IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Crl. Jail Appeal No. D- 21 of 2014.

Present:

Mr. Justice Sadiq Hussain Bhatti.

Mr. Justice Abdul Maalik Gaddi.

Imam Ali alias Bally Jatoi

& others. ………….Appellants.

Versus

The State. ...…..…Respondent.

Mr. Habibullah G. Ghouri, Advocate for appellants.

Mr. Imtiaz Ali Jalbani, A.P.G.

Date of hearing: 03.12.2014.

Date of Judgment: 03.12.2014.

J u d g m e n t

Abdul Maalik Gaddi, J-. This appeal is directed against the Judgment dated 30.04.2014, passed by learned Judge, Anti-Terrorism Court, Larkana, in Special Case No.39/2012, Re; State Vs. Imam Ali alias Bally and others in Crime No.101/2010 of Police station Bakrani, District Larkana, registered under Sections 302, 324, 353, 148, 149 P.P.C read with Section 7 (a) and (c) of the Anti-Terrorism Act, 1997, whereby the appellants, namely, Imam Ali alias Bally, Wazir and Doulat were convicted and awarded sentences as under:

(a) For the offence punishable under Section 302 (b) P.P.C, to suffer life imprisonment and to pay a compensation of Rs.50,000/- each to the legal heirs of deceased P.C Shahzado, recoverable under Section 544-A Cr.P.C and in case of non payment of compensation they were ordered to suffer R.I for one year more.

(b) To suffer R.I for ten years each for the offences punishable under Section 324, read with Section 149 P.P.C.

(d) To suffer imprisonment for life and to pay fine of Rs.50,000/- each for the offence punishable under Section 7 (a) of Anti-Terrorism Act, 1997 and in case of default of payment of fine they shall suffer imprisonment for a period of one year more.

(e) To suffer R.I for two years each for the offence punishable under Section 148 P.P.C.

2. Succinctly the facts of the prosecution case are that on 12.7.2010, at 1545 hours, complainant P.C Eidal Khan Metlo of P.S Bakrani, on behalf of the State lodged his report at said Police station, stating therein that he alongwith P.C Habibullah, P.C Zameer Hussain Channo, P.C Shahzado and P.C Muhammad Ali were deputed at Police Picket Syed Bachal Shah Bridge, Dadu canal for 24-hours duty. On 11.07.2010, they were present on their duty at about 7.00 p.m. they saw that eight accused duly armed with weapons came out from garden to whom they saw and identified to be Wazir having Kalashnikov in his hand, Imam Ali alias Bally having gun in his hand, both sons of Ali Sher, Ismail having rifle in his hand, Manthar having gun in his hand, both sons of Gulsher, Azam son of Muhammado having repeater gun in his hand, Doulat son of Raza Muhammad having gun in his hand, all by caste Jatoi, resident of Budho Wahan, Taluka Bakrani and two unidentified accused to whom they saw very well and can identify them if they saw them again. They disclosed their identity to be police to the accused and direct them to stop, on which they fired straight shots from their weapons upon them with intention to commit their qatl-i-amd. They while taking position also fired shots in their defence upon the accused. They narrow their circle around the accused and went ahead. In the meanwhile, accused Wazir fired the shot from Kalashnikov upon PC Shahzado which hit him who while raising cry fell down. The said exchange of firing continued for about 15 minutes and then firing was stopped from accused side. They went ahead and saw that the Kalashnikov of accused Wazir Ali fell down, when he was running and decamped towards the garden side. The accused Ismail was also running on back of Wazir and his rifle also fell down and accused Wazir and Ismail made their escape good in Olive garden, while rest of accused also decamped by firing shots towards gardens. They then secured one Kalashnikov with rubbed number loaded with magazine in working condition of accused Wazir, and one rifle 7 m.m. with rubbed number in working condition of accused Ismail Jatoi and then came towards P.C Shahzado. They saw that P.C Shahzado sustained one firearm injury on his navel, and blood was oozing from his injury and he expired on the spot. He then gave such information to the higher officers. He then sent the dead body of PC Shahzado towards civil hospital, Larkana, for the purpose of the postmortem examination. Then he alongwith police of Bakrani and other police personnel, who came in his help with the help of Foot-Trackers, started tracking foot prints and they tracked the foot prints whole night which led them towards Katcho bund side where they lost the foot prints. He then went to police station alongwith secured weapons of the accused and lodged his report. He further stated that the above named accused with their common object while preparing unlawful assembly assaulted upon them with intention to prevent and deter them from performing their duty as Public servant and fired shots from their weapons upon them with intention to commit their qatl-i-amd.

3. A formal charge was framed against accused/ appellants at Ex.19, to which they did not plead their guilt and claimed to be tried vide pleas kept on record at Ex.19-A to 19-C.

4. In order to prove its case, the prosecution has examined PW-1 Dr. Ashok Kumar at Ex.15, who produced the police letter at Ex.15-A, and postmortem report of deceased PC Shahzado at Ex.15-B. PW-2, complainant Eidal Khan complainant at Ex.20, who produced F.I.R at Ex.20-A. PW-3 P.C Mehmood Ali eyewitness/mashir at Ex.21, who produced mashirnama of recovery of Kalashnikov and rifle left by the accused at Ex.21-A. PW-4 Hakim Ali, duty officer at Ex.22. PW-5 P.C Ali Bux, mashir, at Ex.23, who produced the mashirnama of arrest of accused Imam Ali alias Bally at Ex.23-A. PW-6 P.C Naseer Muhammad, mashir at Ex.24, who produced mashirnama of seeing the dead body of deceased at Ex.24-A, inquest report at Ex.24-B. receipt at Ex.24-C, mashirnama of place of vardat at Ex.24-D, mashirnama of recovery of gun form accused Imam Ali alias Bally at Ex.24-E, attested photocopy of mashirnama of arrest of accused Wazir Ali at Ex.24-F. PW-7 Sher Muhammad, Tapedar, at Ex.26, he produced three sketches of place of vardat at Ex.26-A to 26-C. PW-8 ASI Sajjad Hussain, mashir at Ex.27. PW-9 Inspector Ghulam Muhammad, arresting officer of accused at Ex.29. PW-10 SIP Ahmed Ali investigating officer at Ex.30, who produced letter No.3274-80, issued by Senior Superintendent of Police, Larkana, for constituting Joint Investigation Team at Ex.30-A, Ballistic report at Ex.30-B, and chemical report at Ex.30-C. PW-11 PC Kewal Ram, mashir at Ex.31, who produced mashirnama of arrest of accused Doulat at Ex.31-A, and PW-12 PC Abdul Latif, mashir at Ex.32, who produced the mashirnama of arrest of accused Nusrat at Ex.32-A. The D.D.P.P for the State given upon PW PC Zameer Hussain vide his statement which was kept on record at Ex.28. D.D.P.P for State vide his statement at Ex.33 adopted the evidence of Dr. Ashok Kumar; and closed the side of prosecution vide statement at Ex.34.

5. The statements of the appellants were recorded under Section 342 Cr.P.C at Ex.35 to 37, respectively, in which they stated that the prosecution case is false. The accused Wazir Ali and Imam Ali alias Bally stated that arms were foisted upon them; they have been acquitted in these cases of Arms Ordinance by the learned 3^rd Additional Sessions Judge, Larkana. Accused Wazir Ali has produced the copy of judgment passed by 3^rd Additional Sessions Judge at Ex.35-A. They neither examined themselves on oath nor examined any defence witness in their defence. They further stated that they are innocent and falsely been involved in this case due to dispute over agricultural land.

6. It is contended by learned counsel for the appellants that there is delay of about 21 hours in lodgment of F.I.R, which has not been explained. The complainant has not implicated the appellants in the commission of offence. According to him, as far as the case of appellants Imam Ali alias Bally and Doulat are concerned, they are not alleged to have caused any injury, either to deceased PC Shahzado or to the complainant party and only role of ineffective firing is attributed to them, which has also not been proved. He further contended that all the witnesses are police personnel; hence they are interested and set up. There are several infirmities and contradictions in the evidence of prosecution witnesses, which has shattered the prosecution case. He further contended that appellants Wazir Ali and Imam Ali alias Bally have already been acquitted in cases of 13 (d) of Arms Ordinance by learned III-Additional Sessions Judge, Larkana. He added that, whole case of prosecution revolves towards the evidence of complainant P.C Eidal Khan, P.C Mehmood Ali, P.C Habibullah and P.C Zamir Hussain; these are eyewitnesses, out of them P.C Eidal Khan (complainant) has not implicated the appellants at-all, while the evidence of P.W Mehmood Ali is contradictory on material points, as such cannot be relied upon, whereas P.Ws Habibullah and Zamir Hussain have not been examined by the prosecution. According to him, if these witnesses would have been examined, they would have not supported the prosecution case. In these circumstances, he has prayed that prosecution has failed to prove its case against appellants; therefore, they are liable to be acquitted from the charge.

7. Learned A.P.G. though supported the impugned judgment but could not controverted the above legal and factual aspect of the case, which is part of the record and proceedings.

8. Heard the parties Advocates at length and have gone through the evidence and documents on record.

9. We have given our patience hearing to the arguments advanced at the Bar and gone through the case papers and evidence on record. A perusal of substance of F.I.R Ex.20-A reveals that alleged incident took place on 11.7.2010 at 1900 hours and the F.I.R was registered on 12.7.2010, at 1545 hours; after delay of 21 hours, whereas the police station was at the distance of 7/8 kilometers from the place of vardat. No plausible explanation has come on record for such a long delay, particularly in a scenario when the complainant claimed that he had identified the assailants, then it was the duty of the complainant to have lodged the F.I.R without loss of time and it is not understandable that the police party tracked the foot prints of the culprits in the first instance and for what purpose; when assailants were already identified and in ordinary course of nature the foot prints of unknown persons are being tracked and not of known culprits. Therefore, on this ground nomination of the accused in the F.I.R after due deliberation and consultation cannot be ruled out as the appellants in their statements recorded under Section 342 Cr.P.C have pleaded their involvement in the case on the ground of enmity on agricultural land.

10. From perusal of entire evidence on record, it reveals that the ocular account of incident has been furnished by complainant P.C Eidal Khan and P.W PC Mehmood Ali eyewitnesses; the gist of their evidence has already been reproduced herein above. We deem it appropriate to firstly discuss the evidence of complainant P.C Eidal Khan, as he was eyewitness of the incident as well as father of the deceased PC Shahzado. In the examination-in-chief, the complainant neither implicated the appellants nor identified them in Court. He even stated that accused/ appellants were muffled faces. The complainant though declared hostile by the prosecution but nothing has come from his mouth adverse against the appellants.

11. P.W P.C Mehmood Ali in his evidence at Ex.21, though implicated the accused in the commission of offence, but his evidence is found contradictory with the evidence of complainant on material point; for example: he stated in his evidence that at the time of incident the faces of the accused were open, whereas complainant in his evidence stated that accused were muffled faces. Complainant stated in his evidence that accused present in Court have not fired upon them but P.C Mehmood Ali is stating that accused fired upon them.

12. We have noticed that, (i) P.C Eidal Khan, (ii) P.C Mehmood Ali, (iii) P.C Habibullah and (iv) P.C Zamir Hussain who are the eyewitnesses of the incident, out of them only P.C Eidal Khan and P.C Mehmood Ali have been examined, but on perusal of evidence of P.C Eidal Khan who has not supported the prosecution case, whereas the evidence of P.C Mehmood Ali suffers from material contradictions on material points, therefore, the same is not sufficient to be relied upon safely for awarding conviction to appellants. P.C Habibullah and P.C Zamir Hussain though were eyewitnesses of the case, but these witnesses have not been examined by the prosecution. No reason has been assigned, why these prosecution witnesses have been kept away from the witness box. No efforts have also been made for calling them in witness box.

13. Article 129 (g) of Qanun-e-Shahadat Order 1984, which says that if any party withholds the best evidence, then it can fairly be presumed that the party had some sinister motive behind it and presumption would be drawn that if P.W would have been examined, his evidence would have been un-favorable to the prosecution. Reliance in this respect can be placed on case of Lal Khan v. The State reported in 2006 S.C.M.R 1846.

14. We have also noticed that it is alleged in the F.I.R that in all eight culprits fired in-discriminatively at police party and police party also fired and the encounter continued for fifteen minutes, but on perusal of mashirnama of place of incident; recovery of blood stained earth and empties at Ex.24-D on record, shows that police secured 7 empties of 7.62 bore and 5 empties of G-3 rifle which were said to be fired by police party; and 5 empties of 7.62 bore and 6 empties of 12-bore cartridges, which were said to be fired by the culprits; these were collected and sealed. It is not understandable that when police encounter continued for fifteen minutes, but very few empty shells were recovered; this aspect of the case creates doubt in the prosecution case that perhaps the incident has not taken place as being alleged by prosecution.

15. Perusal of record further shows that appellants Imam Ali alias Bally and Doulat are not alleged to have caused any injury either to deceased PC Shahzado or to the complainant party and only role of ineffective firing is attributed to them but said role has also not been proved from evidence on record. It has been brought on record that appellants Wazir Ali and Imam Ali alias Bally have been acquitted from the cases of 13 (d) of Arms Ordinance by learned III-Additional Sessions Judge, Larkana, and this fact has not been disputed by learned A.P.G. Furthermore, the ocular evidence of complainant and witnesses is completely belied by the circumstantial evidence. As far as evidence of other witnesses is concerned, it reveals that they are formal witnesses and if their evidence is taken into consideration, the same will not improve the prosecution case.

16. Since there are many discrepancies creating doubt in the case of prosecution as highlighted above, in such circumstances its benefit must be in favour of the appellants. In this connection we are fortified with the case of Tariq Pervaiz v. The State reported as 1995 SCMR 1345, in this case law it has been observed as under:

“For giving benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubts--- If a single circumstance creates reasonable doubt in a prudent mind about the guilt of the accused, then he will be entitled to such benefit not as a matter of grace and concession but as matter of right.”

17. After considering the material available on record, we are of the considered view that prosecution has failed to prove the case against the appellants beyond any reasonable doubt, therefore, the appellants are entitled to the benefit of doubt which was accordingly given to them at the time of passing short order. The appeal was allowed and impugned judgment of the trial Court was set aside, resultantly appellants were acquitted from charge.

18. Above are the reasons for our short Order dated 03.12.2014.

Judge