IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Criminal Jail Appeal No.S-108 of 2017
Appellants : 1). Ali Bux @ Ali s/o Popal Sabzoi,
2). Ihsan s/o Muhammad Ameen Sabzoi
Through Mr.Safdar Ali Ghouri, Advocate
Complainant : Ghulam Rasool son of Masu Khan Jafferi
Through Mr.Syed Tahir Abbas Shah, Advocate
The State : Through Mr.Muhammad Noonari, D.P.G
Date of hearing : 21.08.2020
Date of decision : 28.08.2020
J U D G M E N T
IRSHAD ALI SHAH, J.- By way of instant appeal, the appellants have impugned judgment dated 30.11.2017, passed by learned 1st Additional Sessions Judge, Kandhkot, whereby they have been convicted and sentenced as under;
“Hence accused Ali Bux alias Ali son of Popal Sabzoi and Ishan son of Ameen Sabzoi are hereby convicted under section 265-H(ii) Cr.PC for the offence punishable under section 302(b) PPC and sentenced to imprisonment for life and to pay compensation of Rs.100,000/-(One Lac) each to the heirs of person killed and in default whereof to further undergo R.I for six months more. However, benefit of section 382-B Cr.PC is extended to the convicts”.
2. Facts in brief necessary for disposal of instant appeal are that the appellants with two unknown culprits, during course of robbery of motorcycle, fired and killed Abdul Sattar, for that they were booked and reported upon by police.
3. At trial, the appellants did not plead guilty to the charge and the prosecution to prove it, examined nine witnesses and then close its’ side.
4. The appellants in their statements recorded u/s.342 Cr.PC, denied the prosecution’s allegation by pleading innocence by stating therein that the pistol and motorcycle have been foisted upon them and PWs have deposed against them falsely on account of their dispute with them over the landed property. They did not examine themselves on oath or anyone in their defence.
5. On evaluation of evidence, so produced by the prosecution, the learned trial Court convicted and sentenced the appellants, as is detailed above, by way of impugned judgment.
6. It is contended by learned counsel of the appellants that the appellants being innocent have been involved in this case falsely by the complainant party in order to satisfy its grudge with them over landed property; the FIR of the incident has been lodged with unexplained delay of about two days with due deliberation and consultation contrary to the narration made by the complainant in his report recorded in roznamcha; the recovery has been foisted upon the appellants and the evidence of the PWs being doubtful has been believed by learned trial Court without cogent reasons. By contending so, he sought for acquittal of the appellants. In support of his contentions, he relied upon cases of Falak Sher alias Sheru Vs. The State (1995 SCMR-1350), 2). Khurram Jalali vs. The State (2017 P.Cr.L.J Note-19), 3). Abdul Rahim vs. The State and 4 others (2017 P.Cr.L.J-228) and 4). Muhammad Akram vs. The State (2009 SCMR-230).
7. Learned D.P.G for the State and learned counsel for the complainant have sought for dismissal of the instant appeal by supporting the impugned judgment.
8. I have considered the above arguments and perused the record.
9. Initially, the incident was recorded by the police in roznamcha under Entry No.26/dated 22.07.2013, it reads as under;
“now has come at P.S, Ghulam Rasool son of Masu Khan Jafferi, r/o village Pehlwan Khan Jafferi, Taluka Kandhkot, together dead body of Abdul Sattar son of Masu Khan by caste Jafferi, aged about 53 years. It is stated by him that Abdul Sattar has died on account of sustaining fire shot injury. His dead body to be referred to hospital for postmortem and he would come later-on and lodge report of the incident in detail”.
10. After recording above said entry in roznamcha, the dead body of the deceased was examined and then it was referred by the police to Hospital for postmortem. Subsequently, on 24.07.2013, complainant Ghulam Rasool came at P.S A-Section Kandhkot and lodged FIR of the incident, which reads as under;
“Complaint is that I am constable in police department, I am performing duties in the Court of Civil Judge & J.M, Kandhkot, I am working till office time. On 22.7.2013, after office hours, I reached at my house, at evening time, I, my brother aged about 53 years, cousin/Maroot Abul Khair s/o Godho Khan Jafferi become ready to go to Kandhkot city, we left the house on motorcycle of Abul Khair CD-70 red coloured model 2012, motorcycle was driven by Abul Khair, I was sat in centre, and my brother sat at last, when we reached at street leading from press club Kandhkot to Sonarki Bazaar near hospital of Dr.Mumtaz Soomro at about 8.30 hours night, search lights were glowing in the street, four persons whose faces were opened and beside them motorcycle was standing, we identified them as accused Ali Bux alias Ali s/o Popal Sabzoi , r/o Deh Cheman, Taluka Kandhkot, 2. Ahsan s/o Ameen by caste Sabzoi, r/o Deh Metahar, Taluka Kandhkot and two unidentified persons we seen them clearly if seen again will be identified, all the four persons aimed their pistol and accosted and directed to come down from motorcycle, Abul Khair stopped motorcycle, my brother Abdul Sattar who was sitting back side grappled accused Ahsan Sabzoi and choked him, accused Ali Bux alias Ali fired with his pistol which hit him he cried and fell down, unidentified accused aimed their pistols at us, we remained silent, meanwhile our cousin/(Pophat) Manzoor who was getting T.V repaired at the shop of Haji Malik, came running, all the accused then made aerial firing to cause harassment, accused Ihsan and Ali Bux alias Ali boarded on our motorcycle and unknown accused on their own motorcycle fled away towards western side Shujerah Chowk, then we saw our brother sustained fire injury back side of right ear and through from head, blood was oozing and was died. We brought the dead body of brother Abdul Sattar at police station, from where we got letter for examination of corpse and got postmortem from government hospital, thereafter brought the corpse at home, buried the corpse and I was sit for condolence, today appeared and complaint that above named accused with common intention on force of weapons snatched the motorcycle of cousin Abul Khair and murdered my brother Abdul Sattar with fire of pistol and made aerial firing and created harassment at city, I am complainant investigation be done.”
11. The formal FIR of the incident obviously has been lodged by the complainant with delay of about two days and such delay has not been explained by him plausibly, therefore, it could not be overlooked or lost sight of.
12. In case of Mehmood Ahmed & 03 others vs. The State and another (1995 SCMR-127), it has been held by Honourable Apex Court that;
“Delay of two hours in lodging the
FIR
in the particular circumstances of the case had assumed great significance as the
same could be attributed to consultation, taking instructions and calculatedly
preparing the report keeping the names of the accused open for roping in such
persons whom ultimately the prosecution might wish to implicate”.
13. The names of appellants together with allegation of robbery were introduced first time by the complainant in his FIR. It was contrary to the report, which was recorded in roznamcha. Whether, the report recorded in roznamcha could be treated as First Information Report or otherwise? Similar situation was dealt with by this Court in case of Nooruddin and another vs. The State (2005 MLD-1267), wherein observed that;
“From the broad facts of the case it is an admitted position that the incident took place on 15-5-2004 at 1.30 a.m. and just after 1-1/2 hours of the incident the complainant reached the police station along with both the injured persons and narrated the facts of the incident which were incorporated in the station diary in which it was alleged that some criminals were taking away the cattle of the complainant and on resistance the said criminals fired at the injured Habibulah and Nazar Muhammad therefore, he had brought them at the Police Station. After recording of the said N.C. the police took action by issuing letter to the medical officer for examination of the injured witnesses. The purpose of first information report is to set the police into motion and start investigation of the case. After registration of station diary the police started the investigation by issuing letter to the medical officer for examination of injured witnesses. As such, apparently the first information report of the case would be the station diary under which the complainant narrated some details of the incident to the police. Reliance is placed on the case of Muhammad Hussain v. State 1993 SCMR 1614. From the said facts a cognizable offence appears to have been committed therefore, the police started the investigation. In that station diary the names of the applicants are not mentioned”.
14. PW Manzoor who as per the complainant promptly came at the place of incident has not been examined by the prosecution for no obvious reason. The presumption which could be drawn of his non-examination under Article 129 of Qanun-e-Shahadat Order, 1984, would be that he was not going to support the case of prosecution. Be that as it may, it has inter-alia been stated by complainant Ghulam Rasool and PW Abul Khair that on the date of incident, when they and the deceased were on motorcycle, when reached adjacent to Hospital of Dr.Mumtaz Soomro, there they were confronted by four persons, they were identified to be the appellants and two unknown culprits, the deceased caught hold of appellant Ihsan, on that he was fired at by appellant Ali Bux and then the appellants and two unknown culprits drove away their (complainant party) motorcycle while making aerial firing to create harassment and then they took dead body of the deceased to P.S A-Section, Kandhkot. It was referred to Hospital for postmortem. Subsequently, after burial of dead body of the deceased they lodged formal report of the incident with P.S A-Section Kandhkot and then pointed out the place of incident to police. The identity of the appellants under the light of bulbs is appearing to be weak piece of evidence. If for sake of arguments, it is believed that the appellants were identified by the complainant and PW Abul Khair even under the light of bulbs, even then the ocular account furnished by them is not appearing to be trustworthy, simply for the reason that whatever they have stated before the police in shape of formal FIR and 161 Cr.PC statement, was with delay of about two days to the incident and it was contrary to what it was stated by the complainant before the police on the very first day of the incident, when the incident was recorded by the police in roznamcha.
15. As per SIO/SIP Nadar Ali on 24.07.2013, he visited the place of incident and secured therefrom blood stained earth and empty. The recovery of blood stained earth and empty from the place of incident, which is said to be busy spot even on 3rd day of incident is appearing to be doubtful.
16. It has also come on record that appellant Ali Bux was arrested by police party of P.S Thull on 23.07.2013, in injured condition, after an armed encounter and from him allegedly was secured the incriminating pistol. He was formally arrested in the present case on 25.07.2013, and from him as per SIO/ASI Muhammad Hassan was secured the robbed motorcycle on 28.07.2013. It was on 3rd day of his arrest. Surprisingly, such motorcycle was found registered in the name of Najamuddin Bhangwar, a person totally stranger to the present case. No report of Ballistic Expert has been brought on record by the prosecution, which could have suggested that the pistol allegedly secured from appellant Ali Bux was found to be similar with empties secured from the place of incident. In that situation, appellant Ali Bux could hardly be connected with recovery of motorcycle and pistol.
17. The overall discussion involves a conclusion that the prosecution has not been able to prove its case against the appellants beyond shadow of doubt and they are found to be entitled to such benefit.
18. 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.
19. In view of the facts and reasons discussed above, the conviction and sentence recorded against the appellants together with the impugned judgment are set-aside. Consequently, they are acquitted of the offence for which they were charged, tried and convicted by learned trial Court, they are in custody and shall be released forthwith in present case.
20. The instant appeal is disposed of accordingly.
J U D G E
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