2019 P Cr (PLP)

KHADIM HUSSAIN TUNIO, J.

Through captioned appeal, appellant Suhbat Mahar has assailed the Judgment, dated 28.09.2013, passed by the learned Judge, Anti-Terrorism Court, Sukkur, in Special Case No.64 of 2012, culminated from FIR No.76/2007, registered at Police Station Lakhi Ghulam Shah, whereby he was convicted under section 265-H(2), Cr.P.C., read with section 7 of Anti-Terrorism Act, 1997 for the offence punishable under sections 302, 324, 148, 149 and 427, P.P.C. and awarded sentence to suffer R.I. for life and his property was forfeited in favour of State, however benefit of section 382-B, Cr.P.C. was extended to the appellant.

2. Succinctly facts of the prosecution case are that complainant Nihal Ahmed Shar lodged the aforementioned FIR on 16.08.2007 alleging therein that on 15.08.2007 he along with his cousin Haji Rostam Shar and brother Ali Gul were returning to their village from Larkana in a wagon along with other passengers and when at about 01.00 p.m. they reached near Junejo Laro, six persons armed with kalashnikovs appeared and aimed their weapons at the wagon forcing it to stop. Afterwards, they opened fire extensively on the wagon. Consequently, Haji Rustam Shar, driver Ayaz Ali Bhutto succumbed to injuries. The complainant identified five out of six culprits, as Suhbat, Abdul Wahab, Bashir Ahmed, Muhammad Ali alias Papoo and Abdul Sattar, all by caste Mahar. The complainant and other passengers sustained injuries, thereafter, all the accused fled away from the scene.

3. During investigation, appellant/accused was arrested by police on 22.08.2007. After usual investigation, police submitted the challan against the accused persons showing rest of dominated accused as absconders. Formal charge was framed against the appellant to which he pleaded not guilty and claimed for trial. At the trial, prosecution examined as many as six witnesses, namely, PW-1, MLO Naeemullah Memon, PW-2, Nihal Shar (complainant), PW-3, Mst. Zaibul Kharal (injured), PW-4, Zafar Ali Brohi (injured), PW-5, Ali Gul Shar (injured) and PW-6, Inspector/I.O. Waheed Baig. The statement of appellant under section 342, Cr.P.C. was recorded by the trial Court wherein he denied the prosecution case against him and claimed to be innocent. He, however, neither appeared on oath as his own witness nor even produced any witness in his defence. The learned trial Court on the assessment of evidence on the record convicted the appellant vide impugned judgment and awarded him sentence as mentioned above.

4. Learned counsel for the appellant has contended that there was delay of two days in lodging of FIR, which has not been explained by the prosecution: that the P.Ws/injured, namely, Mst. Zaibul and Zafar Ali did not support the prosecution case and they were declared by the prosecution as hostile; that the appellant has been falsely implicated by the complainant due to tribal enmity and the appellant is in fact victim of enmity between the Shar/Jatoi and Mahar community; that the evidence adduced by the prosecution at the trial has not been properly assessed and evaluated by the learned trial Judge; that the evidence produced at the trial by the prosecution is insufficient to warrant conviction:, that the witnesses are highly interested and their evidence cannot be safely relied upon; that there was no motive behind the commission of alleged offence.

5. On the other hand, learned D.P.G appearing for the State has supported the impugned judgment by arguing that there is ample material against the appellant to connect him with commission of alleged offence; that two injured P.Ws have fully supported the prosecution case while two P.Ws resiled from their statements recorded under section 161, Cr.P.C.

6. We have heard the learned counsel for the appellant as well as learned DPG and scanned the material available on record with their assistance.

7. It is the case of the prosecution that on the fateful day the present appellant along with his companions appeared in front of a wagon travelling towards Larkana and opened fire, resulting in the death of the wagon driver Ayaz Ali and a passenger Haji Rustam Shar and, in consequence thereof, the complainant as well as many other passengers sustained injuries.

8. Perusal of record shows that there are numerous contradictions in the evidence of P.Ws on material point of identification of appellant, which make the prosecution case doubtful P.W-02, Nihal Shar, the complainant, has deposed that he had seen the absconding accused Abdul Wahab, Bashir, Muhammad Ali and Abdul Sattar prior to incident as they belong to locality. He has further deposed that he was sitting on front seat and saw six persons duly armed with Kalashnikovs with open face. While P.W-03 Mst. Zaibul has deposed that the accused persons had muffled their faces. She has further stated that she had not disclosed the name of appellant to police. She has also denied the presence of appellant at spot at the time of incident. P.W-04 Zafar Ali has also stated that the accused persons were with muffled faces and they were on motorcycle. He has also denied that he had disclosed in his statement the name of appellant. Hence, the evidence of complainant and P.W Ali Gul on the point of identification of the appellant does not inspire confidence.

9. The complainant has not disclosed the source of identification of the appellant, though he has stated that he had seen the present appellant on the marriage ceremony of one Mumtaz Shar, but he was not able to disclose the specific date or time of said marriage. The prosecution did not examine said Mumtaz Shar in support of its claim. Moreover, there is no motive in the crime. There was no recovery of alleged weapon the alleged offence took place at main road Sukkur-Larkana in a thickly populated area but no person from the locality was examined by the police. Admittedly, the appellant has no previous record of indulging in any crime. Besides, it is an admitted position that there is a delay of 27 hours in lodging of FIR. Enmity between Shar/Jatoi and Mahar tribes though unfortunate, but a well-known fact of the local area. Hence, deliberation and consultation in lodging of FIR cannot be ruled out.

10. In view of the above glaring contradictions and discrepancies in the prosecution evidence, we are of the opinion that the prosecution was not able to bring home the guilt of appellant/accused up to the hilt and, therefore, conviction awarded to the appellant by the learned trial Court is not sustainable in law. Consequently, we allow this appeal, set aside the conviction and sentence recorded by the learned Anti-Terrorism Court, Sukkur vide impugned judgment and acquit the appellant of the charge. The appellant is confined in jail. He shall be released forthwith if he is not required in any other case by any other Court. JK/S-71/Sindh Appeal allowed.