IN
THE HIGH COURT OF SINDH BENCH AT SUKKUR
Cr. Jail Appeal No.D-103 of 2019.
Crl. Appeal No.D-116
of 2019
Crl. Appeal No.D-117
of 2019
Crl. Appeal
No.D-118 of 2019
Crl. Appeal
No.D-119 of 2019
Crl. Appeal No.D-120 of
2019
Crl. Appeal
No.D-121 of 2019
Crl. Appeal
No.D-122 of 2019
Crl. Appeal
No.D-123 of 2019
Crl. Appeal
No.D-124 of 2019
Crl. Appeal No.D-125 of
2019
Crl. Appeal
No.D-126 of 2019
For hearing of main case.
Present:
Mr.
Justice Rasheed Ahmed Soomro.
Mr.
Justice Zulfiqar Ali Sangi.
Appellants: MominAli & others
through Mr.Rukhsar Ali Junejo, Advocate.
Respondent: The State through,
Syed Sardar Ali Shah, D.P.G.
Date of hearing: 07.01.2020 .
Date of decision: 07.01.2020
J U D G M E N
T
ZULFIQAR ALI SANGI,J:- AppellantsMomin Ali, Gul Mohammad alias Gullan, Mohammad Bux alias
Mast, Qamaruddin, Mushtaque alias Munan, Rabnawaz, Ali Gohar, Mushtaque S/o Yar
Mohammad, Jalaluddin, Jamaluddin, Anwar Ali, Rahim Bux, Khuda Bux, Dur
Mohammad, Ayaz Ali, Fida Hussain, Roshan Ali, Mohammad Umar and Karimdinohaveassailed
the judgment dated26.06.2019
passed bylearnedJudge
Anti-TerrorismCourt,Khairpur Mir’sin Special Cases No.30,
31,32, 33, 34,35,36,37,38, 39, 40 and 41of 2018 arising out
of FIR No.25/2018 offence under section 324, 353, 427, 148,149 PPC&
4/5Explosive Substance Act, 1908 r/w Section 7ATA, 1997 Police Station, Khuhra
and offence u/s 23(i) (A) Sindh Arms Act, registered at Police Station, Khuhrawhereby
they wereconvicted for offence u/s324 PPC r/w section 149 PPC andsentenced to
undergo R.I for Seven years each and to pay fine of Rs.50,000/- each, in case
of default in payment of fine they shall suffer further R.I for six months each.
The appellantswere further convicted u/s 353 r/w Section 149 PPC and were
sentenced to suffer R.I for two years each. The appellants were also convicted for offence u/s 427 r/w Section 149
PPC and sentenced to suffer R.I for two years each and to pay fine of
Rs.10,000/- each and in case of default in payment of fine, they shall suffer
further R.I for one month each. The appellants Momin and Gul Mohammad @ Gullan
were also convicted for offence u/s 4(b) Explosive Substance Act, 1908and were
sentenced to suffer R.I for Seven years each and to pay fine of Rs.50,000/-each.
In case of default in payment of fine, they shall suffer further R.I for six
months each. The appellants were also convicted for offence punishable u/s 7 of
ATA, 1997 and were sentenced to suffer R.I for seven years each and to pay fine
of Rs.50,000/-each. In case of default in payment of fine they shall suffer
further R.I for six months each. AppellantsMomin Ali Ujjan, Gul Mohammad @
Gullan Ujjan, Mohammad Bux @ Mast Ujjan, Qamaruddin Ujjan, Mushtaque @ Munan
Ujjan, Rab Nawaz Ujjan, Ali Gohar Ujjan, Mushtaque Ujjan, Jalaluddin Ujjan, Jamaluddin
Ujjan and Anwar Ali Ujjan were also convicted for
offence u/s 23(i)(a) Sindh Arms Act, 2013, to suffer R.I for Seven years and to
pay fine of Rs.20,000/-each and in case of default in payment of fine to suffer
S.I for six months more.All the sentences
were ordered to run concurrently
and benefit of section 382-B Cr.P.C was extended tothe appellants.
2. Precisely, prosecution case was
that on 20.06.2018 at about 1300 hours, complainant /Inspector Darya Khan Jatoi,
SHO Police Station Khuhra Khairpur lodged the present FIR stating that on the day of incident i.e. 20.06.2018, he
along with his subordinate staff duly armed, in uniform and having
investigation bag, boarded on government vehicle which was driven by
PC-Mushtaque Ali Ujjan left Police Station for patrolling in the jurisdiction
under the roznamcha entry No.07 when they reached Abul Wah Hitchari Bridge
after crossing the Khuhra City and village Kaleri, he received spy
information that 24/25 culprits duly
armed with weapons were standing at Katcha road Ghaunshala near watercourse
with intention to create terrorism at some place, he informed his subordinate
staff and proceeded towards the pointed place and when they reached at the
pointed place, they saw that 24 culprits were standing near the watercourse and
plastic bags (Bachka) were hanging upon their shoulders, out of them, they
identified the accused 1. Momin Ali armed with KK, Gul Mohammad @ Gullan armed with G-3, Mohammad Bux @ Mast
armed with K.Ko, Qamaruddin armed with homemade pistol, Mushtaque @ Munnan
armed with gun, Rabnawaz armed with gun, Ali Gohar armed with 8 mm rifle,
Jalaluddin armed with pistol, Raheem Bux
armed with gun, Nadeem armed with Repeater, Dur Mohammad armed with gun,
Shafi Mohammad armed with gun, Jamaluddin having red colour plastic bag on his
shoulder, Fida Hussain armed with KK, Ayaz armed with Repeater, Khuda Bux armed
with KK, Kareem Dino armed with gun, Anwar having white colour bag on his
shoulder , Roshan armed with gun, Umar armed with gun, all by caste Ujjan and
03 unidentified accused armed with guns, they be identified, if seen again, it
was about 1030 hours.
3. Police party directed them to
surrender;on hearingsuch direction accused started direct firing upon police
with intention to commit their murder while other accused who were having
plastic bags on their shoulders thrown out their bags from their shoulders and
took pistols from their folds and also made direct firing upon them. In
retaliation, police also made firing upon accused and took advance effort to
encircle towards the accused. Such encounter continued for about 10 minutes and
thereafter, the firing was stopped from the accused side and complainant party
apprehended 09 accused with their respective weapons while remaining accused fled
away from the place of incident by taking advantage of crops. Due to
non-availability of private mashirs, complainant made mashirs to HC Mazhar Ali
and PC Deedar Ai and inquired from the arrested accused to which they disclosed
their names as 1. Momin Ali and during his personal search, police recovered
one K.Kov along with its magazine, one black coloured cloth bag from his
shoulder, wherein 09 magazines containing 180 live bullets, one live hand
grenade, one strip of Charas weighing about 1020 grams and 05 notes of Rs.100/-
denominated from his front pocket, 2. Gul Mohammad @ Gullan from his possession recovered one G-3 Rifle
which was found empty, one camel coloured cloth bag from his shoulder from
which 08 magazine of G-3 Rifle containing 20 live bullets and one live hand
grenade and one strip of Charas weighing
about 1935 grams and 10 notes of RS.50/- denominated from his front pocket, 3.
Mohammad Bux @ Mast from his possession recovered one KK from which was found
empty, 4. Qamarudin during his personal search recovered one country made
pistol from his possession and found the same empty and also recovered 05 live
cartridges from his right side pocket, 5. Mushtaque @ Munan during his personal
search police recovered one DBBL gun, which was found empty, one red coloured
bag from his left shoulder from which 60 live cartridges of 16 bore, 6. Rab
Nawaz during his personal search police recovered one DBBL gun which was found
empty, one came coloured bag from his left shoulder from which 110 live cartridges
of 12 bore, 7. Ali Gohar during his personal search Police recovered one 8 mm
Rifle which was found empty along with 02 magazines containing 06 live bullets,
8. Mushtaque during his personal search Police recovered one pistol which was
found empty along with magazines containing 06 live bullets, 9. Jalaluddin during
his personal search Police recovered one pistol which was found empty, and they
disclosed that the weapons are unlicensed and regarding the Charas they
disclosed that they took the same for sale and also disclosed the same names of
above mentioned absconding accused.
4. Police also secured one red
coloured bag which was thrown by absconding accused Jamaluddin and also
recovered one MP-5, one Repeater of 12 bore, one DBBL gun, 131 live cartridges
of 20 bore and the weapons were unloaded and found the same empty. Police also
secured one white coloured plastic bag, which was thrown by absconding accused
Anwar Ali and found 05 DBBL guns, one SBBL gun, 02 magazines of pistol, 05 live
cartridges of 12 bore and 50 live bullets of KK, the guns were unloaded but the
same were found empty.
5. Police also secured 05
empties of G-3 rifle, 11 empties of KK, 06 empty cartridges of 12 bore, 04
empty cartridges of 6 bore, 07 empties of pistols and 02 empties of 8 mm from
the place of incident which were fired from the side of accused. Police also
secured 13 empties of SMG and 15 empties of G-3 Rifle from the place of
incident which were fired from the side of Police party and the whole arms and
ammunition as well as Charas and empties were sealed at the spot in presence of
above said mashirs their signatures were obtained on the sealed property, then
they saw that one fire, which was fired by accused, which hit to the driving
side of government vehicle, thereafter the complainant returned to P.S along
with his subordinate as well as arrested accused, recovered property and lodged
the instant FIR bearing Crime No.25/2018 against accused on behalf of State.
6. The separate FIRs bearing
Crime Nos. 26/2018, 28/2018, 30/2018, 31/2018, 32/2018, 33/2018, 34/2018,
35/2018, 36/2018, 37/2018 and 38/2018 u/s 23(i)(A) of Sindh Arms Act were also
registered against accused Momin Ali, Gul Mohammad @ Gullan Ujjan, Mohammad Bux
@ Mast, Qamaruddin, Mushtaque @ Munan, Rab Nawaz, Ali Gohar, Mushtaque,
Jalaluddin as well as absconding accused Jamaluddin and Anwar Ali Ujjan on
behalf of state.
7. After usual investigation, the
police submitted challanagainst the appellants before the competent Court of
law. The learned trial Court completed all legal formalities and framedjoint charge
against the appellants/accused at Ex.11, to which theypleaded not guilty and
claimed trial, such pleaswere obtained at Ex.11/A 11/S.
8. In order to prove its case, prosecution
examined PW-1 Inspector Darya Khan
Jatoi complainant in all the cases at Ex.13. He produced roznamcha entries,
memo of arrest of accused and recovery, FIRs bearing Crime Nos.25/2018,
26/2018, 28/2018, 30/2018, 31/2018, 32/2018, 33/2018, 34/2018, 35/2018,
36/2018, 37/2018 and 38/2018 at Ex.13-A to13-N. PW-2 ASI Mazhar Ali Kandhro was examined at Ex.14, who produced
memo of inspection of place of incident at Ex.14-A.PW-03 Inspector Mehar Ali Shah was examined at Ex.15, who produced
roznamcha entries, letter for seeking permission for sending the hand-grenades
to I/c Bomb Disposal Squad for defusing such hand-grenades and report, letters
issued by SSP Khairpur Mir’s to SSP Special Branch Sukkur for issuance of
technical expert report for defusing the hand-grenades for finalization of
investigation of the cases, Technical report of defused hand-grenades issued by
I/c BDS. Sukkur, letter for issuance of ballistic expert report, ballistic
expert report and criminal record of accused at EX.15-A to 15-D.Thereafter,
learned APG closed the side of prosecution vide statement at Ex.16.
9. After completion of
prosecution evidence, learned trial court recorded statements of the appellants
in terms of section 342 Cr.P.C at Ex.17 to 35, wherein they denied the prosecution
case andclaimed their innocence, however neither they examinedthemselves on
oath nor led evidence in theirdefense.
10. Thelearned trialCourt after
hearing the Counsel for the appellants, learned APG for the State and considering
the evidence, passed impugned judgment, which has been assailed through instant
appeals.
11. Learned counsel
for the appellants/accused contended that the appellants are innocent and have
falsely been involved in this case with malafide
intention; that the impugned judgment is against the facts of case and law;that
there are major contradiction in the evidence of witnesses which creates
serious doubt in the prosecution case but trial court ignored the same in
violation of settled principles of law; that during encounter none from the
either side received any injury though according to the prosecution case the
distance between the police and assailants was about 10 to 12 feet; that no
private persons were associated as witness in the recovery proceedings; that under
the same mashirnama of recovery appellant Momin Ali was acquitted from the case
crime No: 27 of 2018 under section 9 (c) of CNS Act, 1997, vide judgment dated: 09-04-2019 by the court
of Ist Additional Session Judge Khairpur, he placed on record the certified
true copy the judgment;lastly he prayed that the appellants may be acquitted by
extending them the benefit of the doubt. He relied upon the cases reported as 2019 YLR (Sindh) 552 and 2019 MLD (Sindh) 1659.
12. Conversely,
learned D.P.G, while controverting the contentions of learned Counsel for the
appellants/accused submitted that appellants were arrested at the spot and
recovery of huge weapons was effected from them; that no strong enmity was
suggested against the police officials during cross examination; that during
the encounter police mobile was damaged due to fire of appellant’s side; that
prosecution witnesses fully supported the case and during cross examination
counsel had not shaking their evidence;
he lastly prayed that appeals of appellants may be dismissed.
13. We have heard learned Counsel for the appellants,
learned D.P.G for the State and have examined the record carefully with their
able assistance.
14. On our re-assessment of evidence we found the entire case as
doubtful. The witnesses gave contradictory evidence on the important aspects of
the case viz. recovery of weapons, damaged of police mobile, encounter in
between the police and appellants, arrest of appellants at spot, recording of
statements under section 161 Cr.P.C, sending the weapon for chemical
examination, safe custody of the weapons till reaching to chemical examiner.
15. PW-1 the complainantdeposed in his cross examination that the
police mobile was also damaged at grill from the driver side by firing of
accused, on this point we found contradictory evidence of mashir PW-2 who
deposed during the cross-examination that accused made direct fires upon them
and fire hit to the bonnet of the government vehicle. We also carefully
examined the mashirnama of arrest and recovery in which it is mentioned that
only one bullet hit to police mobile on the upper side of grill from driver
side whereas the appellants were armed with automatic weapons and they fired
from them, which suggest that the story was managed and no encounter was took
place.
16. PW-1 further deposed during his examination of chief that he made
efforts for arranging the private mashirs but could not succeed, therefore, H.C
Mazahar Ali and P.C Deedar Ali Bhatti were made mashirs, on the contrary PW-2
deposed during his cross examination that no efforts were made to associate the
private witnesses or mashir which creates very serious doubt in the prosecution
case.
17. Recovery from the appellants was not proved by the prosecution
at the trial that which weapon was recovered from which accused and the
witnesses were unable to identify weapons,in this regard during the cross-examination
on the suggestion of counsel for appellantsPW-1 stated that,“It is correct to suggest that at the time
of recovery of weapons, No mark was made by me on each and every weapons in
order to see that which weapon was recovered from which accused”.Whereas
the mashir of the recovery PW-2 deposed during cross-examination that,“It is correct to suggest that there is no
sign/mark over the weapons/case property, which are available in the court in
order to show that which weapon has been recovered from which accused”.
18. The prosecution also failed to establish the safe custody of the
recovered weapons and hand-grenades, we have carefully examined the entry No.10
dated 20-06-2018 which is available at page151 of the paper book and do not find
single word about keeping the said property in safe custody or anywhere either
it was kept at malkhana of the police station or was handed over to anybody. We also noticed the letter dated 22-6-2018
written by SSP Khairpur to the SSP Special Branch Sukkur about the sending of
hand-grenades which is available at page 245 of the paper book showed that the
property was sent on 22-06-2018, we examined the inspection report of hand-grenades
available at page 251 of the paper book which showed that hand-grenades were
inspected on 27-06-2018, we surprise to see the said report which further
showed that hand-grenades were inspected on 27-06-2018 under the letter of SSP Khairpur
No.PB/J/1133 dated 29-06-2018, which appears to be doubtful. Reliance can be
placed on the case of Shahab-u-Din v.
The State reported as 2019YLR page
1277, wherein this Court has held as under:-
12. Learned
defence counsel has rightly argued that there was no evidence of the safe
custody of the weapons at police station and safe transit to the chemical
examiner. According to the evidence of prosecution, weapons and explosive
substance were brought to the police station on 5.6.2014, Bomb Disposal Unit
initially examined the explosive substance at police station after 12 hours of
the recovery without explanation of the delay in the examination of the
explosive substance at the police station. It may be mentioned here that report
of the National Forensic Science Agency Ex:10/I reflects that explosive
substance was sent to the expert on 21.6.2017, after about two months of the
recovery. Delay in dispatch to the chemical examiner has also not been explained.
It is also come on record that weapons were sent to the ballistic expert
through PC Nouman but the said Nouman has not been examined by the prosecution
at trial in order to prove safe transit to the expert. We have carefully
perused the evidence of the I.O. It appears that investigation officer has
simply completed the formality. Plea has been raised by the accused the he was
picked up by the Rangers but investigation officer failed to
interrogate/investigate this aspect of the case and simply submitted the
challan. Unfortunately, trial Court had also not considered the defence plea
and relied upon the evidence of the prosecution witnesses without applying a
judicial mind. In the case of Kamal Din alias Kamala v. The State reported as
2018 SCMR 577 the Honourable Supreme Court on the point of safe custody of
recovered weapons has observed as under:--
"4. As regards the alleged
recovery of a Kaiashnikov from the appellant's custody during the investigation
and its subsequent matching with some crime-empties secured from the place of
occurrence suffice it to observe that Muhammad Athar Farooq DSP/SDPO (PW18),
the Investigating Officer, had divulged before the trial Court that the
recoveries relied upon in this case had been affected by Ayub, Inspector in an
earlier case and, thus, the said recoveries had no relevance to the criminal
case in hand. Apart from that safe custody of the recovered weapon and its safe
transmission to the Forensic Science Laboratory had never been proved by the
prosecution before the trial court through production of any witness concerned
with such custody and transmission.
19. We also examined the chemicalexamination report of the weapons
issued by the Incharge Expert, Forensic Science Laboratory, Forensic Division
Larkana which is available at page 255 of the paper book and found that the
property/weapons were received in the laboratory on 04-07-2018 and prosecution
has failed to produce any evidence regarding the safe custody of the property
from 20-06-2018 to 04-07-2018.
20. Admittedly, during encounter no one from either side received
any injury though it was admitted by the witnesses in their evidence that
accused were far away from the police for about 10 to 12feet and further it was
deposed by the complainant in his cross examination that during the encounter
they were sitting in the police mobile and accused from closed range were
firing upon them and they were in standing position, this aspect of the case
alone is sufficient to hold the case of prosecution as doubtful. Reliance can
be placed on the case of Abid and
another V. The State reported as2019
YLR 613, wherein this Court has held as under:-
16. No person,
apart from the appellants, being injured in the claimed police encounter, when
it was claimed that the appellants shot from a short distance of 10 to 12 steps
with the intention to kill; no damage to any vehicle or property as a
consequence of the firing; case property not being sealed despite record to the
contrary; 8 instead of 6 live bullets being produced at trial; 2 empties sealed
in the bag by FSL not emerging at trial; evidence of property being tampered
with; record showing that the appellants were brought to the hospital at a time
when the prosecution claimed they were still lying on the ground in an injured
condition at the place of incident; a remarkably hastened process of initial
investigation casting doubt on its veracity---are all factors that make us form
the view that the prosecution was unable to prove its case beyond reasonable
doubt.
21. We found the conduct of the investigation officer to be
dishonest as he admitted during cross-examination that complainant Darya Khan
was remained his Boss and complainant admitted the fact about the enmity in
between Jatoi and Ujjan tribe at the time of incident.Investigation Officer and
complainant also given contradictory version about the recording of statement
under section 161 Cr.P.C of the prosecution witnesses,investigation officer while
deposing at first instance that “Statements
of witnesses U/S 161 Cr.P.C. were recorded by me at PS-Khuhra” again he
denied this fact by deposing that “It is
incorrect to suggest that the statements U/S 161 Cr.P.C. of witnesses were
recorded at PS-Khuhra”.
22. We also noticed that the weapons and hand-grenades were not
exhibited in the evidence during the trialas articles recovered from the
appellants though were available in the court and also not shown to the
appellants at the time of recording their statements under section 342 Cr.P.C,
which in our view create dent in the prosecution case. The important witness which was BDU expert was not examined by the prosecution who defused the hand-grenade
and issued clearance certificate so also technical report.
23. The defense plea taken by the appellants was that there was enmity
in between the Ujjan tribe (Appellant Party) and Jatoi tribe (Complainant) and
that was also a time of General Elections therefore due to such enmity they all
belonging to Ujjan tribe were involved in the false case.The complainant
admitted this fact by deposing that “It
is correct to suggest that June 2018 was the time of general election”. He
further admitted in his deposition that “I
am resident of village khuda Bux Jatoi near Airport Sukkur. I was posted at
PS-Khuhra for about 3/4 months prior to the incident. I become acquainted with
the notables within the jurisdiction of Police Station Khuhra. I know that
there are villages Jam Jatoi and Dandho Jatoi within the jurisdiction of Police
Station T.M.Khan. I had heard that there was dispute in between Jatoi and Ujjan
community”.After careful consideration and meticulous examination of the evidence
so produced by the prosecution and the defence taken by the appellants before
the trial court we found that entire case was managed one.
24. It is surprising to see the contents of FIR and the evidence
produced by the prosecution before the trial court where only 07 police
officials arrested the 09 accused/appellants at the spot who were armed with
deadly and automatic weapons and having huge live bullets and said police
officials made such recovery without any loss or damage of anybody.
25. It is well settled principle of law that heinous
nature of offence is not sufficient to convict the accused as the accused
continues with presumption of innocence until found guilty at the end of the
trial, for which the prosecution is bound to establish the case against the
accused beyond any shadow of reasonable doubt by producing confidence inspiring
and trustworthy evidence, It is also well settled principle of law that if a single circumstance creates doubt
in the prosecution case its benefit must go to accused not as a matter of grace
or concession but as a matter of right. The
principle expressed by saying that to be on the safer side, the acquittal of
ten guilty persons is to be preferred to the conviction of a single innocent
person. A very high standard of proof is, therefore, required to establish the
culpability of an accused person. We find in the present case that the prosecution has failed
to produce confidence inspiring and trustworthy evidence against the appellants
as discussed above in detail. 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).
26. In view of above
and while relying upon the precedents, appeals were allowed by our short order
dated 07.01.2020, impugned judgment dated 26.06.2019 passed by learned Judge Anti-Terrorism Court, Khairpur Mir’swas set-aside and the
appellants were acquitted of the charge. They were in jail and were directed to
be released forthwith if not required in any other custody case and above are
the detailed reasons of our short order.
JUDGE
JUDGE
Ihsan.