IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Crl. Jail Appeal No.S-08 of 2022

For hearing of main case.

Present:

Mr. Justice Zulfiqar Ali Sangi.

Appellants: Anees Rahujo, through Mr. Muhammad Qayoom Arain, Advocate

Respondent: The State through, Syed Sardar Ali Shah DPG

Date of hearing: 30.10.2023

Date of decision: 30.10.2023

J U D G M E N T

ZULFIQAR ALI SANGI, J:- Appellant Anees son of Gullan Rahujo has assailed the judgment dated 31.01.2022, passed by learned Additional Sessions Judge-I/MCTC/Camp held at CP-I Sukkur in Sessions case No. 127/2016 arising out of FIR No.26/2010 for offence under section 302, 149 PPC Police Station, Pir Jo Goth, whereby he was convicted U/S 302 (b) PPC, and sentenced to suffer life imprisonment as Ta’azir. Appellant/accused was also directed to pay Rs. 200,000/- (two lac) as compensation to the legal heirs of the deceased as required under section 544-A Cr.P.C. In case of default of non-payment of compensation amount, the accused shall suffer S.I for three months more. The benefit of Section 382 B PPC was also extended to the accused.

2. Precisely, prosecution case as unfolded in the FIR is that on 14.02.2010, complainant Ali Muhammad along with his uncle Behan Khan, his son Abdul Waheed, Zahid Hussain and nephew Muhammad Hatim were chit chatting in the home (manah) of Arz Muhammad Rahujo, situated at Deh Mangerji, Taluka Kingri, District Khairpur. It was about 0230 hours, electric bulbs were glowing, in the meanwhile someone called his son. Following which, his son Abdul Waheed opened the door and went outside. Complainant party also followed him and saw accused each namely Anees, Ali Khan, Pinyal, Sadar, and Imran @ Amir all armed with Kalashnikovs. Accused Anees while giving hakal to Abdul Waheed opened straight fire which hit on head of Abdul Waheed, the son of complainant. Whereupon he fell down on the ground, while remaining accused also made fire, thereafter they went away towards Banana garden. Complainant took injured Abdul Waheed to hospital but on the way he succumbed to injuries, complainant then appeared at PS within half an hour of the incident and got lodge FIR as stated above.

3. After usual investigation, the police submitted challan against the appellant/accused and others before the competent Court of law. The learned trial Court completed all legal formalities and framed charge against the appellant and other co-accused to which they pleaded not guilty and claimed trial.

4. The prosecution has examined nine witnesses who all produced certain documents and items in support of their evidence. Thereafter, the side of the prosecution was closed. The appellant and co-accused were examined under section 342 Cr.PC, wherein they denied the allegations against them and pleaded their innocence. After hearing the parties, trial Court convicted and sentenced the appellant while accused Imran @ Aamir, Pinal and Sadaruddin were acquitted.

5. Learned counsel for the appellant contended that the witnesses are related to each other and are interested; that there are contradictions in the evidence of PWs which make the case as doubtful; that there is conflict in between the ocular account and the medical account after such submission he states that he does not press the appeal on merits, if the conviction of appellant may be converted from 302 (b) PPC to 302 (c) PPC and appellant be sentenced for a period which he already undergone on the ground that appellant only made one shot and not repeated the same; that the appellant was the only bread winner of his family; that appellant is first offender having no criminal record.

6. Learned APG under these circumstances has raised no objection for maintaining conviction, however, on modification of sentence as prayed by the counsel for the appellant.

7. There is no denial to the fact that the unfortunate incident wherein one Abdul Waheed son of complainant lost his life had taken place on 14.02.2010 at 0230 hours whereas the matter was reported to the police at 1230 hours on the same day while inter se distance between the place of occurrence and police station was about 3/4 kilometers. This aspect of the case reflects that matter was reported to the police promptly without there being any delay. As the parties were known to each other, therefore, there was no chance of misidentification. In order to prove its case, the prosecution has produced sufficient evidence and the PWs remained consistent on each and every material point in as much as they made deposition according to the circumstances that happened in this case, therefore, it can safely be concluded that the ocular account furnished by the prosecution is reliable, straight forward and confidence-inspiring. The medical evidence available on record is in line with ocular account so far as the nature, locale, time and impact of the injuries on the person of deceased is concerned. So far as the question that the PWs were closely related to the deceased, their testimony cannot be believed to sustain conviction of the appellant is concern, it is by now a well established principle of law that mere relationship of the prosecution witnesses with the deceased cannot be made ground to discharge testimony of such witnesses. Learned counsel for the appellant could not point out any reason as to why the complainant has falsely involved the appellant in the present case and let off the real culprit. Substitution in such like cases is a rare phenomenon. During the course of proceedings, the learned counsel contended that there were material discrepancies and contradictions in the statements of witnesses but in my specific query, he remained unsuccessful and could not point out any major contradiction, which could shatter the case of the prosecution. On account of a lapse of memory owing to the intervening period, some minor discrepancies are inevitable and they may occur naturally. The accused cannot claim the benefit of such minor discrepancies. The eye witnesses and other witnesses have given details of the occurrence, which prove that they have witnessed the tragic death of Abdul Waheed.

8. As requested by learned counsel for the appellant that he does not wish to contest this jail appeal on merits by pointing out that appellant is behind the bars since his arrest and only single shot is attributed to him, he not repeated the fire shot upon the deceased, appellant has no criminal record and he is not a previous convict, as such, during the pendency of this appeal, his Jail Roll was called from the concerned jail authority, which shows that appellant Anees Rahujo has served out sentence excluding remission of 13 years 04 months and 08 days and he earned remission of 10 years 6 months and 18 days, hence he has served out total sentences of almost 23 years 10 months and 26 days. However, the portion of the sentence now remains only one year 04 months and 04 days with a sentence awarded to him on failure to pay compensation. In the given facts and circumstances of the case as well as in view of no objection recorded by learned APG and after perusal of the evidence of prosecution witnesses discussed above, the sentence of the appellant is altered from Section 302 (b) PPC to 302 (c) PPC while maintaining the conviction. The appeal is dismissed and sentence is reduced to the period already served out by him which includes period on failure to pay compensation. Presently, the appellant Anees Rahujo is in custody, he shall be released forthwith, if he is not required in any other custody case.

9. Instant appeal stands disposed of in above terms.

JUDGE

M.Ali/steno