IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Criminal Jail Appeal No.D-09 of 2017

Present:

Mr. Justice Zafar Ahmed Rajput,

Mr. Justice Irshad Ali Shah,

Appellant : Ghulam Rabbani @ Washo Jakhrani,

Through Mr .Habibullah Ghouri, Advocate

State : Through Mr.Sharafuddin Kanhar, A.P.G.

Date of hearing : 24.09.2018

Date of decision : 01.10.2018

JUDGMENT

IRSHAD ALI SHAH, J.-, The appellant by preferring the instant appeal has challenged the judgment dated 02.03.2017, passed by learned Judge, Anti-Terrorism Court, Kashmore @ Kandhkot, in Special Case No.64/2013 arisen out of Crime No.37/2013, registered at P.S Kashmore, under section 302, 324, 353, 148, 149 PPC and 6/7 of Anti Terrorism Act, 1997, whereby he has been convicted u/s.265-H(ii) Cr.PC for offence u/s.302(b) r/w Section 149 PPC and section 7(a) of Anti-Terrorism Act, 1997, and sentenced to undergo imprisonment for life and to pay fine of Rs.300,000/- or in case of default thereof, he has to undergo S.I for two years more with further order that if the fine amount is realized, the same shall be paid to the legal heirs of the deceased HC Rasheed Ahmed as compensation u/s.544(a) Cr.PC. The appellant was further convicted for an offence u/s.324 PPC r/w Section 149 PPC and sentenced to undergo R.I for ten years and to pay fine of Rs.50,000/-, or in case of default thereof, he has to undergo S.I for six months, if the fine amount is realized, the same shall be paid to the legal heirs of the deceased HC Rasheed Ahmed as compensation u/s.544(a) Cr.PC. The appellant was further convicted for an offence u/s.353 PPC r/w Section 149 PPC and sentenced to undergo R.I for two years. All the sentences were, however, ordered to run concurrently with benefit of Section 382-B Cr.PC.

2. The facts in brief necessary for disposal of the case are that the appellant allegedly with rest of the culprits on 28.02.2013, at Murad Wah Bridge, Deh Pako Kashmore, after having formed an unlawful assembly and in prosecution of their common object, deterred the police party of P.S Kashmore, consisting of PC Mumtaz Ali, PC Nabi Bux and HC Rasheed Ahmed, from discharging their lawful duty as public servants by making fires at them with intention to commit their murder, as a result whereof, HC Rasheed Ahmed died after sustaining fire shot injuries, for that the present case was registered.

3. During investigation, the appellant was arrested and after usual investigation was challaned before the learned trial Court to face trial for the above said offence. The appellant did not plead guilty.

4. At trial, the prosecution to the charge against the appellant, examined PW-01 complainant PC Mumtaz Ali at Exh.20, who produced the receipt acknowledging the delivery of dead body of the deceased and FIR of the present case, PW-02 PC Nabi Bux at Exh.21, PW-03 ASI Riaz Ahmed at Exh.22, PW-04 Mashir Allah Bachayo at Exh.23, who produced memo of examination of dead body of deceased, Danistnama and memo of place of incident, PW-05 Tapedar Mukesh Kumar at Exh.24, who produced sketch of Vardat, PW-06 medical officer Dr.Manzoor Ahmed at Exh.25, who produced Lash Chakas Form and postmortem report on dead body of the deceased, PW-07 SIO/Inspector Abdul Rasheed at Exh.26, who produced roznamcha entry relating to his departure and arrival at P.S Kashmore and report of chemical examiner, PW-08 ASI Khan Muhammad at Exh.27, who produced memo of arrest of accused from judicial lockup Kashmore.

5. The appellant in his statement recorded u/s.342 Cr.PC denied the prosecution allegation by pleading innocence. He however, did not examine anyone in his defense or himself on oath in disproof of the prosecution allegation in terms of Section 340 (2) Cr.PC.

6. On evaluation of evidence so produced by the prosecution, the learned trial Court convicted and sentenced the appellant as detailed above by way of judgment, which the appellant has impugned before this Court by way of instant appeal.

7. It is contended by the learned counsel of the appellant that the appellant being innocent has been involved in this case falsely by the police; that the FIR has been lodged with unexplained delay of about one day; that the evidence of the complainant and his witnesses is not transpiring confidence as they are appearing to be managed witnesses; that there is no recovery of any sort from the appellant. By contending so, he sought for acquittal of the appellant.

8. Learned A.P.G has sought for dismissal of the instant appeal by contending that he has rightly been convicted by learned trial Court with cogent reasons.

9. We have considered the above arguments and perused the record.

10. The unnatural death of deceased HC Rasheed Ahmed is proved by the evidence of medical officer Dr.Manzoor Ahmed. Now is to be examined the liability of the appellant towards the alleged incident. It is deposed by complainant PC Mumtaz Ali that on 28.02.2013, he, PC Nabi Bux and deceased HC Rasheed Ahmed being armed with deadly weapons, went for arresting the absconding accused, under roznamcha entry No.11, at about 1140 hours, when reached at Murad Wah Bridge, there they started checking of the vehicles and in the meanwhile there came Noor Khan and Allah Bachayo, who happened to be brothers of deceased HC Rasheed Ahmed to see him, there at about 1130 hours¸ they found coming appellant, Haneefo, Baghi and two unidentified persons on their motorcycles, they were signaled by HC Rasheed Ahmed to stop. On that, the appellant asked his companions that HC Rasheed Ahmed during course of checking is illegally disturbing them as such he should be killed. By saying so, all the nominated accused took out pistols from the fold of their shalwars and then fired at HC Rasheed Ahmed with intention to kill him, who by sustaining those fires, fell down on the ground and died. It was further stated by the complainant that unidentified culprits also fired at them with intention to commit their murder and then all the culprits fled away on their motorcycles. On fire shot reports, the police personnel on duty came running. The dead body of deceased HC Rasheed Ahmed was taken to Taluka Hospital, Kashmore and after postmortem, he lodged report of the incident on behalf of the State. It was denied by the complainant that he is relative of deceased HC Rasheed Ahmed. The complainant in that respect is belied by PW/PC Nabi Bux by stating that the complainant being relative of the deceased together with his son and brothers took the dead body of deceased Rasheed Ahmed to his village for burial purpose. No roznamcha entry is produced by the prosecution at trial to prove that the complainant, deceased and PC Nabi Bux were actually on their duty at the time of incident. In that context, the evidence of the complainant and PW/PC Nabi Bux does not transpire confidence. Besides, it was stated by PW/ASI Riaz Ahmed that he went at the place of incident on hearing fire shot reports; there he found dead body of deceased HC Rasheed Ahmed lying on the ground. If it is believed to be so, then he was not an eye-witness to the actual incident. It was further stated by him that he then examined the dead body of the deceased, prepared such memo and Lash Chakas Form, and then referred the dead body of the deceased to hospital for postmortem, then recorded 161 Cr.PC statements of the PWs. If he was able to do all these things, then he could have also lodged FIR of the incident on behalf of the State being police officer, who allegedly claimed to have arrived at place of incident promptly soon after the incident. It was not done by him without any cogent reason. In that situation, the delay in lodging of the FIR by one day could not be lost sight of. It obviously reflects consultation. It was stated by SIO/Inspector Abdul Rasheed during course of his cross examination that he visited the place of vardat recovered therefrom empties and then recorded 161 Cr.PC statements of PWs. During course of his cross examination, he was fair enough to admit that memo of vardat and 161 Cr.PC statements of PWs were written by WHC Hakim Ali. If it was so, then it was WHC Hakim Ali, who actually conducted the investigation of the present case and role of SIO/Inspector Abdul Rasheed was only to the extent that he put his signatures on the above said documents, hence it was a table investigation on his part and said WHC Hakim Ali has not been examined by the prosecution as its witness, whose evidence was necessary to ascertain the truthfulness of the said document. Even otherwise, the recovery of empties from the place of incident which is said to be situated by the side of shops on next date of the incident is not appealing to common sense. There is no recovery of any sort from the appellant. In these circumstances, the involvement of the appellant in the instant case is appearing to be doubtful.

11. In case of Zeeshan alias Shani (2012 SCMR-428), it was held by the Honourable Supreme Court of Pakistan that;

“Delay of more than one hour in lodging report had also given rise to the inference that occurrence did not take place in the manner projected by prosecution and time was consumed in making effort to give a coherent attire to prosecution case, which hardly proved successful---Such delay was all the more fatal when police station, besides being connected with the scene of occurrence through a metalled road, was at a distance of 11 kilometers from the latter---Supreme Court observed that standard of proof should have been for higher as compared to any other criminal case, when according to prosecution, it was a case of police encounter and it was desirable and even imperative that such case should have been investigated by some other agency, as police in such case, could not have been investigators of their own cause---Such investigation which was woefully lacking independent character could not be made basis for conviction in a charge involving capital sentence”.

12. In case of Faheem Ahmed Farooqui vs. the State (2008 SCMR-1572), it was held by the Hon’ble Supreme Court of Pakistan that;

“single infirmity creating reasonable doubt regarding truth of the charge makes the whole case doubtful.

13. In view of the facts and reasons discussed above, the conviction and sentence recorded against the appellant could not be sustained, which are set-aside. Consequently, the appellant is acquitted of the offence, for which he was charged, he shall be released forthwith in the above case, if his custody is not required in any other case by any other Court.

JUDGE