IN THE HIGH COURT OF SINDH, AT KARACHI

 

Criminal Appeal No. 90 of 2020

 

                                             

 

Appellant:                    P.C Altaf Hamza through Mr. Maroof Hussain Hashmi, Ms. Anjum and Ms. Ayesha Begum advocates

 

 

The State:                      Through Mr. Faheem Hussain Panhwar, Deputy Prosecutor General Sindh

 

Date of hearing:           06.09.2022

 

Date of judgment:        12.09.2022

 

 

J U D G M E N T

 

IRSHAD ALI SHAH, J- It is alleged that appellant and co-accused Mudasir Nazeer while on duty as police constable in furtherance of their common intention committed murder of Shahriyar by causing him fire shot injury, when he refused to stop despite signal, when was found coming on his motorcycle from wrong direction, for that they were booked and reported upon. After due trial, co-accused Mudasir Nazeer was acquitted while appellant was convicted under section 302(b) PPC and sentenced to undergo life imprisonment and to pay compensation of Rs.500,000/- to the legal heirs of the deceased and in default whereof to undergo simple imprisonment for 06 months with benefit of Section 382-B Cr.P.C, by learned 1st Additional Sessions Judge/MCTC Karachi South vide judgment dated 20.01.2020, which is impugned by the appellant before this Court by preferring the instant appeal.

2.       It is contended by learned counsel for the appellant that the appellant being innocent has been involved in this case falsely at the instance of the complainant party; the FIR of the incident has been lodged with delay of about 01 day and on the basis of same evidence, co-accused Mudasir Nazeer has been acquitted while the appellant has been convicted by learned trial Court without lawful justification, therefore, the appellant is also entitled for his acquittal by extending him benefit of doubt. In support of his contentions, he relied upon case of Ali Sher and others vs. The State (2008 SCMR 707).

3.       None has come forward to advance arguments on behalf of the complainant. However, learned DPG for the State by supporting the impugned judgment has sought for dismissal of instant appeal by contending that the case of the appellant is distinguishable to that of acquitted accused.

4.       Heard arguments and perused the record.

5.       It is stated by complainant Tahir Khan that on the date of incident he, P.Ws Fahad, Raheel and the deceased went to Sea View when were returning, they were signaled to stop by the police officials on duty and then they were fired at, such fire hit to Shahriyar, who was not allowed to be taken to hospital for about 30 minutes and he then was taken to Jinnah Hospital, there he died on the next date. Subsequently he (complainant) came to know that fire was made by the appellant and then he lodged formal report of the incident with the police. The delay of 01 day in lodgment of the FIR, if is examined in that context then, it appears to be natural. If for the sake of arguments, it is believed that the name of the appellant was disclosed by the complainant later-on, then his evidence is enough to prove the factum of the incident, which also takes support from the evidence of P.W Muhammad Ali Khan. The crucial evidence which is brought on record by the prosecution is that of HC Sikandar Ali, who came at the place of incident on hearing of commotion together with SIP Din Muhammad and others. It was stated by him that the appellant fired from his official SMG Rifle, such fire hit to the ground and then to the motorcyclist, who fallen down on the ground together with his motorcycle, his friends available at the spot intimated that he was Shahriyar. The evidence of HC Sikandar Ali takes support not only from the evidence of PW Fahad Rehman but from the evidence of P.W SIP Din Muhammad. As per him, he with his staff on hearing of commotion went at the place of incident, found the deceased lying on the ground sustaining injury and he secured SMG Rifle from the appellant, who disclosed to him that the fire was made by him. The availability of the official SMG Rifle with the appellant, the prosecution has been able to prove by examining PC Mazhar Iqbal, it was stated by him that such SMG Rifle was actually issued to co-accused Mudasir Nazeer, who returned the same and then it was issued to the appellant. The evidence which is brought on record by the prosecution prima facie implicates the appellant in commission of incident, it is furnished by the independent persons, who were having no enmity or ill-will with the appellant to have involved him in this case falsely instead of real culprit, therefore, it could not be disbelieved so far the case of the appellant is concerned. The fire short injury sustained by the deceased is attributed to the appellant, therefore, learned trial Court was right to extend benefit of doubt to co-accused Mudasir Nazeer by acquitting him and to hold the appellant to be guilty for the offence alleged against him.

6.       So far quantum of sentence is concerned, it needs to be modified for the reason that apparently, there was no intention with the appellant to have committed the death of the deceased and the incident has taken place when the deceased refused to stop when was signaled to stop, on finding him coming from the wrong direction. Therefore, the punishment awarded to the appellant for offence punishable under Section 302(b) PPC is converted to one under Section 302(c) PPC consequently, he is ordered to undergo rigorous imprisonment for 14 (Fourteen) years and to pay fine of Rs.500,000/- payable to the legal heirs of the deceased as compensation and in default whereof to undergo simple imprisonment for 06 months with benefit of Section 382-B Cr.P.C.

7.       In the case of Fayyaz Ahmed and others vs. Muhammad Khan and others (2020 SCMR 281), it has been held by the Honourable Apex Court that;

“4.    The facts and circumstances of the case clearly demonstrate that the encounter between the parties was a chance and sudden encounter and there was no premeditation involved in this case. In this sudden occurrence only one blow was given by Rozi Khan appellant to Safdar Ali deceased and despite an opportunity being available in that regard he had not repeated that blow. In the heat of passion at the spot no undue advantage had been taken by the appellants and they had not acted in any manner which could be termed as cruel or unusual. For all these reasons we have concluded that the actions attributed to the appellants attracted the provisions of section 302(c), P.P.C. With this conclusion we hold that the trial court was quite justified in convicting and sentencing Fayyaz Ahmed appellant for an offence under section 302(c), P.P.C. and the conviction and sentence of Rozi Khan appellant for an offence under section 302(b), P.P.C. were unjustified.”

 

8.       The case law which is relied upon by the learned counsel for the appellant is on distinguished facts and circumstances, in that case the benefit of doubt was extended to the accused for the reason that there was possibility that the incident was unseen. In the instant case, the appellant is fully implicated in commission of incident by P.Ws HC Sikandar Ali and Farhad Rehman and their evidence takes support from evidence of PW SIP Din Muhammad.

9.       Subject to above modification, instant appeals fails and it is dismissed accordingly.  

 

JUDGE