JUDGMENT SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT HYDERABAD
Criminal Appeal No.D-112 of 2002
Date of hearing: 17.01.2013.
Date of Judgment 13.02.2013
Appellant : Muhammad Hanif @ Pocho s/o Allah Rakhio Noohani through Mr. Zahoor Ahmed Baloch Advocate.
Respondent : The State through Mr. Muhammad Iqbal
Kalhoro Additional Prosecutor General Sindh
J U D G M E N T.
AFTAB AHMED GORAR,J- The appellant calls in question, the Judgment dated 08.10.2002, passed by the learned Judge Anti Terrorism Court Hyderabad in Special Case No. 29/2002 Crime No.118/1998 of P.S. Digri for offences punishable u/s 302, 353, 324, 147,148,149 PPC, whereby the appellant has been convicted u/s 302 PPC r/w sections 149, 353, 324, 404 PPC, 6(a) (b) of the Anti Terrorism Act, 1997 and sentenced to suffer imprisonment for life with fine of Rs.1,75,000/- and also to pay compensation for murder of each of the deceased police constables and total compensation to be realized would be Rs.3,50,000/-. In case of failure, he was to further undergo R.I. for one year. However, the benefit of section 382(b) Cr.P.C was extended to the appellant.
2. Case of the prosecution in a nutshell is that on 28.09.1998 at 0015 hours, at Bridge of Sim Nala near village Khalid Leghari Deh 146 Taluka Digri, accused Muhammad Hanif alongwith absconding accused Allahdino Mallah, expired accused Rajab and two unknown dacoits formed an unlawful assembly duly armed with deadly weapons attacked upon the police party, fired upon them and committed murder of five police constables namely Dost Ali, Shafi Muhammad, Rahimdin, Anthony and Deen Muhammad. It is also alleged that the aforementioned accused assaulted upon the police party of P.S. Kot Ghulam Muhammad, fired upon them and deterred them in discharge of their lawful duties and also took away the Govt. SMGs of the police constables, who were murdered in the said alleged incident.
3. After completing the formalities during investigation, the police submitted the challan against the appellant, showing co-accused Allah Dino as absconder.
4. Formal charge was framed against the appellant and absconding accused Allahdino, to which the appellant pleaded not guilty and claimed his trial.
5. In order to prove its case, prosecution examined P.W.1 Ghulam Jillani M.O. Civil Hospital Mirpurkhas, who produced police letter and post mortem reports of the deceased constables, P.W.2 Narsingh Bheel Tapedar produced sketch of the place of incident. P.W.3 Muhammad Anwar, mashir of identification parade of accused before the Magistrate produced such mashirnama. P.W.4 Muhammad Ramzan was the mashir of identification test of the footprints before the Magistrate. P.W.5 P.C Ghulam Muhammad was the mashir of place of incident and dead bodies and produced such mashirnamas and inquest reports. P.W. 6 SIP Muhammad Yousif Bhatti produced mashirnama of arrest and recovery of Shahan Shah alias Shah Muhammad Shah. He also produced mashirnama of recovery of Kilashankov, which was recovered from the cattle pan of the accused Hanif, P.W.7 SIP Khuda Bux produced verification form of the dead bodies of the deceased police constables as well as FIR. P.W.8 ASI Khamiso Khan produced mashirnama regarding clothes of the deceased constables. P.W.9 Photomal and P.W.10 ASI Kamaluddin were the mashir of arrest of the accused Muhammad Hanif and recovery of SMG from his possession, they also produced such mashirnama. PW.11. ASI Ghulam Mustafa was the mashir of production of empties recovered by SIP Khuda Bux and produced such mashirnama. P.W.12 SHO Ghulam Nabi Shar produced FIR registered u/s 13(d) of the Arms Ordinance against the accused Muhammad Hanif. P.W.13 was Syed Muhammad Shakeel Judicial Magistrate Digri. P.W.14 PC Liaqat Ali produced mashiranama regarding securing blood stained clothes of the deceased. Thereafter prosecution closed its side.
6. The statement of accused was recorded u/s 342 Cr.P.C. Accused Muhammad Hanif denied the prosecution allegations and pleaded innocence.
7. The learned trial court after hearing the parties and appraising the evidences, convicted the appellant as well as absconding accused Allahdino as mentioned supra.
8. Learned counsel for the appellant mainly contended that the impugned Judgment suffers from legal infirmities and is not sustainable in law. He further contended that neither the name of the appellant appear in the FIR nor any specific role was assigned to him in commissioning of the alleged offence. He further contended that the prosecution examined in all 13 witnesses and most of them are the police officials. He further stated that no independent person was examined to substantiate the charge against the appellant. He added that P.Ws did not depose against the appellant with specific role. Learned counsel stated that it was alleged that the P.Ws saw the accused persons in the head light of the police mobile and it was quite difficult for them to identify the accused in such light. Learned counsel argued that no proper identification parade had been held and the mashirs of such identification parade were the police officials and no private person was cited as witness, therefore, such identification test has no value in the eyes of law. Learned counsel for the appellant submitted that there are contradictions in the evidences of the prosecution, therefore, on the basis of such contradictory evidences, the conviction was not warranted under the law. He argued that the appellant was also convicted u/s 13/E of the Arms Ordinance by the trial court but same has been set aside by this court and he has been acquitted vide Judgment dated 23.05.2002. Learned counsel prayed for allowing of the appeal and setting aside the impugned Judgment. In support of his arguments, learned counsel for the appellant has relied upon the cases of Muhammad Fayaz Vs. the State (2012 SCMR 522), Ayyub Vs. The State (1994 P Cr. L J 1057), Waid Umar Vs. The State (1994 P Cr. L J 409), Abdul Sattar and others Vs. The State (2002 P Cr. L J 51).
9. On the other hand, learned Addl. P.G for the State supported the impugned Judgment and argued that the learned counsel for the appellant has failed to point out any illegality in the impugned judgment. He argued that prosecution examined eyewitnesses as well as other witnesses, who have fully supported the case against the appellant. Learned Addl. P.G stated that the appellant was seen by the P.Ws at the place of the incident and was rightly identified him before the Magistrate and such identification did not appear to be doubtful. Learned Addl.P.G further argued that the appellant was a member of a gang of dacoits, who had fired upon the police party and committed murder of five police constables, therefore, learned trial court had rightly convicted him. He submitted that there is no major contradiction between the evidence of the P.Ws and they all deposed unanimously with each other, which was corroborated by the medical evidence. He further argued that there was no enmity or ill-will on the part of the P.Ws to falsely implicate the appellant. He argued that the prosecution has successfully proved the charge against the appellant and he was rightly convicted by the learned trial court.
10. We have heard the learned counsel for the parties and examined the record carefully and the decisions relied upon the counsel for the appellant. It was the case of the prosecution that on the night of the incident on 28.09.1998, when the SHO namely SIP Khuda Bux was at Mirwah main Road, at 12.15 am he heard firing burst and rushed to the place of incident, which was at a distance of about two Kilometers and reached there at 12.20 a.m. i.e. within five minutes, which is not possible. Complainant also alleged that the dacoits also made direct firing upon the police party but strangely, nobody from the complainant side received any injury. The complainant SIP Khuda Bux in his evidence has deposed that on the night of the incident and on vehicle head light he saw five persons from the distance of one/two acres, he identified two of them as Rajab Khaskeli, Allah Dino and three were unknown who after killing police constables were took away their weapons. The complainant also did not give the features and figures of the unknown persons in the FIR. It is hardly believable that at midnight, the complainant and P.Ws saw the persons from a distance of one/two acres in the head light of the vehicle, recognized the unknown persons and also identified the appellant subsequently after about six months. In our view the source of head light in the midnight is a weak type of evidence regarding seeing a person from a distance of about one or two acres.
11. So far the recovery of the Kilashankov from the cattle pan of the appellant is concerned, mashir SIP Muhammad Yousif in his examination in chief has stated that “After parking the mobile we went to the house of Hanif Pochoo. Hanif Pochoo was coming from the devi jungle armed with the Kilashankov and came and set on the cot, seeing the police party, the accused leaving the Kilashankov on the cot ran away towards the Devi Jungle”. Question is how it is possible that when police reached at the cattle pan of the appellant, he while coming from jungle with Kilashankov and after seeing the police ran away by keeping the Kilashankov on the cot and the police having arms and ammunition did not follow to apprehend him. This scenario has made the recovery quite doubtful. The appellant has also been acquitted from the case u/s 13-E Arms Ordinance by this court and such Judgment has been placed on record.
12. So far as the identification parade is concerned, as per prosecution case, the appellant voluntarily appeared at Police Station on 05.03.1999 and he was produced before the Magistrate for identification parade on 11.03.1999. There is no explanation on the part of the police as to why, the appellant was not produced on the same day or on the next day for the purpose of identification parade. During the period 05.03.1999 to 11.03.1999 the appellant was kept at the police station and the possibility that he could have been shown to the complainant and P.Ws during such period, could not be ruled out. Thus the identification parade held after a considerable delay of about six days in our view has lost its sanctity. There is no explanation on the part of the I.O that for what reason, such delay occurred in conducting the identification parade. HC Muhammad Ramzan(Foot Tracker) in his examination in chief has stated that he saw the foot prints of five persons with sleepers at the place of incident and identified the foot prints of the appellant during identification of foot prints, which was made after a period of six months. Again the question is how it is possible that after a lapse of six months, the accused was still wearing the same sleepers, which casts serious doubt.
13. The prosecution has examined in all 13 witnesses including the eyewitnesses but no tangible or unimpeachable evidence has been brought on record to prove the charge against the appellant. The recognition of the appellant at the place of incident from the considerable distance was highly doubtful and his identification by the P.Ws after about 6 months in our view was also doubtful. The identification test also was conducted after 6 days of arrest of the appellant.
14. In the dictum given in the case of Muhammad Fayaz (supra), relied upon by the counsel of the appellant, it was observed that after arrest of accused, he was put to the test of identification parade and although he had been correctly picked up by the eye-witnesses yet indisputably such identification had been made without any reference to the role allegedly played by him during the said alleged incident. In the present case, the complainant and P.Ws did not see the accused making fire upon the deceased constables but allegedly saw them taking away weapons of the deceased police constables, which too from a distance of one/two acres, therefore, in our view, identification of the appellant was highly doubtful.
15. The above discrepancies and defects in the prosecution case if seen in juxta position in our view has made the case highly doubtful. It is a well settled proposition of law that if a single circumstance creates doubt, its benefit must be extended in favour of accused as a matter of right. Since in the present case there are many circumstances, which creates doubt in the prosecution case, in our view the appellant is entitled to be extended the benefit of doubt.
In the decision given in the case of Ayyub (supra ), it is observed that the ocular evidence itself had made the claim of eyewitnesses of having seen the occurrence doubtful which in our view was not consistent with the dying declaration, medical evidence and inquest report, injury statement and the identification of accused during the night from the distance given by the prosecution witnesses was not possible. In our view accused could hardly be identified either in torch light or by his voice from such distance when he is previously not known to them . In the present case, the P.Ws claimed to have seen the accused from a distance of one/two acres and after about 6 months had identified the appellant to be the same culprit but had failed to specifically ascribe his role.
In decision given in the case of Wajid Umar (supra) it was held that identification parade was held without observing the necessary formalities was illegal which had materially prejudiced the accused’s defence and accused was acquitted. In the present case, the identification test has been held after 6/7 days of the arrest of the accused and in presence of police mashirs, therefore, same cannot be termed to be proper.
16. In view of the facts and circumstances discussed above, we are of the considered view that the prosecution has failed to prove charges against the appellants beyond reasonable shadow of doubt, therefore, the impugned Judgment is not sustainable in law and the same is hereby set-aside. The appellant, thus, is acquitted from the charges and is directed to be released forthwith if not required in any other case.
JUDGE.
JUDGE
A.K