JUDGMENT SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT HYDERABAD
Criminal Spl. Appeal No.D-97 of 2005
Present:
Mr. Justice Ahmed Ali M. Shaikh.
Mr. Justice Salman Hamid.
Date of hearing: 19.08.2010.
Date of Judgment 23.08.2010
Appellants : 1. Khan Muhammad s/o Muharram Laro
2. Haji s/o Ghul Muhammad Loro
3. ghulam Hussain s/o Allahdino Kanio through Mr. Nasir Mehmood Mughal Advocate.
Respondent : The State through Mr. Shahid Ahmed
Shaikh Assistant Prosecutor General Sindh
J U D G M E N T.
AHMED ALI M. SHAIKH,J- Through this appeal, appellants have impugned the Judgment dated 29.06.2005 passed by the Judge Anti Terrorism Hyderabad Division and Mirpurkhas Division at Hyderabad in Special case No.10/2005 culminating from crime No.06/2005 of P.S Looni Kot registered u/s 379,427, PPC, 14 H.O. r/w section 6(1) Anti Terrorism Amended Ordinance 2001 and crime No.09/2005 of P.S. Looni Kot for offence punishable u/s 379,427 PPC, 14 H.O. r/w section 6(1) Anti Terrorism Amended Ordinance 2001, by which the appellants have been convicted and sentenced to suffer R.I. for 10 years and fine of Rs.50,000/- each. The appellants were convicted in both the aforementioned crimes with directions that both the sentences shall run concurrently, however, benefit of section 382-B Cr.P.C. was extended to the appellants. By extending benefit of doubt, co-accused Muhammad Nadeem Qureshi was acquitted.
2. Precisely, the facts giving rise to this appeal are that on 10.03.2005, the appellants alongwith absconding accused in furtherance of their common intention dishonestly cut the electric wires from pole No.89 to 91 situated at Super Highway Check Post No.12 and dishonestly caused damage to the Government property and interfered and disrupted communication system for supply of electricity for public utility services. It is further alleged that the appellants alongwith absconding accused cut the wires of electricity from poles No.109 and 110 and from Pole No.216 to 218 of Heco Sub Division Nooriabad and stolen away the wires and thereby caused damage to the public property, thus disrupted communication system for supply of electricity to the public. It is further alleged that the accused persons by committing the above offence created terror, fear and insecurity in the minds of people.
3. After usual investigation, the appellants were challaned while co-accused Usman, Anwar, Mir Muhammad, Manoo, Talib, Javed, Baboo, Babban, Papoo, Shamshad, Yousif, and Sarfraz were shown as absconders.
4. Formal charge was framed against the appellants to which the appellants pleaded not guilty and claimed trial.
5. To prove its case, prosecution examined following witnesses:-
i) P.W.1 Muhammad Pervez complainant of Cr.No.06/2005.
ii) P.W.2 Muhammad Rafique.
iii) P.W.3 Shoukat Ali.
iv) P.W.4 Moula Bux.
v) P.W.5 Habibullah.
vi) P.W.6 Mubarak Ali Shah.
vii) P.W.7 ASI Hakim Ali.
viii) P.W.8 SIP/I.O. Ahmed Khan.
ix) P.W.9 ASI Hakim Ali.
6. It is inter alia contended by the counsel for the appellants that the appellants are innocent and they have been made escape goat by the police in order to show their so called efficiency. Per learned counsel, the entire prosecution case is doubtful as none amongst the P.Ws is shown as eyewitness of the incident. It is urged with vehemence that no recovery has been effected from either of the appellants. He lastly contended that case property produced during the trial was not secured either from the appellants but per prosecution same was recovered from the place of occurrence.
7. On the other hand, learned Assistant Prosecutor General Sindh for the State supported the impugned Judgment on the ground that the prosecution has proved its case beyond any reasonable doubt as there was sufficient material against the appellants.
8. I have heard the learned counsel for the parties and perused the record.
9. In his deposition, P.W.1 Muhammad Pervez has stated that on 10.03.2005 he was present in his house when at 1246 hours, he was informed by the S.D.O. that electric transmission line of Kotri Sub Division was stopped. Thereafter he went to Grid Station Latifabad, where SDO was already available where from he alongwith S.D.O. and other staff left their offence for the purpose of patrolling. They formed three parties, one party started patrolling from Kotri to Jhampir, second party from Jhampir to Thatta and third party from Thatta to Jhampir. He was with first party, at about 5.00 a.m. they reached and saw that wires of transmission line from Pole No.88 to 99 were not available. Such incident was reported by the SDO to XEN and on the directions of XEN, he alongwith SDO reached at P.S. Looni Kot, where he lodged the report. Upon perusal of his evidence, it appears that neither he is eyewitness of the occurrence nor he nominated either of the appellants in the FIR or deposed against the appellants in his deposition. It further appears that property was not produced before the trial court.
10. P.W.2 Muhammad Rafique in his deposition stated that on the day of incident he was informed by Line Superintendent to reach at his office, where his staff members were also present. He also narrated the same facts in his deposition as deposed by P.W.1. In his examination in chief he has stated that “I had not seen the recovery of wires, police might have recovered the wires. I can identify the recovered wires”. In his cross examination this P.W has admitted that new wires were arrived on 11.04 when the old wires were replaced by new wires. Old Wires were deposited with regional store, which were auctioned by the Store officials”. However, in his deposition he did not utter a single word against the appellants.
11. P.W.3 Shoukat Ali, who at the time of incident was line man also repeated the same version as deposed by P.W.1 & 2. However in his examination in chief, he stated that he can identify the wires which were stolen away if produced before him. In his deposition, he further stated that wires of line which were lying outside the court are same and these belong to wardat. He also did not depose against the appellants.
12. P.W.4 HC Moula Bux, who at the time of incident was incharge of P.S. Looni Kot. His deposition reveals that on 10.03.2005, P.W.11 Muhammad Pervez appeared at Police Station and lodged the report with regard to theft of wires and thereafter he handed over the FIR to Incharge Investigation Team SIP Ahmed Khan Panhwar. His evidence is also of formal nature and need no discussion.
13. P.W.5. Habibullah was posted at P.S. Looni Kot. His deposition reveals that on 19.04.2005 he left P.S. alongwith ASI Hakim Ali for the purpose of investigation. First of all, they went at 32 Mile which is a P.P then they gone to Nooriabad and kept their arrival entry at P.S. later on they went to Juma village alongwith SHO Niaz Muhammad and Fazul Rehman Qureshi SHO. Later on they arrested accused Ghulam Hussain, Khan Muhammad and Haji while other persons fled away. Such mashirnama was prepared in his presence and he acted as mashir. Subsequently on the pointation of arrested accused, they went to Runchore Line Karachi and arrested accused Muhammad Mateen. Such mashirana was prepared in his presence. However, in his cross examination while replying to a suggestion, he admitted as under:-
“I have shown mashirnama of arrested of thre accused persons wherein village Juma Khan is shown at Malir Karachi. It is a fact that this village Juma does not fall within the jurisdiction of P.S. Nooriabad. It is in the area of Karachi.
From this admission on the part of P.W. Habibullah, it appears that neither he alongwith ASI Hakim Ali went to village Juma nor appellants were arrested in his presence. In the deposition, he stated that the entry was made at P.S. Nooriabad but in cross examination he admitted that Juma village is not situated within jurisdiction of P.S. Nooriabad but same is situated at Karachi. From the bare perusal of his evidence, he seems to be a formal witness.
14. Deposition of P.W.6 Mubarak Ali reveals that in his presence police visited place of occurrence in crime No.06/2005 and from the place of occurrence police recovered steal wires which were lying there and prepared such mashirnama in his presence, however, so for the identity of the property is concerned, he stated that the property present in court are same but again stated that the property is not present in the court. From his deposition, it appears that the property was not produced in court. He is also complainant of crime No.09/2005 as well as mashir of place of wardat and recovery. His evidence reveals that at the place of occurrence there were wheel marks of Mazda vehicle and empty wooden box and empty cigarette packet were also lying there and police secured the same. His evidence at the most reveals that the police secured the wires, empty wooden boxes and empty cigarette packet from the place of occurrence.
15. P.W.7 ASI Hakim Ali who is the I.O. of crime No.06/2005 of P.S. Looni Kot. In his deposition, he stated that on 12.04.2005 he received the FIRs of crimes No.06 and 09 of 2005 of P.S. Looni Kot and vide entry No.13 he left P.S. for investigation purpose but on the same day he alongwith complainant Mubarak Ali and others went to the place of incident which was shown to hi by the complainant Mubarak Ali Shah. He went to place of wardat, prepared mashiranama of place of wardat. His evidence further reveals that he secured 20 boxes and one empty cigarette packet from the place of incident. He then returned to P.S and recorded statements of P.Ws. on 13.04.2005. He further stated that during course of investigation he came to know that one Usman with the aid of his group has committed above said crimes and thereafter on 19.04.2005 he left P.S. and went to Kalo Khohar town of Nooriabad and therefrom under the instructions of his officers, he went to Karachi and from Juma village he arrested appellants, however, one of the accused fled away whose name was later on disclosed as Usman. He prepared mashirnama of arrest in presence of mashirs. On 20.04.2005 he got examined the appellants and during interrogation, appellants Ghulam Hussain, Haji and Khan Muhammad prepared to produce the stolen wires and led to electric pole No.109 and 110 and from suburbs of the trees, accused Khan Muhammad produced wires, which were stolen property. The appellants also produced stones and spunk ropes. He secured such articles and prepared such mashirnama. Later on he went to pole No.110 alongwith accused party and on their pointation he recovered 500 feet steel wires. He prepared such mashirnama in presence of mashirs. Again on the pointation of accused, he recovered five pieces of wires admeasuring 400 feet. He secured such wires and prepared such mashirnama in presence of mashirs. Subsequently, he received a letter from regional office and under this letter he inserted section 6(1) of ATA. Later on he handed over the case papers to Inspector Shoukat Ali, who submitted the challan. However, in his examination in chief he stated that boxes and electric wires present in court are the same which are five pieces of wires and empty boxes and wooden boxes and cigarette packet.
16. P.W.8 Arshad Mehmood in his deposition stated that on 12.04.2005 police prepared mashirnama of wardat at pole No.109,110 and he acted as mashir, co mashir as Naseer Ahmed and later on he alongwith police party came at police No.212 where from police secured empty wooden boxes and some pieces of wires, which were lying there. His deposition further reveals that wires were found dismantled there. Howsever, he stated that the property present in court is same.
17. P.W.9 SIP Ahmed Khan who is also I.O. of crime No.06/2005. In his deposition stated that on 12.03.2005 he received FIR of above crime for investigation. He went to place of incident. Complainant was with him, who showed him the place of occurrence from where he secured only five pieces of wires, which were lying there. He prepared such mashirnama in presence of the mashirs and subsequently he was transferred on 31.03.2005 and handed over the papers to Manzoor Ahmed. He stated that five pieces of wires present in court are the same.
18. P.W.10 ASI Hakim Ali in his deposition stated that on 20.04.2005 SIP Shoukat Ali was posted at Nooriabad Sub Division, he had worked with him and is well acquainted with his signatures as well as his handwriting. He verified the signatures as well as handwriting of SIP Shoukat Ali; on the mashirnama.
19. From the evidence adduced at the trial it appears that except evidence of ASI Hakim Ali, who allegedly recovered the stolen property and other articles on the pointation of the appellants, there is no piece of evidence against the appellants. Though the prosecution has exhibited the mashirnama of recovery but prosecution could not examine the witnesses/ mashirs of the recovery to prove the same, even that property was not produced in Court. However, upon a perusal of evidence of ASI Hakim Ali Ex.28, it appears that the property which was produced in the court was consisting of five pieces of wires and empty wooden boxes and empty cigarette packet. From the deposition of SIP Ahmed Khan Ex.22, it appears that five pieces of wires were lying at the place of occurrence and same were taken there from and not from the possession of either of the appellants. His evidence further reveals that he identified those five pieces of wires, which were produced in court. In view of the said deposition of SIP Ahmed Khan, it appears that those five pieces of wires were produced in court which were secured from the place of incident and not from the possession of the appellants, therefore, prosecution could not prove the recovery of stolen articles from the possession of the appellants. Even mere exhibition of a document through I.O. without proving its contents by examining the witnesses has no evidentiary value as held in the case of Fazul and 2 others Vs. The State reported in 2010 P Cr. L J 360.
20. Since the alleged offence is un-witnessed and none amongst the P.Ws has claimed to be the eyewitness of the occurrence and mere exhibiting the mashirnama of so called recovery could not prove the charge against the appellants. Even the property produced in the court was admittedly secured from the place of incident and not from the possession of appellants and prosecution could not any link of the appellants with such property.
21. For the foregoing reasons, we are of the considered view that the prosecution has miserably failed to prove its case beyond shadow of reasonable doubt. Consequently we allow this appeal and set-aside the impugned Judgment dated 29.6.2005 passed by trial Court and acquit the appellants from the charge.
22. For the foregoing reasons, the appeal was allowed by our short order dated 19.8.2010. Above are the reasons.
Hyderabad. JUDGE.
Dated:23.08.2010.
JUDGE.