IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Criminal Appeal No.S-58 of 2018

                   

Appellants                     :   1). Sain Bux s/o Illahi Bux Jatoi

                                           2). Zahid s/o Muhammad Bux Jatoi   

                                                                   Through Mr. Muhammad Hashim Soomro, Advocate

 

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

 

 

Date of hearing            :     06.12.2018            

Date of decision            :     06.12.2018                      

 

J U D G M E N T

 

IRSHAD ALI SHAH, J-. The appellants by way of instant criminal appeal have impugned judgment dated 25.06.2018, passed by learned 3rd Additional Sessions Judge, Shikarpur, whereby the appellants have been convicted and sentenced as under;

“accused person namely Zahid son of Muhammad Bux Jatoi and Sain Bux son of Illahi Bux Jatoi, hence both are convicted under section 265-H(2) Cr.PC and sentenced under section 148 PPC for period of 2 years and fine of Rs.25000/-(rupees twenty five thousand only) to each of the accused and failure to make payment of fine shall suffer more S.I for period of 4 months. Sentenced under section 324 read with Section 149 PPC for period of seven years and fine of Rs.100,000/- (rupees one lac only) each of the accused and in failure to make fine, shall further S.I for period of 6 months. further sentenced under section 353 read with section 149 PPC for period of one and fine of Rs.10,000/- (Rupees ten thousand only) each of the accused and in failure to make payment of fine shall suffer further S.I for period of 3 months”.  

 

2.                The facts in brief necessary for disposal of instant criminal appeal are that the appellants and others allegedly being members of wandering gang, associated at place of incident, with intention to commit theft habitually and then they deterred the police party of P.S Khanpur, led by ASI Abdul Karim, from discharging their lawful duty as public servants by making fires at them with intention to commit their murder and then made their escape good leaving behind one of the culprit namely Rahim Bux in injured condition, who died subsequently, for that they were booked and challaned in the present case.

3.                At trial, the appellants did not plead guilty to the charge and the prosecution to prove it, examined PW-01 complainant ASI Abdul Karim, produced through him roznamcha entries, memo of arrest and recovery and FIR of the present case, PW-02 Mashir/PC Abdul Ghafoor, PW-03 medical officer Dr.Jahangir, produced through him provisional medical certificate and postmortem report in respect of Rahim Bux (said to be one of the culprit),  PW-04 SIO/SIP Rustam Ali, produced through him memo of arrest and then closed the side.

4.                The appellant in their statements u/s 342 Cr.PC denied the prosecution’s allegation by pleading innocence. Neither, they examined anyone in their defense or themselves on oath in disproof of the prosecution’s allegation.

5.                On evaluation of evidence, the learned trial Court has convicted and sentenced the appellants, as detailed above, by way of impugned judgment, as stated above.

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 to save their skin from legal consequences on account of murder of accused Rahim Bux, the identity of the appellants was doubtful and they have been convicted and sentenced by learned trial Court on the basis of evidence which was led by interested witnesses. By contending so, he sought for acquittal of the appellants.

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

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

9.                Admittedly, the examination-in-chief of the complainant and his witnesses was not recorded in presence of the appellants; it was adopted by the complainant and his witnesses by stating before learned trial Court that they reiterated to their examination-in-chief which has already been recorded by learned Civil Judge and Judicial Magistrate, Khanpur. It was contrary to the mandate contained by Section 353 Cr.PC. If for the sake of arguments, it is believed that such omission has not prejudiced the appellants in their defense, even then on merits, the conviction and sentence which are recorded against the appellants could not be sustained. Nothing has been brought on record by the prosecution which may suggest that the appellants are members of wandering gang, which was habit to associate to commit theft or dacoity. The incident as per complainant and his witnesses has taken place on busy road just adjacent to the houses, yet no independent witness was associated by them to witness the incident, such omission on part of complainant and his witnesses could not be lost sight of. It was stated by complainant ASI Abdul Karim and PW Mashir/PC Abdul Ghafoor during course of their cross examination that neither any police personnel sustained any fire shot injury nor any damage was caused to the property of police officials, which has made the very allegation of encounter of appellants with police to be doubtful one.

10.              In view of the facts and reasons discussed above, the conviction and sentence recorded against the appellants by learned trial Court by way of impugned judgment could not be sustained, those are set aside. Consequently, the appellants are acquitted of the offence, for which they were charged, tried and convicted by learned trial Court. They are in jail and shall be released forthwith, if are no more required in any other custody case.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

                                                                                                JUDGE

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