IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Criminal Appeal No.D-79 of 2019

Criminal Reference No.D-41 of 2019

Before:

Mr. Justice Muhammad Junaid Ghaffar

Mr. Justice Irshad Ali Shah

Appellant : Ali Hyder son of Sikandar Ali Jagirani

Through Mr.Rafique Ahmed Abro, Advocate

The State : Through Mr.Ali Anwar Kandhro, A.P.G

Date of hearing : 12.08.2020

Date of decision : 12.08.2020

J U D G M E N T

IRSHAD ALI SHAH, J; It is alleged that the appellant with rest of the culprits, in prosecution of their common object, have committed Qatl-e-Amd of Mst.Kamal Khatoon by causing her fire shot injuries after declaring her to be “Kari” with Akbar Dayo, for that he was booked and reported upon by the police, which was registered as Sessions Case No.184/2015 (Re.State.Vs.Ali Hyder Jagirani).

2. The appellant denied the charge and the prosecution to prove it examined PW-01 Tapedar Altaf Hussain, he produced sketch of vardat, PW-02 complainant ASI Mushtaq Ali, he produced roznamcha entries and FIR of the present case, PW-03 Medical Officer Dr.Beenish Tunio, she produced postmortem report on dead body of the said deceased, PW-04 HC Muhammad Younis, he produced memo of place of incident, recovery of blood stained earth and bullets, PW-05 PC Waheed Ali, he produced memo of identification of the dead body of deceased and then the prosecution closed its’ side.

3. The appellant in his statement recorded u/s.342 Cr.PC denied the prosecution allegation’s by pleading innocence; he did not examine himself on oath or any one in his defense.

4. On conclusion of the trial, learned 1^st Additional Sessions Judge/MCTC, Shahdadkot, found the appellant to be guilty for having committed an offence punishable under section 302 (b) PPC and then awarded him “death” penalty with fine of rupees Ten Lacs and in case of failure to undergo S.I for one year, vide its judgment dated 12.11.2019, which is impugned by the appellant before this Court by way of instant appeal. Simultaneously, a reference is also made by learned trial Court for confirmation of “death” sentence awarded to the appellant in terms of Section 374 Cr.PC. The appeal and reference now are being disposed of by way of instant judgment.

5. It is contended by learned counsel of the appellant that the appellant being innocent has been involved in this case falsely by the police and he has been convicted and sentenced by learned trial Court on the basis of no evidence. By contending so, he sought for acquittal of the appellant, as his involvement according to him is not free from doubt.

6. Learned Additional Prosecutor General for the State by supporting the impugned judgment has sought for dismissal of the appeal and confirmation of “death” sentence to the appellant.

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

8. As per the complainant ASI Mushtaq Ali, on 06.02.2015, when he was on his duty at Police Station, Miro Khan, there came Sikandar Ali and reported death of his daughter Mst.Kamal Khatoon and sought for issuance of letter to medical officer concerned for conducting postmortem on her dead body with an assertion that he would lodge formal FIR of the incident later-on. It was done accordingly, without recording formal report even in roznamcha, by the complainant, which appears to be significant. The formal FIR of the incident was lodged by ASI Mushtaq Ali on behalf of the State on 10.02.2015, allegedly on the basis of information provided to him by a spy intimating him that the deceased has been done to death by her father, brothers and husband in connivance with each other by declaring her to be “Kari” with Akbar Dayo. Neither said Akbar Dayo nor any independent person was examined, during investigation or at trial to prove such factum; such omission could not be overlooked, which apparently has made the involvement of the appellant in this case to be doubtful. Be that as it may, FIR of the incident has been lodged with delay of about five days and explanation to such delay furnished by complainant ASI Mushtaq Ali is not appearing to be plausible. Indeed, he being police officer is appearing to be instrumental in causing delay in recording FIR of the incident, without lawful justification.

9. In case of Imran Ashraf and others vs. The State (2001 SCMR-424), it was observed by Hon’ble Court that;

“Section 154, Cr.P.C. lays down procedure for registration of an information in cognizable cases and it also indeed gives mandatory direction for registration of the case as per the procedure. Therefore, police enjoys no jurisdiction to cause delay in registration of the case and under the law is bound to act accordingly enabling the machinery of law to come into play as soon as it is possible and if first information report is registered without any delay it can help the investigating agency in completing the process of investigation expeditiously”.

10. Admittedly, none has seen the appellant committing the alleged incident therefore, his involvement on the basis of spy information could hardly be said to be justified to maintain his conviction.

11. In case of Faheem Ahmed Farooqui 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.

12. In view of the facts and reasons discussed above, the impugned judgment is set aside. Consequently, the appellant is acquitted of the offence for which he was charged, tried and convicted by learned trial Court. He is in custody and shall be released forthwith, if not required in any other custody case.

13. The appeal and reference are disposed of accordingly.

J U D G E