IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Appeal No. 334 of 2022

Appellant: Sajid through Mr. Muhammad Faisal Bukhari advocate

The State: Through Mr. Khadim Hussain, Additional Prosecutor General Sindh

Date of hearing: 26.10.2022

Date of judgment: 26.10.2022

J U D G M E N T

IRSHAD ALI SHAH, J- It is the case of the prosecution that appellant with one more culprit by committing trespass into the house of complainant Salah Alam, committed robbery of gold ornaments and cash as is detailed in FIR and in order to make their escape good therefrom, caused fire shot injury to P.W Saad Alam on his abdomen; the appellant eventually was apprehended by police party on duty, after exchange of fires whereby he also sustained fire shot injury on his left leg, from him was secured the pistol of 9mm bore with magazine containing 02 live bullets of same bore and robbed cell phone and cash worth Rs.20,000/-, for that he was booked and reported upon by the police.

2. On conclusion of trial, the appellant was convicted under Section 397 PPC and was sentenced to undergo R.I for 07 years and to pay fine of Rs.50,000/- and in default whereof to undergo S.I for 03 months; he was further convicted under section 353 PPC and was sentenced to undergo R.I for 02 years and to pay fine of Rs.5000/- and in default whereof to undergo S.I for 01 month; he was further convicted under Section 324 PPC and sentenced to undergo R.I for 10 years and to pay fine of Rs.50,000/- and in default whereof to undergo S.I for 06 months; all the sentences were ordered to run concurrently with benefit of Section 382(b) Cr.P.C, by learned IV-Additional Sessions Judge, Karachi East vide judgment dated 12.05.2022, which is impugned by the appellant before this Court by way of instant appeal.

3. It is contended by learned counsel for the appellant that the appellant being innocent has been involved in this case falsely by the police at the instance of the complainant party; the injuries allegedly sustained by the appellant and P.W Saad Alam have not been proved by the prosecution on account of its failure to examine the medical officers concerned and evidence of the P.Ws being doubtful in its character has been believed by learned trial court without lawful justification, therefore, the appellant is entitled to his acquittal by extending him benefit of doubt.

4. Learned Addl. P.G for the state by supporting the impugned judgment has sought for dismissal of the instant appeal by contending that the appellant has been apprehended at the spot by the police after exchange of fires and from him has been secured the crime weapon and robbed property and prosecution has been able to prove its case against him beyond shadow of doubt.

5. Heard arguments and perused the record.

6. It is inter-alia stated by the complainant that on the date of incident the appellant with one more culprit came at his house by pushing his father inside and then kept him and his family members hostage by pointing their weapons, then they took gold ornaments and cash from the cupboard of their house. In the meanwhile, his brother P.W Saad Alam opened the door from outside, his mother by raising cries asked him not to come inside of the house as all of them have been made hostage by the dacoits; thereupon the appellant and his companion had scuffle with his brother P.W Saad Alam then they fired at him which he sustained on his left side of his abdomen. On hearing of fire shot reports, the police party on duty reached at the place of incident and then apprehended the appellant after exchange of fires, in injured condition, while his companion made his escape good by jumping over the wall; his brother P.W Saad Alam was taken to hospital, a memo of arrest and recovery was prepared at the spot, which was signed by him, the incident then was formally reported to the police. His evidence takes support from evidence of P.W Saad Alam, on all material points. It was stated by I.O/SIP Muhammad Sharif that on hearing of fire shot reports, he with his police party went at the place of incident, apprehended the appellant after exchange of fires in injured condition and recovered from him the crime weapon, cell phone and Rs.20,000/- said to be robbed property. His evidence takes support from evidence of P.W/mashir PC Muhammad Usman. They have stood by their version on all material points despite lengthy cross-examination, they are appearing to be natural witnesses to the incident and there appear no justification to disbelieve them only to extend benefit to the appellant. No doubt no medical officer is examined by the prosecution to prove the injuries sustained by P.W Saad Alam and the appellant, but for this omission, no favour could be extended to the appellant for the reason that during course of examination of P.W Saad Alam, it was suggested to him on behalf of the appellant that he has sustained bullet injury at the hands of absconding accused. It was denied by him but same prima facie suggests that the appellant himself has admitted the occurrence of incident and sustaining of fire shot injury by P.W Saad Alam but was attempting to absolve him of the liability by attributing the fire shot injury to P.W Saad Alam to the absconding accused. The case of prosecution also takes support from evidence of I.O/Inspector Shehzad Ali with positive forensic report. In these circumstances, learned trial Court was right to conclude that the prosecution has been able to prove its case against the appellant beyond shadow of doubt.

7. In case of HAKIM KHAN Versus The STATE (2013 S C M R 777) it has been held by the Honourable apex Court that;

“9. After perusal of the evidence, we find that there is direct testimony of Nazir Ahmed (P.W.) Inspector/SHO beside the statement of Khalil Ahmed SI (P.W.2) who remained associated during the entire course and also are witnesses to the recoveries made from the spot or from the very person of the appellant who was arrested while in injured condition. The arrest in the manner as given by the prosecution is supported by the fact that at the time of the arrest appellant was found injured. He could not explained as to how he has sustained firearm injury which is corroborated by medical evidence with regard to probable time of receiving injuries and the time of occurrence as given by the police who are in this case themselves witnesses.”

8. In view of facts and reasons discussed above, it is concluded that no case to make interference with the impugned judgment is called for, by this Court, by way of instant appeal, it is dismissed accordingly.

JUDGE