IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Special Anti-Terrorism Appeal No.D-66 of 2015

                                                 Before;

                                                               Mr. Justice Zafar Ahmed Rajput

                                                 Mr. Justice Irshad Ali Shah

  

                                                      

 

Appellants:                          1. Mumtaz Ali Machhi.

2. Roshan Ali Machhi.

(Now confined at Central prison Sukkur)

 

Through Mr. Shabbir Ali Bozdar advocate.  

 

The State:                              Through Mr. Syed Sardar Ali Shah Rizvi, Additional Prosecutor General Sindh

Complainant.                      Ghulam Mustafa through Mr. Ghulam Murtaza Korai, advocate.

 

Date of hearing:                  12-01-2023

 

Date of judgment:              12-01-2023.

 

 

J U D G M E N T

 

IRSHAD ALI SHAH, J- It is alleged that the appellants with rest of the culprits being members of wandering gang assembled at National Highway adjacent to police picket Deh Moro Taluka Moro, to commit dacoity and in that way deterred the PC Ghulam Muhammad and PC Yaqeen Ali from discharging their lawful duty as public servants by making fires at them with intention to commit their murder, as a result of such fires, PC Ghulam Muhammad lost his life and then they fled away by taking away with them his official Rifle, for that the present case was registered. On investigation, the appellants and co-accused Rustam, Qurban and Sain Rakhio were challaned, their case was amalgamated with the cases relating to recovery of unlicensed weapons and police encounter and they were charged accordingly, which they denied and prosecution to prove it examined in all 14 witnesses and then closed its side. The appellants and the said co-accused in their statements recorded u/s 342 Cr.P.C denied the prosecution’s allegation by pleading innocence, they examined none in their defence or themselves on oath. On conclusion of trial co-accused Rustam, Qurban and Sain Rakhio were acquitted while the appellants were convicted u/s 302, 149 PPC r/w section 6/7 (a) ATA and sentenced to undergo Rigorous Imprisonment for life; they were further convicted u/s 13 (e) West Pakistan Arms and sentenced to undergo Rigorous Imprisonment for 03 years and to pay fine of Rs.10,000/- and in default whereof to undergo simple imprisonment for 03 months by learned Judge, Anti-Terrorism Court, Naushahro Feroze, vide judgment dated 03-08-2015, which was impugned by the appellants before this Court by preferring three separate appeals. Subsequently, the appeals relating to recovery of unlicensed weapons on completion of jail terms were not pressed by the appellants and were disposed of accordingly.

2.         It is contended by learned counsel for the appellants that they being innocent have been involved in this case falsely by the police at the instance of the complainant; it was night time incident, therefore the identity of the appellants was doubtful; the weapons and the empties have been subjected to expert examination with delay of about four months and on the basis of same evidence, co-accused Rustam, Qurban and Sain Rakhio have been acquitted. By contending so, he sought for, acquittal of the appellants by extending them benefit of doubt. In support of his contention he relied upon case of Zeeshan @ Shani Vs. The State (2012 SCMR 428)

3.         Learned APG for the State and learned counsel for the complainant have sought for dismissal of the instant appeal by contending that the appellants themselves have accepted the impugned judgment by not pressing the disposal of their appeals relating to recovery of unlicensed weapons, the prosecution has been able to prove its case against them beyond shadow of doubt and their case is distinguishable to that of the acquitted accused.

4.         Heard argument and perused the record.

5.         It was inter-alia stated by complainant Ghulam Mustafa that he was wireless operator in police department and on the night of incident was on leave. Nothing has been brought on record, which may suggest that on the night of incident, the complainant was on leave. It was further stated by the complainant that PC Ghulam Muhammad was his nephew and together with PW/PC Yaqeen Ali was performing his duty at the place of incident; he and PW Mumtaz Ali went to serve dinner to them, which they took and in the meanwhile there assembled the appellants and others being armed with Kalashnikovs and guns with intention to commit dacoity and then they deterred the PC Ghulam Muhammad and PW/PC Yaqeen Ali from discharging their lawful duty as public servants by making fires upon them with intention to commit their murder. PC Ghulam Muhammad sustained fire shot injuries, the appellants and others then made their escape good by taking away with them by his official Rifle, there came PW Ghulam Hussain Dahiri SHO PS Moro who referred PC Ghulam Muhammad in injured condition to Taluka Hospital Moro through PW/ASI Sharif Wagan. The evidence of PW/SIP Ghulam Hussain Dahiri is silent with regard to the availability of the complainant at the place of incident. As per postmortem report the death of deceased was instantaneous, if it is believed to be so, then it belies the complainant that the PC Ghulam Muhammad was referred to Taluka Hospital Moro in injured condition. It was further stated by the complainant that they then tracked the foot prints of culprits through PW/PC Arbab Ali, which led them to the Otaq of appellant Mumtaz Ali. PW/PC Arbab Ali has not been examined by the prosecution. His non-examination could not be overlooked. It was essential to prove that the foot prints of the culprits were actually tracked. It was further stated by the complainant that PC Ghulam Muhammad died of such injuries and then he lodged the report of the incident with Police Station Moro. Initially, names of the appellants alone were disclosed therein. Subsequently, names of the co-accused Rustam, Qurban and Sain Rakhio were disclosed by the complainant before police on 9th day of incident by way of further statement. As per PW/PC Yaqeen Ali, it was he, who actually disclosed the name of appellant Mumtaz to the complainant. If it was so, then identity of the appellant Mumtaz Ali by the complainant in person was doubtful. On asking, it was stated by the complainant that the incident lasted for one minute. PWs Mumtaz Ali and PW/PC Yaqeen Ali belied the complainant in that respect by stating that it lasted for about 08/10 minutes. As per medical officer PW/Dr. Abdul Haq, the dead body of deceased was brought at Taluka Hospital Moro by PC Manzoor and he was found sustaining bullet injuries. PWs ASI Sharif and PC Manzoor have not been examined by the prosecution. Their examination was essential to prove that the deceased died at spot or on his way to Taluka Hospital Moro or otherwise. The FIR of the incident has been lodged with delay of about 17 hours; such delay has not been explained plausibly by the prosecution as such same could not be overlooked. It was the case of indiscriminate firing; yet, none excepting the deceased sustained the fire shot injuries, which has put cloud of doubt on the versions of complainant and his witnesses with regard to their availability at the place of incident. Perhaps in that context, it was contended by learned counsel for the appellants that the incident had taken place in a manner, other than the one as is alleged by the prosecution. None was examined from the locality to ascertain the correctness of the incident; such omission could not be ignored on the part of I/O SIP Abdul Majeed. It was stated by I/O SIP Abdul Majeed that appellant Mumtaz Ali surrendered at Police Station, while appellant Roshan Ali was apprehended after encounter, subsequently from them were recovered the crime weapons and robbed Rifle, those as per learned counsel for the appellants have been foisted upon them, if for the sake of arguments, it is believed that those have not been foisted upon them, even then such recovery is not enough to maintain conviction against the appellants in murder charge for the reason that those weapons together with empties have been subjected to forensic examination with delay of about four months to its recovery. None has been examined by the prosecution to prove the safe custody and transmission of the said weapons and empties to forensic expert. The disposal of the appeals, relating to Arms Ordinance case, other than merits, on completion of jail terms, may not be taken a conclusive proof to hold the appellants guilty of the murder charge. By awarding no punishment to the appellants for offence punishable u/s 324, 353, 402 and 393 PPC, they impliedly have been acquitted for said Penal sections, even by learned trial Court. On the basis of same evidence co-accused Rustam, Qurban and Sain Rakhio have already been acquitted by learned trial Court by extending them benefit of doubt. In these circumstances, it is rightly being contended by learned counsel for the appellants that the appellants too are entitled to such benefit.

6.         In case of Muhammad Asif vs the State (2008 SCMR 1001), it has been held by Hon’ble apex Court that;

“…..yet there is a delay of about two hours which has not been explained. Similarly P.W.7 stated during cross-examination that the police reached the spot at twelve noon and about half an hour was consumed in conducting inquest proceedings and thereafter the dead body was sent to the hospital. He further stated that he accompanied the dead body which was taken in a wagon to the hospital and that it took only 15 or 20 minutes in reaching the hospital. In that case the dead body would have been received at the hospital by 1-00 p.m. On the contrary, the doctor, who is an independent witness, stated that he immediately started post mortem examination after the receipt of body and the time of post-mortem given by him was 4-50 p.m. that means that the body remained at the spot for quite some time. The F.I.Rs. which are not recorded at the police station suffer from the inherent presumption that the same were recorded after due deliberations…...”

 

7.         In case of Sardar Bibi and others vs. Munir Ahmed and others                 (2017 SCMR 344), it has been held by the Hon’ble Apex Court that;

“When the eye-witnesses produced by the prosecution were disbelieved to the extent of one accused person attributed effective role, then the said eye-witnesses could not be relied upon for the purpose of convicting another accused person attributed a similar role without availability of independent corroboration to the extent of such other accused”.

 

8.         In case of Muhammad Mansha vs The State (2018 SCMR 772), it has been held by the Hon’ble Apex Court that;

“4….Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted".

 

9.         In view of above, the conviction and sentence awarded to the appellants, (the subject matter of instant appeal) are set-aside, consequently, they are acquitted accordingly, they shall be released forthwith, if not required to be detained in any other custody case.

10.       Above of the reasons of short order dated 12-01-2023, whereby the instant appeal was allowed.

 

JUDGE

                                                                   JUDGE

Nasim/P.A