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