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
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