IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Criminal Jail Appeal No.D – 93 of 2010

Present:

Mr. Justice Muhammad Iqbal Mahar

Mr. Justice Amjad Ali Sahito

Appellant: Muhammad Siddique S/o Abdul Ghani, Chachar

through Mr. Abdul Baqi Jan Kakar, Advocate

Respondent: The State, through Mr. Zulfiqar Ali Jatoi, Additional P.G

Date of hearing: 11.09.2018

Date of decision: 11.09.2018

J U D G M E N T

AMJAD ALI SAHITO, J-. The above-named appellant was tried by learned Judge, Anti-Terrorism Court Sukkur, in three Special Case Nos.05/2005, 06/2005 and 07/2005 (New Nos. 29/2010, 30/2010 and 31/2010 St.Vs. Muhammad Sadique and another, for offences punishable under Section 302, 324, 353, 147, 148, 149 PPC and 7 Anti-Terrorism Act 1997 arising out of Crime No.128/2005, and off shot cases under Section 13(d) Arms Ordinance both arising out of Crime Nos.129 and 130 of 2005 registered with Police Station Ghotki, whereby he was convicted and sentenced to suffer imprisonment for life under Section 302(a) r/w Section 148/149 PPC and 7(a) Anti-Terrorism Act 1997 PPC and to pay compensation of Rs.500,000/- to the legal heirs of deceased Shah Nawaz Lolai, in case of default of payment of compensation, to suffer S.I for two years more. He was further convicted and sentenced under Section 324 r/w section 149 PPC and 7(b) Anti-Terrorism Act 1997 to suffer R.I for ten years and to pay fine of Rs.100,000/- and in case of default thereof to suffer R.I for one year more. For offence under Section 353 r/w Section 149 PPC, he was also sentenced to undergo R.I for two years so also under Section 13(d) Arms Ordinance to suffer R.I for seven years and to pay fine of Rs.50,000/- and in case of default thereof to suffer R.I for one year more. However, all the sentences were ordered to run concurrently with the benefit of Section 382-B Cr.P.C.

2. It is pertinent to mention here that during the pendency of present appeal appellant Qaim alias Qamaruddin expired, as such proceedings against him stood abated vide order dated 15.11.2012.

3. The concise facts as depicted in FIR are that on 17.06.2005 at about 2200 hours, complainant Inspector Rana Sanaullah being SHO Police Station Ghotki lodged FIR, in which he has mentioned that on the fateful date, he received information that the notorious dacoits Ghulam Nabi Chachar and Ghulam Qadir alias Qadri Chachar along with their companions namely Ghulam Rasool, Hafeez, Lal Bux, Manzoor, Ali Gohar, Amir Bux alias Tedi, Ghulam Muhammad alias Gulro alias Fauji, Muhammad Siddique, Qaim alias Qamar, Sawan alias Saoown, Wazeer, Asghar Ali and Anwer are available in Muhammadpur, he immediately flashed such message to his higher authorities through telephone and wireless, hence he along with his staff each ASI Abdul Karim Langah, HC-744 Muhammad Shahban, PC-904 Nazir Ahmed Bharo, PC-861 Nazir Ahmed Kolachi, PC-9003 Manzoor Ahmed, HC-1565 Arbelo Ghoto, PC-1119 Abdul Razak Bhatti, PC-1898 Abdul Khaliq, PC-1825 Muhammad Mithal Mirani, PC-12860 Qurban Ali Khoso, in government uniforms duly armed with weapons in government vehicle No.SP-5704 along with driver HC Altaf Ahmed as per roznamcha entry No.18-1715 dated 17.06.2005 proceeded there, whereas, TPO Muhammad Aslam Langah along with his staff HC-1440 Ashraf Ali Gabole, HC-1845 Baig Muhammad Ghoto, PC-11360 Bashir Ahmed Abro, PC-13042 Bashir Ahmed; PC-1263 Makhno Langah, PC-901 Khadim Hussain Jatoi, TC 899 Illahi Bux Soomro also arrived in Vehicle No.SP-5948 with driver PC-1199 Manzoor Ahmed Shah also arrived at main chowk of Ghotki, and proceeded towards the pointed place, on reaching Muhammadpur, they were informed that the dacoits have boarded on motorcycles and are going towards Gemro, hence they took private persons namely Shah Nawaz Lolai, Nazeer Lolai and Hoth Lolai in help, whereas SHO Adilpur Rana Ghulam Sarwar along with his staff HC Behram, PC Muhammad Siddique, PC Mashooque Ali, PC Bashir Ahmed, PC Anwer Ali Rind, PC Abdul Razak, PC Muhammad Iqbal in Vehicle No.SP-595957 along with driver PC Ali Nawaz and Inspector Aijaz Ahmed Memon SHO P.S Mirpur Mathelo along with his staff also joined the police party. It is further alleged that when at 1800 hours, they reached on NHW to Gamro road near old Muhammadpur, where they saw the dacoits on 05 motorcycles and asked them to surrender, who made direct fires upon the police party with intention of murder, the police alighted from their vehicles and retaliated the firing of dacoits in their self- defence, resultantly dacoits Ghulam Nabi, Ghulam Muhammad alias Gulro alias Fouji and Amir Bux alias Tedi received bullet injuries while in the firing of dacoits the private person namely Shah Nawaz received firearm injury and fell down and died at the spot. After two hours the firing stopped, whereas, police arrested two of the dacoits having Kalashnikov and gun while rest of the dacoits escaped towards Katcha side on their motorcycles by taking the dead bodies of their dead companions namely Ghulam Nabi and Ghulam Muhammad alias Gulro alias Fouji by taking the advantage of obscurity. Thereafter the arrested accused were enquired about their names, who disclosed their identity as Muhammad Siddique having Kalashnikov whereas another as Qaim alias Qamar having gun and was injured having sustained bullet injury on his right side of Buttock exit from front side and bleeding, on inquiry about the permit and license of the gun, they disclosed the same without permit and license, while the dead body of one another dacoit was lying at the distance of 15 paces who was identified by the captured accused as Amir Bux alias Tedi Chachar and one Kalashnikov was lying beside him and 10 live bullets were lying in its magazine and on further search police secured 30 empties of SMG and 10 empty cartridges, two motorcycles were also secured having bullet marks. It is further alleged that on further enquiry, the arrested dacoits disclosed that they along with Ghulam Nabi, Ghulam Qadir alias Qadri, Ghulam Rasool, Hafeez, Lal Sud, Manzoor, Ali Gohar, Amir Bux alias Tedi, Ghulam Muhammad alias Gulro alias Fouji, Muhammad Siddique, Qaim alias Qamar, Sawan alias Saoon, Wazeer, Asghar Chachar and Anwer had gathered. TPO Muhammad Aslam Langah, SHO Aijaz Ahmed Memon of P.S Mirpur Mathelo, ASI Abdul Hafeez Ghoto and ASI Aftab Ahmed Shah in charge P.P Mahesro along with their staff followed the escaped dacoits, such mashirnama of arrest, recovery, and place of incident was prepared in presence of SHO Rana Ghulam Sarwar and ASI Abdul Hakeem Langah. Thereafter the dead bodies of dacoits, recovered motorcycles, weapons, and empties were brought at the police station, where the complainant on behalf of State lodged the FIR against the accused.

4. After completing the investigation, the Investigation Officer filed reports of all the above FIRs under Section 173 Cr.P.C before the competent Court of Law.

5. On 03.08.2006, the learned trial Court after observing all the legal formalities framed combined charge against the present appellant at Ex.11 to which he pleaded not guilty and claimed trial.

6. In order to establish accusation against the appellant, the prosecution examined PW-1 Medical Officer Dr. Arbab Ali at Ex.15, who produced Medical Certificate of injured Qamaruddin Chachar at Ex.15/A, final medical certificate at Ex.15/B, postmortem report of Shah Nawaz at Ex.15/C; postmortem report of deceased Muhammad Arif alias Tedy at Ex.15/D; PW-2 Inspector Rana Sanaullah at Ex.17, who produced mashirnama of arrest of accused, recovery of two motorcycles and inspection of dead bodies of deceased Shah Nawaz and dacoit Amir Bux at Ex.17/A, FIRs Crime No.128, 129 and 130 of 2005 at Ex.17/B to D respectively, entry No.18 at Ex.17/E; PW-3 SIP Rana Sanaullah at Ex.18, who produced entry No.12 at Ex.18A; PW-04 ASI Abdul Hakeem at Ex.19; PW-5 ASI Pathan Khan at Ex.20, who produced mashirnama of recovery of clothes of deceased Shah Nawaz at Ex.20/A, mashirnama of recovery of clothes of dacoit at Ex.20/B; PW-06 mashir SIP Muhammad Akber at Ex.22, who produced mashirnamas of seeing the dead bodies, inquest reports, mashirnama of inspecting the injuries, mashirnama of place of vardat, collecting blood stained earth of deceased and recovery of empties, receipts at Ex.22/A to 22/G respectively; PW-7 Inspector Illahi Bux at Ex.24, who produced chemical report at Ex.24/A and 24/B respectively; PW-8 Tapedar Fakir Muhammad at Ex.25, who produced sketch of vardat at Ex.25/A. Thereafter learned SPP filed statement at Ex.26 and closed the side of the prosecution.

7. Statement of the accused was recorded under Section 342 Cr.P.C at Ex.27 and 28, wherein he has denied the prosecution allegations leveled against him and prayed for justice and stated that no such encounter took place, but there was tribal dispute in between Chachar and Lola is, hence such firing took place in between both the tribes. However neither examined himself on oath nor led any evidence in defence.

8. After full fledge trial, the appellant and absconding accused were convicted by the trial Court vide judgment dated 30.10.2008, which was assailed before this Court in Criminal Jail Appeal No.D- 66 of 2008 and vide judgment dated 24.03.2010, passed by this Court the impugned judgment dated 30.10.2008 was set aside and cases were remanded to trial Court with direction to give an opportunity of hearing to both parties an announce the judgment within 30 days. On remand of cases the trial Court heard the arguments of learned counsel for the parties and passed the judgment dated 08.06.2010, which he has impugned through instant appeal before this Court.

9. Mr. Abdul Baqi Jan Kakar, learned counsel for the appellant contended that the impugned judgment is against the law and facts of the case; that the present appellant is innocent and has been falsely implicated in this case; that the evidence of prosecution witnesses is full of contradictions and discrepancies, which are fatal to the prosecution case; that the ocular testimony is in conflict with the medical evidence; that SHO Police Station Ghotki though in his examination-in-chief has admitted that three private persons were accompanied with him but he did not associate them for arrest and recovery from the appellant nor cited them as witness; that the mashirnama of place of incident was prepared at about 2005 hours, whereas the FIR was registered on 17.06.2005 at 2200 hours, but from the perusal of the medical certificate of injured Qaim alias Qamaruddin which shows crime number with the endorsement that the accused brought by the police about 6:00 p.m, the deceased Shah Nawaz was brought for postmortem at Taluka Hospital Ghotki at about 9:30 p.m and his postmortem was started at 9:30 p.m and completed at 10:30 p.m, but his medical certificate shows the crime number, which all are sufficient to believe the version of the appellant that they have been falsely implicated in this case as there was dispute between Lolai and Chachar communities and infact due to their dispute Shah Nawaz has lost his life. He lastly contended that the prosecution has miserably failed to prove its case against the present appellant and thus according to him under the above mentioned facts and circumstances the appellant is entitled for his acquittal.

8. Mr. Zulfiqar Ali, Jatoi, learned Additional Prosecutor General submitted that the appellant is named in the FIR with specific role for causing murder of one Shah Nawaz; that the appellant was arrested at the spot along with crime weapon i.e Kalashnikov; that the ocular testimony furnished by the complainant and eyewitnesses is corroborated with medical evidence as well as recovery of crime weapon. He further argued that the learned trial Court has rightly appreciated the evidence, thus recorded the conviction and sentence of the appellant in accordance with law; he lastly prayed for dismissal of the instant appeal.

9. Having heard the learned counsel for the parties and perused the record. The case of the prosecution is that on 17.06.2005 SHO Rana Sanaullah of police station Ghotk received information that notorious dacoits Ghulam Nabi Chachar along with his accomplices is available in Muhammadpur; after receipt of such information he conveyed such message to his high ups and his staff and then he proceeded towards the pointed place accompanied by three private persons namely Shah Nawaz Lolai, Nazar Muhammad Lolai and Hoath Lolai. When the PW-2 Rana Sanaullah along with police officials reached at Muhammadpur at about 1735 hours the encounter took place between them and due to cross firing one private person namely Shah Nawaz received firearm injuries and died on the spot. The cross-firing continued for two hours and thereafter taking advantage of obscurity the dacoits ran away by taking the dead bodies of two dacoits on motorcycles. After the departure of the dacoits, the police arrested two accused persons in presence of police mashirs, they disclosed their names as Muhammad Siddique, having Kalashnikov without rounds and second as Qaim alias Qamaruddin having DBBL gun in his hand. While preparing the mashirnama of the place of vardat, recovery, and arrest, the police also secured 30 empties of Kalashnikov and 10 cartridges. In his cross-examination, he admitted that after receipt of information he has not made any entry in roznamcha nor produced his evidence. He further admitted that mashirnama of the place of incident was prepared in presence of police officials, but no private person was associated to act as mashir of arrest and recovery. Finally, he admitted that “I have not seen the faces of the dacoits clearly nor any police official has received any injury during encounter including bullet marks on the police mobile”.

10. In order to support the version of the complainant, the prosecution examined the police officials. In his cross-examination PW-4 ASI Abdul Hakeem admitted that at about 9:45 p.m, the dead bodies were shifted to Taluka Hospital Ghotki and he was accompanying with SHO P.S Ghotki to hospital. He further admitted that the distance between the accused and appellant was 10/15 paces and during encounter it was 50 paces and the encounter continued was without any break. He also admitted that “it is correct that none of the mobile was hit during encounter”.

11. The prosecution also examined SIP Rana Ghulam Sarwar SHO police station Sarhad PW-3, who in his examination-in-chief has deposed that “it was about 2000 or 2005 hours when another dead body was found on the spot at the distance of 15 paces from the place of arrest which was reported to be dead body of Amir Bux alias Arif Tedy. He further deposed that he had fired 17 rounds from his official SMG. In his cross-examination he has admitted as under:-

“We reached at taluka hospital Ghotki near to 2150 hours and remained there for about 1 and half hour’s to two hours. I don’t remember the time as to when SIO investigation reached at the hospital and delivered the dead bodies”.

12. There is also evidence of Medical Officer Dr. Arbab who has conducted the postmortem of deceased Shah Nawaz and Muhammad Arif alias Tedy and also examined injured Qaim alias Qamaruddin. From the perusal of the examination-in-chief, the medical officer has deposed that on 17.06.2005, he was posted as Medical Officer and on the same date at about 9:00 p.m police brought injured Qaim alias Qamaruddin for treatment and certificate and found Injury No.1 as firearm injury wound size of ½ cm in diameter with inverted margin on posterior side upper portion of right thigh and wound is superficially ruptured the skin above glans of penis wound of exit but he did not find any blackening over the wound and he produced final medical certificate of injured Qaim alias Qamaruddin at Ex.15/B and thereafter he started postmortem of deceased Shah Nawaz his dead body was brought between 9:15 to 9:30 p.m and conducted the postmortem found three lacerated firearm wounds each circular in shape and size of ½ cm in diameter with inverted margins and 2 cm apart from each other on right side of neck, no blackening and charring was found around the wound, the wound was through and through size of 3 cm x 3 cm on irregular in shape and produced the postmortem report at 15/C. Finally, he started postmortem at 10:30 p.m and completed at 11:30 p.m and found four injuries on the dead body of the deceased. In cross-examination, he admitted that on 17.06.2005 at about 8:30 p.m up to 9:00 a.m, he was shifted to Sukkur civil Hospital for treatment and at that time the son of Qaim alias Qamaruddin was accompanied with. He further admitted that first injured was brought and after the gape of 15 minutes the dead bodies of the deceased were brought at the hospital for postmortem, however, he denied a suggestion that injured Qamaruddin was brought at the hospital at 6:00 pm.

13. It is astonishing to note here that from the perusal of Ex.15/B provisional medical certificate of injured Qaim alias Qamaruddin, it reveals that the injured was brought by police at about 6:00 p.m on 17.06.2005, whereas, the encounter took place as per mashirnama of arrest and recovery at 2005 hours. Further as per evidence of the medical officer the dead bodies were brought with the gape of 15 minutes, whereas the FIR was lodged on 17.06.2005 at 10:00 p.m. From the perusal of postmortem of deceased Shah Nawaz and Muhammad Arif alias Tedi, it appears that the postmortem was started at 9:30 p.m and finished at 10:30 p.m but it bears Crime No.128/2005. PW-2 SHO Rana Nasrullah on the suggestion that “you have not associated any private person”, he replied that no private person was available at that time. It is surprising to note here that when the police party was going to the pointed place viz. Muhammadpur, they were accompanying three persons namely Shah Nawaz Lolai (died during the encounter), Nazar Muhammad and Hoat Lolai, but they did not associate any of them as mashir of arrest and recovery nor shown them as a witness in this case, which also created doubt on the part of the prosecution about happening of the encounter between the police and dacoits. Further Rana Nasrullah SHO police station Ghotki in his evidence disclosed that after encounter the dacoits took away the dead bodies of their accomplices on the motorcycles towards katcha side, whereas, the present appellant has not received any injury, but he did not try to escape from the place of incident which also creates doubt about his presence at the spot. The encounter continued between the police and the dacoits for about 02 hours, but none from the police party has received a single scratch to believe that the incident had taken place. The plea taken by the appellant is that there was a dispute between Chachar and Lolai communities and during that incident, four persons have lost their lives and police has arrested the present appellant from the place of incident, which is more plausible than the story narrated by the police. The complainant/inspector Rana Nasrullah prepared mashirnama of arrest and recovery Exh:17/A, which reveals that 30 empties of SMG and 10 cartridges were secured from the place of encounter/incident,but from the perusal of FSL report Exh:24/B, it appears that office of the Assistant Inspector General of police criminalistic division Sindh Karachi received 57 empties of 7.62mm and 10 empties of 12 bore crime empties, which also belied the version of the complainant/inspector Rana Nasrullah.Furthermore the claim of the complainant party that the encounter continued for about two hours, whereas PW-3 Rana Ghulam Sarwar has stated that he has fired 17 rounds and about 18 police officials participated in the encounter but only 40 empties were secured by the complainant from the place of incident, which also created doubt in the prosecution case.

14. Apart from the above, there are contradictions and discrepancies in the evidence of the prosecution witnesses, which cannot be ignored while deciding the case and on the basis whereof, no conviction could be recorded, but the learned trial Court has not taken into consideration while passing impugned judgment

15. The sequel of the above discussion is that the prosecution has miserably failed to prove its case against the appellant/accused beyond reasonable doubt and it is settled proposition of law that for giving benefit of doubt to accused it is not necessary that there should be many circumstances creating doubts, if there is a single circumstance which creates reasonable doubt about the guilt of the accused, then accused will be entitled to the benefit. In this respect, reliance can be placed upon the case of Muhammad Mansha v. The State reported in 2018 SCMR 772, wherein the Honourable Supreme Court has held that:-

“4……Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of accused, then accused would be entitled to the benefit of such doubt, not as a matter of grace and concession but as a matter of right. It is based on the maxim, “it is better that ten guilty persons be acquitted rather than one innocent person be convicted”. Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR 1345), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), Muhammad Akram v. The State (2009 SCMR 230) and Muhammad Zaman v. The State (2014 SCMR 749).

16. Keeping in view the above facts and circumstances of the case, the benefit of the doubt was extended in favor of the appellant and as a consequence whereof instant jail appeal was allowed, impugned judgment dated 08.06.2010 passed by learned trial Court was set aside and the appellant was acquitted of the charge. He was directed to be released forthwith, if not required in any other case by our short order dated 11.09.2018 and these are the reasons for our short order.

Judge

Judge

ARBROHI