IN THE HIGH COURT OF SINDH
BENCH AT SUKKUR
Crl.
Appeal No.D-124 of 2018
Present:
Mr. Justice NaimatullahPhulpoto.
Mr. Justice Zulfiqar Ali Sangi.
Appellant: Mohammad Moosa
alias Mooso, through, M/s A.R. Faruq Pirzada and Ubedullah K. Ghoto, Advocate.
Respondent: The State
through,Mr. Abdul RehmanKolachi, D.P.G.
Date
of hearing: 06.02.2020
Date
of announcement: 20.02.2020
J
U D G M E N T
ZULFIQAR ALI SANGI, J:- Through
instant appeal, the appellant MohammadMoosa alias Mooso,hasassailed the
judgment dated06.10.2018 passedbylearnedJudge, Anti-Terrorism Court, Ghotki @
MirpurMatheloin Special Case No.01
of 2017 arising out of Crime No.07/2012 offence under sections 302, 324, 353, 148,149PPC&
7ATA, 1997, registered at Police Station,
Gemro District Ghotki. Whereby the appellant was convicted and sentenced
as under;-
For offence u/s 302
(b) PPC r/w section 149 PPC, to suffer R.I for ‘Life’ and to pay
fine/compensation of Rs.300,000/ to thelegal heirs of the deceased as required
u/s 544-A Cr.P.C and in case of default in payment of fine/compensation, to
sufferS.I for six months more.
For offence u/s 353
PPC r/w section 149 PPC, to suffer R.I for twoyears and to pay fine of Rs.30,000/-
and in case of default ofpayment of fine, to suffer S.I for three months more.
For offence u/s 148
PPC, to suffer R.I for three years and fine of Rs.30,000/- and in default of
payment of fine tosuffer S.I for three months more.
For offence u/s 324
PPC r/w section 149 PPC, to suffer R.I for tenyears and to pay fine of Rs.50,000/-
and in case of default inpayment of fine to suffer S.I for 06 months more.
For offence u/s 7(1)(a)
of ATA, 1997, to suffer R.I for ‘Life’ and fineof 200,000/- and in case of
default of payment in fine to suffer S.I for six months more.
For offence U/S21-L of ATA. 1997, to suffer R.I for Five years
and fine of Rs.50,000/- and in default of payment of fine to suffer S.I for
three months more.
All the sentences awarded to
the appellant/accused were ordered to run concurrently, Appellant was extended benefit
of section 382-B Cr.P.C.
2. Precisely, the prosecution case isthat on
12.02.2012, the complainant SIP AltafHussain Shah lodged the FIR of crime
No.07/2012 at Police Station, Gemro wherein he alleged that on the said date he
along with his staff was present at Police Station, where he received spy
information that wanted accused in Crime No.12/2011 u/s 382 PPC and crime
No.01/2012 u/s 382 PPC namely MoosoLolai and others were present in village of
MoosoLolai. The complainant conveyed such information to SDPO Ghotki and asked
for further Police personnel for their help. Thereafter, complainant along with
his staff left Police Station in Government vehicle under entry No.17 at about
0530 hours and proceeded towards the pointed place. It was about 0630 hours,
when they reached in village Islam Chachar, where SDPO Ayaz Ali Memon, SIP/SHO
Mohammad WarisGadani of Police Station A-Section Ghotki, SIP Noor Mohammad
Junejo of B-Section, Ghotki, SIP/SHO Abu BakarGabole of Police Station,
Adilpur, SIP/SHO Mohammad ShahbanMalhan of Police Station, Sarhad, SIP/SHO
SaleemRazaKolachi and ASI AltafHussainKorai of Police Station KachoBindi-I
along with their staff in government vehicles also reached there. Thereafter,
all the police personnel proceeded towards the pointed place for the arrest of
absconders and when at about 0700 hours, the police party reached Khan waropaho
near village MoosoLolai where they stopped the Police mobiles and got down. In
the meantime, armed persons encircled the Police party, who were identifiedto
be 1. Mooso, 2.Jatoi, 3.Janan, 4.Aagho, 5.Mureed, 6.Nazir, 7.Shabir, 8. Abdul
Rehman, 9. Goroo @ Suhino, 10.Jeewan, 11.Soomar, 12.Jogi all armed with K.Kovs,
13. Kouro, 14.Qabil, 15.Munawar, 16.Mehar, 17.Sheroo, 18.Karam, 19.Behram,
20.Dahar all armed with G-3 rifles, 21. Wazeer, 22.Sono, 23.Bashir, 24.Allah
Bux, 25.Bagan armed with rifles and 18 unknown persons who were armed with
K.Kovs, except one who was armed with a rocket launcher. On seeing the police
party, they made straight fire upon the complainant party to commit their
murder and the firing was retaliated by police. During the encounter, ASI
AltafKorai proceeded ahead towards the accused persons. Meanwhile, he received
firearm injuries at the hands of accused Mooso, Mureed and Goro@ Suhno and fell
down by raising cries on the ground. The said encounter was lasted for about 30
minutes and then all the accused succeeded to run away by taking advantage of the
forest towards the southern side. The SDPO and other police officers went to chase
the accused. Thereafter, the complainant saw that ASI AltafHussainKorai had
received firearm injuries on various parts of the body and died at the spot.
Thereafter,the dead body of the deceased was shifted to taluka Hospital Ghotki
and handed over to ASI Suhrab Khan for postmortem. Therefore, the complainant
came at the police station and such FIR was registered against the accused on
behalf of the state. After the usual investigation, the police submitted
challanagainst the appellant& other accusedbefore the competent Court of
law.
3. After completing the formalities trial
court framed the charge against the appellant, to which he pleaded not guilty
and claimed to be tried.
4. To prove its case, the prosecution
examined PW-1. Medical Officer,Arbab
Ali being well conversant with the signature of deceased Dr. MoulaBuxWasoat Ex.62.
PW-2.ComplainantAltafHussain Shah
was examined at Ex.63.PW-3.SIP
SaleemRaza at Ex.64.PW-4.Inspector Shahban
Ali was examined at Ex.65. PW-5.ASI
Suhrab Khan Chachar was examined at Ex.66. PW-6.
Inspector/I.O SaifullahSolangi was examined at Ex.67.TapadarAnees Ahmed was
examined at Ex.68 who produced the sketch ofthe place of wardatat Ex.68-A.Thereafter,learned
APG closed the prosecution side vide statement dated 30.06.2018 at Ex.69.
5. After completion of prosecution evidence, learned
trial court recorded the statement of the appellant/accusedin terms of section
342 Cr.P.Cwherein he denied the prosecution case andclaimed hisinnocence,
however, neither heexaminedhimself on oath nor led evidence in hisdefense.
6. Thelearned trialCourt after hearing the Counsel
for the appellant learned APGfor the State and considering the evidence, passed
impugned judgment, which has been assailed through instant appeal.
7. Learned counsel for the appellant contended
that the appellant is innocent and is involved by the police with malafide
intentions; that major contradiction in the evidence of witnesses is available,
the same were not appreciated by the trial court; that prosecution failed to
establish its case against the appellant beyond a reasonable doubt; that in the
first round the trial court disbelieved the evidence of the same witnesses and
acquitted the 19 co-accused vide judgment date:25-05-2017; that the principle
of falsus inunofalsusin omnibus is applicable to the present case; that nothing
was recovered from the possession of appellant which connect him with the
commission of offence; that identification of above 25 persons by police
officials who were not known to them was doubtful; that allegation against the
appellant were of general nature. Lastly, he prayed that the appellant may be
acquitted by extending him the benefit of the doubt. He relied upon the cases
of Khizar Hayat Son of HadaitUllahPLD 2019 SC 527, Imtiaz alias Taj V. State 2018 SCMR
344, and Ali Muhammad V. The State 2007 YLR 894.
8. Learned D.P.G for the state contended that
prosecution proved the case against the appellant by producing trustworthy and
inspiring confidence evidence; that the appellant was very dangerous person of
the area having head money imposed by the Government; that about 15 FIR’s were
registered against the appellant and such were produced in the evidence; that
no malafide or enmity is suggested against the police officials for false
implication. Lastly contended that the trial court rightly convicted the
appellant and prayed that the appeal of the appellant may be dismissed.
9. We have heard learned Counsel for the
parties and have examined the record carefully with their able assistance.
10. Admittedly the case was tried against 19 co-accusedprior
to the arrest of the appellant and after considering the entire evidence
learned trial court disbelieved the evidence of the prosecution and acquitted
the said 19 co-accused vide Judgment dated:25-05-2017. The trial court in Paragraph
27 of the aforesaid Judgment recorded the following reasons for acquittal of that
19 co-accused person:-
“27. Now
on the above touchstone, when prosecution evidence weighed it shows that, prosecution version suffers
from many infirmities, contradictions and exaggerations, as the complainant
deposed that he received information at
0530 hours regarding passing of accused
fromvillage MoosoLolai and he conveyed such information to SSP, but rest of the
PWs have deposed that complainant has passedon such information to DSP by
saying that accused MoosoLolai is available at his village, whereas SIP Shahban
has deposed that he received information from SDPO AyazMemon at 05.15 am, means
much prior of receiving of information by complainant himself. Case of
prosecution is that all the Police staff reached near village Islam at 6:30
a.m. and wherefrom they proceeded towards village of accused where they reached
at 7:00 a.m. but SIP SaleemRaza has deposed that he reached at village Islam at
6:00 a.m. where all other Police parties were already available, while SIP
Shahban has deposed that all the Police parties were available at P.S Gemro at
6:30 a.m. wherefrom they proceeded towards pointed place which was at the
distance of about 13/14 K.M, while ASI Sohrab has deposed that they left Police
Station, Gemro and no other police party came at Police Station, Gemro, while
complainant has deposed that they (Police parties) gathered at village Islam, wherefrom place of
incident would be at the distance of ¾ K.Ms. On the point of identification of
nominated accused all the PWs have deposed that they are unable to identify
accused by their names, while ASI Suhrab has deposed that other police party has
disclosed names of the accused to him as all the pws have spent very short time
during the posting at Police Station but surprising enough SIP SaleemRaza has
deposed that at the time of receiving call DSP has disclosed names of all the
accused. On the numbers of accused complainant has deposed for 21, while SIP
Shahban has deposed for 39 and SIP Ali Raza has stated that they were 43. On
the point of distance at the time of encounter between accused and Police, SIP
Shahban has deposed that they were at 30/32 steps away, while deceased was at
the distance of 10/12 steps away from accused, while PW SIP SaleemRaza has
deposed that distance between accused and Police party would be two furlongs
and again said it would be 10/11 furlongs. As per SIP SaleemRaza all accused
were available in open plot, while SIP Shahban Ali has deposed that there was
wheat crop in between police party and accused at the time of encounter, while
ASI Suhrab has deposed that there were trees of ‘Kandis’, Lai, bushes and Babur
at the place of incident and Babur trees were high in height while the bushes
and Kandis were in different size in height and remaining PWs have deposed that
it was a thick jungle. Huge number of accused is shown in FIR with different
sort of weapons and alleged encounter continued upto 30 minutes, during which
Police party have also fired thousands of fire shots, but surprisingly none of
6/7 police mobiles nor the private vehicle of deceased have received a single
fire shot and only 60 empties were secured from the place where police party
was allegedly available at the time of encounter. SIP Shahban has deposed that
they were still available in their police mobiles when accused opened fires
upon them, thereafter, they alighted and took position for retaliation, while
remaining PWs have deposed that first they alighted from the vehicle and took
position thereafter, accused started firing upon police. Prosecution case is
that complainant shifted the body at hospital after formulation of mashirnamas,
but SIP SaleemRaza has deposed that first they chased escapee accused in
company of complainant Altaf Shah and then returned at PS, while SIP Shahban
has deposed that they consumed 2 to 2 ½ hours in chasing accused upto the
distance of one KM. Complainant has deposed that first he prepared memo of
securing of empties and then shifted the dead body at hospital, while as per
memo it was prepared after lodgment of FIR. All this variations creates serious
doubt, suggesting that either complainant and PWs were not in same company or
they deposed with certain improvements, which not only falsify assertion of
complainant and eye witnesses but shows that PWs in order to suit the situation
make certain dishonest improvements while deposing before this Court, which
indicates that their testimony is not above board. By making such improvements
they made their conduct absolutely like unreliable witnesses, who have not
respect for truth and are capable of telling a lie and changing statements as
and when it suits to them.”
11. After the Judgment of co-accused when the
same set of witnesses appeared before the trial court for evidence against the
appellant they again gave contradictory evidence on each aspect of the case.
Complainant Altaf Husain was examined as PW.2 and deposed in the
examination-in-chief that they identified accused namely MoosoLolai, Goro,
Janib, Jagan, Jatoi, Murred, and Wazir, however, he did not remember the names
of other identified accused persons, all accused while seeing the police party
made straight firing upon them, thereafter, they also exchanged cross firing.
During firing, ASI AltafKoraiproceeded ahead and had fallen down by raising
crises and said that he had sustained firearm injuries. He stated in the cross-examination
that at the time of incident, all the accused fired upon ASI AltafHussainKorai.
He admitted that before registration of
present FIR, the accused were not acquainted with him and on the day of the
incident he saw the accused for the first time. From the perusal of this piece
of evidence of the complainant, it is clear that he had never seen that whose
fire hit to the deceased and even the witnessing of the incident in such a
situation created serious doubt. Moreover,the complainant in the earlier
depositions nominated several persons whose names, he not taken at the time of
evidence of the present appellant. Further, the accused Jatoi was already
acquitted by the trial court along with 18 other accused.
12. PW-3 SaleemRaza was examined he also given
contradictory evidence, he stated in his examination-in-chief that they saw and
identified accused namely Mooso, Jatoi, Goro, Murred and others accused
nominated in the FIR, whose names he cannot recall. He further deposed that accused
were armed with G-3 rifles and Kalashnikovs and all accused started firing upon
them to commit their murder, they also retaliated the firing after alighting
from vehicles in their defence. He deposed that ASI AltafKoraiproceeded ahead
and sustained firearm injuries at the hands of accused Mooso, Mureed and Goro,
who had fallen down by raising crises. During cross-examination he stated that
they had proceeded from the police station in the private Datsun pickup. It was
driven by a private driver. He admitted during cross-examination that the complainant
gave the names of accused Wazir, Bashir, Sono, and Allah Bux in the FIR due to
confusion. He further in cross-examination deposed that accused Mooso was
firstly seen and identified at the place of wardat at the distance of 10/11
furlongs. This witness also gave contradictory evidence from the first evidence
so also from the statement under section 161 Cr.P.C.
13. PW-4 Shahbandeposed that when they reached at
the otak of accused MoosoLolai, he identified accused as Bagan, Abdul Rehman,
Allah Bux, Goro, Mureed, Dahar and other names he doesnot recall. He further
deposed that all accused fired upon them and they also fired upon accused
persons. During the encounter, ASI AltafHussainKorai moved ahead and sustained
the firearm injuries by accused Mooso, Goro, and Mureed. Accused Abdul Rehman
has already been acquitted by the trial court. His evidence is also found contradictory
with his earlier evidence.
14. Another witnessSohrab Khan who was also eye
witness and mashir of the incident who nominated 27 persons with their names and
further deposed that Investigation Officer in his presence secured 14 empties
of 7.62 from the place where accused Mosso, Mureed and Goro were available and
35 empties of 7.62 and 25 empties of G-3 rifle from place where police party
was available so also at the distance of one furlong 45 empties of 7.62, 35
empties of G-3 rifle and 7 empties of 222 rifle fire by accused whereas there
was no evidence that any of the accused was armed with 222 rifles at the time
of incident. The complainant during cross-examination admitted that in the FIR
specifically 222 riflesare not shown to be possessed by any accused.
15. The prosecution failed to prove the place of
encounter as to where such encounter took place, in this regard;
PW SaleemRaza stated in his cross-examination that when they reached Khan WaroPaho,
accused came out from the otak of accused Mooso which was in open place. Due to
winter season accused were sitting outside of the otak on the 15/16 cots but PW
Sohrab Khan deposed in his cross-examination that there was no any otak at the
place of the incident, even no any cot or pillow was available there, PW
Shahbanduring cross-examination stated that at the time of firing, there was
raw wheat crop at the place of wardat. Whereas PW Sohrab during cross-examination
stated that the place of incident was jungle and there was no cultivation of
wheat crop at the time of the incident. Conduct the witnesses clearly showed
that neither they were present at the time of incident nor they witnessed the
incident and the entire story was managed.
16. Prosecution also failed to establish the
place of receiving firearm injury by the deceased AltafHussainKorai as complainant
stated in cross-examination that at the time of firing ASI AltafHussainKorai
was at the distance of about 30/40 feet away from him and in between that
distance trees, bushes and kandis were available whereas PW SaleemRaza stated
in cross-examination that at the time of firing, there was plain ground, PW
Shahban stated in the cross-examination that at the time of firing, there was
raw wheat crop at the place of wardat.
17. The encounter in between the accused and
police and the presence of witnesses at the time of encounter was also doubtful
as Complainant admitted during cross-examination that at the time of firing the
distance in between accused and ASI AltafHussainKorai was about 100 or 150 feet,
PWSaleemRaza stated in cross-examination stated that the distance in between
accused and police party was about 10/11 furlongs at the place of incident and
ASI AltafKorai was in his police party and was standing beside him at the
distance of 2/3 furlongs and PW Sohrab Khan deposed during cross-examination
that the distance in between accused and police party was about 100 feet.
18. The identification of the accused persons
at the time incident by the police personals was also doubtful as the
complainant stated during cross-examination that before registration of present
FIR, the accused was not acquainted with him and on the day of incident he saw
the accused first time, however, he was identified by the other staff of police
party. PW SaleemRaza deposed during cross-examination that accused Mooso had
neither studied with him nor he belongs to his community, even during his
posting tenure, he had not appeared at police station kachoBindi as accused or
PW, he further deposed during cross-examination that he identified the accused
Mooso at the time of incident at the distance of about 10/11 furlong while in
lying position at the place of wardat. PW Shahban admitted during cross-examination
that all accused were seen by him the first time on the spot. PW Sohrab Khan
during cross-examination deposed that he firstly physically saw the accused
Mooso at the time of the incident. When the police party first time saw the
appellant and the appellant was never seen by police party before the incident
then how they identified that it was appellant Mooso which created very serious
doubt in the prosecution case.
19. All the prosecution witness admitted enmity
in between Lolai and Chachar community at the time of incident and it was also
admitted by all the witnesses that most of the police personal who took part in
the incident belongs to Chachar community and all the accused persons belongs
to Lolai community,witnesses also admitted that several personal including the
son and brother of the appellant were murdered by the persons of Chachar
community and such FIR were also registered which shows that entire story of
encounter has been managed.
20. We have examined the statement of accused under
section 342 Cr.P.C and found that trial court had not put to appellant all
incriminating piece of evidence brought on record by the prosecution during the
trial vizrecovered empties of bullets and the bloodstainedmud or clothes of
deceased nor the medical evidence the postmortem, but the same were relied upon
by the trial court while passing the judgment of conviction against the
appellant which is totally against the scheme of criminal law.It is a settled
principle of law that all the
incriminating piece of evidence available on record in shape of
examination-in-chief, cross-examination or re-examination of witnesses are
required to be put to the accused, if the same are against him while recording
his statement under section 342 Cr.P.C in which the words used “For the
purpose of enabling the accused to explain any circumstances appearing in
evidence against him.” which clearly demonstrate that not only the
circumstances appearing in the examination-in-chief are put to the accused but
circumstances appearing in cross-examination or re-examination are also
required to be put to the accused if they are against him because the evidence
means examination-in-chief, cross-examination and re-examination, as provided
under Article 132 read with Articles 2(c) and 71 of Qanun-e-Shahadat Order, as has been held by Honourable Supreme
Court of Pakistan in case ofMuhammad
Shah v. The State (2010 SCMR 1009).
21. It is a well-settledprinciple of law that a
piece of evidence or a circumstance is not put to an accused person at the time
of recording his statement under Section 342 Cr.P.C. the same could not be
considered against him as has been held by Honourable Supreme Court Of Pakistan
in cases Imtiaz @ Tajv. The State and
others(2018 SCMR 344),Qadan and others v. The State (2017 SCMR 148) and Mst:
Anwar Begum v. AkhtarHussain alias Kaka and 2 others (2017 SCMR 1710).
22. The
important aspect of the case is that learned trial court disbelieved the entire
evidence of the same witnesses recorded in the first round when 19 co-accused
were tried and acquitted, again in the second trial, the evidence of same
witnesses wasrecorded for the appellant and trial court believed the evidence and
awarded the sentence. In such a situation the dicta laid down by the Honourable
Supreme Court of Pakistan in case Khizar
Hayat
(PLD 2019 SC 527)is applicable where it was held as under:-
21. We may observe in the end
that a judicial system which permits deliberate falsehood is doomed to fail and
a society which tolerates it is destined to self-destruct. Truth is the
foundation of justice and justice is the core and bedrock of a civilized
society and, thus, any compromise on truth amounts to a compromise on a society's
future as a just, fair and civilized society. Our judicial system has suffered
a lot as a consequence of the above mentioned permissible deviation from the
truth and it is about time that such a colossal wrong may be rectified in all
earnestness. Therefore, in light of the discussion made above, we declare that
the rule falsus in uno, falsus in omnibus shall henceforth be an integral part
of our jurisprudence in criminal cases and the same shall be given effect to,
followed and applied by all the courts in the country in its letter and spirit.
It is also directed that a witness found by a court to have resorted to a
deliberate falsehood on a material aspect shall, without any latitude,
invariably be proceeded against for committing perjury.
22. The prosecution is
duty-bound to prove it’s case beyond reasonable shadow of doubt by producing
confidence-inspiring and trustworthy evidence and 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. We find in the present
case that the prosecution has failed to produce confidence-inspiring and
trustworthy evidence against the appellant as discussed above in detail.
Reliance can be placed on the case of Tariq
Pervez V. The State (1995 SCMR 1345).
23. We, therefore,
allow the instant appeal and acquit the appellantnamely Muhammad Moosa @
MoosoLolai S/O QadirBux by extending him the benefit of the doubt and set aside
the impugned judgment of trial Court dated: 06-10-2018 passed by learned Judge
Anti-terrorism Ghotki at MirpurMathelo in Spl. Case No.01/2017 under FIR
No.07/2012 for the offence under sections 302,324,353,148,149 PPC & 7
A.T.Act 1997 registered at PSGamro,DistrictGhotki. The appellant is directed to
be released forthwith, if not required in any other custody case.
24. The appeal
stands disposed of in the above terms.
JUDGE
JUDGE