IN THE HIGH COURT OF SINDH BENCH AT SUKKUR
Crl. Appeal No.S-72 of 2014
Ameer Bux and others
Versus
The State
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Date of hearing |
26.05.2017
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Date of Judgment
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26.05.2017 |
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The appellants |
Ameer Bux and others. Through Mr.Zulfiqar Ali Naich, Advocate for the appellants.
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Respondent |
The State Through Mr.Saleem Akhtar, Additional Prosecutor General for State. |
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RASHEED AHMED SOOMRO, J.- Through the instant criminal Appeal, the appellants namely (1) Ameer Bux s/o Naseer Gurgej, (2) Bahadur s/o Gulab Khan Gurgej, (3) Mehtab s/o Lutuf Ali Gurgej, (4) Ghulam Rasool s/o Andal Kosh, (5) Abdul Shakoor s/o Andal Kosh, (6) Pathan s/o Andal Kosh, (7) Punhal s/o Jatoi Kosh, (8) Adam s/o Ladho Kosh, (9) Gulab s/o Ladho Kosh, (10) Nawab s/o Ladho Kosh, (11) Gulzar s/o Jiwan Kosh, (12) Arbelo s/o Noor Muhammad Kosh and (13) Abdul Rasheed s/o Bagan Kosh assailed the Judgment dated 10.11.2014 passed by the learned 3rd Additional Sessions Judge, Mirpur Mathelo in a Sessions Case No.198 of 2014, for the offences under Sections 324, 353, 224, 225, 147, 148 and 149 PPC registered at Police Station, Khambra, vide Crime No.09 of 2014, whereby the appellants were convicted and sentenced as under:--
1. Accused were convicted for offence under Section 353 PPC and sentenced to suffer R.I for two (02) years.
2. Accused were convicted for an offence punishable u/s 224 PPC and sentenced to suffer R.I for two years.
3. Accused were also convicted for an offence punishable u/s 225 PPC and sentenced to suffer R.I for two years.
4. Accused were also convicted for offence under sections 147,148,149 PPC for the period of one year.
2. All the sentences awarded, were ordered to be run concurrently. Benefit of Section 382-B Cr.P.C was also extended to all the appellants.
3. Brief facts of the prosecution case, as unfolded in the FIR lodged by complainant A.S.I Khuda Bux Korai on 28.02.2014 with P.S Khambra, are that he, on the same day, along with other police officials namely HC Khair Muhammad Laghari, PC Abdul Razaque Bhayo, PC Shahnawaz Laghari and other police constables left Police Station, vide roznamcha entry No.28 in a official vehicle bearing No.SP-7485 with driver PC Deedar Hussain for arresting the proclaimed offenders. After patrolling from various places when they reached at Bhara road, they received spy information that absconder Ali Gul Kosh of PS Khambra is available outside his house. After receiving such information, the police party proceeded towards there and saw Ali Gul Kosh standing outside his house, who on seeing the police mobile tried to fled away but was apprehended at the distance of 30/40 paces, who on enquiry disclosed his name as Ali Gul son of Bakhsho Kosh, an absconder in crime No.07/2009, u/s 302 PPC 7/ATA, crime No.248/2010 u/s 447,506/2 PPC, crime No.287/2010 u/s 324,353 PPC, crime No.93/2011 u/s 324, 353 PPC, crime No.10/2012 u/s 302 PPC, crime No.13/2012 u/s 324,353 PPC, crime No.52/2012 u/s 324,353 PPC, crime No.02/2013 u/s 324,353 PPC, crime No.10/2013, u/s 324,353 PPC, crime No.42/2013, u/s 368, 324,353 PPC, crime No.47/2013 u/s 324, 353 PPC and crime No.48/2013 u/s 324,353 PPC. In the meantime, 10/15 armed persons with 5/7 ladies came out from the house of apprehended accused, who were identified as Ali Nawaz, Asghar, Rasheed, Allahdad, Ghulam Rasool, Abdul Shakoor, Pathan, Punhal, Nadeem, Aijaz, Adam, Gulab, Nawab and 07 unidentified ladies of Kosh community, who resisted and got the apprehended accused Ali Gul Kosh released from the lawful custody of police. In the meantime, 30/35 armed persons, who were identified as Ashique, Akbar, Mustafa, Manzoor, Mujtaba Murtaza, Sanaullah, Imdad, Sultan @ Sikandar, Abdul Hameed, Jaman, Gulzar, Roshan Ali, Faiz Muhammad, Ali Gohar and 20 unknown culprits duly armed with Kalashnikovs started firing upon police party with intention to commit murder. Police party also made firing in their defense and the encounter continued for about 20 minutes. Thereafter, all the accused made their escape good. An FIR was then lodged by the complainant at the Police Station, Khambra.
4. The trial Court framed charge against appellants at Ex.05, to which the appellants pleaded not guilty and claimed to be tried, vide their pleas recorded by the trial Court at Exhs.06 to 18.
5. In order to prove charge against appellants, prosecution examined ASI Khuda Bux Korai at Ex.19, who produced FIR at Ex.19-A, extract of entry at Ex.19-B, mashirnama of place of incident and recovery of empties at Ex.19-C, criminal record of accused at Ex.19-D and PW HC Khair Muhammad at Ex.20. Thereafter, learned ADPP for State closed the side of prosecution, vide his statement at Ex.21.
6. Statements of appellants were recorded under Section 342, Cr.P.C, in which the appellants denied the material, put forth to them in shape of questions and claimed their innocence. They, however, neither examined themselves on oath nor produced any sort of defence evidence.
7. The trial Court passed the impugned judgment dated 10.11.2014, in which the appellants were convicted and sentenced, as stated above, who have filed the instant criminal appeal.
8. Mr. Zulfiqar Ali Naich, learned counsel for the appellants argued that the judgment of the trial Court is much against the law, facts and equity and liable to be set-aside. That the trial Court has failed to appreciate the factual as well as legal aspects of the case while convicting the appellants; that the police did not prepare the memo of arrest of accused Ali Gul Kosh, thus, the question of attacking upon police party with intention to release the accused Ali Gul from their lawful custody does not arise, but all these points were not considered by the trial Court. He next argued that none from either side sustained any injury nor police mobile was damaged though the alleged encounter continued for about 20 minutes. He further argued that the trial Court has opined that Section 324 PPC is not proved by the prosecution as such question of proving Section 353 PPC does not arise. In the circumstances, he lastly prayed for allowing of the appeal and acquittal of the appellants.
9. Mr. Saleem Akhtar, learned Additional Prosecutor General, on the other hand, has conceded to the arguments advanced by the learned counsel for the appellants and fairly admitted the fact that the police did not prepare the memo of arrest of accused Ali Gul Kosh and that since the offence under Section 324, P.P.C is not proved, the evidence of remaining Sections became doubtful. He also admitted that nobody received injury from either side.
10. I have considered the arguments advanced by the parties and have carefully gone through the material available on the record.
11. The allegations against appellants are that they along with absconding companions duly armed with deadly weapons formed an unlawful assembly and in prosecution of common object of such assembly made straight fires upon the police party with intention to kill them, deterred them from discharging their lawful duties and also offered resistance in order to rescue the apprehended accused Ali Gul from the lawful custody of police. The trial Court while passing impugned Judgment has only proved the case against appellants for offences under Sections 353,224,225,147,148 and 149 PPC and did not prove the charge for offence under Section 324 PPC. The relevant paragraph of the impugned Judgment is reproduced hereunder:-
“Admittedly, in the alleged encounter none from either side received firearm injury only the accused persons started firing upon police party only to make resistance with intention to rescue the apprehended accused Ali Gul Kosh. As per evidence discussed above, it has come on record that the accused party in prosecution of common object offered resistance with police, made firing and got rescue the apprehended accused Ali Gul Kosh from lawful custody of police and there is no evidence available on record which could show that the accused persons made firing upon police party with intention to kill them. Therefore, offence under Section 324 PPC is not made out”.
12. Learned trial court had disbelieved the version of complainant as narrated in the F.I.R that accused persons attacked upon the police party to kill them so that they may rescue arrested accused though this version has also been repeated by complainant and witnesses while recording their evidence. It is further supported by recovery of empties by the I.O from the place of incident when such strong piece of prosecution evidence has been disbelieved by the learned trial court then whole the prosecution story becomes doubtful particularly when no independent person has been cited as witness though police had advanced information. No mashirnama of arrest of accused Ali Gul Kosh was prepared nor it has been exhibited on record nor it has even come on record that the mashirnama of arrest was in progress of its preparation. The incident narrated by complainant appears to be in two episodes. First episode starts when accused persons got released apprehended accused Ali Gul Kosh. These persons have been named without any weapon. No detail of resistance made by accused persons as well as police is mentioned in whole the prosecution case. Even there is no any evidence on record that either party received a single scratch. Whole the purpose of rescuing arrested accused Ali Gul KOsh was served through this episode, then the appearance of other accused persons duly armed with weapons and making firing upon the police party is totally doubtful. The prosecution story does not appeal the prudent mind. In case of Atta Muhammad and another V/S The State (1995 SCMR 599). The Hon’ble Supreme Court of Pakistan had classified the ocular account into three categories. Firstly, wholly reliable, secondly wholly unreliable and thirdly partly reliable and partly unreliable. In the third category, conviction can not be recorded unless the evidence is corroborated by oral or circumstantial evidence coming from distinct source.
13. In the present matter undisputedly ocular account has been partly relied and partly un-relied but no corroboration by oral or circumstantial evidence coming from distinct source is found available, therefore, whole the prosecution version is un-believable.
14. Keeping in view the above facts and circumstances and recorded no objection by the learned Additional Prosecutor General that the police did not prepare the memo of arrest of accused Ali Gul Kosh, hence the question of releasing accused Ali Gul Kosh from the lawful custody of police does not arise and that when the main Section 324 PPC was not proved by the prosecution, the evidence on remaining sections became doubtful. Thus, it is crystal clear that prosecution did not prove the charge against the appellants beyond any shadow of reasonable doubt regarding deterring the police officials in discharge of their lawful duties.
15. For the foregoing reasons and discussion, the instant criminal appeal was allowed, vide short order dated 26.05.2017 and the impugned judgment dated 10.11.2014 was set-aside. Appellants, namely, (1) Ameer Bux s/o Naseer Gurgej, (2) Bahadur s/o Gulab Khan Gurgej, (3) Mehtab s/o Lutuf Ali Gurgej, (4) Ghulam Rasool s/o Andal Kosh, (5) Abdul Shakoor s/o Andal Kosh, (6) Pathan s/o Andal Kosh, (7) Punhal s/o Jatoi Kosh, (8) Adam s/o Ladho Kosh, (9) Gulab s/o Ladho Kosh, (10) Nawab s/o Ladho Kosh, (11) Gulzar s/o Jiwan Kosh, (12) Arbelo s/o Noor Muhammad Kosh and (13) Abdul Rasheed s/o Bagan Kosh, were acquitted from the charge. They were present on bail, their bail bonds stand cancelled and sureties discharged.
16. These are the reasons of my short order dated 26.05.2017.
JUDGE