IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Criminal Appeal No.S-09 of 2018

 

                   

Appellant              :                 Sada Bux s/o Wazir Ali by caste Kharos   Through Mr.Safdar Ali Ghouri, Advocate

 

Complainant       :                   Ayaz Ali Kharos through                                                                  Mr.Muhammad Afzal Jagirani, Advocate

 

State                              :                  Through Mr.Raja Imtiaz Ali Solangi, A.P.G

 

Date of hearing    :                 05.11.2018          

Date of decision  :                  05.11.2018                   

 

J U D G M E N T

 

IRSHAD ALI SHAH, J-.The appellant by way of instant appeal has impugned judgment dated 08.01.2018 passed by learned 3rd Additional Sessions Judge, Shikarpur, whereby he has been convicted and sentenced as under;

i)                   U/s. 302 (b) PPC, to undergo imprisonment for life and to pay fine of Rs.50,000/- (Fifty thousand), in case of default in payment to undergo simple imprisonment for six months more.

ii)                U/s.148 PPC to pay fine of Rs.25000/-(Twenty five thousand) in case of default in payment to undergo simple imprisonment for six months.

iii)              U/s.337-H(ii) PPC to pay fine of Rs.10,000/- (Ten thousand) in case of default in payment to undergo simple imprisonment for three months.

2.                The facts in brief necessary for disposal of instant appeal are that the appellant with rest of the culprits allegedly after having formed an unlawful assembly and in prosecution of their common object, committed Qatl-e-Amd of Saddam Hussain by causing him fire shot injuries and then went away by making aerial firing to create harassment, for that the present case was registered. On investigation, the appellant was found to be innocent by the police and was let-off accordingly but was joined as an accused at trial and then was charged for the above said offence together with                  co-accused Gulzar.

3.                The appellant and absconding accused Gulzar did not plead guilty to the charge and prosecution to prove it, examined     PW-01 complainant Ayaz Ali, produced through him FIR of the present case, PW-02 Arslah, PW-03 mashir Abdul Rafiq, PW-04 Dr.Sham Lal, through him was produced postmortem report on the dead body of deceased Saddam Hussain, PW-05 Tapedar Imtiaz Ahmed, through him was produced sketch of vardat, the report of the chemical examiner and ballistic expert were produced by the prosecution by way of statement and then prosecution closed the side by adopting the evidence of SIO/ASI Ghulam Nabi and SIO/ASI Ghulam Raza, which was already recorded against co-accused Gulzar.

4.                The appellant and co-accused Gulzar in their statements, recorded u/s 342 Cr.PC denied the prosecutions’ allegation by pleading innocence. They did not examine any one in their defence or themselves on oath. Needless to state that after recording statements of accused on oath, accused Gulzar absconded away.  

5.                On evaluation of evidence, so produced by the prosecution, the learned trial Court convicted and sentenced the appellant by way of impugned judgment, as stated above.

6.                It is contended by learned counsel of the appellant that the appellant being innocent has been involved in this case falsely by the complainant party only to settle their dispute with him over matrimonial affairs, he on investigation was also let-off by the police finding him to be innocent and he has been convicted and sentenced by learned trial Court on point of vicarious liability without any lawful justification. By contending so, he sought for acquittal of the appellant.   

7.                Learned A.P.G and learned counsel for the complainant by supporting the impugned judgment sought for dismissal of the instant appeal.

8.                I have considered the above arguments and perused the record.

9.                The unnatural death of deceased Saddam Hussain is proved of evidence of medical officer Dr.Sham Lal. Now is to be examined the liability of the appellant towards the alleged incident.  It is stated by complainant Ayaz Ali and PW Arslah during course of their examination that on 22.01.2012, when they, deceased Saddam Hussain and PW Rashid were working in their land at village Haji Sobo Khan, there at about 1700 hours came accused Gulzar with T.T pistol, Sada Bux (appellant) with DBBL Gun, Bakhshal with T.T pistol and two unknown culprits with hatchets. On the instigation of Sada Bux (appellant), accused Gulzar fired at Saddam Hussain, who by sustaining that fire shot injuries, fell down on the ground; he was taken to hospital but died on his way to hospital. The incident as per FIR, was reported to police on 25.01.2012. It was with delay of three days, such delay according to the complainant in his FIR occurred as his Nekmard Ghulam Shabir was out of station, he came and the incident was related to him and then at his advice, he lodged the report of the incident with police. If it was so, then the prosecution was under lawful obligation to have examined Nekmard Ghulam Shabir to justify delay in lodgment of the FIR. It was not done by the prosecution for no obvious reason. In that situation, the delay in lodgment of the FIR could not be said to have been proved, which has made the involvement of the appellant in this case on the basis of allegation of instigation to be doubtful one. PW Rashid Ali being independent witness to the incident was given up by prosecution for no obvious reason. The inference which could be drawn of his non examination would be that he was not going to support the case of prosecution. The evidence of SIO/ASI Ghulam Nabi and ASI Ghulam Raza which was already recorded against absconding accused Gulzar, was adopted against the appellant by the prosecution, ignoring the fact that they were not examined by the prosecution in his presence. In that way the appellant has been prejudiced in right of his defence seriously.

10.              In case of Zahid alias Liaquat vs. State (2017 YLR-347), the Honourable Court has observed that;

“Except role of instigation to co-accused no overt act had been attributed to him---No legal justification existed for upholding conviction of co-accused”.

                    

11.              Based upon above discussion, the conviction and sentence recorded against the appellant by way of impugned judgment could not be sustained, it is set aside. Consequently, he is acquitted of the offence for which he was charged, tried and convicted by learned trial Court. He shall be released in the present case, if he is no more required in any other custody case.

12.              The instant appeal is disposed of accordingly.

                                                                                                    JUDGE

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