ORDER SHEET

 

IN THE  HIGH COURT OF SINDH BENCH AT SUKKUR.

 

 

 

 

Cr.Jail Appeal No:.D-79 of 2007.

 

                                   

                       

                                                Present,

                        Mr. Justice Munib Ahmed Khan &

                        Mr. Justice S. Shafqat Ali Shah Masoomi, J.J

 

Date of hearing: 08.07.2009.

 

Appellant:        Janoo @ Jan Muhammad through

                           Mr. Ali Ahmed Khan Advocate.

 

Respondents. The State through Mr. Sham Lal

                           A.P.G.

 

 

 

J U D G M E N T

 

 

Munib Ahmed Khan, J--- This is an appeal filed by one of the accused Janoo @ Jan Muhammad who has been tried U/s 302,324,147,148,149 r/w S. 7 ATA in FIR No: 03/2006 of P:S Sadhooja District Sukkur. In the instant case the complainant has reported to the police that while  he was going with his brother and 04 other persons (total in six)  then they were attacked by the people of Teghani tribe on 4.2.2006 at 0930 hours there were 29 persons of Teghani tribe armed with Klashnikovs, Rocket launchers and some of them fired, Mehrab out of all persons fired upon Nawab the brother of the complainant while other also fired and 04 persons from the party of complainant were injured while Nawab died at the spot. The FIR has been lodged at 17:30 hours on same day.

2.                     The case proceeded before the trial Court  against two persons i.e Lashkari and Janoo @ Jan Muhammad while 27  co-accused  were declared absconder. The learned Judge, ATC-II Sukkur formulated  05 points, after discussing them reached to the conclusion that accused Lashkari was not the actual person but was arrested in place of some other Lashkari, hence he was acquitted. Accused/appellant Janoo @ Jan Muhammad was convicted along with other some absconder co-accused for life term of U/s 302(b) r/w S. 149 PPC, he along with other co-accused was also found guilty U/s 324  r/w S. 149 PPC and was further convicted with R.I for a period of 10 years and to pay a fine of Rs. 5000/- each. The leanred Judge in his judgment has observed that 19 co-accused named in the FIR were not involved and were released  while 10 persons namely Mehrab, Mahiwal, Sadoro, Wahidoo, Sher Khan, Janoo @ Jan Muhammad ( appellant), Lashkari S/o Haibat , Shanoo @ Shahnawaz, Pandhi and Abdullah were convicted for the above term.

3.                     We are only discussing and taking the matter of appellant Janoo @ Jan Muhammad who is the appellant as no other convicted person is present before us while 19 co-accused were released  by the court and 10 who were convicted in absentia are also not available. The learned counsel of the appellant has been pointed out and discussed that the appellant has  joined as co-accused  while no role has been assigned to him. Learned counsel for appellant submits that the appellant has been arrested from jail as he was facing trial in some other case and in that trial he has been acquitted by the trial Court. He has submitted that involvement of the appellant is on the basis of tribal dispute of Chachar and Teghani and that no role has been assigned to him while admittedly he was not holding even a stick and was merely empty handed. He has further pointed out that the story narrated in the FIR is full of doubts and  has ever not been accepted by the trial Court as 19 persons specially named in the FIR have been acquitted by the trial Court,  notwithstanding the fact that those accused were holding   arms i.e K.Kov. He further pointed out that no recovery has been made while empties  of 54 Klashnikov bullets have been recovered along with 05 cartridges and that no inspection was made to the damages  which allegedly  was caused by Rocket launcher firing by one of the accused. He submits that the complainant did not come to the Court with clean hands but only with the motive to involve as many persons as possible from the side of other trial and lodged FIR after 08 hours. He requested that the appellant be released as that the prosecution has failed to involve appellant to justify the punishment awarded by the Court.

4.                     On the other hand learned A.P.G. has argued that the appellant has participated with other co-accused but he has not denied the factual position that 19 persons out of total 34 persons named in the FIR (i.e 29 named and 05 unidentified) have been released by the court as the evidence of the witnesses were contrary in respect to their presence and the role assigned to them. He states that police has rightly  arrested the accused persons on the allegation leveled in the FIR, while nothing was brought on record to show that the case based on falsehood and that the ocular evidence is sufficient to enable the Court  which has been brought on record to punish the accused.

5.                     After hearing learned counsel we have noticed that in the FIR the complainant has given 29 names along with 05 unidentified persons and some of them were armed with Klashnikovs and one by Rocket launcher while the caste of all the persons were Teghani. The role of the appellant is no where but he has been named in the FIR at Serial No: 14 as Janoo @ Jan Muhammad. From the statement which have been recorded by the learned Court  it appears that all the 04 injured witnesses were not unanimous on the involvement of the persons named in the FIR and there is serious discrepancies whereas several persons were even not identified and were released by the court, this sort of the evidence would not remove apprehension from the mind that in the tribal dispute  several persons can be involved instead of actual one which has become traditional now a days. There may be some role against some other persons but all of them have been declared as proclaimed offender and have been punished in absentia while nothing has been brought on record as to what role has been played by the appellant whereas several names have not been supported as accused by the witnesses. It has also been noticed during the course of arguments that 54 Klashnikov empties have been recovered along with 05 cartridges but no recovery of any of the Klashnikov has been effected nor it has been brought on record through any forensic report as to whether these empty bullets have been fired from one K.Kov or various K.Kovs and same is the position of cartridges. The post mortem report only shows that there are fire arm injuries without categorization of the nature of the injuries as to injury of pellets or the bullets. Admittedly there is some injured persons and one has died but the evidence so far  brought on record as well as contradiction in respect of the evidence which has also been noticed by the learned Judge, ATC-II Sukkur and led him to acquit 19 co-accused, benefit of doubt  could also be given to the appellant. Keeping in view that no role has been assigned to him while he has simply been named in the FIR and for that motive can be assumed of tribal dispute.

6.                     From the evidence which has been brought on record neither  intention of the appellant can be gathered nor his participation can be proved without doubt. In such a situation we accept this appeal and set-aside the Judgment dated: 17.9.2007 of ATC Court-II Sukkur Division Sukkur in respect of the appellant Janoo @ Jan Muhammad only. He may be released if not required in any case.

 

                                                                                    JUDGE

 

                                                JUDGE.

 

 

Kalwar