Crl:Jail Appeal No.D- 97 of 2007.
Before: - Mr.Justice Ahmed Ali M.Shaikh, J
Mr.Justice Salahuddin Panhwar, J.
Appellants : Kouro Shar, Riaz Shaikh, Akber Junejo,
Sodhal Shar, Munawar Ali Mangrio, Ajaib Panhwar
Through Advocate Mr.Zubair Ahmed Rajput.
Respondent : The State, through Mr.Zulfiqar Ali Jatoi,
DPG.
Date of hearing 27th. September, 2012.
J U D G E M E N T
SALAHUDDIN PANHWAR, J- The appellants have assailed the Judgment dated 31st .october.2007, passed by learned Special Judge, Anti-Terrorism Court, Khairpur Mir’s, in Special Case Nos.25, 26, 27, 28, 29, 30, 31, 32 and 33 of 2006, all arisen out of Crime Nos. 53, 54, 55, 56, 57, 58, 59, 60 & 61 of 2002 of Police Station, Ahmedpur, District Khairpur Miras, for offences, punishable U/Ss: 302, 324, 353, 402, 148, 149 PPC & 7 Anti-Terrorism Act, 1997 and 13(d) Arms Ordinance, whereby, the appellants were convicted as under:-
1- For offence punishable under section 302 PPC, Imprisonment for life.
2- For offence under section 324 PPC, Imprisonment for 10 years and fine of Rs.1, 00,000/- (Rs.One Lac) to be paid by each accused and in case of failure to pay fine each accused will have to suffer 02 years more imprisonment.
3- For offence under section 353 PPC, Imprisonment for 02 years.
4- For offence under section 427 PPC, Imprisonment of 02 years.
5- For offence under section 13(d) Arms Ordinance, Imprisonment for 03 years.
6- For offence under section 6(2) (ee) punishable under section 7(ee) Anti-Terrorism Act, 1997 for imprisonment for life.
All the convictions were ordered to run concurrently with benefit of section 382-B, Cr.P.C for the period for which each accused /appellants remained as under trial period. Fine, if recovered, will be paid to the legal-heirs of deceased and injured. (The legal-heirs of each deceased will receive three times than each injured).
2. Briefly, the facts, leading to the present appeal are that on 02.7.2002 at 0030 hours Inspector/SHO Yar Muhammad Rind lodged instant FIR at Police Station, Ahmedpur, stating therein, that on receiving wireless message from D. P.O,Khairpur the police party gathered at Police Lines, Khairpur so also other police parties reached there, where, it was disclosed that notorious dacoits Dhani Bux alias Dhanoo Shaikh and Qadir Bux alias Qadoo Junejo with dacoits of their group, duly armed with sophisticated weapons for the purpose of committing an offence are available in the house of Habibullah and Muhammad Nawaz Taggar near Village Mang Taggar. On such information, the police parties departed for the pointed place. The encounter started on 01.7.2002 at 1430 hours, which, was continued upto eight hours i.e upto 2230 hours, resulting in death of PC Oshaque Ali, ASI Bashir Ahmed and Inspector Imran Awan and injuries to ASI Imdad Mallah, PC- Ghulam Abbass, PC- Ghulam Akber and PC- Ghulam Muhammad. The damage to Police vehicle APC-3 was also caused by the accused, by using explosive substance. The accused were having different arms and ammunitions with them, they were arrested from the house of Muhammad Nawaz and Habibullah Taggar, recovery was effected. From accused Kouro, one live hand grenade, one Kalashnikov No.350006843 in working condition with one empty magazine without permit; from accused Riaz Ali one Kalashnikov No.35026412 in working condition with two empty magazines ; from accused Leemon one Rocket Launcher No.808166 in working condition ; from accused Akber one Kalashnikov No.480562 in working condition with three empty magazines ; from accused Sodhal one Kalashnikov No.17037653 in working condition with two empty magazines; from accused Munawar Ali one Kalashnikov No.14116038 in working condition with three empty magazines ; from accused Hadi Bux one Rocket Launcher No.160433 in working condition and from accused Ajaib one LMG No.A-138-818 in working condition were recovered. Therefore, separate cases under Arms Ordinance were registered.
3. After usual investigation accused were sent up for trial. on 17 April 2004, combined charge was framed against the appellants/accused by the trial Court for offences punishable under sections 302, 324, 353, 400, 402, 427, 337-F(iii), 337-A(ii), 337-D PPC and Section 7-Anti-Terrorism Act and 4 Explosive Act all read with Section 149 PPC, besides offences under section 13-(d) Arms Ordinance; accused denied their guilt and claimed for trial.
4. The prosecution in order to substantiate its case, examined P.W-1 complainant/ TPO Yar Muhammad Rind as Ex.09, P.W-2 HC Ghulam Muhammad as Ex.12; P.W-3 Muhammad Udhal, SHO P.S Pir Jo Goth as Ex.13; P.W-4 HC Ghulam Akber as Ex.14; P.W-5 HC Ghulam Abbass as Ex.16; P.W-6 PC Turab Ali as Ex.17; P.W-7 Inspector/SHO Mumtaz Ali of P.S New Foujdari as Ex.18; P.W-8 PC Qurban Ali as Ex.19, DSP Ghulam Akber as Ex.20; P.W-10 Dr.Khub Chand as Ex.22, ; P.W-11 Dr. Ali Nawaz as Ex.23,SIP Gul Hassan as Ex.24 PW-13 Abdul Rasheed, Tapedar Tapo Mithodero as Ex.26, ASI P.S Ahmedpur as Ex.28,Therafter the learned SPP closed the side of prosecution vide his statement at Ex. 34. The appellants/accused filed an application which was marked as Ex.35.
5. The statements of the appellant/accused were recorded under section 342, Cr.P.C, in which they denied the prosecution case. However, they neither examined themselves on oath nor produced any witness in their defence as provided under section 340(2) Cr.P.C, only acquitted accused Leemon while denying the prosecution allegations, stated that he was already arrested on 04.3.2001 in Crime No.35 of 2001 of P.S Baberlo and was acquitted in another Crime No.61/2001 of P.S Baberlo on 15.6.2007 by the Court, thereafter, he was arrested in this case on 01.7.2002.
6. The learned trial Court after hearing the arguments of the counsel of respective parties and evaluating the evidence, found the appellants/accused guilty hence convicted and sentenced them as mentioned herein above, but learned trial court judge acquitted accused Leemon from the charge of the case by extending benefit of doubt on plea of alibi through same judgment.
7. Learned counsel for the appellants/accused has inter-alia contended that on the same set of evidence the co-accused Leemon has been acquitted, as such this aspect is fatal to the prosecution case thereby on the rule of consistency other appellant/accused are also entitled for the same treatment; there is material contradiction in the medical and ocular evidence which is sufficient for extending the benefit of doubt to the appellants; the charge is defective, same is not framed according to the law; impugned judgment is in complete departure of procedural law as the same negates the mandatory requirements as enshrined U/s 367, Cr.P.C; the prosecution has not challenged the acquittal of co-accused Leemon, thereby, it has attained its finality; case of appellants is identical to the acquitted accused Leemon; prosecution has failed to prove their case beyond reasonable shadow of doubt; according to the post-mortem report charring marks were visible around the wounds, therefore, it was evident that the fire shot caused to the accused persons were from very close range and no such encounter was taken place; all witnesses are police officials, no independent witness has been associated, though the police officials were having prior knowledge of the expected encounter; the evidence of injured witnesses is not upto the mark, even they have failed to prove their presence. Counsel has relied upon the precedents:
· Akram alias Akroo Vs. The State (2012 P.Cr.L.J 1132);
· 2012 P.Cr.L.J 986
· Abdul Subhan Vs. Raheem Bakhsh and another (PLD 1994 SC 178)
· Muhammad Khan and other Vs. The State (1999 SCMR 1220)
· Tariq Pervez Vs. The State (1995 SCMR 1345)
· Mir Ali and 3 others Vs. The State (1990 P.Cr.L.J 2042)
· Leemon Vs. The State (2007 Y L R 211)
· 1995 SCMR 599
8. Conversely, Mr.Zulfiqar Ali Jatoi, DPG has argued that the appellants surrendered during encounter, recovery of deadly weapons affected from them, some of them were in injured condition, therefore, their plea of denial has no evidentiary value in the eyes of Law; injured witnesses have categorically deposed against the appellants, no suggestion has been put by the defence counsel regarding any animosity, therefore, such ocular evidence is trust-worthy and credible; the acquittal of co-accused Leemon is not beneficial to the appellants as there is great responsibility upon the trial Court to sift the grain from chaff; trial court has rightly convicted the appellants. He has relied upon the case of State Vs. Muhammad Yasin Memon alias Yasin Memon and another Reported in 2011 SCMR 401 and case of Muhammad Rafique & others Vs. Sharafuddin & others reported as 2006 SCJ 304
9. We have considered the contentions advanced by the learned counsels’ for the respective sides and have perused the record minutely.
10. While scanning evidence, we have found that, all the witnesses have supported the prosecution case and have reiterated their earlier statements recorded during investigation, no material discrepancy is found, which can be termed as material contradiction. Ocular version is substantiated by natural and credible witnesses, including injured witnesses Ghulam Muhammad, Ghulam Abbas, Ghulam Akbar and Imdad, who, have deposed in clear terms against all the accused persons , including accused Lemoon, Moreover , the arrest of accused persons at the place of vardat along with highly sophisticated weapons is proved by trustworthy evidence, out of arrested accused, some accused persons were injured and bodies of two dacoits were found after encounter, therefore, suffice to say that this is not a simple case of encounter , but it relates to murder of Pc Oshaque Ali, ASI Bahir Ahmed and Inspector Imran Awan, all three police officials, while discharging their official duties lost their lives in the encounter, it will be conducive to refer relevant portion of evidence of injured witnesses:
PW 2 Ghulam Muhammad in his examination-in-chief has deposed:
“As soon as the police encircled the houses dacoits started firing upon the police contingent from inside the houses in order to commit the murder and the police contingent took defence and returned the fire and there was the encounter between dacoits and police contingent, during which PC- Oshaque Ali received fire shot and became serious injured and was shifted to Hospital where he later succumbed to injuries. TPO K.T Pir Pagara Imran also received fire shots during encounter and he was also shited to Hospital. ASI/SHO Sadiq Kalhoro P.S namely Bashir Mangi also received fire shots during encounter and was shifted to Hospital. PC Ghulam Abbass Mahar also received fire shot during encounter and was shifted to Hospital. Thereafter I also received fire shot at my right leg thigh area and was removed to Hospital.”
PW.3, SHO Imdad Hussain Mallah, in his examination-in-chief has stated as follows:-
“In this advancement during encounter a fire shot by dacoits from inside the house hit to PC Oshaque Ali Abbassi, who fell-down on the ground after being hit by the fire shot and SHO P.S Ahmedpur Yar Muhammad Rind immediately shifted him (PC- Oshaque Ali Abbassi) to Hospital through official vehicle for immediate treatment and later WT message was conveyed to us that PC Oshaque Ali succumbed to injuries on the way to Hospital. The firing is going on between dacoits and police when TPO K.T Pir Pagara Mr.Imran Awan also received fire shots during encounter and he was also referred/ sent to Hospital by SHO P.S Ahmedpur for treatment. ASI Bashir Ahmed Mangi who was SHO P.S Sadiq Kalhoro also received fire shot during encounter and he was also shifted to Hospital for treatment. During on going encounter PC- Ghulam Abbass Mahar also received fire shot by the dacoits and was shifted to Hospital by mobile for treatment. Thereafter PC Ghulam Muhammad Khuhro also fell victim of the fire shots by the dacoits upon the police contingent during encounter and was also shifted to Hospital for treatment at Khairpru by thepolice mobile. Thereafter PC Ghulam Akber Mallah fell victim of the fire shot by the dacoits and was shifted to Civil Hospital Khairpur Mir’s for treatment like other injured police personnel. Thereafter the firing from the dacoit side hit to me to my neck region and I was shifted to Civil Hospital Khairpur by SHO P.S Ahmedpur for treatment during on-going encounter, and I was hospitalized about 4/5 days.”
P.W-4 HC- Ghulam Akber (injured) in his examination-in-chief has stated as under:-
“During the exchange of fire PC Oshaque Ali Abbassi who was gunmen of TPO KT Pir Pagara received fire shot and fell-down and he was immediately shifted to Civil Hospital, Khairpur on the directions of SHO P.S Ahmedpur through police mobile, during encounter and later WT message was conveyed in the mobile that PC Oshaque Ali Abbassi has expired. The firing from the dacoit side was continued upon the police contingent with intermission and TPO KT Pir Pagara Imran Awan received fire shots and fell down on the ground and was shifted to Civil Hospital, Khairpur in police mobile by SHO P.S Ahmedpur for treatment. Thereafter some intermission ASI/SHO Sadiq Kalhoro P.S Bashir Ahmed Mangi also received fire shots during encounter and fell-down and was shifted to Civil Hospital, Khairpur for treatment in police mobile. Thereafter PC Ghulam Abbass and PC Ghulam Muhammad Khuhro, ASI/SHO P.S A.R Unar Imdad Hussain Mallah and myself received fire shot during encounter on going between dacoits and police contingent with short intermission and were shifted to Hospital for treatment in police mobile. I was hit by fire shot at my right arm at elbow region and was hospitalized for 17 days in Civil Hospital, Khairpur and thereafter I was referred to CMC, Larkana where I was operated upon.”
PW 5: Ghulam Abbas (injured): in his examination-in-chief has deposed as follows:-
“The police contingent seiged the said houses and from inside the houses indiscriminate firing was made at the police parties and the police in defence retaliated and returned the fire and exchange of firing ensured and during cross firing PC Oshaque, TPO Muhammad Imran Awan, ASI Bashir Ahmed Mangi, ASI Imdad Mallah, PC Ghulam Akbar Mallah, PC Ghulam Muhammad Khuhro and myself received fire shots and the injured were sent to Civil Hospital, Khairpur one after the other for treatment. PC Oshaque Ali, TPO Muhammad Imran Awan and ASI Bashir Ahmed Mangi succumbed to injuries. I was hospitalized in Civil Hospital for one and half month for treatment. I had received fire shot at the upper part of my left arm and I was operated upon at Civil Hospital, Khairpur Mir’s.”
The said witnesses were cross-examined at length, but on perusal of the said cross-examination, it is manifest that the defence counsel has failed to shake the credibility and veracity.
12. The learned counsel for the appellants have put much stress upon the ground of rule of consistency, while referring to acquittal of the co-accused Leemon by the learned trial court judge through same judgment hence appellants are also entitled for same treatment. It would suffice to say that before insisting upon rule of consistency one has to show he stands in the same shoe as that of acquitted accused (benefited accused ) else the rule of consistency cannot be pressed. The perusal of the judgment, impugn, reflects that the acquitted accused Leemon, during course of his examination under section 342 Cr.P.C, came up with defence plea that he was already arrested on 04.3.2001 in Crime No.35 of 2001 of P.S Baberloi and was acquitted in another Crime No.61/2001 of P.S Baberloi on 15.6.2007, by the trial Court and then he was arrested in this case on 01.7.2002. Since it is a matter of record that the present appellants/accused never agitated/claimed such defence plea or plea of alibi, hence, it is quite illogical that acquittal of one of the accused by trial court on basis of plea of alibi can be allowed to be made a base for holding whole prosecution case as doubtful, because, maxim “ falses in uno, falsus in omnibus” (false in one, false in the whole) is not applicable in our country because of particular culture and trend, developed in societies, therefore, it is an authoritative proposition of law that “even if major portion of evidence is found to be deficient , residue is sufficient to prove guilt of an accused , notwithstanding acquittal of large number of other co-accused persons, his conviction Can be maintained” and court(s) are under duty to sift the grain from chaff, in order to make complete justice, reference can be made from the case of Khadim Hussain Vs. The State, reported as 2010 SCMR 1091. Having said so, we are of the considered view that said plea, raised by learned counsel for the appellants / accused, has no substance therein hence not of any help for them to claim acquittal.
13. Next contention of learned counsel for the appellants is that despite prior information the police party did not associate any private person to witness the expected encounter. This contention appear to be devoid of substance rather seems to be illogical one. It is the case of prosecution that number of police officials and even police of different stations were called and engaged to conduct the raid which, seems to be for no other reasons, but to counter resistance from the well equipped and trained dacoits. Under such circumstances, it was neither practicable for the police to arrange private persons nor was advisable under any plea because it would have amounted to put the lives of private (untrained) persons in danger more particularly when the resistance by the dacoits resulted in death of three well trained and equipped police officials and injuries to four trained police officials. We are conscious of the fact that law never stands before the logics nor do any of the provisions of law contradict the logic and common sense because it is the wisdom (based on logic and common sense) which creates the law. Without prejudice to this the application of provision, Section 103 Cr.P.C also does not appearing to be relevant because it was not the search of the house but police was going to face a strong resistance by well equipped and trained dacoits hence if things are viewed in particular scenario of this case it can safely be said that non-association of private witness by police was quite justified. Above all, the credibility of witnesses cannot be disbelieved merely on the plea that they are police officials, because it is now well settled principle of law that police officials are as good witnesses as other witnesses can be. Further, an interested witness is one who is partisan or inimical towards the accused or has a motive or cause of his own to falsely implicate the accused in the crime which is not the case in hand. The reference, if any, can be made to the case of Talib Hussain and others V. The State, reported in 2009 SCMR 825. Therefore, we are of the considered view that this contention of learned counsel for the appellants / accused is also of no help for them to advance the case of appellants / accused for claiming acquittal. Further, it is well settled principle of law that conviction can be based on testimony of a sole witness, if court was satisfied that witness was reliable. The emphasis is always upon the quality and not quantity. The reference, if any, can well be made to the case laws, reported in 2008 SCMR 917, Niazuddin and another v. The State, reported in 2011 SCMR 725, and Shamshad Ali V. The State, reported in 2011 SCMR 1394.
14. As regard the plea of contradictions in the medical and ocular account it would suffice to say that medical evidence is always a corroborative piece of evidence and will not prevail upon the ocular evidence, however, we have examined the medical evidence carefully, but have not found any material contradiction, which may falsify the prosecution or cause any dent to ocular evidence, moreover, medical evidence is in conformity with the prosecution version. In the present case admittedly sophisticated weapons were used, hence it is not justified to demand every single and minute thing from such witnesses; hence the plea of the defence is also not of much help.
15. Regarding the contention of defence counsel that charring marks were available around the wounds, therefore, it appears that injured received injuries from close range and it can be self-inflicted injuries, on this count, it could safely be said that blackening by smoke and unburned gun power surrounding firearm injuries would not only depend on the distance from which shot is fired but also on (i) kind and quantity of gun powder (charge) used in the cartridge and (ii) length of barrel and size of barrel diameter at muzzle end. Reference can be made to the dictum of Honourable Supreme Court in case of Wahid Vs. The State Reported in PLD 2002 SC (SC) 67, wherein it is observed:-
“The observations to show that charring effect depends not only on the distance from which the shot is fired but also on the kind of powder used in the missile. We have no information in the present case on this point. In these circumstances, the positive testimony of the eye witnesses, who are otherwise dependable and natural witnesses, cannot be set-aside merely on the basis of theoretical opinions relied upon by the defence.”
16. The further meticulous examination of material available on record, reveals that prosecution successfully established the factum of engaging of huge number of police officials in the task; encounter between the police and dacoits, cannot be doubted because of deaths of three police officials and injuries to four police officials and damage to police vehicle; arrest of the accused persons in result of such encounter and recovery of the crime weapons from the accused persons. Thus it can safely be said that prosecution not only proved factum of encounter; arrest of the accused / appellants, recovery of crime weapons and deaths and injuries of police officials in such encounter therefore, we are of the considered view that prosecution successfully proved the charge against the accused / appellants, by an unbroken chain of ocular, medical and circumstantial evidence. The reference, if any, can well be made to the case of Muhammad Ishaq v. The State reported in 20097 SCMR 135.
17. Accordingly, we have drawn inference that the trial court has appraised the evidence on record meticulously, accurately and equitably, keeping in view the principles of safe administration of the criminal justice, consequently, the appeals in hands are hereby dismissed and impugned judgment of conviction to appellants / accused is maintained.
18. While parting, it is substantial to note here that during scanning of evidence, it is manifest that case against the acquitted accused Leemon was also on one and same as was against the convicted Appellants/ accused. But the accused Leemon was acquitted by the learned trial court judge while giving weight to the defence plea of alibi, it is evident that accused Leemoon had not examined any witness in his defence nor produced any document to substantiate his plea of alibi, moreover , accused just answered a question in statement under section 342 Cr.P.C “ that at the time of occurrence, he was arrested in another case ” it is not disputed that accused Lemoon was also arrested in same manner as the appellants from the place of occurrence, and this special plea of alibi was not taken during any stage of the trial, except at the time of statement of accused. Since it is not ambiguous any more that how a special defence plea of alibi can be proved, as explained in the case of Muhammad Aslam V. Sabir Hussain, reported in 2009 SCMR 985:-
“Accused is under the statutory obligations to prove the special defence plea, taken by him, by some cogent, reasonable and prima facie acceptable evidence”
In another case of Hayatullah Khan V. Muhammad Khan, reported in SCMR 2011 page 1354, it is held:
“ Let we mention here at this juncture that the plea of alibi being a distinct plea is required to be substantiated by adducing cogent and concrete evidence”
therefore, we feel it quite proper to examine the acquittal of the accused Leemon by learned trial court judge on such plea to the effect whether the appreciation has been made in accordance with well settled principle of law or otherwise. Therefore under suo-moto revisional jurisdiction of High Court, we hereby issue show cause notice to the acquitted accused Leemon as to why the judgment of acquittal should not be set-aside to his extent and remand the case to the trial Court. Office is directed to prepare separate file with new number, as SUO MOTO, Revision.
JUDGE
JDUGE
Announced on 18th December 2012
A.R.BROHI