THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA.
Present :
Abdul Rasool Memon, J
Abdul Maalik Gaddi, J
Crl. Jail Appeal No.D-138 of 2010.
Appellant Bahadar Jalbani, through Messrs Habibullah Ghouri and Faiz Mohammad Larik, advocates.
Respondent : The State through Mr. Abdul Rasheed Soomro, advocate.
Date of hearing: 02.10.2013.
Date of decision : 09.10.2013.
J U D G M E N T .
ABDUL MAALIK GADDI, J- Bahadur son of Roshan Khan Jalbani, the appellant, has filed the instant Criminal Jail Appeal, challenging the judgment dated 27.9.2010, passed by the learned Judge, Anti-Terrorism Court, Larkana in Special Cases No.22 & 23 of 201, whereby the appellant was convicted for offence under sections 324, 148, 149, PPC read with section 6/7 of Anti-Terrorism Act, 1997 and sentenced to suffer R.I for ten years and to pay fine of Rs.50,000/-, in default whereof to undergo S.I for six months. The appellant was also convicted under section 353, PPC and sentenced to suffer R.I for two years and under section 13(d) of Arms Ordinance, 1965 to suffer R.I for seven years and to pay fine of Rs.10,000/-, in case of default in payment of fine, the accused/appellant was ordered to undergo R.I for six months more. All the sentences were ordered to run concurrently, however, benefit of section 382-B, Cr.P.C was extended to the accused/appellant.
2. It may be mentioned here that vide order dated 20.7.2010, the learned Judge, Anti-Terrorism Court, Larkana amalgamated Crime Nos.81 & 82 of 2010 of Police Station Hyderi, being interconnected, under section 21-M of Anti-Terrorism Act, 1997.
3. The facts relevant to this appeal are that on 11.6.2010, complainant ASI Mohammad Tagial Jatoi lodged FIR stating therein that on the fateful day, he along with his sub ordinates, each one, HC Bashir Ahmed, PC Zulifqar Ali, PC Riaz Ali, PC/driver Imamuddin, duly dressed and armed with official weapons, left the police station in the Government vehicle No.SP-7249 vide roznamcha entry No.16, at about 1400 hours, for patrolling in the jurisdiction. After patrolling at different places, at about 1605 hours, at Naudero Chowk they received mobile phone message from ASI Ghulam Nabi Abro, the duty officer, that he was informed by Sadaruddin Junejo son of Ghulam Asgher, resident of Murtaza Colony Larkana that accused Bahadur son of Roshan Jalbani along with four unidentified persons, armed with pistols, have kidnapped his daughter baby Samreen, aged about 4/5 years, for ransom and they were taking her away towards Luhur Colony. On receiving such information, the complainant along with his staff proceeded towards pointed place. At about 1620 hours when they reached near Meeran Shah Bukhari graveyard, near Luhur Colony, Larkana, they noticed five persons emerging on the road from graveyard, out of whom one was having the baby on his shoulder and they all were running fast, police signaled them to stop, on which all the accused persons took out the pistols from their folds and made straight firing upon the police party, the complainant party took positions and retaliated firing in defense. This encounter lasted for about ten minutes and then police succeeded in arresting one of the accused persons along with pistol and the baby, while the other accused persons made their escape good while making aerial firing by crossing the road towards gardens. The complainant then called other police for holding ‘nakabandi’ for apprehending the accused, who escaped. Due to non-availability of private mashirs, HC Bashir Ahmed and PC Zulifqar Ali were made as mashirs and the pistol of the accused was taken in possession of police. On inquiry, the apprehended accused disclosed his name to be Bahadur son of Roshan Jalbani, resident of village Wazir Khan Jalbani, Taluka Sijawal, the pistol with erased number was unloaded and found empty. The baby disclosed her name as Samreen daughter of Sadaruddin by caste Junejo, resident of Murtaza Colony Larkana. The accused on further inquiry disclosed that the pistol recovered from him was unlicensed and that he along with his companions kidnapped baby Samreen for the purpose the ransom.
4. The formal charge was framed against the appellant/accused on 6th August 2010 at Ex-5, to which he pleaded ‘not guilty’ and claimed to be tried.
5. The prosecution in order to prove its case examined complainant ASI Mohammad Tagial at Ex-6, who produced mashirnama of arrest and recovery of pistol and mashirnama of recovery of alleged abductee baby Samreen at Ex-6-A. He also produced F.I.Rs Crime No.81 & 82 of 2010 at Ex-6/C. The prosecution also examined PW HC Bashir Ahmed, PW PC-Riaz Hussain at Ex-8, P.W Abdul Ghafoor, SIO at Ex-9, who produced mashirnama of place of wardat and recovery of empty shell at Ex-9-A; thereafter prosecution closed its side vide statement at Ex-10.
6. On statement of the accused/appellant recorded under section 342, Cr.P.C at Ex-11, he has denied the allegation and stated that false case has been registered against him due to enmity; that the prosecution witnesses are police officials and inimical to him, therefore, their evidence cannot be relied upon. In support of his case he neither examined himself on oath, nor led any defense.
7. On conclusion of the trial, the learned trial Judge finding the appellant guilty convicted and sentenced him, as mentioned in earlier part of this judgment.
8. Messrs Habibullah Ghouri and Faiz Mohammad Larik, advocates appearing on behalf of the appellant, contended with force that the case against the appellant is false and nothing has been recovered from his possession, as alleged by the prosecution. It is further submitted that the case of the prosecution rests upon the evidence of four police officials, who are inimical to the present appellant; that evidence of the prosecution witnesses is full of contradictions on material particulars, therefore, no conviction can be based on the contradictory statements of prosecution witnesses.
9. While opposing the aforesaid contentions, learned State Counsel submitted that the prosecution has fully established its case against the appellant beyond reasonable doubt by producing consistent convincing and reliable evidence and the impugned conviction and sentence awarded to the appellant is the result of proper appreciation of evidence brought on record, which needs no interference.
10. We have heard learned Counsel for the parties at length and scanned the evidence available on record.
11. In this case, ocular account of the occurrence has been furnished by ASI Mohammad Tagial, who is complainant in both the cases viz., Crime Nos.81 & 82 of 2010. During his examination in Court he has produced memo of arrest and recovery of pistol, as well as recovery of abductee baby Samreen at Ex-6-A, showing PW HC Bashir Ahmed and PC Zulifqar Ali as mashirs of arrest and recovery. This witness claimed to have taken part in the encounter and arrested the accused/appellant with unlicensed 30 bore pistol which was used in the commission of the offence. The testimony of prosecution witnesses in this case has established act of perpetration by the appellant. Their version is consistent on material points and facts. Of- course, there are some discrepancies in the evidence of prosecution witnesses, which are minor in nature have no bearing and do not effect the conclusion arrived at by the learned trial Court. The prosecution witnesses though are police officials but there appears no reason to tell a lie by indicating the appellant. Nothing come on record to suggest that the Investigation Agency had motive to set up the witnesses to depose against the appellant falsely. In any case, truthfulness of the ocular testimony cannot be questioned on minor contradictions or discrepancies.
12. No doubt, in this matter all the prosecution witnesses are police officials and in our opinion, the police officials are as good witnesses as any other citizen unless any malafide is established against them. The deposition of the police officials cannot be brushed aside simply on the bald allegation that they belonged to the police department. Requirement of section 103, Cr.P.C is not absolute in the sense that failure to comply with it will make the entire process illegal. Reliance in this respect is placed in the case of Munwar Shah versus The State reported as 2004 MLD 200.
13. Although, the appellant in his statement recorded under section 342, Cr.P.C has taken plea that case against him is false and has been registered due to inimical terms with one Sadaruddin on the dispute of a house, however the appellant has not produced any documentary proof in this respect in order to prove such allegation. He also did not examine himself on oath or has produced evidence in his defense. It is pertinent to mention here that the appellant is also booked in Crime No.80/2010 of Police Station Hyderi, Larkana, on the allegation of kidnapping of baby Samreen, aged about 4/5 years for ransom and its recovery is also alleged from his possession. The appellant was tried by the Judge, Anti-Terrorism Court for the said charge also and was convicted to suffer R.I for life and fine of Rs.100,000/-. The said judgment is also assailed vide Crl. Appeal No.D139 of 2010 and is being decided along with this appeal. Besides this, it may also be observed that learned counsel for the appellant during course of arguments has not been able to point out any misreading or non reading of evidence or contradiction on material particular in the statement of the prosecution witnesses resulting in to miscarriage of justice. The prosecution has succeeded to establish its case and the appellant has failed to prove his innocence.
14. On deep appraisal of the evidence, we are convinced that prosecution has established its case against the appellant beyond any shadow of reasonable doubt and find no reason whatsoever to interfere with the conclusion arrived at by the trial Court in recording conviction and sentences against the appellant.
15. The appeal being devoid of substance is dismissed and the impugned judgment is maintained.
Judge
M.Y.Panhwar/**