IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Jail Appeal No. 136 of 2012

Appellant: Khuda Bux alias Karo through Mr. Iftikhar Ahmed Shah advocate

The State: Through Ms. Rubina Qadir, Deputy Prosecutor General Sindh

Complainant: Muhammad Hassan through Mr. Muneer Iqbal advocate

Date of hearing: 22.08.2022

Date of judgment: 24.08.2022

J U D G M E N T

IRSHAD ALI SHAH, J- It is alleged that the appellant with rest of the culprits after having formed an unlawful assembly and in prosecution of their common object have caused fire shot and hatchet injuries to Khuda Bux and Ramzan with intention to commit their murders and then went away by causing fist and kicks blows to the complainant party, eventually Khuda Bux died of such injuries at hospital, for that the present case was registered.

2. On investigation, the appellant, co-accused Jumo, Shabbir alias Jabal and Baladi were apprehended and then were challaned after due investigation by the police.

3. On conclusion of trial, accused Jumo was acquitted; co-accused Baladi and Shabbir alias Jabal were found guilty for offence punishable under section 337-A(iii) and F(iii) PPC respectively for causing injuries to PW Ramzan, consequently, accused Shabbir alias Jabal was awarded punishment which he has already undergone. Co-accused Baladi was convicted and sentenced to undergo R.I for 05 years and to pay Arsh worth Rs.194,081.06 to PW Ramzan and he was directed to be kept in custody till realization of Arsh amount or to be released on bail, subject to his furnishing surety equivalent to Arsh amount. However, the appellant was convicted u/s 302 PPC which obviously is under clause (b) of section 302 PPC and was sentenced to undergo imprisonment for life and to pay compensation of Rs.200,000/- to the legal heirs of the deceased with benefit of section 382-B Cr.P.C vide judgment dated 25.02.2012 by learned 1^st Additional Sessions Judge, Thatta, which is impugned by the appellant before this Court by preferring the instant appeal from jail.

4. It is contended by learned counsel for the appellant that the appellant being innocent has been involved in this case falsely by the complainant party; the investigation of the case was carried out by police even before the registration of the FIR; the sketch of wardat prepared by Tapedar Muhammad Akram is not showing the availability of the appellant at the place of incident and the complainant and his witnesses have been believed by learned trial Court on the basis of misappraisal of evidence, therefore, the appellant is liable to be acquitted by extending him benefit of doubt or alternatively the conviction and sentence awarded to him to be reduced to one which he has already undergone by modifying the penal section from 302(b) to 302(c) PPC. In support of his contentions, he relied upon case of Raza and another vs. The State and others (2020 SCMR 1185).

5. Learned DPG for the state and learned counsel for the complainant by supporting the impugned judgment have sought for dismissal of instant jail appeal by contending that the appellant has committed the death of the deceased by causing him fire shot injury only to avenge termination of tenancy. In support of her contentions, she relied upon the case of Farooq Khan vs The State (2008 SCMR 917).

6. Heard arguments and perused the record.

7. The FIR of the incident has been lodged on the very date of the incident within shortest possible time. It is stated by the complainant that he was asked by PW Habibullah to arrange for some labourers to do work at his land, which he agreed and on the date of incident, when he, P.Ws Ramzan, Hashim and deceased went at the subject land together with PW Habibullah, when were working, there came the appellant with gun, Jumo with country made pistol of 12 bore, Baladi with hatchet, Shabbir alias Jabal with hatchet and Adil empty handed, they soon after their arrival, by abusing stated that why they are working at the land and it should be vacated. On that they were told that they are simply doing the labour. In the meanwhile, at the instigation of accused Adil, the appellant fired at the deceased, who after sustaining such fire shot injury fell down on the ground and died subsequently, co-accused Baladi and Shabbir alias Jabal caused hatchet blows to PW Ramzan and then all the accused went away by causing fists and kicks blows to the injured. The complainant is supported in his version by P.Ws Ramzan and Habibullah. All of them have stood by their version despite lengthy cross-examination that it was the appellant who caused fire shot injury to the deceased. There is no element of mistaken identity with regard to appellant or otherwise, therefore, they could not be disbelieved only for the reason that they are related inter-se or were having friendly terms with each other. No doubt the appellant has taken the plea that the deceased was done to death by the complainant party on dispute over matrimonial affairs and he then has been involved in this case falsely by them. Such plea the appellant has not been able to prove by bringing on record any cogent evidence, therefore, it needs to be ignored as an afterthought. Even otherwise, it is rare phenomenon to substitute a real culprit with an innocent one, in case like the present one. On arrest from the appellant has been secured the gun which he alleged used in commission of incident, it was owned by co-accused Jumo and was found to be matching with the empties secured. Such recovery could not be defeated under the pretext of foistation. No doubt in sketch of wardat prepared by Tapedar Muhammad Akram the availability of the appellant at the place of incident is not indicated, but for this reason the appellant could not be declared to be innocent, ignoring the ocular and corroborative piece of evidence against him, which prima facie connect him with the commission of incident. As per SIO/SIP Muhammad Ismail, he conducted the investigation soon after receipt of FIR of the present case. In FIR the time of incident is narrated to be 1130 hours. As per medical officer Dr. Noorullah, the injured were brought to him at the hospital at about 1130 hours. Subsequently it was stated by him voluntarily that time was mentioned by him erroneously. Such mistake even otherwise being human could not be taken as fatal to disbelieve the involvement of the appellant in commission of incident, which otherwise the prosecution has been able to prove.

8. By insisting for reduction of sentence, the guilt of the appellant is being admitted impliedly. No doubt in case of Raza and others (supra), the sentence was modified from section 302(b) to 302(c) PPC, but it was for the reason that the appellant committed death of the deceased when he attempted to commit rape with his sister. It was result of sudden flare up. In the instant case, no such sudden flare up is indicated. Indeed, the appellant has already been dealt with leniently by learned trial Court by awarding him lesser punishment.

9. In view of above, it is concluded safely that no case for making interference by this Court with the conviction and sentence awarded to the appellant by learned trial Court is made out, consequently, instant appeal, fails and is dismissed accordingly.

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JUDGE