IN HIGH COURT OF SINDH BENCH AT SUKKUR.

Criminal Jail Appeal Nos.42 and 43 of 1995

Along with criminal Appeal No. 52 of 1995.

Present: Mr. Naimatullah Phulpoto, J

Mr. Rasheed Ahmed Soomro,J

In criminal Jail Appeal No.D-42 of 1995.

Appellants : 1. Muhammad Azeem son of Lal Bakhsh Sudh,

2. Qaisar son of Lal Bakhsh Sudh,

3. Jumo son of Shahmir Sudh,

4. Guloo son of Mehwal Lund,

5. Shareef son of Allahdad Lund,

In criminal Jail Appeal No.D-43 of 1995.

Muhammad Azeem son of Lal Bakhsh Sudh

In criminal Appeal No.D-52 of 1995.

1. Guloo son of Mehwal,

2. Sharif son of Allahdad alias Kalo

Through Mr. Shamsuddin Kobher Advocate for the Appellants.

Respondents : Mr. Aftab Ahmed Shar Additional Prosecutor General.

Date of hearing : 20.08.2019

Date of announcement : 27.08.2019

J U D G M E N T

Naimatullah Phulpoto, J. :-- Appellants namely : Muhammad Azeem and Guloo along with co-accused Qaisar, Jumo, Sharif, Mohammado, Ghulam Nabi, Pakhi, Dadlo, Shabbir and Rustam were tried by learned Judge Special Court (STA) Sukkur Division at Khairpur. On the conclusion of the trial, vide Judgment dated 27.06.1995 appellants along with aforesaid co-accused were convicted and sentenced U/S 324 PPC and sentenced to 10 years R.I and also fine of Rs. 30,000/- each or in default to undergo R.I for three years more. They were also convicted U/S 400 PPC and sentenced to ten years R.I each and to pay fine of Rs. 20,000/- or in default to suffer R.I for one year more.

2. Accused Muhammad Azeem was also convicted by Judge Special Court (STA) Sukkur Division at Khairpur in criminal case No.509/1992 for offence under section 13(d) Arms Ordinance for seven years and to pay fine of Rs. 20,000/- in case of default he was directed to suffer R.I for three years. He has also filed criminal Jail appeal No.43 of 1995 against said Judgment before this Court

3. Appellants named above preferred Criminal Jail Appeals Nos. 42 and 43 of 1995 as well as criminal Appeal No. 52 of 1995 before this Court, same were dismissed by this Court by common Judgment dated 21.10.1998. Relevant portion is re-produced as under :-

“ We have gone through the material placed with the case. Admittedly appellants are in custody since the date of their arrest and appeal is not being agitated on merits. It is also admitted fact that nobody had received injuries during encounter and since the date of judgment the appellants have not been able to pay fine so imposed by the learned trial Court which shows that they are not in a position to pay the fine. Learned State counsel in view of the above circumstances also raises no objection to the reduction in the sentence and the amount of fine.

Accordingly we dismiss the appeals but reduce the substantive sentences from 10 years R.I to 5 years R.I on each count. The amount of fine is reduced from Rs. 30,000/- to Rs. 5,000/- and from Rs. 20,000/- also to Rs. 5,000/-. In case of non-payment of fine the appellants will undergo R.I for three months more on each count. The substantive sentences shall run concurrently and the benefit of section 382-B Cr.P.C has already been allowed to the appellants by the trial Court.

Before parting with the case it may be observed that during pendency of appeals, Muhammad Azeem and Guloo have escaped away from the Jail custody and are still at large. Under the circumstances their appeals are kept on dormant file. NBWs for their arrest may be issued. After execution of the NBWs the matter may again be placed before the Court for hearing of appeals of both the appellants.”

4. N.B.Ws were issued against accused Muhammad Azeem and Guloo who had escaped away from the Jail custody. It was reported that appellant Guloo has been murdered and proceedings were abetted against him by this Court vide order dated 24.05.2005. However, the case of absconding accused Muhammad Azeem was kept on dormant file.

5. These appeals pertain to year 1995. We have no option except to decide the same on merit after hearing the learned counsel for parties in view of dictum recently laid down by Hon’ble Supreme Court of Pakistan in the case of State through Director ANF Peshawar Vs. Muhammad Ramzan and others (2019 S C M R 1295) wherein it is held as under :-

“ With a common thread, the captioned appeals, though arisen out of different cases, nonetheless, inhere identical question of law and thus are being decided through this single judgment. Respondents were indicted for possession of narcotic contraband, in excess of 10 kilograms in each case; convicted under section 9(c)of the Control of Narcotic Substances Act, 1997, they were sentenced to imprisonment for life along with fine. In appeals, their convictions were maintained, however, sentences awarded to them by the learned trial Courts were reduced to ten years’ R.I. The State did not countenance with the error and sought rectification thereof. In each case the leave has been granted to examine the vires of reduction of sentence. Respondents, released in consequence of the impugned judgments, despite repeated attempts, nonetheless, found it convenient to stay away from the Court by avoiding the process; they cannot be allowed to hold the process of law in abeyance by their default, seemingly deliberate in circumstances. An appellant or a respondent has to be afforded a reasonable opportunity of hearing so as to vindicate his position more so in situations involving corporal consequences, however a party cannot avail this opportunity to a point of time of its own choice and therefore once the absence is found calculated to obstruct the judicial process, a case can be decided on its own merits. This practice is being consistently followed since the advent of case reported as Chan Shah v. The Crown (PLD 1956 FC 43) subsequently reaffirmed in the cases reported as Gul Hassan and another v. The State (PLD 1969 SC 89) as well as Ikramullah and others v.The State (2015 SCMR 1002). In this backdrop, we have examined the propriety of reduction of sentences with the assistance of learned counsel for the appellant. He has invited our attention to the proviso to section 9 of the Act ibid, mandatorily providing punishment being not less than imprisonment for life in case the quantity of contraband exceeds ten kilograms, a common feature in each case.

2. Command of law escaped notice of learned Judges of the Peshawar High Court and thus there being no occasion for the reduction of sentences, the captioned appeals are allowed, impugned judgments are set aside. Sentences awarded to the respondents by learned trial Courts are restored. Perpetual warrants of arrest shall issue to being the respondents to law so as to serve out sentences consequent upon convictions, never challenged by them before this Court”.

6. This Court issued NBWs against absconding accused Muhammad Azeem so as to afford him a reasonable opportunity of hearing in order to vindicate his position. It has been held by Honourable Supreme Court that a party / accused cannot avail this opportunity to a point of time of his own choice and therefore, once the absence is found calculated to obstruct the judicial process, a case can be decided on its own merits. Since 1995 NBWs are being issued against the abovenamed appellant / absconding accused Muhammad Azeem but the NBWs returned unexecuted with the endorsement that he has shifted to some unknown place. We hold that the absence of the absconding accused is deliberate and to obstruct the judicial process.

7. We have heard the learned counsel for the parties.

8. Additional P.G while going through the evidence brought on record by the prosecution against the absconding accused Muhammad Azeem argued that case of absconding accused Muhammad Azeem is identical to the case of Muhammad Shareef, Qaisar and Jumo and prayed for dismissal of appeals.

9. We have also carefully gone through the evidence available on record and have come to the conclusion that prosecution has proved its case against absconding accused Muhammad Azeem who escaped from Jail custody and still is at large. This Court while deciding the criminal Jail Appeals Nos. 42 and 43 of 1995 as well as criminal Appeal No.52 of 1995 has held that Mr. Shamsuddin Kobher Advocate for the appellants who was present before the Court did not press the appeal on merits and prayed for modification of the sentences and concession in the fine.

10. Prosecution case as reflected in the FIR is that on 17.12.1991 Muhammad Aslam SHO P.S Yaroo Lund received spy information that some dacoits were staying in the otak of accused Muhammad Shareef Lund in his village. Therefore SHO Muhammad Aslam along with SHO Hussain Bux Panhwar, ASI Nooruddin, ASI Abbass Ali Kolachi and other lower staff left the police station and proceeded to the above place on government vehicle. Police party left the vehicle at some distance from the village and went on foot towards the otak of Shareef Lund. The police personnel encircled the otak and on seeing the police party dacoits started firing from their respective weapons at the police party. The police also fired at dacoits in their defense. The encounter continued for about half an hour. During encounter Gulu Lund, Shareef Lund, Mahmdo Sudh, Lal Sudh, Pakhi Sudh, Rustam Pitafi, Shabbir Pitafi and Ghulam Nabi Korai made their escape good while firing in the air. However the police apprehended accused Kaiser, Azim and Jumo on the spot. Police recovered one Kalashnikov and 55 bullets from Azeem, one Kalashnikov and 45 bullets from Kaiser and one SBLL gun and 17 cartridges from Jumo. The SHO prepared the mashirnama of arrest and recovery in presence of mashirs ASI Abbass Ali Kolachi and ASI Nooruddin Pathan. The accused and their weapons were brought at the police station by SHO where he lodged FIR on behalf of State against the accused.

11. Appellant Shareef was arrested on 30.7.1992 whereas Gulloo was arrested on 12.12.1992. After finalization of investigation charge sheet was filed before the Court having jurisdiction.

12. Learned Special Judge STA Sukkur Division at Khairpur framed the charge under sections 324, 400, 149 PPC against appellants Muhammad Azeem, Kaiser, Jumo, Shareef and Gulu and absconders. The appellants pleaded not guilty and claimed to be tried.

13. The prosecution in order to establish its case examined ASI Nooruddin who produced the mashirnama of arrest and recovery, PW SIP Muhammad Aslam who produced the FIR, SIP Hussain Bux and HC Abu Bakar as corroborative witness. The incahrge of the prosecution case thereafter closed side on behalf of prosecution.

14. The appellants in their statements recorded under section 342 Cr.P.C, denied the prosecution allegations and claimed their innocence.

15. Learned trial Court for the following reasons convicted and sentenced the appellants vide Judgment dated 27.06.1995. Relevant portion is reproduced as under:-

“ From the above authorities it is crystal clear that Police witnesses are as good as private witness and reliance can be placed on their evidence which stands un-shattered. I am clear in my mind and I am of the considered view that all the accused assembled in the Otaq of Muhammad Shareef Lund for the purpose of committing some offence like robbery, it seems that they are members of gang of dacoits who associate for committing robbery and dacoity frequently. All the accused fired at the police party with intention to commit murder. I therefore held that all the accused persons are guilty of offence u/s 324 (Previous Sec.307) PPC and Section 400 PPC. I therefore convict all of them and sentence them to suffer R.I for 10 years U/S 324 PPC and also fine of Rs. 30,000/- or in default to undergo R.I for three years more. I also convict and sentence all of them to suffer R.I for ten years each and to pay fine of Rs. 20,000/- or in default to suffer R.I for one year more. Both these sentences will run concurrently, and so also accused present in court are given benefit of the provisions of Section 382-B Cr.P.C. Accused Muhammad Azeem, Qaisar, Jumo, Gulloo and Shareef are produced in custody. They are remanded to Jail custody in order to serve out sentence imposed upon them in terms of this Judgment, however, the absconding accused will serve out their respective sentence after their arrest.”

16. Facts of this case as well as evidence produced before trial Court find an elaborate mention in the judgment passed by trial Court, the same may not be reproduced here to avoid duplication and unnecessary repeatation.

17. The evidence of prosecution witnesses is trust worthy and confidence inspiring. Trial Court has assigned sound reasons for relying upon the testimony of the prosecution witnesses and rightly recorded conviction. Appeals of co-accused named above have already been dismissed by this Court vide Judgment dated 21.10.1998. Appellant was found in possession of Kalashnikov by the P.Ws / police officials. Appellant failed to produce permit / license for the weapon carried by him. Police officials, being functionaries of the State, are no less credible witnesses to drive home the charge in a milieu of pervasive apathy towards civic responsibilities; people prefer to recuse behind safety instead of coming forward in aid of justice. The officials who testified in the witness-box had seemingly no axe to grind, otherwise, found by us in a comfortable unison with one another. Police officials are as good witnesses as any other and their evidence is subject to same standard of proof and principles of scrutiny as applicable to any other category of witnesses; in the absence of any animus, infirmity or flaw in their depositions, their statements can be relied without demur. Reliance is placed on recent Judgment of Hon’ble Supreme Court of Pakistan in criminal Appeal No. 319-L/2017 dated 27.06.2019. View taken by the learned trial Court, well within the remit of law, calls for no interference by this Court.

18. Additional P.G has also fully supported the case of prosecution.

19. `In our considered view, trial Court has rightly appreciated evidence according to settled principles of law. Resultantly, criminal Jail appeals Nos. 42 and 43 of 1995 filed by accused Muhammad Azeem are without merit and the same are dismissed, consequently the sentences awarded to the appellant Muhammad Azeem is maintained. Perpetual warrants of his arrest shall be issued to bring the absconding accused to law so as to serve out sentences consequent upon convictions maintained by this Court.

J U D G E

Irfan /PA

We have gone through the material placed with the case. Admittedly appellants are in custody since the date of their arrest and appeal is not being agitated on merits. It is also admitted fact that nobody had received injuries during encounter and since the date of judgment the appellants have not been able to pay fine so imposed by the learned trial Court which shows that they are not in a position to pay the fine. Learned State counsel in view of the above circumstances also raises no objection to the reduction in the sentence and the amount of fine.

3. No one appeared for absconding accused Azeem and Guloo.

The story of prosecution case in brief is that on 17.12.1991 Muhammad Aslam SHO P.S Yaroo Lund received spy information that some dacoits were staying in the otak of accused Muhammad Shareef Lund in his village. Therefore SHO Muhammad Aslam along with SHO Hussain Bux Panhwar, ASI Nooruddin, ASI Abbass Ali Kolachi and other lower staff left the police station and proceeded to the above place on government vehicle. Police party left the vehicle at some distance from the village and went on foot towards the otak of Shareef Lund. The police personnel encircled the otak and on seeing the police party dacoits started firing from their respective weapons at the police party. The police also fired at dacoits in their defense. The encounter continued for about half an hour. During encounter Gulu Lund, Shareef Lund, Mahmdo Sudh, Lal Sudh, Pakhi Sudh, Rustam Pitafi, Shabbir Pitafi and Ghulam Nabi Korai made their escape good while firing in the air. However the police apprehended accused Kaiser, Azim and Jumo on the spot. Police recovered one Kalashnikov and 55 bullets from Azeem, one klashanikov and 45 bullets from Kaiser and one SBLL gun and 17 cartridges from Jumo. The SHO prepared the mashirnama of arrest and recovery in presence of mashirs ASI Abbass Ali Kolachi and ASI Nooruddin Pathan. The accused and their weapons were brought at the police station by SHO where he lodged FIR on behalf of State against the accused / appellants as well as absconding accused.

Appellant Shareef was arrested on 30.7.1992 whereas Gulloo was arrested on 12.12.1992. After finalization of investigation charge sheet was filed before the Court having jurisdiction.

Learned Special Judge STA Sukkur Division at Khairpur framed the charge under sections 324, 400, 149 PPC against appellants Muhammad Azeem, Kaiser, Jumo, Shareef and Gulu and absconders. The appellants pleaded not guilty and claimed to be tried.

The prosecution in order to establish their case examined ASI Nooruddin who produced the mashirnama of arrest and recovery, PW SIP Muhammad Aslam who produced the FIR, SIP Hussain Bux and HC Abu Bakar as corroborative witness. The incahrge of the proseuciton case thereafter closed side on behalf of prosecution.

The appellants in their statements recorded under section 342 Cr.P.C, denied the prosecution allegations and claimed that they were innocent and case against them was false. It was further stated by them that due to enmity between Pirs of Bharchundi and Lund community over murders, they have been implicated in the case.”