IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Criminal Appeal No.S-47 of 2016
Appellant : Shah Murad son of Mouja Ali Jafferi
Through Mr.Asif Ali Abdul Razzak Soomro,
Advocate
State : Through Mr.Raja Imtiaz Ali Solangi, A.P.G
Complainant Zuhro Jafferi in person.
Date of hearing : 18.10.2018
Date of decision : 18.10.2018
J U D G M E N T
IRSHAD ALI SHAH, J-. The appellant by way of instant criminal appeal has impugned judgment dated 23.04.2016, passed by learned Sessions Judge, Shikarpur, whereby he for an offence punishable u/s.302 (b) r/w Section 114 PPC has been convicted and sentenced to undergo imprisonment for life and to pay compensation of rupees One Lac to the legal heirs of deceased Khuda Bux.
2. The facts in brief necessary for disposal of instant criminal appeal are that the appellant with rest of the culprits, after having formed an unlawful assembly and in prosecution of their common object, duly armed with deadly weapons, committed Qatl-e-Amd of deceased Khuda Bux, by causing him fire shot injuries to satisfy their enmity with him, for that the present case was registered.
3. At trial, the appellant did not plead guilty and prosecution to prove the charge against him, examined complainant Zuhro, produced through him FIR of the present case, PW PC Bahadur Ali, PW Rahim Bux, SIO/SIP Ghulam Shabir, produced through him memo of place of incident, inquest report, memo of arrest of co-accused Manthar, memo of recovery of hatchet from accused Manthar, PW Muhammad Ali, PW/Mashir Shakal and then closed the side.
4. The appellant during of his examination under section 342 Cr.PC denied the prosecution’s allegation by pleading innocence. He did not examine anyone in his defence or himself on oath in disproof of the prosecution’s allegation.
5. On evaluation of evidence so produced by prosecution, learned trial Court convicted and sentenced the appellant by way of impugned judgment, as stated above.
6. It is contended by learned counsel for the appellant that the applicant being innocent has been involved in this case falsely by the complainant party only to settle their previous enmity with him, the role attributed to the appellant in commission of the incident is only to the extent of instigation and co-accused Dadan alias Allahdad and Ishaq with similar role have already been acquitted either by this Court or by learned trial Court. By contending so, he sought for acquittal of the appellant. In support of his contentions, he relied upon cases of Shera Masih & another Vs. The State (PLD 2002 SC-643), and 2). Ghulam Haider & another Vs. The State (2015 PCr.LJ-1227).
7. Learned A.P.G for the State and the complainant in person by supporting the impugned judgment have sought for dismissal of the instant criminal appeal.
8. I have considered the above arguments and perused the record.
9. There is no dispute with regard to the death of deceased Khuda Bux being unnatural. Only thing which remains to be examined is the liability of the appellant towards the alleged incident. It is inter-alia stated by complainant Zuhro and PWs Rahim Bux and Muhammad Ali that on 17.04.1992, when they and deceased Khuda Bux were available at their house in Deh Noor Muhammad Shujra, there at about 06.00 a.m, came accused Inam, Dadan, Ishaq, armed with guns, Shah Murad (appellant) empty handed and Manthar with hatchet, they told them that they have come to avenge the murder of Mehar and then at the instigation of appellant, accused Inam fired and killed deceased Khuda Bux and then all the accused made their escape good by making fires at them (complainant and his witnesses) and in air to create harassment. The appellant admittedly at the time of incident was empty handed and role attributed to him in commission of the incident by the complainant and his witnesses is only to the extent of instigation. It is not appealing to common sense that a person with prudent mind would go to his enemies at their house in order to settle his enmity with them being empty handed. In that situation, the involvement of the appellant on the basis of allegation of instigation obviously is appearing to be doubtful.
10. It would not be out of place to mention that prior to the appellant, co-accused Inam for an offence punishable u/s.302 (b) PPC and co-accused Dadan alias Allahdad for an offence punishable u/s. 324 PPC, were convicted and sentenced to undergo different terms, for committing murder of deceased Khuda Bux and making fires at complainant and his witnesses with intention to commit their murder, by learned trial Court, vide judgment dated 29.03.2001. On appeal so preferred by them, accused Dadan alias Allahdad was acquitted while conviction and sentence recorded against co-accused Inam was maintained by this Court vide judgment dated 23.12.2002 (passed in Crl.Appeal No.71/2001). The rejection of his appeal was impugned by co-accused Inam by way of filing a Criminal Petition No.71/2004, before the Hon’ble Supreme Court of Pakistan, it too was dismissed vide order dated 03.04.2006. Subsequent, to it, co-accused Ishaq was acquitted by learned trial Court vide judgment dated 01.07.2010, with an observation that his case is identical to that of co-accused Dadan alias Allahdad, who has already been acquitted by this Court. In that situation, the conclusion of learned trial Court finding the appellant to be guilty of the above said offence on point of sharing his common intention was contrary to the finding, which was already arrived at by this Court and that of learned trial Court in respect of co-accused Dadan alias Allahdad and Ishaque.
11. In view of the facts and reasons discussed above, the impugned judgment could not be sustained, it is set-aside. Consequently, the appellant is acquitted of the offence for which he was charged, tried and convicted by learned trial Court. He shall be released forthwith in the present case, if he is no more required in any other custody case.
12. The instant appeal is disposed of in above terms.
JUDGE
..