IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

 

Criminal appeal No.D-118 of 2011.

Criminal appeal No.D-119 of 2011.

Criminal Jail appeal No.D-120 of 2011.

 

 

Present.  Mr. JusticeNaimatullahPhulpoto.

                                      Mr. JusticeShamsuddinAbbasi.

 

 

For hearing of application U/s  426 Cr.PC.

1.       For orders on M.A No.4644/2011 (B.A)

2.       For hearing of main case.

         

 

Date of hearing     10.07.2018.

Date of Judgment 10.07.2018,

 

Appellants:                              Soobothrough Mr. Abdul RehmanFaruqPirzada in Crl. Appeal No.D-118 and 119 of 2011 and Imran alias Irfan through Mr. Rukhsar Ahmed JunejoAdvocate.

                                               

 

Respondent.                            The State, Through Abdul RehmanKolachiD.P.G.

 

 

 

J U D G M E N T

 

 

ShamsuddinAbbasi,J:. AppellantsSoobo and Imran alias Irfanhaveassailed the judgment dated 20.09.2011passed by Special Judge Anti-Terrorism Court, Sukkur. Appellants were tried in Special Case No.102/2009Re- State v.Imran alias Irfanand anotherarising out of Crime No.321/2009offenceunder Sections365-A, 324, 353 PPC ATA, 1997, 13(d) Arms Ordinance and7 of ATA, 1997registered at Police Station,Ubauro.The learned trial Court has convicted the appellants under Section 365-A PPC r/w Section 7(a) ATA, 1997 and sentenced them to imprisonment for life and to pay fine of Rs.50,000/- each and in case of default in payment of fine it was ordered that they shall suffer further two years R.I. They were also convicted under Section324 PPC r/w Section 7(b) ATA, 1997 and awarded sentence them to suffer R.I for 10 years and to pay fine of Rs.10,000/- each and in case of default in payment of fine it was ordered that they shall suffer further R.I for one year more. They shall also convicted and sentenced under Section 353 PPC to undergo R.I for two years, whereas they were further convicted for the offence punishable under Section 13(d) Arms Ordinance and sentenced them to suffer R.I for 07 years and also to pay fine of Rs.5000/- each and in case of default they shall suffer further undergo R.I for one year more. However, benefit of Section 382-B Cr.P.C was extended to both the accused and it was ordered that sentence awarded to the appellants shall run concurrently.

 

2.                The brief facts of the prosecution case as per FIR lodged  by complainant ASI Gul Hassan at Police Station, Ubauro  are that on 12.08.2009 he along with ASI Suhrab Khan, HC Abdul Hameed, PCs Mohammad Ali, Riaz Ahmed, Manzoor Ahmed, Ghulam Fareed, Muzafar Ali armed with officials weapons and  in Police uniform left Police Station under entry No.05 at 10:30 hours in Police mobile driven by PC Ibrar Hussain for patrolling. During patrolling, at different places when they reached at1100 hours at Raunti Road, Ubauro where complainant ASI received spy information that one person abducted from Punjab,has now been confined in abandoned room near the house of AslamNiazi. After receiving such information, Police party proceeded towards the pointed place and at about 11:20 hours when they reached near the house of AslamNiazi they saw six persons armed with Kalashnikovs. The complainant party after getting down from the mobile where HC Abdul HameedChano disclosed and identified the accused to be (1) Aslam S/o Umer Hayat, (2) Imran alias Irfan son of Mohammad Sikandar Khan, and (3) Sajid son Ghulam Ali,  all by casteNiazi R/o  Taluka& District Mianwali at present village Sultan Gangal, Soobro S/o Gul Mohammad Chachar R/o DringChachar and two unidentified persons and Police party directed them to surrender but instead of surrendering themselves  made straight fire upon them in order to commit their murder which was retaliated and later on they made their hands-up while other accused made their escape good by taking advantage of sugarcane crop. The encounter lasted for about 20 minutes. On inquiry about the permit of Kalashnikovs, replied that it was without permit. Accused disclosed the names of co-accused who ran away. Police party heard cries, coming from abandoned room and went there. And saw that one person was chained with lock, police unlocked/removed the chain on inquiry,he disclosed his name as Khalil Ahmed son of Mohammad Amin Arain R/o New QabilWahTalukaKaroorpacaDistrict Lodhran Punjab. He further disclosed that he had friendship with AslamNiazi and on his invitation he came and since one month he was confined in the said room by him for ransom.It is alleged that accused compelled abductee to talk to his elders to pay him Rs.500,000/- as ransom,else he would be done to death. Due to non-availability of private persons, complainant made ASI Suhrab Khan and HC Abdul HameedChano as mashirs and prepared mashirnama of arrest and recovery of illicit Kalashnikovs. Thereafter, arrested accused as well as recovered property were brought at Police Station, where ASI Gul Hassan Soomro lodged FIR.

                   After usual investigation Police submitted challan against the appellants before learned Judge Anti-Terrorism Court under Section365-A, 324, 353, PPC r/w Section 7 of ATA, 1997.

 

3.                The learned trial Court framed charge against the accused at Ex.10but they did not plead guilty and claimed for trial.

 

4.            The prosecution in order to prove their case has examined PW-1 complainantASI Gul Hassan Soomroat Ex.12 and he produced mashirnama of arrest and recovery as well as FIRs vide Crime No.321, 322 and 323 of 2009 vide Ex.12-A to 12-C and entry Ex.12-D respectively. PW-ASI Suhrab Khan was examined vide Ex.13 and he produced memo of place of incident vide Ex.-13-A. PW-3 HC Abdul Hameed was examined vide Ex.14, PW-4 SIP Abdul SattarBozdar was examined vide Ex.17, PW-5 Mr. Asghar Ali Civil Judge & Judicial Magistrate was examined vide Ex.18 and he produced 164 Cr.P.C statement of abductee vide Ex.14-A, Abductee Khalil Ahmed was not examined as untraceable despite of publication.

 

5.              Thereafter, learned SPP for the State has closed his side  vide statement at Ex.19.

 

6.            Thereafter, the learned trial Court has recorded the statement of accused U/s 342 Cr.P.c,at Ex.20 &21, in which theyhave denied the allegations leveled by the prosecution against them but neither they have examined themselves on oath nor lead any defence witness in their defence. However, they stated that witnesses are Police officials, hence they are interested and weapons were foisted upon them.

 

7.          The learned trial Court after hearing both the sides have passed impugned judgment whereby the appellants were convicted and sentenced as mentioned above.

 

8.                It is contended by the learned Counsel for appellants that prosecution evidence is based upon evidence of official witnesses and no independent witness has been examined by the prosecution except abductee Khalil Ahmed. He further contended that Police had recovered abductee Khalil Rehman after police encounter in between the dacoits and police which is highly doubtful on the ground that both parties were armed with deadly sophisticated weapons but none from either side had sustained any single injury. He further contended that all the witnesses examined by the prosecution are highly interested and set-up witnesses and without corroboration independent witnesses conviction cannot be awarded. He further contended that there are material contradictions in between the evidence of prosecution witnesses. He further contended that the place of incident is situated near populated area but complainant has failed to associate any private person for alleged recovery. He further contended that alleged recovered weapons were neither sealed at the spot nor sent to the ballistic expert, to determine that whether they were in working condition or not. He further contended that there is delay of 08 days in recording statement of abductee Khalil Ahmed under Section 164 Cr.P.C and no such plausible explanation has been furnished by the prosecution. He further contended that learned trial Court has not appreciated the material contradictions and exaggerations made by the witnesses and admitted the prosecution evidence as gospel truth and did not appreciate the facts and legal points involved in this case.

 

9.                On the other hand, learnedDeputy Prosecutor Generalhas supported  the impugned judgment passed by the learned trial Court and contended that prosecution has established it’s case beyond shadow of reasonable doubt and they successfully proved the guilt of appellant and learned trial Court has rightly convicted the appellants by appreciating the evidence of prosecution witnesses. He supported the judgment of trial Court.

 

10.              Heard learned Counsel for the appellants as well as learned Deputy Prosecutor General and perused the material available on record.

 

11.              We have carefully scanned the evidence of prosecution witnesses which is rest upon ASI Gul Hassan, PW-2 ASI Suhrab, PW-3 HC Abdul Hameed, PW-4 SIP Abdul Sattar, PW-5 Civil Judge & Judicial Magistrate-II Asghar Ali.

         

12.First of all we have examined evidence of PW-1 complainant/ASI Gul Hassan, he deposed that on 12.08.2009 he was posted as ASI at Police Station, Ubauro and he along with his staff left Police Station vide roznamcha entry No.5 for patrolling in the air while patrolling from different places when they reached at Rountee Road where they received spy information that in the house of AslamNiazi one abductee has been confined and after receiving such informationthey proceeded towards the house of AslamNiazi and reached there where they saw that 06 persons armed with weapons were standing there. HC Abdul Hameed identified them to be Aslam, Sajid, Imran alias Irfan, Soobo and two unidentified persons. He further disclosed that they informed them that they are Police party and they should surrender themselves before Police but instead of surrendering they started direct firing at Police party in order to commit their murder in their defence. They have also made firing and encircled the culprits and apprehended accused Imran alias Irfan and Soobo on the spot while remaining four accused made their escape good. He further deposed that on inquiry apprehended accused disclosed their names as Imran alias Irfan and Soobo. He further deposed that unlicencedK.Kovs were recovered from their possession. He further deposed that they have heard voices coming from abandoned Kothi/room they went there and found abductee who has disclosed his name to be Khalid Ahmed had disclosed that he was called by AslamNiaz and on his invitation he reached at his house as guest but accused AslamNiazi detained him and demanded ransom for his release. He further disclosed that encounter was continued for about 20 minutes thereafter police arrested accused and prepared mashirnama of arrest and recovery of K.Kovs in presence of mashirs ASI Suhrab and HC Abdul Hameed. He further deposed that thereafter they brought accused and case property at Police lodged FIRs against accused and separate FIRs were also registered in a case of recovery of weapons. He was cross examined and during cross examination he admitted that no private person was associated with them to act as mashir and place of incident is at the distance of 02 K.Ms from Police Station. He further deposed that the distance between accused and Police party was 25 to 30 paces and he fired 58 rounds from his official weapons. He further deposed that 24 empties were secured from place of incident and they took 25 minutes in preparation of mashirnama. He further stated that no other house was adjacent to the house of accused AslamNiazi. However, he denied the fact that the accused Soobo was arrested from his village while he was driving his Rikshaw and he was arrested at the instance of ASI Suhrab. However, he has admitted that during Police encounter none has received any injury from either side and even no bullet hit to the official/Police mobile. He further deposed that he apprehended accused Imran while accused who run away from the place of incident was chased by PC Muzafar, PC Manzoor, PC Ghulam Fareed and they consumed two hours in completing all the formalities at the place of incident. He has also admitted that he has not produced arrival entry.

13.              We have also examined the evidence PW ASI Suhrab who has deposed on same line as stated by PW-1. However, he has contradict the complainant on the point of recovery from the place of incident as complainant stated that 24 empties were recovered from the place of incident but this PW stated that 11 empties were recovered from the place where accused were present and 17 empties of 7.62 bore and 7 empties of G-3 were secured from the police side. He also contradicts the complainant on the point of places where Police party had visited and remained there for some time. Complainant deposed that they stayed for about 05 minutes at Bashirabad and Noorwah whereas this PW deposed that they stayed for 50 to 55 minutes at Bashirabad-NoorwahPul and Rountee Road. He has also deposed that this fact has not been mentioned in the mashirnama. He has also contradicted on the point of distance between accused and Police party as per deposition of complainant the distance between Police and accused was 25 to 30 paces whereas he deposed that distance was 60 to 70 paces. However, he has admitted that none has received any injury from either side.

 

14.              We have also scanned the evidence of PW HC Abdul Hameed who has deposed on same lines as stated by complainant and PW Suhrab. He also contradicts to previous to PWs on the point of recovery of empties at the place of incident. He deposed that on 12 to 13 empties of 7.62 bore were secured from the place of incident but he again contradicted to both PWs on the point of timings stayed at different places before reaching place of incident. Previously both prosecution witnesses have contradicted each other. PW-1 deposed that they stayed at different places for about 05 minutes whereas ASI Suhrab stated that they consumed 50 to 55 minutes at different places whereas this PW stated that they stayed 30 minutes in different places. However, he has also contradicts the complainant on the point of katcha rooms situated at the place of incident according the complainant there was single katcha room at the place of incident where abductee was found now this PW deposed that there were three katcha rooms situated towards northern side where AslamNiazi was residing. He has also contradicted to both PWs on the point of distance between Police and accused. He stated that the distance between the police and accused was about ½ furlong. He further admitted that 39 rounds from official G-3 rifles were fired but no empty was secured by us which was fired by Police. He also contradicted to PW ASI Suhrab who disclosed that police party had chased the accused party but he deposed that they did not chase the accused who run away from the place of incident.

 

15.              We have also examined the evidence of PW-4 SIP Abdul Sattar who deposed that he received case papers, accused and crime weapons from complainant ASI Gul Hassan Soomro for investigation purpose. He has visited the place of incident on the pointation of complainant and secured 17 empties of 7.62 bore and 7 empties of G-3 from Police side and 11 empties from the side of accused AslamNiazi were secured. He prepared mashirnama of place of incident and recovered in presence of ASI Suhrab and HC Abdul Hameed and obtained their signatures. He has also recorded the statements of abductee Khalil Ahmed Arain, ASI SuhrabChachar, HC Abdul Hameed, HC Mohammad Ali, HC Riaz Ahmed, PC Manzoor Ahmed, PC Ghulam Fareed, PC Mazhar Ali and HC Ibrar Hussain on 20.08.2009 he got recorded the statement of abductee under Section 164 Cr.P.C from the Court of learned Ist Civil Judge & Judicial Magistrate, Ubauro, thereafter he has handed over the investigation to SIO ZaheerMahessar for submissions of challan in the competent Court of law. He was cross examined and deposed that the distance between place of wardat  and Police Station is 4 to 5 K.Ms. However, he has deposed that at the time of preparation of mashirnama of place of wardat the private person were available and he asked them to act as mashir but they refused. He has also admitted the fact that he did not send empties to ballistic expert and deposed that he has not found any bullet mark at the place of incident.

 

16.              PW-5 Civil Judge & Judicial Magistrate who deposed that on 19.09.2008 he was posted as IInd Civil Judge & Judicial Magistrate, Ubauro and he received application for recording statement of Khalil Ahmed under Section 164 Cr.P.C. He further deposed that accused were already arrested by the Police therefore, he issued notices to accused which was duly served upon them on the next date viz. 20.08.2009 at about 1200 hours. ASI, PW Khalil Ahmed as well as accused appeared before him and I recorded statement of PW Khalil Ahmed under Section 164 Cr.P.C as per his verbatim.

17.              From the perusal of evidence, we have come to conclusion that prosecution has failed to prove it’s case against the accused for the reasons that case of prosecution is based upon the evidence of Police officials and prosecution has failed to examine any independent witnesses who supported the case of prosecution. According to prosecution story complainant ASI Gul Hassan Soomro was on patrolling duty in the area, during patrolling he received spy information that a person was on captivity of dacoits who has been abducted by dacoits for ransom and after receiving information police party reached  at pointed place where encounter had taken place in between the dacoits and police party. It is pertinent to mention that Police party comprising on 08 Police personnel who were duly armed with sophisticated weapons and accused party was also comprising on 06 persons who were also armed with sophisticated weapons and according to the prosecution story police encounter had taken place in between them for about 20 minutes with a distance of about 25/30 paces. This aspect of the case has made out the whole case as doubtful which is very hard to believe that on one hand 08 police personnel duly armed with sophisticated weapons and on the other hand 06 hardened criminals armed with sophisticated weapons fired on each other with a distance of about 25/30 paces but surprisingly none from either side had received any single scratch. The other aspect which makes the case as doubtful on the point of contradiction in between the prosecution witnesses in respect of recovery of empties from the place of incident according to the prosecution witnesses HC Abdul Hameed who categorically stated that no empty was secured by the police which was fired by police from the place of incident. However, PW-4 SIP Abdul Sattar has deposed that he has prepared mashirnama of place of incident where from he has secured 17 empties of 7.62 bore and 07 empties of G-3 rifle from police side and 11 empties from side of accused persons. Not only on this point but prosecution witnesses have also contradicted with each other on the point of departure from Police Station and point where they received spy information. In this regard PW-1 complainant Gul Hassan deposed that they stayed for about 4/5 minutes at Bashirabad and Noor wah whereas PW-2 ASI Suhrab stated that they stayed for 50 to 55 minutes at Bashirabad and Noor Wah and Rountee Road.

18.              For the above stated reasons prosecution evidence is not reliable and confidence inspiring Episode of police encounter was also highly doubtful as none from either side had received any injury/single scratch during police encounter which continued for more than 20 minutes in between the police and dacoits even the distance of about 25 to 30 paces.

 

19.              Resultantly, Appeals are allowed. Conviction and sentence recorded by trial Court vide judgment dated20.09.2011 are set-aside. AppellantsSoobo S/o Gul Mohammad Chachar and Imran alias Irfan S/o Mohammad Sikandar Khan Niaziare acquitted. They shall be released forthwith if not required in other case. These are the reasons for our short order dated 10.07.2018.

 

 

JUDGE

JUDGE

 

 

 

 

Ihsan