IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
(Criminal Appeal No. S-31 of 2016)
Appellant : Abdul Qayoom s/o Abdul Ghaffar Golo, Through Mr. Safdar Ali G. Bhutto, Advocate
The State : Through Mr.Aitbar Ali Bullo, D.P.G.
(Criminal Appeal No. S-33 of 2016)
Appellant : Nazir Ahmed s/o Noor Muhammad Bhangar Through Mr. Naushad Ali Taggar, Advocate
The State : Through Mr.Aitbar Ali Bullo, D.P.G.
Date of hearing: 23-01-2023 & 30-01-2023
JUDGMENT
ZULFIQAR ALI SANGI, J;- The listed criminal appeal(s) are directed against the judgment dated 18.03.2016, passed by learned Special Judge Anti-Corruption (Provincial), Larkana, in Special Case No.23/2013 (Re. St. Vs. Abdul Qayoom and others), emanating from FIR bearing Crime No.82/2012, offence U/S.120-B, 474, 468, 471, 225-B, 161, 34 PPC r/w Section 5(2) Act-II of 1947, registered with Police Station, Civil Line, Jacobabad, whereby appellant Abdul Qayoom Golo was convicted for offence punishable U/S.465 PPC r/w Section 5 (2) Act-II of 1947 and sentenced to suffer R.I for two years with fine of Rs.25000/- and in default whereof, to suffer R.I for three months more. For offence U/S.468 PPC r/w Section 5 (2) Act-II of 1947, he was sentenced to suffer R.I for five years with fine of Rs.50,000/- and in its non-payment, he shall suffer R.I for six months more. For offence U/S.474 PPC r/w Section 5(2) Act-II of 1947, he was sentenced to suffer R.I for five years with fine of Rs.50,000/- and in default whereof, he shall suffer R.I for six months more. For offence U/S.161 PPC r/w Section 5(2) Act-II of 1947, he shall suffer R.I for five years with fine of Rs.50,000/- and in case of non-payment of fine, to suffer R.I for six months more. For offence U/S.225-B PPC, he was sentenced to suffer R.I for six months with fine of Rs.1000/- and in case of non-payment of fine, he shall suffer R.I for one month more. Besides this, appellant Nazir Ahmed Bhangar was convicted for offence U/S.225 PPC and sentenced to suffer R.I for five years with fine of Rs.50,000/- and in default whereof, to suffer R.I for six months more. The benefit of Section 382-B Cr.PC was extended to the accused while sentences awarded to them shall run concurrently.
2. Succinctly, the facts of prosecution case as depicted in the FIR are that on 13.12.2012, at 1530 hours, one Saeed Ahmed Soomro, Office Superintendent, Sessions Court Jacobabad got registered the FIR under the orders of learned Sessions Judge, Jacobabad, in which he mentioned that convicted prisoners namely Dodo alias Muhammad Yaqoob Junejo, 2). Ghulam Qadir Junejo and 3). Irshad Junejo who were sentenced to imprisonment for life by learned Additional Sessions Judge, Jacobabad, in Sessions Case No.75/2009 outcome of FIR bearing Crime No.158/2008, for offence U/S.365-A, 344, 109, 34 PPC registered with P.S, Saddar, vide letter No.921, dated 29.06.2012 and also issued such conviction warrant/slip. At unknown time, accused Abdul Qayoom Golo and staff of Central Prison-I, Sukkur, in collusion with relatives of prisoners, prepared fake/bogus letters/orders No.949 and 1030, dated 12.07.2012 and 27.07.2012 and thus caused release of prisoners Ghulam Qadir, Irshad Junejo and Dodo alias Muhammad Yaqoob by putting fake signatures of Judges and affixing seals of the Court, for that the present case was registered against them.
3. On completion of usual investigation, the final report under section 173 Cr.PC against the accused was submitted by the police before learned trial Court, where the formal charge was framed against present appellants/accused, to which they pleaded not guilty and claimed trial.
4. In order to establish accusation against the appellants/accused, the prosecution examined in all thirteen witnesses i.e PW-01 complainant Saeed Ahmed, PW-02 Noor Muhammad (Bailiff), PW-03 ASI Khalil Ahmed Rind, PW-04 SIP Nayar Hussain Brohi, PW-05 Hamzo Khan, PW-06 Habibullah, PW-07 Maqsood Ahmed, PW-08 Nadir Ali Panhwar (Assistant Superintendent Jail), PW-09 PC Nadeem Hussain Brohi, PW-10 Syed Amanullah Shah, PW-11 SHO Mumtaz Ali Sarki, PW-12 Zulfiqar Ali Kamboh (C.J & J.M, Kashmore) and PW-13 DSP Habib-ur-Rehman Abro, who all produced certain relevant documents in support of their statements. Thereafter, learned State Counsel closed the side of prosecution.
5. The present appellants/accused in their statements recorded in terms of Section 342 Cr.PC, denied the allegations leveled against them by pleading their innocence. They however, neither examined themselves on oath in disproof of the charge nor led any evidence in their defence.
6. The learned trial Court on evaluation of the material brought on record and hearing counsel for the parties convicted and sentenced the present appellants/accused vide impugned judgment, as discussed above.
7. Per learned defence counsels, there is inconsistency in between the evidence of prosecution witnesses which has shattered veracity of their evidence; that the FIR has been lodged with considerable delay; that the complainant and PWs are interested witnesses and their evidence has no credibility, as such the same cannot be relied upon without independent corroboration. Concluding their contentions, the learned defence counsels submitted that present appellants/accused have been arraigned in the present case with malice on the basis of inquiry report and thus lastly concluded that the case of prosecution is doubtful and the appellants/accused are entitled to their acquittal in circumstances of the case.
8. Conversely, learned D.P.G for the State submits that the present appellants/accused are nominated in the FIR with active role in commission of the offence which is also substantiated from the inquiry conducted by learned Sessions Judge, Jacobabad; that all the witnesses have fully supported the case of prosecution and no any major contradiction has been noticed in their evidence; that the one of the appellants/accused himself has confessed his guilt in statement recorded before inquiry officer/Sessions Judge Jacobabad, therefore, the learned trial Court finding the appellants/accused guilty of the offence has rightly convicted and sentenced them by way of impugned judgment which does not call for any interference by this Court, hence, the appeal(s) filed by them being meritless are liable to its dismissal.
9. I have given due consideration to the arguments advanced by learned counsel for the parties and have minutely gone through the material made available on record with their able assistance.
10. The careful re-assessment of the evidence produced by the prosecution reflects that initially during course of investigation in FIR No.80/2012 registered at P.S Civil Line, Jacobabad, the accused in collusion with each other got released convicted prisoners from Central Prison, Sukkur, whereupon an inquiry was conducted by learned Sessions Judge, Jacobabad on directions of this Court. Further, the release writs prepared by Criminal Clerk Abdul Qayoom Golo who was posted in the office of learned 2nd Additional Sessions Judge, Jacobabad and he in collusion with co-accused got released convicted prisoners and statements of PWs/Jail Staff further showed that release writs were sent for verification/confirmation and again received duly verified and then they released the accused and the learned Sessions Judge, Jacobabad did find them guilty during inquiry. The prosecution examined witnesses who deposed that due to deal with the Court and jail staff the accused were released but it came on record that the jail staff was facing trial in case Crime No.80/2012 in which the UTPs were released by them. From the perusal of evidence it appeared that accused Abdul Qayoom Golo himself admitted before the learned Sessions Judge, Jacobabad that no other Court staff was involved in this case but he alone committed such act and during trial PWs also implicated him with the alleged offence. Neither accused Abdul Qayoom Golo examined himself on oath, nor examined any witness in his defence to substantiate his innocence. It came on record that release writs were issued with fake signature of the presiding officer of the Court where the cases of accused were not pending and accused were released from the jail and there is sufficient material available on record to connect accused Abdul Qayoom Golo with the alleged offence. Accused Nazeer Bhangar who is co-accused in this case, made confessional statement before the learned Magistrate and at trial the learned Magistrate fully supported the contents of confessional statement made by the accused though learned defence counsel pointed out some defects in recording confessional statements and that learned defence counsel also took plea that the entire confessional statement recorded by the Magistrate is contrary to the law and he failed to observe legal requirements during course of recording confessional statement, therefore, the same may not be considered as voluntarily statement for the reason that the accused in custody stated that due to maltreatment he got recorded his confessional statement. He further added that the learned Magistrate himself admitted that he had recorded confessional statement of accused in both cases bearing Crime No.80/2012 and 82/2012 on the same date. From the perusal of confessional statement, it appeared that all the relevant questions as required under the law were put by the Magistrate and accused himself stated before the Magistrate that he wanted to record his confessional statement with his own will and wish without any inducement and durees, later on accused after going through his confessional statement has put his signature on it and now-a-days it is practice that at initial stage, the accused got record his confessional statement but at trial he retracted and take U-Turn only to save his skin. The accused himself alleged some allegations against accused Abdul Qayoom Golo and admitted that the relatives of the convicted accused paid the amount to accused Abdul Qayoom Golo for issuance of release writs of convicted accused from the jail which later-on was done and convicted accused were released from the jail. In addition to this, the record further reveals that the accused even did not examine themselves on oath nor produced any witness in their defence to substantiate their innocence and nothing came out on record to show that PWs deposed falsely against them. During cross examination of the prosecution witnesses, both the accused persons did not challenge the inquiry report conducted by learned District & Sessions Judge, Jacobabad which was exhibited during the evidence. In that situation, the prosecution by producing tangible evidence successfully established the charge against the accused beyond the shadow of reasonable doubt.
11. Although, learned counsel for the appellants had pointed out some minor contradictions in the evidence which in my view are not sufficient to discard evidence of the witnesses who have fully supported the case of prosecution on every aspect. It is settled principal of law that where in the evidence, the prosecution established its case beyond reasonable doubt then if there arise some minor contradictions which always are available in each and every case as no one can give evidence like a pen-picture, hence the same are to be ignored. The reliance is placed on case of Zakir Khan V. The State (1995 SCMR 1793), wherein the Supreme Court of Pakistan has held as under:-
“13. The evidence recorded in the case further indicates that all the prosecution witnesses have fully supported each other on all material points. However, emphasis has been laid by Mr. Motiani upon the improvements which can be found by him in their respective statements made before the Court and some minor contradictions in their evidence were also pointed out. A contradiction, unlike an omission, is an inconsistency between the earlier version of a witness and his subsequent version before the Court. The rule is now well established that only material contradictions are to be taken into consideration by the Court while minor discrepancies found in the evidence of witnesses, which generally occur, are to be overlooked. There is also a tendency on the part of witnesses in this country to overstate a fact or to make improvements in their depositions before the Court. But a mere omission by witness to disclose a certain fact to the Investigating Officer would not render his testimony unreliable unless the improvement made by the witness while giving evidence before the Court has sufficient probative force to bring home the guilt to the accused.”
12. The sequel of above discussion is that the learned trial Court on being finding the present appellants guilty, has rightly convicted and sentenced them and thus has committed no illegality or irregularity while passing the impugned judgment which even otherwise is based on sound reasoning, therefore, it does not call for any interference by this Court. Consequently, instant criminal appeals being meritless are dismissed accordingly. The appellants are present on bail granted by this Court in terms of Section 426 Cr.PC; their bail bonds stand cancelled and sureties discharged; they are taken into custody and remanded to jail to serve out their sentences awarded to them by trial Court.
13. The instant criminal appeals are disposed of in above terms.
JUDGE
.