IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
(Criminal Appeal No. S-24 of 2016)
Appellant : Irfan Ali s/o Muhammad Ali Pirzado, Through Mr. Naushad Ali Taggar & Mr. Shamasuddin N.Kobhar, Advocate(s)
The State : Through Mr.Aitbar Ali Bullo, D.P.G.
(Criminal Appeal No. S-27 of 2016)
Appellant : Amanullah s/o Haji Khan by caste Bhatti
Through Mr. Naushad Ali Taggar & Mr. Syed Madad Ali Shah, Advocate(s)
The State : Through Mr.Aitbar Ali Bullo, D.P.G.
(Criminal Appeal No. S-30 of 2016)
Appellants : 1). Abdul Qayoom s/o Abdul Ghaffar Golo
2). Qalandar Bux s/o Muhammad Akram Shaikh
Through Mr. Safdar Ali G. Bhutto &
Mr.Asif Ali Abdul Razzak Soomro, Advocate(s)
The State : Through Mr.Aitbar Ali Bullo, D.P.G.
(Criminal Appeal No. S-32 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 captioned criminal appeal(s) impugn the judgment dated 18.03.2016, passed by learned Special Judge Anti-Corruption (Provincial), Larkana, in Special Case No.24/2013 (Re. St. Vs. Abdul Qayoom and others), outcome of FIR bearing Crime No.80/2012, for offence punishable U/S.420, 466, 468, 471, 477, 220, 225-A, 161, 34 PPC r/w Section 5 (2) Act-II of 1947, registered with Police Station, Civil Line, Jacobabad, whereby the appellants were convicted and sentenced as under;-
“Accused Abdul Qayoom Golo was convicted u/s.465 PPC r/w Sec: 5(2) Act-II of 1947 and sentenced to suffer R.I for two (2) years with fine of Rs.25,000/- in case of non-payment of fine, he shall suffer R.I three (3) months more. He was further convicted u/s.466 r/w Sec: 5(2) Act-II of 1947 and sentenced to suffer R.I for five (5) years and fine Rs.50,000/-, in case of non-payment of fine, he shall suffer R.I Six months more. He was also convicted u/s.468 r/w Sec: 5(2) Act-II of 1947 and sentenced 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 Six (6) months more. He was also convicted u/s.161 r/w Sec: 5 (2) Act-II of 1947 and sentenced 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 Six months more. He was further convicted u/s.225-B PPC and sentenced to suffer R.I for six (6) months and fine of Rs.1000/-, in case of non-payment of fine, he shall suffer R.I one (1) month more.
Accused Nazeer Ahmed Bhangar was convicted u/s.225 PPC and sentenced 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 Six months more.
Accused Qalandar Bux Shaikh was convicted u/s.221 PPC r/w Sec: 5 (2) Act-II of 1947 and sentenced to suffer R.I for three (3) years and fine of Rs.50,000/-, in case of non-payment of fine he shall suffer R.I Six months more. He was also convicted u/s.222 PPC r/w Sec: 5(2) Act-II of 1947 and sentenced 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 Six months more. He was convicted u/s.225 PPC r/w Sec: 5(2) Act-II of 1947 and sentenced 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 Six months more.
Accused Irfan Ali was convicted u/s.221 PPC r/w Sec: 5 (2) Act-II of 1947 and sentenced to suffer R.I for three (3) years and fine of Rs.50,000/-, in case of non-payment of fine he shall suffer R.I Six months more. He was convicted u/s.222 PPC r/w Sec: 5 (2) Act-II of 1947 and sentenced 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 Six months more. He was convicted u/s.225 PPC r/w Sec: 5(2) Act-II of 1947 and sentenced 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 Six months more.
Accused Amanullah was convicted u/s.221 PPC r/w Sec: 5 (2) Act-II of 1947 and sentenced to suffer R.I for three (3) years and fine of Rs.50,000/-, in case of non-payment of fine he shall suffer R.I Six months more. He was convicted u/s.222 PPC r/w Sec: 5(2) Act-II of 1947 and sentenced 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 Six months more. He was convicted u/s.225 PPC r/w Sec: 5 (2) Act-II of 1947 and sentenced 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 Six months more.
The benefit of Section 382-B Cr.PC was extended to the accused. The above sentences of imprisonment awarded to the accused shall run concurrently”.
2. Precisely, the facts of prosecution case as unfolded in the FIR are that on 29.11.2012, at 1430 hours, Saeed Ahmed Soomro, Office Superintendent, Sessions Court, Jacobabad got registered the FIR under the orders of learned Sessions Judge Jacobabad wherein he mentioned that accused Leemo s/o Tagio Rind was facing trial before Sessions Court, Jacobabad, in Sessions Case No.189/2011 vide Crime No.58/2006, offence U/S. 302, 147, 148 PPC of P.S Saddar Jacobabad while accused Noor Muhammad s/o Amir Bux Khoso was facing trial before 1st Additional Sessions Court, Jacobabad, in Sessions Case No.118/2011 vide Crime No.01/2002, offence U/S.302 PPC of P.S Dil Murad and accused Akram s/o Karam Kehar was facing trial in Sessions Case No.156/2012 vide Crime No.02/2012, offence U/S. 302 PPC of P.S Abad, Jacobabad before the Court of learned 1st Additional Sessions Judge, Jacobabad and in Case No.24/2012, vide Crime No.04/2012, offence U/S.13-D Arms Ordinance, P.S Abad before the Court of learned 1st Civil Judge & Judicial Magistrate, Jacobabad. Accused Leemo Rind with fake order No.1266 dated 25.09.2012 of learned 2nd Additional Sessions Judge, Jacobabad, accused Noor Muhammad Khoso with fake order No.3296 dated 24.10.2012 of learned 1st Additional Sessions Judge, Jacobabad and accused Akram Kehar with fake release writ orders No.1227 dated 20.09.2012 and No.1320 dated 04.10.2012 of learned 2nd Additional Sessions Judge, Jacobabad were released from Central Prison-I, Sukkur. It is further added that accused Abdul Qayoom Golo Clerk and others allegedly prepared above fake release writs at unknown time and accused Abdul Qayoom Golo had illegally used the service Card of Peon Naseer Dasti, accused Abdul Qayoom Golo and jail staff namely Qalandar Bux, Deputy Superintendent Central Prison-I, Sukkur, Irfan Pirzado Clerk Central Prison-I, Sukkur, Amanullah Bhatti, O.G Warder, Central Prison-I, Sukkur and PC Amir Ali Brohi being associated with them had illegally got released the above named accused from Central Prison-I, Sukkur by misusing their official powers and preparing fake release writs/orders. Moreover, on the direction of Honourable High Court of Sindh, Karachi, an inquiry was held by the Sessions Judge, Jacobabad, in which accused Abdul Qayoom Golo, Qalandar Bux Shaikh, Irfan Ali Pirzado, Amanullah Bhatti, PC Amir Brohi and others were found guilty. Qalandar Bux Deputy Superintendent in order to save himself got registered case bearing Crime No.245/2012 at P.S Rohri. Subsequently, on the direction of Honourable Sessions Judge, Jacobabad, the instant FIR was registered against the accused.
3. On completion of usual investigation, the police submitted the final report under section 173 Cr.PC against the accused 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 Soomro (Bailiff), PW-03 PC Ghulam Fareed Khalidi, PW-04 PC Azhar Ali Mirbahar, PW-05 Naseer Muhammad Dasti (Peon), PW-06 Mureed Khan Rind, PW-07 DSP Syed Amanullah Shah, PW-08 ASI Khalil Ahmed Rind, PW-09 Abdul Nabi Rind, PW-10 Amiruddin Golato, PW-11 Nadir Ali Panhwar(Assistant Superintendent Jail), PW-12 Zulfiqar Ali Kamboh (C.J & J.M, Jacobabad) 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 detailed 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 inordinate delay which reflects consultation; that the complainant and PWs are interested witnesses and their evidence having no credibility, cannot be relied upon without independent corroboration. Summing up their contentions, the learned defence counsels submitted that present appellants/accused have falsely been arraigned in the present case with malice on the basis of inquiry report and that the case of prosecution is doubtful, therefore, 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 with active role in commission of the offence which is also substantiated from the inquiry report 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 one of the appellants/accused himself has confessed his guilt in statement recorded before inquiry officer, 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 meticulous re-appraisal of the entire evidence brought on record by the prosecution is entailing that the FIR of the case was registered by Saeed Ahmed Soomro posted as Office Superintendent, District & Sessions Court Jacobabad and UTPs/accused Akram, Leemo and Noor Muhammad facing trial before the Court of learned Sessions Court Jacobabad and 1st Additional Sessions Judge, Jacobabad, were released by Sukkur Jail on the basis of fake and forged release writs and such fact was also admitted by accused Abdul Qayoom Golo before the enquiry officer and later denied at trial. Moreover, the Court staff examined at trial also implicated the present accused with commission of the alleged offence with further admission that accused Abdul Qayoom Golo was posted as Clerk in the Court of learned 2nd Additional Sessions Judge, Jacobabad, except the Court staff, accused Nazeer Bhangar also implicated accused Abdul Qayoom Golo in his confessional statement regarding obtaining of bribe from the relatives of UTPs. Further, accused Abdul Qayoom even did not examine himself on oath nor produced any witness in his defence to substantiate his innocence and nothing came out on record to show that PWs deposed falsely against him. During cross examination of the prosecution witnesses, the accused persons have not challenged the inquiry report exhibited in evidence, conducted by learned District & Sessions Judge, Jacobabad. Furthermore, it also came on record that UTPs were shifted from District Jail Jacobabad to Central Prison, Sukkur after heavy rain disaster during the month of September 2012 and the jail authorities produced the list of UTPs to the Administration of Sukkur Prison disclosing the particulars of UTPs and that father’s name of UTP Noor Muhammad was different in the record of Jacobabad and Sukkur Prison and that the cases of UTPs were pending before various Courts but the release writs were issued from the different Court and on these release writs they were released from the jail. It also came on record that the signatures of P.O were also not tallying on the release writs allegedly sent to the jail authorities but the Deputy Jail Superintendent and staff intentionally and deliberately did not verify the same which showed their intention and collusion with Court staff. The private PWs Mureed Khan and Abdul Nabi also implicated the accused in their statements recorded before the Court. Furthermore, accused Nazeer Ahmed Bhangar in his confessional statement admitted the above said offence committed by them. At trial learned defence counsel took plea that the confessional statement was not voluntarily and confronted to law but the same was voluntarily and learned Magistrate also fulfilled all the legal requirement which is signed by the accused, therefore, his own statement is sufficient showing involvement of the accused in this case. The prosecution to prove the confessional statement also examined learned Magistrate who recorded it. Learned Magistrate during his evidence deposed that he had fulfilled all the legal requirements and found that the confessional statement was voluntarily. Perusal of record further revealed that the release writs of UTPs were issued by the Court where their cases were not pending and the jail authorities also did not verify the release writs, which were in contravention of Pakistan Prison Rules, 127. The relevant paragraph is reproduced hereunder;
“Rules 127- The Superintendent shall not release any prisoner on the authority of any informal documents. Release orders duly signed by the Magistrate and impressed with seal of the Court shall alone be acted upon. All release orders before being acted upon shall be carefully scrutinized by the Deputy Superintendent in order to see that the seal of the Court and signature of the Magistrate are genuine and that the particulars noted in the release order correspond with the original commitment warrant. In case of doubt a reference should be made to the Court concerned before the order is carried out.”
11. The careful perusal of evidence reflects that the Jail Staff being well in knowledge ignored the standing order and direction of the Honourable High Court, therefore, the learned Sessions Judge during inquiry finding them responsible for the alleged offence ordered for registration of FIR against the accused and the material brought on record by the prosecution also connected accused Qayoom Golo who prepared the forged and fake release writs, tampered with the Court record, put false signature of Presiding Officer on the release writs and obtained bribe from the relatives of accused and got released convicted/UTPs, acted contrary to law, misused powers in capacity of public servant, damaged reputation of judiciary being Clerk of the Court and accused Nazeer Ahmed Bhangar also implicated him in his confessional statement recorded before learned Magistrate. Accused Amanullah though took defence plea that he is constable and was not on his duty but at trial it came on record that he was serving in the office and was bound to verify and prepare the documents of UTPs after going through the jail record which he failed. Accused Irfan Pirzado was Senior Clerk in Sukkur Prison who stated contrary in statement before the inquiry officer and before learned trial Court therefore he could not be spared from commission of the alleged offence and the prosecution has brought on record sufficient evidence to connect them with the commission of offence.
12. 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.”
13. For what has been discussed above, I have arrived at the judicious conclusion 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 devoid of merits are dismissed accordingly. All the appellants except Qalandar Bux 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, as per the judgment of learned trial Court. Appellant Qalandar Bux on bail is not in attendance, his bail is recalled with direction to S.S.P Jacobabad, to arrest him and send him to jail for serving his sentences.
The instant criminal appeals are disposed of in above terms.
JUDGE
.