeal by contending that the prosecution has been able to prove its case against the appellant beyond shadow of doubt.

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

9.       There is no independent witness to the incident. Nothing has been brought on record, which may suggest that the culprits were known to the complainant or his witnesses prior to the incident, therefore, the identity of the culprits including appellant with their parentage that too at night time under the light of police mobile is appearing to be strange and doubtful. Injuries to PC Zulfiquar Ali have not been attributed to any of the culprit specifically. He as per prosecution has sustained injuries on 08-03-2015, but as per medical officer Dr. Niaz Hussain has reported his arrival at Hospital for examination of his injuries, treatment and certificate on 16-03-2015. It was with delay of about 08 days to the incident. Where he was for about 08 days? It is not explained plausibly by the prosecution, which has made the allegation of sustaining fire shot injuries by PC Zulfiquar Ali during course of incident to be doubtful. PC Zulfiquar Ali died when was to have been cross examined by the appellant. His death though was natural yet has deprived the appellant of his valuable right of cross examination. None has been robbed. Nothing incriminating has been secured from the appellant, even after his arrest, which too appears to be significant.

10.     Over all discussion involved a conclusion that the prosecution has not been able to prove its case against the appellant beyond shadow of doubt and to such benefit he is found to be entitled.

11.               In case of Faheem Ahmed Farooqi Vs. The State (2008 SCMR 1572), It has been held by Hon’ble Apex Court that;

“Single infirmity creating reasonable doubt in the mind of a reasonable and prudent mind regarding the truth of the charge makes the whole case doubtful.”

12.               For what has been discussed above, the conviction and sentence awarded to the appellant together with impugned judgment are set aside. Consequently, the appellant is acquitted of the offence for which he was charged, tried and convicted by learned trial Court. The appellant is in custody, he shall be released forthwith in the present case, if he is no more required in any other custody case.

13.               The instant Crl. Jail Appeal is allowed accordingly.

 

 

          Judge

Judge

 

Nasim/P.A