Cr.Appeal No.S-231 of 2016

Cr.Appeal No.S-232 of 2016

Cr.Appeal No.S-233 of 2016

Cr.Appeal No.S-234 of 2016

For Regular Hearing

Date of hearing: 24.07.2017.

Date of judgment: 24.07.2017.

Mr. Shamsuddin N. Kobher Advocate for the appellants.

Mr. Zulfiqar Ali Jatoi, Additional Prosecutor General.

J U D G M E N T

NAIMATULLAH PHULPOTO, J. Appellants Mumtaz, Shah Nawaz (both sons of Gul Muhammad), Muhammad Aslam and Rab Nawaz were tried by learned Additional Sessions Judge, Ubauro in Sessions Case No.358/2016 for offence under Section 324, 353, 148, 149 PPC of PS Khambra. All the above named accused were also separately tried by the trial Court under Section 23 (i) (A) of Sindh Arms Act, 2013 registered at PS Khambra, by judgment dated 23.11.2016. Appellants were acquitted of the charge under Section 324 PPC, however, they were convicted under Section 353/34 PPC and sentenced to one year R.I and to pay fine of Rs.5000/- each. In case of default in payment of fine, they were ordered to suffer S.I for 15 days more.

2. Appellant Shah Nawaz was convicted and sentenced to four years R.I and to pay fine of Rs.20,000/- for offence under Section 23 (i) (A) Sindh Arms Act, 2013. Appellant Rab Nawaz was convicted and sentenced to two years R.I and to pay fine of Rs.10,000/- for offence under Section 23 (i) (A) Sindh Arms Act, 2013. Appellant Mumtaz Ali was convicted and sentenced to two years R.I and to pay fine of Rs.10,000/- for offence under Section 23 (i) (A) Sindh Arms Act, 2013.

3. Brief facts of the prosecution case as disclosed in the FIR are that on 19.04.2016 ASI Hazar Khan of PS Khambra left PS along with his subordinate staff HC Muhammad Ramzan, PCs Muhammad Ameen and Shah Nawaz in the official vehicle vide Roznamcha entry No.30 at 0700 hours for arrest of the absconding accused wanted by PS Khambra. It is alleged that ASI received spy information that accused Shah Nawaz, Muhammad Aslam and Rab Nawaz, who were wanted to the police in various cases, were outside of their houses in village Jagan Mazari. Police party proceeded to the said village, when reached near the house of accused Shah Nawaz, it is alleged that five accused persons armed with deadly weapons, were found standing there. Police party got down from the police mobile. It is alleged that accused made straight fires upon the police from their weapons with intention to kill them, police also fired in self defence, firing continued for 8/10 minutes. Thereafter, it is stated that accused surrendered before the police. ASI arrested accused Shah Nawaz, Rab Nawaz and Mumtaz and two accused persons ran away. Their names were discosed as Muhammad Aslam and his friend. It is alleged that Kalashnikov was recovered from the possession of accused Shah Nawaz, DBBL gun was recovered from the possession of accused Rab Nawaz and from the possession of accused Mumtaz SBBL gun was recovered. Accused persons had no licence for weapons carried by them. From the place of vardat three magazines containing 90 live bullets were recovered from the possession of accused Shah Nawaz, 20 live cartridges of 12 bore were recovered from the bag carried by accused Rab Nawaz, 30 live cartridges were in the bag in possession of accused Mumtaz. ASI made HC Muhammad Ramzan and PC Muhammad Ameen as mashirs, prepared mashirnama of arrest and recovery and sealed weapons and case property and bullets. Thereafter accused and case property were brought at Police Station, where ASI Hazar Khan lodged FIR No.60/2016 under Section 324, 353 against all the above named accused on behalf of State. Separate FIRs under Section 23 Sindh Arms Act, 2013 were registered against accused Shah Nawaz, Rab Nawaz and Mumtaz bearing crimes No.61/2016 to 63/2016 on the same day.

4. Investigation of these crimes was carried out by complainant ASI Hazar Khan himself. During investigation, he visited place of vardat in presence of HC Muhammad Ramzan and PC Muhammad Ameen from where he secured 09 empties of 7.62, 05 empties of 12 bore cartridges from the side of accused persons and 09 empties of G-3 and 07 empties of 7.62 bore from the side of police and those empties were sealed at spot. IO recorded 161 Cr.P.C statements of all the witnesses on the same day. Thereafter, weapons, empties and live cartridges were sent to Forensic Science Laboratory for the report and IO collected that report. On completion of investigation he submitted final report against the accused in all the four crimes/cases. Learned Additional Sessions Judge, Ubauro tried all the four cases separately. Charge in the main case bearing Sessions Case No.358/2016 was framed against accused Mumtaz, Aslam, Shah Nawaz and Rab Nawaz at Ex.4 under Section 324 read with Section 34 and section 353 PPC. All the accused pleaded not guilty and claimed to be tried.

5. At the trial prosecution examined PW-1 ASI Hazar Khan as Ex.5, who produced Roznamcha entry as Ex.5-A, mashirnama of arrest and recovery as Ex.5-B, FIR bearing crime No.60/2016 under Section 324, 353, 148, 149 PPC as Ex.5-C, mashirnama of place of vardat as Ex.5-G, report of the Expert of FSL as Ex.5-H. PW-2 HC Muhammad Ramzan as Ex.6, thereafter prosecution side was closed. Statements of the accused were recorded under Section 342 Cr.P.C as Ex.8 to 11. It may be mentioned here that cases under Section 23 Sindh Arms Act, 2013 were separately proceeded by the trial Court.

6. Charge against accused Shah Nawaz was framed under Section 23 Sindh Arms Act, 2013 and he pleaded not guilty and claimed to be tried. At trial prosecution examined PW-1 ASI Hazar Khan and PW-2 HC Muhammad Ramzan.

7. Charge against accused Rab Nawaz was framed under Section 23 Sindh Arms Act, 2013 and he pleaded not guilty and claimed to be tried. At trial prosecution examined PW-1 ASI Hazar Khan and PW-2 HC Muhammad Ramzan.

8. Charge against accused Mumtaz Ali was framed under Section 23 Sindh Arms Act, 2013 and he pleaded not guilty and claimed to be tried. At trial prosecution examined PW-1 ASI Hazar Khan and PW-2 HC Muhammad Ramzan.

9. Learned trial Court after hearing learned counsel for the parties in all the four cases by separate judgment dated 23.11.2016, in the main case acquitted accused Mumtaz, Shah Nawaz, Muhammad Aslam and Rab Nawaz for offence under Section 324 PPC, however, above named appellants were convicted under Section 353 PPC as stated above.

10. Appellant Shah Nawaz was convicted and sentenced to four years R.I and to pay fine of Rs.20,000/- for offence under Section 23 (i) (A) Sindh Arms Act, 2013. Appellant Rab Nawaz was convicted and sentenced to two years R.I and to pay fine of Rs.10,000/- for offence under Section 23 (i) (A) Sindh Arms Act, 2013. Appellant Mumtaz Ali was convicted and sentenced to two years R.I and to pay fine of Rs.10,000/- for offence under Section 23 (i) (A) Sindh Arms Act, 2013.

11. Appellants have filed separate appeals against their conviction and sentence recorded by the trial Court vide judgment dated 23.11.2016. Since all the appeals arise out of the same incident, mashirnama of arrest and recovery was also jointly prepared, facts and evidence adduced before the trial Court is same, I have decided all the four appeals by this single judgment.

12. The facts of this case as well as evidence produced before trial Court find an elaborate mention in the judgment passed by the trial Court and therefore, same may not be reproduced here so as to avoid duplication and unnecessary repetition.

13. Mr. Shamsuddin Kobher, learned counsel for the appellants mainly argued that it was a case of spy information. ASI had sufficient time to call independent and respectable persons of locality to witness the recovery proceedings but ASI avoided to call respectable persons of the locality for the mala fide reasons. It is also argued that alleged encounter took place in the village where presence of the private persons has come on record but no one was associated. It is also argued that according to the case of the prosecution, there was encounter with the sophisticated weapons from both side but no single injury/scratch was caused to the either party. Learned counsel for the appellant has drawn attention of the Court to the fact that trial Court has disbelieved the prosecution evidence so far main offence under Section 324 PPC is concerned. It is also argued that weapons were foisted upon the accused persons due to enmity of the accused with other community of the area under the influence of the police. Lastly, it is contended that story as stated by the prosecution appears to be unnatural and unbelievable and accused deserve the benefit of doubt.

14. Mr. Zulfiqar Ali Jatoi, learned Additional Prosecutor General conceded to the main contention raised by the learned counsel for the appellant and did not support the judgment of the trial Court, mainly, on the ground that trial Court has already extended benefit of doubt to the accused so far main offence under Section 324 PPC is concerned. Lastly, it is contended that though it was case of the prosecution that there was cross firing but no one had received injuries.

15. After hearing learned counsel for the parties, I have scanned the entire evidence.

16. From the scrutiny of evidence, it transpired that it was the case of spy information. ASI had received spy information that accused persons were standing in front of the house in their village but no effort was made by the ASI to call the villagers to witness the recovery proceedings. According to the case of prosecution, there was cross firing for 8/10 minutes with the sophisticated weapons from both side but not a single injury/scratch was caused to anybody. After arrest of the accused details of the weapons/ description and numbers have not been given by the ASI before the trial Court in evidence. Trial Court acquitted the accused so far offence under Section 324 PPC is concerned by disbelieving the prosecution evidence to that extent. Not a single word has been deposed by the PWs that accused deterred the police party from discharge of their lawful duties, as such conviction under Section 353 PPC was not sustainable under the law. Mere word of the police officials without independent corroboration cannot be safely relied upon for the purpose of conviction. Conviction under Sindh Arms Act, 2013 cannot be maintained for the reasons that neither the weapons were sealed at the spot nor they were sent to ballistic expert for opinion. In this case there were several circumstances which created doubt in the case of prosecution, under the law a single circumstance, which creates doubt in the prosecution case, is sufficient for extending benefit of doubt. In more or less similar circumstances this Court in the case of Samandar v. State (2017 MLD 539) has held as under:

“Head the arguments and perused the record. Allegedly on spy information, police party comprising of about 100 police personnel raided a house for recovery of abductees Hazar Khan Brohi and Abdul Aziz Veesar of main case bearing crime No.71/2013 of PS Ratodero under Section 365-A, Cr.P.C, where six accused armed with guns and pistols available in the said house made straight firing upon the police party, which was retaliated by police party and the encounter lasted for 5 minutes but surprisingly nobody from either side received any injury nor scratch nor any bullet was hit to any vehicle and it is imaginary; that two accused persons out of six accused successfully fled away from the scene while four accused/ appellants along with their weapons were apprehended along with a lady accused and abductee Hazar Khan Brohi and Abdul Aziz Veesar, does not appeal to a prudent mind and casted dent into prosecution story.

Admittedly, the police party conducted said raid on spy information and despite having prior information no effort was made for associating private person to act as mashir and attest the very occurrence, arrest and recovery thus recovery of weapons is clear violation of section 103, Cr.P.C.”

17. For the above stated reasons, I have no hesitation to hold that prosecution utterly failed to establish its case against the appellants and trial Court did not apply its judicial mind while appreciating the evidence, according to the settled principles of law, therefore, convictions and sentences recorded by the trial Court vide judgment dated 23.11.2016 are set aside. Appeals are allowed. Appellants are present on bail, their bail bonds stand cancelled and surety is hereby discharged.

JUDGE

N.M.