Judgment Sheet
IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR
Criminal Jail Appeal No. D – 154 of 2018
Present.
Mr. Justice
Naimatullah Phulpoto &
Mr.
Justice Khadim Hussain Tunio.
Date
of hearing: 05.12.2019
Mr. Muhammad Akram
Jhamat Advocate for appellants / accused.
Mr. Aftab Ahmed Shar,
Additional P.G.
J U D G M E N T
NAIMATULLAH
PHULPOTO, J. This
appeal is directed against the judgment dated 29.11.2018 passed by learned
Judge, Anti-Terrorism Court under the provisions of Anti-Terrorism Act 1997
(henceforth ‘the Act’), Khairpur in special case Nos. 45 to 48 of 2016 whereby
appellants Muhammad Ibraheem and Asif Ali have been convicted and sentenced as
under.
|
Appellants |
Conviction |
Sentence |
|
Appellant No.1 Muhammad Ibraheem |
Under Section 324 read with section
149 P.P.C |
Rigorous imprisonment for 10 years
and fine of Rs. 50,000/- in case of default in payment of fine to suffer S.I
for six months. |
|
Under Section 353 read with Section
149 PPC. |
Rigorous imprisonment for 02 years. |
|
|
|
Under Section 427 read with Section
149 PPC. |
Rigorous imprisonment for two years
and to pay fine of Rs. 10,000/- and in
case of default in payment fine to suffer R.I for one month. |
|
|
Under Section 4(b) Explosive
Substance Act, 1908. |
Rigorous imprisonment for 10 years
and to pay fine of Rs. 50,000/- and in
case of default in payment fine to suffer further R.I for six month. |
|
|
Under Section 7(b) of Anti-Terrorism
Act,1997. |
Rigorous imprisonment for 10 years
and to pay fine of Rs. 50,000/- and in
case of default in payment fine to suffer further R.I for six month. |
|
|
Under Section 23(i) A of Sindh Arms
Act, 2013. |
Rigorous imprisonment for 07 years
and to pay fine of Rs. 20,000/- and in
case of default in payment fine to suffer further R.I for two months. |
|
Appellant No.2 Asif Ali |
Under Section 324 read with section
149 P.P.C |
Rigorous imprisonment for 10 years
and fine of Rs. 50,000/-, in case of default in payment of fine to suffer S.I
for six months. |
|
|
Under Section 353 read with Section
149 PPC. |
Rigorous imprisonment for 02 years. |
|
|
Under Section 427 read with Section
149 PPC |
Rigorous imprisonment for two years
and to pay fine of Rs. 10,000/- and in
case of default in payment fine to suffer R.I for one month. |
|
|
Under Section 7(b) of Anti-Terrorism
Act,1997. |
Rigorous imprisonment for 10 years
and to pay fine of Rs. 50,000/- and in
case of default in payment fine to suffer further R.I for six month. |
|
|
Under Section 23(i) A of Sindh Arms
Act, 2013 |
Rigorous imprisonment for 07 years
and to pay fine of Rs. 20,000/- and in
case of default in payment fine to suffer further R.I for two months. |
2. Facts
of the case, in brief, are that on 19.05.2016 at 1300 hours SIP Syed Aftab
Ahmed Shah SHO of Police Station Wada Machyoon, Khairpur Mir’s was present at
Police station. He received information from his high officials for conducting nakabandi
at link road leading from Pirjogoth to Khairpur. Thereafter, SIP Syed Aftab Ahmed
Shah along with subordinate staff left Police station in the Government vehicle
vide roznamcha entry No.6 at 1000 hours to the pointed place, while patrolling
at different places. Police party started checking of the vehicles near Police
picket. It is alleged that at 11.30 a.m three persons appeared on motorcycle
from Shah Hussain side. Police signaled them to stop. It is alleged that
motorcycle was reversed but it slipped and fell down. However, one accused succeeded in driving it away and
two accused ran towards mangoes and dates garden. Police chased them but they taken
out pistols from their folds and started firing upon police party with
intention to kill them. Firing lasted for five minutes. Thereafter, it is
alleged that accused surrendered and police caught hold of them. SHO Syed Aftab Ahmed Shah recovered TT
pistols from their possession in presence of mashirs P.Cs Misri Khan and Kareem
Dad for want of the presence of private mashirs. SHO enquired their names to
which one accused disclosed his name as Muhammad Ibraheem son of Ali Khan
bycaste Siyal. From his personal search, two hand grenades were recovered from
his pockets and arrangements were made for defusing them. Another accused
disclosed his name as Asif Ali son of Muhammad Jhangal bycaste Marri resident
of village Mitho Marri taluka and District Khairpur Mir’s. From his personal
search, cash of Rs. 200/- was recovered. SHO enquired from both accused about
licenses of crime weapons carried by them, to which they replied in negative. Both
accused, Arms and explosive substances were brought to Police Station. F.I.Rs
(Ex.5-C to 5-F) were registered against the accused. There is nothing on record
that seized property viz. TT pistols were deposited in the Malkhana. Explosive
substance was defused by the expert. Pistols were sent to the Forensic Science
Laboratory. FSC report (Exh. 8-I) is in positive.
Technical report of Bomb Disposal Squad ( Exh. 8-H) is also positive. On the
completion of usual investigation, the charge-sheet was filed. Charges were
framed against accused under Sections 324, 353, 427 P.P.C, 4/5 Explosive Substance
Act, 1908 and 23(1) (a) of Arms Act, 2013 against the Appellants. Appellants pleaded not guilty and claimed
trial.
3. To
rope in the accused, the prosecution examined as many as 3 witnesses.
Prosecution side was closed. Statements of accused persons were recorded U/S
342 Cr.P.C in which they denied the guilt, pleaded innocence and claimed false
implication. Accused Muhammad Ibraheem produced copy of Crl. Mic. Application
No. D-204/2016 (Exh.11-A) and enquiry report (Exh.11-B). Accused Asif Ali
produced certified true copy of C.P No. D-2265/2013 filed by his mother Mst.
Roshan Khatoon on 18.05.2016 before this Court at Exh. 12-A. Copy of Judgment
in criminal case No. 227 of 2012 at Exh. 12-B. Another Judgment in Sessions
case No. 21/2015 passed by Ist. Assistant Sessions Judge Khairpur against both
appellants and others as Exh.12-C. Third Judgment in which both appellants were
tried before learned Sessions Judge Khairpur in Sessions case No.76/2014 as
Exh.12-D. Both accused denied to examine themselves on oath. However, they have
examined in defense D.Ws Sultan and Mir Hazar.
4. After
completion of the trial, the Trial Court after hearing learned counsel for the
parties and assessment of the evidence convicted and sentenced the Appellants
as mentioned in the first paragraph of this judgment. Hence, this appeal.
5. Learned counsel appearing for the
Appellants submitted that prosecution story was unnatural and unbelievable, that during police encounter, not a single
injury was caused to either party, that no private person was associated as
mashir of arrest and recovery, that the conviction of the Appellants is based
on the evidence of interested police witnesses. It is further contended that there
are material contradictions in their statements, that the safe custody of TT
pistols at Malkhana of Police station Wada Machyoon and safe transmission to
the ballistic expert have not been established at trial. It is further argued
that police constable who had taken weapons to the ballistic expert has not
been examined before the trial Court, that
Malik Tahir Mehmood Explosive Examiner Special branch Sukkur has also not been examined
in this case, that alleged recoveries were effected from accused persons on
19.05.2016 but mother of appellant Asif Ali had filed Const. Petition before
this Court against Khairpur police on 18.05.2016 for illegal detention of her
son. It is submitted that conviction of the Appellants cannot be sustained only
on the basis of statements of police officials without there being
corroboration of independent witnesses.
6. Learned
counsel appearing for the State did not support the impugned judgment of
conviction and sentence.
7. We
have heard learned counsel appearing for the parties and perused the record
with utmost circumspection.
8. Trial
Court had convicted the Appellants only on the basis of statements of
complainant / Investigation Officer SIP Syed Aftab Ahmed Shah and other police
witnesses / mashirs PC Misri Khan and D.S.P Altaf Hussain. It was the case of nakabandi
on the road during day time. Independent witnesses have not been examined by
the prosecution. Evidence of police officials needs a minute scrutiny.
9. Syed
Aftab Ahmed Shah (PW-1) has stated before trial Court that on 19.05.2016 he was
posted as SHO at Police station Wada Machyoon. He received information from
higher officer for holding snap checking in the area. Thereafter, SHO left
Police station vide roznamcha entry No.6 (Exh.5-A) along with his
subordinate staff namely PCs Misri Khan, Javed and Kareemdad in the Government
vehicle. SHO patrolled at various places and reached at Lao police picket,
where he parked his vehicle and started checking of the vehicles. At about
11.30 a.m three persons appeared on motorcycle from Shah Hussain side. SHO
signaled them to stop but accused persons while seeing police party, reversed
the motorcycle but motorcycle fell down and one accused succeeded to drive it
away. Police chased two accused persons to the garden. It is in the evidence
that both accused fired from their pistols to the police party with intention
to kill them. Police also fired in self defense. Firing continued for two
minutes and both accused were caught hold at spot. On the enquiry, they
disclosed their names as Asif Ali and Muhammad Ibraheem. Pistols were recovered
from their possession in presence of mashirs PCs Misri Khan and Kareem Dad. Both
accused failed to produce licenses for the pistols carried by them. The number
of the pistols were rubbed. It is in the evidence that from the possession of
accused Muhammad Ibraheem two hand grenades were recovered from his pocket.
Mashirnama of arrest and recovery was prepared in presence of same mashirs. SHO
could give the name of one mashir PC Misri, for the second one, he has deposed
that he has forgotten his name. PW-1 on phone asked to the Reader of S.S.P
Khairpur, for making arrangement of team of Bomb Disposal Squad for defusing
the explosive substance. SHO secured 8 empties of the pistols fired by the
accused persons and 16 empties of the SMG fired by the police and prepared such
mashirnama of arrest and recovery at Exh.5-B. Thereafter, he brought accused
and case properties to Police station and lodged FIRs against accused on behalf
of State bearing Nos.17/2016 under section 324, 353 PPC read with section 7
Anti-Terrorism Act, 1997, Crime No. 18/2016 under section 4/5 Explosive
Substance Act, 1908, Crime No. 19/2016 under section 23(1) (a) of Sindh arms
Act, 2013, Crime No. 20/2016 under section 23(1) (a) of Sindh Arms Act, 2013 at
Police Station Wada Machyoon against both accused / Appellants. In cross
examination SHO admitted that during encounter no police officer received
injury and he did not try to engage private persons to make them as mashirs as
private persons were not available. SHO has admitted that mothers of both
accused had filed applications before D.I.G Sukkur for holding enquiry into the
matter. However, he denied the suggestion that after filing of the petition by
the brother of accused Ibraheem against him before this Court, he lodged false
cases against accused. PC Misri Khan (PW-2) has stated that he was the member
of the police party and both accused Muhammad Ibraheem and Asif Ali were
arrested and after encounter, TT pistols were recovered from them and from
accused Muhammad Ibraheem two hand grenade were also recovered. He acted as
mashir. In the cross examination he has admitted that the petition was filed
before the High Court on 18.5.2016 regarding illegal detention of Asif Ali and
FIR was lodged in this case against accused on 19.05.2016. PW-3 DSP Altaf
Hussain has conducted investigation of the case. SIP Aftab Ahmed Shah handed
over to him the custody of both accused as well as case property. He inspected
the place of vardat in presence of mashirs, recorded 161 Cr.P.C statements of
the P.Ws and dispatched pistols to the Ballistic
Expert for the report. Investigation Officer has expressed ignorance about the
matrimonial dispute in between accused Muhammad Ibraheem and PCs Nadeem and
Raheem Siyal. He has also shown ignorance about filing of the application of
illegal detention of both the accused before registration of FIRs. D.Ws have
deposed that Appellants have been falsely implicated in these cases.
10. On
a minute examination of above evidence, it is clear that prosecution case is
based only on the evidence of police officials. SHO Syed Aftab Ahmed Shah of
Police station Wada Machyoon has deposed that he had received directions on
phone from higher officers for holding snap checking on the road but said entry
was not made in the relevant register of the police station. Prosecution also failed
to produce the record of such communication by means of modern devices in between higher
officers and SHO. There is nothing on record that crime weapons viz. TT pistols
were deposited in the Malkhana of Police station. Not a single entry of the
Malkhana has been produced in the evidence. It is case of prosecution that there
was cross firing for about five minutes with sophisticated weapons. Empties
were also collected from place of vardat but we are unable to believe that not
a single injury / scratch was caused during encounter to either party. Police
is a trained force. We are unable to believe that one accused drove away
motorcycle infront of police but police remained mum. PW-1 SIP Syed Aftab Ahmed
Shah made no effort to call independent person for making them as mashirs in
this case. Safe custody of weapons in the Malkhana of Police station and safe
transmission have also not been established. Perusal of mashirnama of arrest
and recovery reflects that both TT pistols and explosive substance were without
numbers and without any significant sign/identification mark. We have found
legal force in the contention of defense counsel that weapons and explosive
substances have been foisted / manipulated against the Appellants. Evidence of
police officials is neither trust worthy nor confidence inspiring. Positive
reports of Ballistic Expert and report of Bomb Disposal Squad Expert would not
improve the case of prosecution. PW-2 Misri Khan has admitted that petition was
filed against illegal detention of accused Asif Ali on 18.05.2016 before the
High Court and F.I.R was registered against Appellants on 19.05.2016. Both Appellants
in defense have produced constitutional petitions, raising the plea that they
were in illegal detention of the police before the registration of the cases. Appellants
have also produced copies of various Judgments of criminal cases in order to
show their false implication in the cases registered at the instance of the
police.
11.
Impugned judgment reflects that
appellants were tried under the provisions of Anti-Terrorism Act, 1997, it was
day time incident, what kind of terror was created by the appellants and to
whom has not been established at trial. According to prosecution evidence, no
private person was present at the time of arrest and recovery of appellants.
Absolutely not a single prosecution witness has deposed that appellants had
intention to create terror and insecurity in the area. Prosecution evidence is
silent regarding application of the provision of Anti-Terrorism Act, 1997. Even
otherwise, in the police encounter cases, the standard of proof should have
been far higher as compared to any other criminal case, when according to
prosecution it was a case of police encounter. It was, thus, desirable and even
imperative that it should have been investigated by some other agency. Police,
in this case, could not have been investigators of their own cause. Such
investigation which is woefully lacking independent character cannot be made
basis for conviction. We are gudided by the principle laid down in the case of Zeeshan @ Shani versus the State (2012 SCMR
428). Relevant portion is reproduced as under :-
“ The standard of proof in this case should
have been far higher as compared to any other criminal case when according to
the prosecution it was a case of police encounter. It was, thus, desirable and
even imperative that it should have been investigated of their own cause. Such
investigation which is woefully lacking independent character cannot be made
basis of conviction in a charge involving capital sentence, that too when it is
riddled with many lacunas and loopholes listed above, quite apart from the
afterthoughts and improvements. It would not be in accord of safe
administration of justice to maintain the conviction and sentence of the
appellant in the circumstances of the case. We, therefore, by extending the
benefit of doubt allow this appeal, set aside the conviction and sentence
awarded and acquit the appellant of the charges. He be set free forthwith if
not required in any other case.”
12. Considering the entire evidence
available on record, whole prosecution story seems to be suspicious. In these
circumstances, without there being any corroboration by the independent
witnesses, relying only on the evidence of police officials for convicting the
Appellants is not just and proper. It is important to note that all
incriminating pieces of evidence, available on the record, are required to be
put to the accused, as provided under section 342, Cr.P.C. in which the words
used are "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 the 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, 1984. The perusal of statement of the appellants, under section 342, CrP.C at Exh.11 and 12, reveal that the portion of the
evidence which appeared in the cross-examination was not put to the accused in their
statements under section 342, Cr.P.C.
enabling them to explain the circumstances. It is well settled that if any
piece of evidence is not put to the accused in his statement under section 342,
Cr.P.C. then the same cannot be used against him for his conviction. In the present case, incriminating
pieces of evidence such as positive reports of experts and evidence of terror
and insecurity were not put to accused in their statements recorded U/S 342
Cr.P.C for their explanation, then the same could not be used against them for
conviction, as held in the case of Muhammad Shah V/S Habibullah and others
(2010 SCMR 1009). Learned Judge, Anti-Terrorism Court Khairpur miserably failed
to appreciate evidence according to settled principles of law.
13. Consequently,
instant criminal Jail Appeal is allowed. Impugned Judgment dated 29.11.2018 of
conviction and sentence recorded by learned Anti-Terrorism Court, Khairpur in Special
Cases Nos. 45/2016,46/2016, 47/2016 and 48/2016 is set aside. Appellants are
acquitted of the charges framed against them. If any amount has been deposited
by any of the Appellants towards the fine imposed upon them by the Trial Court,
the same shall be refunded and the seized property shall be disposed of in
accordance with law. Appellants are in custody. They shall be released
forthwith, if not required in some other cases.
14. Before
parting with this Judgment, it is ordered that a copy of Judgment be sent to
the Inspector General of Police Sindh Karachi for taking action against SHO Syed
Aftab Ahmed Shah for lodging false cases against the Appellants, in accordance
with law under intimation to this Court. Office is further directed to send a copy
of this Judgment to Mr. Inam Ali Malik, Judge Anti-Terrorism Court, Khairpur
for future guidance.
15. These
are the reasons of our short order dated.05.12.2019.
J U D G E
J U D G E
Irfan/PA