IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Criminal Appeal No. S-26 of 2016&
Criminal Appeal No. S-28 of 2016
Appellant In Cr. Appeal No. S-26/2016
Gulzar Ahmed Soomro
Through Mr. Safdar Ali Ghouri, advocate.
Appellant In Cr. Appeal No. S-28/2016
Abdul Raheem Abro,
Through Mr. Irfan Badar Abbasi,
advocate
The State: Through Mr. Muhammad Noonari,
D.P.G for the State.
Date of hearing: 15-02-2021
Date of Order: 15-02-2021
Date of reasons: 16-02-2021
J U D G M E N T
Zulfiqar Ali Sangi, J.Through both these criminal appeals, the appellants Gulzar Ahmed Soomro and Abdul Rahim Abro haveassailed the one and common judgment dated 29.03.2016, passed by the learned Special Judge Anti-Corruption (Provincial), Larkana, in Special Case No.02/2014, re: State V/s Abdul Rahim and another, culminated from Crime No. 02/2014 of P.S. New Foujdari, Shikarpur, for the offence under Sections 409,201,34 P.P.C, whereby the trial court has convicted the accused Abdul Rahim for offence u/s 409 P.P.C r/w Sec: 5(2) Act-II of 1947 and sentenced him to suffer R.I for five (5) years and fine of Rs.50,000/-, in case of non-payment of fine, he shall suffer R.I for six (6) months more. Trial court has also convicted accused Gulzar Ahmed u/s 201 P.P.C r/w Sec. 5(2), Act-II of 1947 and sentenced him to suffer R.I for two (2) years and fine of Rs.25,000/-, in case of non-payment of fine, he shall suffer R.I for three (3) months more.
2. Brief facts of the prosecution case as per FIRlodged by complainant LPC Zulfiqar Ali alias Imran Ali Abro, at P.S. New Foujdari Shikarpur on behalf of the State are that on 01.04.2009, A.S.I. Gulzar Ahmed Soomro had issued a G-3 Rifle, two magazines and 40bullets to Abdul Rahim Abro, which he did not deposit since last four years and misappropriated the same. It was further alleged that A.S.I. Gulzar Ahmed Sooomro has failed to report against P.C Abdul Rahim and thereby he has concealed the facts. It was further alleged in the F.I.R that P.C Abdul Rahim Abro has given in writing on 28.03.2013 before D.S.P Imtiaz Ali Soomro that he would return the property within ten days but he did not deposit the same. It was further alleged that the witnesses were P.C Attaullah and P.C Dilshad Ahmed Hakro of Police Line, Shikarpur, such enquiry into the matter was conducted by the D.S.P Head Quarter, who submitted such report vide No.4014, dated 20.12.2013, whereby the S.S.P vide his order No.EI 1857, dated 24.12.2013 ordered for registration of the case against P.C Abdul Rahim Abro and A.S.I. Gulzar Ahmed Soomro.
3. After completingthe investigation, the accused were challaned before the court to face theirtrial. Legal formalities were completed andcharge was framed against the appellants/accused, to which they pleaded not guilty and claimed to be tried.
4. The prosecution in support of its case, examined P.W Zulfiqar Ali at Ex.3, he has produced the enquiry report, order for registration of case, F.I.R and copy of register No.7 at Ex.3-A to 3-E, P.W Dilshad Ali was examined at Ex.4, P.W Attaullah was examined at Ex.5, he has produced the copy of undertaking of accused, statement of accused Abdul Rahim and mashirnama at Ex.5-A to 5-C, P.W Asadullah was examined at Ex.6, he has produced the mashirnama at Ex.6-A, P.W Hajjan Shah was examined at Ex.8, thereafter the side of prosecution was closed vide statement at Ex.8-A.
5. Trial Court recorded statements of accused under section 342 Cr.P.C, wherein they pleaded their innocence.The appellants wished to examine themselves on oath as required U/S 340(2) Cr.P.C and did not lead evidence in their defence. They were examined themselves as D.W-1 and D.W-2 at Ex.11 and 12 respectively.
6. After assessment of evidence, learned trial court has passed the above impugned judgment and convicted the appellants/accused as above. Being aggrieved by the said judgment, the appellants above named have preferred the instant criminal appeals separately. Since both the appeals are outcome of common judgment dated 29.03.2016, therefore, both appeals are decided in single judgment.
7. Learned counsel for the appellant Gulzar Ahmed Soomro has argued that the appellant is innocent as he being Incharge of Kot had issued G-3 rifle along with two magazines containing 40 bullets for purpose of official duty. Due to emergency on 26.05.2012 other rifle along with two magazines containing 40 bullets was issued to co-accused Abdul Raheem, who deposited one rifle and promised that he would deposit earlier rifle within a few days but failed therefore, the matter was reported by the appellant to S.S.P, who deputed D.S.P Imtiaz Ali Soomro for inquiry into the matter, where co-accused Abdul Raheem undertook that he would deposit the rifle along with two magazines and 40 bullets and such his undertaking was recorded by the enquiry officer; therefore the appellant Gulzar Ahmed Soomro was not at fault and he had not concealed any fact from superiors nor caused any kind of disappearance of the evidence; that the alleged offence committed by the public servant in their official capacity but inspite of that the instant F.I.R was registered and matter was investigated by the local police, on the contrary the Anticorruption Police Station is exists in Shikarpur town, which shows the malafide on the part of local police and entire investigation conducted by the local police is contrary to law. He has prayed for acquittal of the appellant/accused by extending him the benefit of the doubt.
8. Learned counsel for the appellant Abdul Rahim Abro has contended that the appellant is innocent and the evidence produced at the trial by the prosecution is insufficient to warrant the conviction of the appellant; that trial Judge has not observed the established rules of the appreciation of the evidence in deciding the case. He has therefore, prayed for acquittal of the appellant/accused by extending him the benefit of the doubt.
9. Learned Deputy Prosecutor General has supported the impugned judgment and further submitted that offence allegedly committed by the accused; G-3 Rifle was issued to accused P.C Abdul Rahim with two magazines and 40 bullets the same were not returned or deposited by the accused and matter was reported to the high-ups and on their directions the instant case was registered and responsibility was affixed upon them. He further submits that the prosecution has proved its case beyond a reasonable doubt against the appellants by providing reliable, trustworthy and confidence inspiring evidence. He has prayed for dismissal of the instant criminal appeals.
10. I have heard the learned counsel for the appellants, learned D.P.G. and have gone through the material available on the record with their able assistance.
11. Prosecution has examined P.C Zulfiqar Ali, P.W-1 at Ex.3, who deposed that on 28.3.2013, he was posted as AWHC at Police Line, Shikarpur. On 3.1.2014 DSP Arshad Ali Shah Masoomi had conducted the enquiry against the accused and on the directions of DPO, he had registered the FIR against accused. He further deposed that an enquiry was held against accused Abdul Rahim by Imtiaz Ali Soomro, DSP. He further deposed that he was posted in the police line, accused Abdul Rahim admitted his guilt before the DSP that G-3 Rifle along with two magazines and 40 bullets were missing by him and he will produce the same. He further deposed that the Rifle bearing No.90892 was issued to accuse Abdul Rahim on 1.4.2009 by the ASI Gulzar Ahmed Soomro incharge Kot police line. He further deposed that after four years accused Abdul Rahim came at police line for emergency duty and another G-3 Rifle was issued to the accused, later on ASI checked the record and found that two G-3 Rifles were issued to accused Abdul Rahim then ASI called PC Abdul Rahim. He further deposed that the accused failed to deposit earlier G-3 Rife and he deposited G-3 formerly issued to him. He further deposed that then ASI Gulzar Ahmed recorded his statement in which he stated that said G-3 Rifle was lost. He further deposed that ASI then reported the matter to the high ups and enquiry was held against accused Abdul Rahim. He further deposed that thereafter the FlR was registered in which ASI Gulzar Ahmed was nominated as accused by DSP Arshad Ali Shah. This witness was cross examined at length but nothing favourable to the appellant was come on record. However during his cross examination, A.S.I. Gulzar had reported the matter to the D.S.P Head Quarter on 04.02.2013 regarding the non-depositing the G-3 rifle by the P.C Abdul Rahim bearing No.90892 with two magazines containing 40 bullets. In another suggestion made on behalf of appellant Gulzar, he in his cross-examination stated that "It is correct that again accused Gulzar had reported the matter to the S.S.P and D.S.P on 20.02.2013, that accused has not yet deposited the G-3 rifle issued to him. On the report accused Abdul Rahim was detained in quarter guard by the D.S.P. It is correct that on 28.03.2013 P.C Abdul Rahim undertook before the D.S.P that the G-3 and bullets which were lost and he will deposit the same within 10 days". The document produced by this witness against the appellants has not been challenged during cross examination.
12. Prosecution has examined P.W-2Dilshad Ali at Ex.4, who has deposed that for last 14/15 years, he has been posted in Police Line, Shikarpur as helper. He deposed that he and P.C Attaullah were performing duties on the Kot and accused Gulzar Ahmed wasIncharge of the Kot. He deposed that on 1.04.2009 one G-3 rifle bearing No.90892 along with two magazines containing 40 bullets were issued to PC Abdul Rahim and on 26.5 2012 PC Abdul Rahim came for emergency duty and another G-3 rifle bearing No 83830 was issued to PC Abdul Rahim along with two Magazines containing 40 bullets. He further deposed that on 17.7 2012 accused Abdul Rahim deposited the G-3 rifle bearing No 83830 and failed to deposit G-3 rifle bearing No 90892. He further deposed that the Kot Incharge asked him to deposit the above G-3 rifle but accused failed to deposit the same, He further deposed that then Kot Incharge made the report to the SSP Shikarpur, SSP deputed DSP Headquarter to conduct the enquiry where the accused under take that he will deposit the same within 10 days, but he did not deposit the same.This witness was cross examined, during cross examination he stated that "It is correct to suggest that the accused Gulzar Ahmed, who was Kot Incharge from time to time reported the matter to S.S.P and D.S.P Headquarter regarding non-depositing the G-3 rifle No.90892 along with two magazines containing 40 bullets by the accused Abdul Rahim".
13. Prosecution has examined Attaullah P.W-3 at Ex.5. He has deposed that on 1.4.2009, he was posted at Police Line, as Kot helper. He deposed that PC-1751 Abdul Rahim came and Kot Incharge issued the G-3 rifle bearing No.90892 along with two Magazines and 40 rounds for performing the duty. He deposed that after the lapse of four years accused again came at police line and asked that he is deputed for emergency duty, therefore, he has again issued G-3 Rifle bearing No.83830 along with Two Magazines and 40 bullets for performing duty. He deposed that on 17.7.2012 accused returned back and deposited the rifle bearing No.83830 along with Magazines and bullets and on enquiry about rifle No.90892 accused stated that he will deposit later on. He deposed that at the many occasions Kot Incharge asked and enquired from PC Abdul Rahim regarding non-return of G-3 rifle but accused failed to deposit the same and Kot Incharge also reported the matter to the SSP and D.S.P Headquarter. He further deposed that during enquiry he was called and accused Abdul Rahim also cross-examined him and accused undertook before DSP that he will return the same and admitted his guilt. He further deposed that the accused also admitted his guilt before the DSP Arshad Ali Masoomi and got recorded his statement and D.S.P also obtained his finger prints which were available on record. This witness was cross examined by the defence counsel for both the appellants but nothing favourable to appellants came on record.
14. Prosecution examined Asadullah P.W-4 at Ex.6, who has deposed that on 17.01.2014, he was posted at P.S. New Foujdari, Shikarpur, he was with S.I.P Hajjan Shah along with other staff, left the P.S. for investigation of Crime No.10/2014, when they reached at the near Railway Station Ruk, they saw the accused Abdul Rahim, who was nominated in this case arrested by S.I.P in his presence. He further deposed that nothing was secured during search; S.I.P prepared the mashirnama of arrest in his presence. He was cross examined but nothing favourable of appellant came on record.
15. Prosecution has examined S.I.O Hajjan Shah, P.W-5 at Ex.8. He has deposed that on 3.1.2014, he was posted as SIO PS New Foujdari, Shikarpur, he received the police papers of the above crime for further investigation. He deposed that on the same day he had visited the place of vardat on the pointation of complainant. He further deposed that he prepared the mashirnama in presence of PC Attaullah and PC Taimor. He further deposed that he then recorded the statements of witnesses. He further deposed that on 12.1.2014 accused ASI Gulzar Ahmed appeared after obtaining bail from the Court. He further deposed that on 17.1.2014, P.C Abdul Rahim was arrested under the mashirnama in presence of mashirs and after completion of the formalities, challan was submitted before the court of law. He was also cross-examined but nothing favourable came on record.
16. After completion of prosecution evidence, the appellant/Accused Abdul Rahim examined himself on oath at Ex.11. He has deposed that he was serving in Police Department and posted in Police Line, Shikarpur. He deposed that his father-in-law died, therefore, he remained 8 days absent hence S.S.P suspended him. He further deposed that before his suspension he had deposited one Arm and ammunition and obtained the receipt from the concerned. He further deposed that he was dismissed from service for six months. He further deposed that later-on DIG re-instated him and he was transferred to PS Faizo. He further deposed that later-on his cousin had contracted the love marriage and Soomra community put the pressure upon him to return the lady and they forcibly occupied his house and Hotel of his uncle. He further deposed that the Incharge Kot Gulzar with the collusion of his opponent demanded Rs.50,000/-, on his refusal he has falsely implicated him. He further deposed that he then filed the Petition in the court of Sessions Judge against Gulzar. He further deposed that later on the enquiry was conducted by the DSP Imtiaz Soomro and declared him as innocent and affixed the responsibility upon Gulzar. He further deposed that later-on enquiry was conducted by Abdul Haleem Kalhoro who declared him as innocent. He further deposed that later-on the DSP Headquarter Arshad Mahmood conducted the enquiry and declared him as innocent. He further deposed that he had intimated the enquiry officer that the Kot Incharge himself misappropriated the arms and ammunition and later-on implicated innocent police officials. He further deposed that co-accused harassed him during the enquiries and falsely implicated him in this Case.
17. Appellant/accused Gulzar Ahmed examined himself on oath at Ex.12. He has deposed that he was posted as A.S.I. Incharge Kot from the year 2000 at Police Line, Shikarpur and P.C Attaullah and P.C Dilshad were posted with him. He deposed that they used to issue the Arms and ammunition to the officials for performing their official duties. He further deposed that on 1.4.2009 he had issued one G-3 Rifle No.90892, Two Magazines and 40 bullets for purpose of official duty. He further deposed that due to emergency duty on 26.5.2012 another Rifle No.83830 along with two magazines and 40 bullets was issued to the accused. He further deposed that the accused deposited Rifle No.83830 on 17.7.2012 and promised that he will deposit the Rifle bearing No.90892 within a few days but not deposited the same. He further deposed that he then reported the matter bearing No.321 to the S.S.P, SSP deputed DSP Imtiaz Ali Soomro for enquiry into the matter where the co-accused Abdul Rahim undertook that Rifle bearing No.90892, two magazines and 40 bullets were lying with him and he will deposit the same within a week, such iqrarnama was written by him before the DSP. He further deposed that the accused failed to deposit the same, thereafter he again reported the matter to SSP through DSP. He further deposed that the SSP deputed Arshad Ali DSP as enquiry officer where the accused also undertook and stated that the rifle and Magazines along with bullets have been misplaced therefore, he was ready for deposit the payment of the property. He further deposed that later-on he had not fulfilled the illegal demand of D.S.P Arshad Ali, therefore, has been implicated in this case. He further deposed that he had reported the matter to his high ups and same is in knowledge of I.G. He deposed that he was innocent and falsely implicated in this case.
18. Entire evidence produced by the prosecution was scanned. Issuance of the G-3 rifle to the appellant Abdul Rahim has not been denied by the appellant Gulzar Ahmed Soomro. It is also established that appellant Abdul Rahim not deposited G-3 rifle which was issued to him earlier and without being deposited another G-3 rifle was issued to him. All the prosecution witnesses supported the case and no major contradiction was found in their evidence. However both the appellants taken different pleas and are levelling allegations against each other for which both appellants failed to produce any valid proof.
19. Zulifqar Ali P.W-1 exhibited the Inquiry report conducted by Syed Arshad Ali Shah Masomi, the then D.S.P Headquarters Shikarpur which has not been denied by both the appellants and its conclusion/findings and the recommendations are reproduced as under:-
CONCLUSION / FINDINGS
A. Defaulting PC/1751 Abdul Rahim of Shikarpur District, during the period of his posting in the Police Lines Shikarpur was issued Government G-3 Rifle No.90892 with 02-Magazines and 0-Rounds rom Police Lines Kot on dated: 01-04-2009, for performing official duty. Which remained into his intentional/deliberate possession tor many years. For the reasons that as being a part of this disciplined Police force, he is and must be fully aware about his official responsibilities including the possession of Government Arms / Ammunition, as misappropriation of Government Arms/Ammunition is an offence of serious nature, which needs no leniency and no mercy. However, despite this fact, he intentionally obtained another Government G-3 Rifle No.83830 with 02-Magazines and 40-Rounds on dated: 26-05-2012. The big reason to be worried about the missing of Government G-s Rifle with sufficient Ammunition is that; after the issuance of 1st Government G-3 Rifle No.90892 with 02-Magazines and 40-Rounds from Police Lines Kot on dated: 01-04-2009, the specified defaulting Constable also remained dismissed from service and during the period of his dismissal from service, particularly at the time when a reliable Government Rifle (of prohibited bore for civilians) was lying into his illegal custody, as such misuse of the said Rifle by him or by some other irresponsible individuals / miscreants could not be ruled out.
B. Statement of ASI Gulzar Ahmed Soomro, Kot Incharge Police Lines Shikarpur indicates that he was also fully aware of the situation but he remained quite silent in this regard and failed to submit such facts for the perusal of his respected high ups; and submitted report through L.O Police Lines Shikarpur after lapse of (04) years with any malafide intention for the reasons best known to him. However; leniency displayed by him in this scenario makes him equally responsible for initiating both i.e departmental as well as criminal proceedings.
RECOMMENDATION:
1/- Defaulting PC/1751 Abdul Rahim of Shikarpur District is constantly and deliberately avoiding to unveil actual facts hidden behind the missing of specified Government G-3 Rifle No.90892 with 02-Magazines and 40-Rounds, which remained in his illegal custody with effect from 01-04-2009 till todate. Besides this, his recent statement regarding deduction of amount of Government G-3 Rifle from his monthly salary provides sufficient ground to believe that he is taking this serious issue in a lighter wav. Hence missing of Government G-3 Rifle No.90892 with 02-Magazines and 40-Rounds should be treated as "Intentional Misappropriation".
2/- Non-submission of factual position for the perusal of his respected high ups for obtaining timely orders regarding missing of otherwise intentional misappropriation of Government G-3 Rifle with sufficient Ammunition, makes A.S.I. Gulzar Ahmed Soomro, Kot Incharge Police Lines Shikarpur; equally responsible and liable of similar departmental as well as criminal proceedings, as against defaulting PC/1751 Abdul Rahim, so that no one should dare to repeat such negligence in the line of duty.
3/- It is, therefore, recommended that stern departmental action including criminal proceedings criminal proceedings under section 409,201 P.P.C may kindly be ordered against defaulting P.C/1751 Abdul Rahim of Shikarpur District (for his intentional misappropriation) as well as A.S.I. Gulzar Ahmed Soomro, Kot Incharge, Police Lines Shikarpur (for concealing the facts) so that such menace could be curbed / eliminated in future and discipline could be maintained accordingly.
20.Thus based on the particular facts and circumstances of the case the prosecution has proved its case against both the appellants beyond a reasonable doubt.Learned counsel for the appellant has failed to point out any material illegality or serious infirmity committed by learned trial Court while passing the impugned judgment, which in my humble view is based on the appreciation of the evidence and the same does not call for any interference by this Court. Thus, the conviction and sentence awarded to the present appellants by learned trial Court are hereby maintained/upheld and the instant appeals filed by the appellants merits no consideration, which aredismissed accordingly.
21. These are the reasons of my short order dated 15.02.2021 and same is reproduced as under:-
"Heard arguments of learned counsel for the appellants in both matters and learned D.P.G for State.
For the reasons to be recorded later-on, both these appeals are dismissed. Appellants are present on bail, they are taken into custody and remanded to Central Prison, Larkana to serve out their sentences as per impugned judgment dated 29.03.2016, passed by the Special Judge, Anti-corruption (Prov) Larkana in Special Case No.02/2014, re: State Vs. Abdul Rahim & another, arising out of FIR No.02/2014 of P.S New Foujdari, Shikarpur for the offence u/s 409, 201,34 P.P.C, r/w Section 5(2), Act-II of 1947."
JUDGE