IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

 

Cr. Jail Appeal No.D-103 of 2019.

Crl. Appeal No.D-116 of  2019

Crl. Appeal No.D-117 of  2019

  Crl. Appeal No.D-118 of  2019

  Crl. Appeal No.D-119 of  2019

  Crl. Appeal No.D-120 of  2019

  Crl. Appeal No.D-121 of  2019

  Crl. Appeal No.D-122 of  2019

  Crl. Appeal No.D-123 of  2019

  Crl. Appeal No.D-124 of  2019

  Crl. Appeal No.D-125 of  2019

  Crl. Appeal No.D-126 of  2019

 

 

For hearing of main case.

 

 

                     

Present:

                Mr. Justice Rasheed Ahmed Soomro.

                Mr. Justice Zulfiqar Ali Sangi.

 

 

 

Appellants:                              Momin Ali & others through Mr.Rukhsar Ali Junejo, Advocate.

 

 

Respondent:                            The State through, Syed Sardar Ali Shah, D.P.G.

 

 

Date of hearing:              07.01.2020          .        

Date of decision:            07.01.2020

 

J U D G M E N T

 

 

ZULFIQAR ALI SANGI, J:-           Appellants Momin Ali, Gul Mohammad alias Gullan, Mohammad Bux alias Mast, Qamaruddin, Mushtaque alias Munan, Rabnawaz, Ali Gohar, Mushtaque S/o Yar Mohammad, Jalaluddin, Jamaluddin, Anwar Ali, Rahim Bux, Khuda Bux, Dur Mohammad, Ayaz Ali, Fida Hussain, Roshan Ali, Mohammad Umar and Karimdino have assailed the judgment dated 26.06.2019 passed   by learned Judge Anti-Terrorism Court, Khairpur Mir’s in Special Cases No.30, 31,32, 33, 34,35,36,37,38, 39, 40 and 41 of 2018 arising out of FIR No.25/2018 offence under section 324, 353, 427, 148,149 PPC & 4/5 Explosive Substance Act, 1908 r/w Section 7ATA, 1997 Police Station, Khuhra and offence u/s 23(i) (A) Sindh Arms Act, registered at Police Station, Khuhra whereby they were convicted for offence u/s 324 PPC r/w section 149 PPC and sentenced to undergo R.I for Seven years each and to pay fine of Rs.50,000/- each, in case of default in payment of fine they shall suffer further R.I for six months each. The appellants were further convicted u/s 353 r/w Section 149 PPC and were sentenced to suffer R.I for two years each. The appellants were also  convicted for offence u/s 427 r/w Section 149 PPC and sentenced to suffer R.I for two years each and to pay fine of Rs.10,000/- each and in case of default in payment of fine, they shall suffer further R.I for one month each. The appellants Momin and Gul Mohammad @ Gullan were also convicted for offence u/s 4(b) Explosive Substance Act, 1908 and were sentenced to suffer R.I for Seven years each and to pay fine of Rs.50,000/-each. In case of default in payment of fine, they shall suffer further R.I for six months each. The appellants were also convicted for offence punishable u/s 7 of ATA, 1997 and were sentenced to suffer R.I for seven years each and to pay fine of Rs.50,000/-each. In case of default in payment of fine they shall suffer further R.I for six months each. Appellants Momin Ali Ujjan, Gul Mohammad @ Gullan Ujjan, Mohammad Bux @ Mast Ujjan, Qamaruddin Ujjan, Mushtaque @ Munan Ujjan, Rab Nawaz Ujjan, Ali Gohar Ujjan, Mushtaque Ujjan, Jalaluddin Ujjan, Jamaluddin Ujjan and Anwar Ali Ujjan were also convicted for offence u/s 23(i)(a) Sindh Arms Act, 2013, to suffer R.I for Seven years and to pay fine of Rs.20,000/- each and in case of default in payment of fine to suffer S.I for six months more. All the sentences were ordered to run concurrently and benefit of section 382-B Cr.P.C was extended to the appellants.

 

2.                   Precisely, prosecution case was that on 20.06.2018 at about 1300 hours, complainant /Inspector Darya Khan Jatoi, SHO Police Station Khuhra Khairpur lodged the present FIR stating that  on the day of incident i.e. 20.06.2018, he along with his subordinate staff duly armed, in uniform and having investigation bag, boarded on government vehicle which was driven by PC-Mushtaque Ali Ujjan left Police Station for patrolling in the jurisdiction under the roznamcha entry No.07 when they reached Abul Wah Hitchari Bridge after crossing the Khuhra City and village Kaleri, he received spy information  that 24/25 culprits duly armed with weapons were standing at Katcha road Ghaunshala near watercourse with intention to  create terrorism  at some place, he informed his subordinate staff and proceeded towards the pointed place and when they reached at the pointed place, they saw that 24 culprits were standing near the watercourse and plastic bags (Bachka) were hanging upon their shoulders, out of them, they identified the accused 1. Momin Ali armed with KK, Gul Mohammad  @ Gullan armed with G-3, Mohammad Bux @ Mast armed with K.Ko, Qamaruddin armed with homemade pistol, Mushtaque @ Munnan armed with gun, Rabnawaz armed with gun, Ali Gohar armed with 8 mm rifle, Jalaluddin armed with pistol, Raheem Bux  armed with gun, Nadeem armed with Repeater, Dur Mohammad armed with gun, Shafi Mohammad armed with gun, Jamaluddin having red colour plastic bag on his shoulder, Fida Hussain armed with KK, Ayaz armed with Repeater, Khuda Bux armed with KK, Kareem Dino armed with gun, Anwar having white colour bag on his shoulder , Roshan armed with gun, Umar armed with gun, all by caste Ujjan and 03 unidentified accused armed with guns, they be identified, if seen again, it was about 1030 hours.

 

3.                   Police party directed them to surrender; on hearing such direction accused started direct firing upon police with intention to commit their murder while other accused who were having plastic bags on their shoulders thrown out their bags from their shoulders and took pistols from their folds and also made direct firing upon them. In retaliation, police also made firing upon accused and took advance effort to encircle towards the accused. Such encounter continued for about 10 minutes and thereafter, the firing was stopped from the accused side and complainant party apprehended 09 accused with their respective weapons while remaining accused fled away from the place of incident by taking advantage of crops. Due to non-availability of private mashirs, complainant made mashirs to HC Mazhar Ali and PC Deedar Ai and inquired from the arrested accused to which they disclosed their names as 1. Momin Ali and during his personal search, police recovered one K.Kov along with its magazine, one black coloured cloth bag from his shoulder, wherein 09 magazines containing 180 live bullets, one live hand grenade, one strip of Charas weighing about 1020 grams and 05 notes of Rs.100/- denominated from his front pocket, 2. Gul Mohammad @ Gullan  from his possession recovered one G-3 Rifle which was found empty, one camel coloured cloth bag from his shoulder from which 08 magazine of G-3 Rifle containing 20 live bullets and one live hand grenade  and one strip of Charas weighing about 1935 grams and 10 notes of RS.50/- denominated from his front pocket, 3. Mohammad Bux @ Mast from his possession recovered one KK from which was found empty, 4. Qamarudin during his personal search recovered one country made pistol from his possession and found the same empty and also recovered 05 live cartridges from his right side pocket, 5. Mushtaque @ Munan during his personal search police recovered one DBBL gun, which was found empty, one red coloured bag from his left shoulder from which 60 live cartridges of 16 bore, 6. Rab Nawaz during his personal search police recovered one DBBL gun which was found empty, one came coloured bag from his left shoulder from which 110 live cartridges of 12 bore, 7. Ali Gohar during his personal search Police recovered one 8 mm Rifle which was found empty along with 02 magazines containing 06 live bullets, 8. Mushtaque during his personal search Police recovered one pistol which was found empty along with magazines containing 06 live bullets, 9. Jalaluddin during his personal search Police recovered one pistol which was found empty, and they disclosed that the weapons are unlicensed and regarding the Charas they disclosed that they took the same for sale and also disclosed the same names of above mentioned absconding accused.

4.                   Police also secured one red coloured bag which was thrown by absconding accused Jamaluddin and also recovered one MP-5, one Repeater of 12 bore, one DBBL gun, 131 live cartridges of 20 bore and the weapons were unloaded and found the same empty. Police also secured one white coloured plastic bag, which was thrown by absconding accused Anwar Ali and found 05 DBBL guns, one SBBL gun, 02 magazines of pistol, 05 live cartridges of 12 bore and 50 live bullets of KK, the guns were unloaded but the same were found empty.

5.                   Police also secured 05 empties of G-3 rifle, 11 empties of KK, 06 empty cartridges of 12 bore, 04 empty cartridges of 6 bore, 07 empties of pistols and 02 empties of 8 mm from the place of incident which were fired from the side of accused. Police also secured 13 empties of SMG and 15 empties of G-3 Rifle from the place of incident which were fired from the side of Police party and the whole arms and ammunition as well as Charas and empties were sealed at the spot in presence of above said mashirs their signatures were obtained on the sealed property, then they saw that one fire, which was fired by accused, which hit to the driving side of government vehicle, thereafter the complainant returned to P.S along with his subordinate as well as arrested accused, recovered property and lodged the instant FIR bearing Crime No.25/2018 against accused on behalf of State.

6.                   The separate FIRs bearing Crime Nos. 26/2018, 28/2018, 30/2018, 31/2018, 32/2018, 33/2018, 34/2018, 35/2018, 36/2018, 37/2018 and 38/2018 u/s 23(i)(A) of Sindh Arms Act were also registered against accused Momin Ali, Gul Mohammad @ Gullan Ujjan, Mohammad Bux @ Mast, Qamaruddin, Mushtaque @ Munan, Rab Nawaz, Ali Gohar, Mushtaque, Jalaluddin as well as absconding accused Jamaluddin and Anwar Ali Ujjan on behalf of state.              

 

7.                   After usual investigation, the police submitted challan against the appellants before the competent Court of law. The learned trial Court completed all legal formalities and framed joint charge against the appellants/accused at Ex.11, to which they pleaded not guilty and claimed trial, such pleas were obtained at Ex.11/A 11/S.

 

8.                   In order to prove its case, prosecution examined PW-1 Inspector Darya Khan Jatoi complainant in all the cases at Ex.13. He produced roznamcha entries, memo of arrest of accused and recovery, FIRs bearing Crime Nos.25/2018, 26/2018, 28/2018, 30/2018, 31/2018, 32/2018, 33/2018, 34/2018, 35/2018, 36/2018, 37/2018 and 38/2018 at Ex.13-A to13-N. PW-2 ASI Mazhar Ali Kandhro was examined at Ex.14, who produced memo of inspection of place of incident at Ex.14-A. PW-03 Inspector Mehar Ali Shah was examined at Ex.15, who produced roznamcha entries, letter for seeking permission for sending the hand-grenades to I/c Bomb Disposal Squad for defusing such hand-grenades and report, letters issued by SSP Khairpur Mir’s to SSP Special Branch Sukkur for issuance of technical expert report for defusing the hand-grenades for finalization of investigation of the cases, Technical report of defused hand-grenades issued by I/c BDS. Sukkur, letter for issuance of ballistic expert report, ballistic expert report and criminal record of accused at EX.15-A to 15-D. Thereafter, learned APG closed the side of prosecution vide statement at Ex.16.

 

9.                   After completion of prosecution evidence, learned trial court recorded statements of the appellants in terms of section 342 Cr.P.C at Ex.17 to 35, wherein they denied the prosecution case and claimed their innocence, however neither they examined themselves on oath nor led evidence in their defense.

 

10.                 The learned trial Court after hearing the Counsel for the appellants, learned APG for the State and considering the evidence, passed impugned judgment, which has been assailed through instant appeals.

11.               Learned counsel for the appellants/accused contended that the appellants are innocent and have falsely been involved in this case with mala fide intention; that the impugned judgment is against the facts of case and law; that there are major contradiction in the evidence of witnesses which creates serious doubt in the prosecution case but trial court ignored the same in violation of settled principles of law; that during encounter none from the either side received any injury though according to the prosecution case the distance between the police and assailants was about 10 to 12 feet; that no private persons were associated as witness in the recovery proceedings; that under the same mashirnama of recovery appellant Momin Ali was acquitted from the case crime No: 27 of 2018 under section 9 (c) of CNS Act, 1997,  vide judgment dated: 09-04-2019 by the court of Ist Additional Session Judge Khairpur, he placed on record the certified true copy the judgment; lastly he prayed that the appellants may be acquitted by extending them the benefit of the doubt. He relied upon the cases reported as 2019 YLR (Sindh) 552 and 2019 MLD (Sindh) 1659.               

12.               Conversely, learned D.P.G, while controverting the contentions of learned Counsel for the appellants/accused submitted that appellants were arrested at the spot and recovery of huge weapons was effected from them; that no strong enmity was suggested against the police officials during cross examination; that during the encounter police mobile was damaged due to fire of appellant’s side; that prosecution witnesses fully supported the case and during cross examination counsel had not shaking their evidence;  he lastly prayed that appeals of appellants may be dismissed.

13.              We have heard learned Counsel for the appellants, learned D.P.G for the State and have examined the record carefully with their able assistance.

14.     On our re-assessment of evidence we found the entire case as doubtful. The witnesses gave contradictory evidence on the important aspects of the case viz. recovery of weapons, damaged of police mobile, encounter in between the police and appellants, arrest of appellants at spot, recording of statements under section 161 Cr.P.C, sending the weapon for chemical examination, safe custody of the weapons till reaching to chemical examiner.

15.     PW-1 the complainant deposed in his cross examination that the police mobile was also damaged at grill from the driver side by firing of accused, on this point we found contradictory evidence of mashir PW-2 who deposed during the cross-examination that accused made direct fires upon them and fire hit to the bonnet of the government vehicle. We also carefully examined the mashirnama of arrest and recovery in which it is mentioned that only one bullet hit to police mobile on the upper side of grill from driver side whereas the appellants were armed with automatic weapons and they fired from them, which suggest that the story was managed and no encounter was took place.

16.     PW-1 further deposed during his examination of chief that he made efforts for arranging the private mashirs but could not succeed, therefore, H.C Mazahar Ali and P.C Deedar Ali Bhatti were made mashirs, on the contrary PW-2 deposed during his cross examination that no efforts were made to associate the private witnesses or mashir which creates very serious doubt in the prosecution case.

17.     Recovery from the appellants was not proved by the prosecution at the trial that which weapon was recovered from which accused and the witnesses were unable to identify weapons, in this regard during the cross-examination on the suggestion of counsel for appellants PW-1 stated that, “It is correct to suggest that at the time of recovery of weapons, No mark was made by me on each and every weapons in order to see that which weapon was recovered from which accused”. Whereas the mashir of the recovery PW-2 deposed during cross-examination that, “It is correct to suggest that there is no sign/mark over the weapons/case property, which are available in the court in order to show that which weapon has been recovered from which accused”.

18.     The prosecution also failed to establish the safe custody of the recovered weapons and hand-grenades, we have carefully examined the entry No.10 dated 20-06-2018 which is available at page 151 of the paper book and do not find single word about keeping the said property in safe custody or anywhere either it was kept at malkhana of the police station or was handed over to anybody.  We also noticed the letter dated 22-6-2018 written by SSP Khairpur to the SSP Special Branch Sukkur about the sending of hand-grenades which is available at page 245 of the paper book showed that the property was sent on 22-06-2018, we examined the inspection report of hand-grenades available at page 251 of the paper book which showed that hand-grenades were inspected on 27-06-2018, we surprise to see the said report which further showed that hand-grenades were inspected on 27-06-2018 under the letter of SSP Khairpur No.PB/J/1133 dated 29-06-2018, which appears to be doubtful. Reliance can be placed on the case of Shahab-u-Din v. The State reported as 2019 YLR page 1277, wherein this Court has held as under:-

                                                                          12.      Learned defence counsel has rightly argued that there was no evidence of the safe custody of the weapons at police station and safe transit to the chemical examiner. According to the evidence of prosecution, weapons and explosive substance were brought to the police station on 5.6.2014, Bomb Disposal Unit initially examined the explosive substance at police station after 12 hours of the recovery without explanation of the delay in the examination of the explosive substance at the police station. It may be mentioned here that report of the National Forensic Science Agency Ex:10/I reflects that explosive substance was sent to the expert on 21.6.2017, after about two months of the recovery. Delay in dispatch to the chemical examiner has also not been explained. It is also come on record that weapons were sent to the ballistic expert through PC Nouman but the said Nouman has not been examined by the prosecution at trial in order to prove safe transit to the expert. We have carefully perused the evidence of the I.O. It appears that investigation officer has simply completed the formality. Plea has been raised by the accused the he was picked up by the Rangers but investigation officer failed to interrogate/investigate this aspect of the case and simply submitted the challan. Unfortunately, trial Court had also not considered the defence plea and relied upon the evidence of the prosecution witnesses without applying a judicial mind. In the case of Kamal Din alias Kamala v. The State reported as 2018 SCMR 577 the Honourable Supreme Court on the point of safe custody of recovered weapons has observed as under:--

                   "4. As regards the alleged recovery of a Kaiashnikov from the appellant's custody during the investigation and its subsequent matching with some crime-empties secured from the place of occurrence suffice it to observe that Muhammad Athar Farooq DSP/SDPO (PW18), the Investigating Officer, had divulged before the trial Court that the recoveries relied upon in this case had been affected by Ayub, Inspector in an earlier case and, thus, the said recoveries had no relevance to the criminal case in hand. Apart from that safe custody of the recovered weapon and its safe transmission to the Forensic Science Laboratory had never been proved by the prosecution before the trial court through production of any witness concerned with such custody and transmission.

19.     We also examined the chemical examination report of the weapons issued by the Incharge Expert, Forensic Science Laboratory, Forensic Division Larkana which is available at page 255 of the paper book and found that the property/weapons were received in the laboratory on 04-07-2018 and prosecution has failed to produce any evidence regarding the safe custody of the property from 20-06-2018 to 04-07-2018.     

20.     Admittedly, during encounter no one from either side received any injury though it was admitted by the witnesses in their evidence that accused were far away from the police for about 10 to 12 feet and further it was deposed by the complainant in his cross examination that during the encounter they were sitting in the police mobile and accused from closed range were firing upon them and they were in standing position, this aspect of the case alone is sufficient to hold the case of prosecution as doubtful. Reliance can be placed on the case of Abid and another V. The State reported as 2019 YLR 613, wherein this Court has held as under:-

                                                                                          16.      No person, apart from the appellants, being injured in the claimed police encounter, when it was claimed that the appellants shot from a short distance of 10 to 12 steps with the intention to kill; no damage to any vehicle or property as a consequence of the firing; case property not being sealed despite record to the contrary; 8 instead of 6 live bullets being produced at trial; 2 empties sealed in the bag by FSL not emerging at trial; evidence of property being tampered with; record showing that the appellants were brought to the hospital at a time when the prosecution claimed they were still lying on the ground in an injured condition at the place of incident; a remarkably hastened process of initial investigation casting doubt on its veracity---are all factors that make us form the view that the prosecution was unable to prove its case beyond reasonable doubt.

21.     We found the conduct of the investigation  officer to be dishonest as he admitted during cross-examination that complainant Darya Khan was remained his Boss and complainant admitted the fact about the enmity in between Jatoi and Ujjan tribe at the time of incident. Investigation Officer and complainant also given contradictory version about the recording of statement under section 161 Cr.P.C of the prosecution witnesses, investigation officer while deposing at first instance that “Statements of witnesses U/S 161 Cr.P.C. were recorded by me at PS-Khuhra again he denied this fact by deposing that “It is incorrect to suggest that the statements U/S 161 Cr.P.C. of witnesses were recorded at PS-Khuhra”.

22.     We also noticed that the weapons and hand-grenades were not exhibited in the evidence during the trial as articles recovered from the appellants though were available in the court and also not shown to the appellants at the time of recording their statements under section 342 Cr.P.C, which in our view create dent in the prosecution case.        The important witness which was BDU expert was not examined by the prosecution who defused the hand-grenade and issued clearance certificate so also technical report.

23.     The defense plea taken by the appellants was that there was enmity in between the Ujjan tribe (Appellant Party) and Jatoi tribe (Complainant) and that was also a time of General Elections therefore due to such enmity they all belonging to Ujjan tribe were involved in the false case. The complainant admitted this fact by deposing that “It is correct to suggest that June 2018 was the time of general election”. He further admitted in his deposition that “I am resident of village khuda Bux Jatoi near Airport Sukkur. I was posted at PS-Khuhra for about 3/4 months prior to the incident. I become acquainted with the notables within the jurisdiction of Police Station Khuhra. I know that there are villages Jam Jatoi and Dandho Jatoi within the jurisdiction of Police Station T.M.Khan. I had heard that there was dispute in between Jatoi and Ujjan community”. After careful consideration and meticulous examination of the evidence so produced by the prosecution and the defence taken by the appellants before the trial court we found that entire case was managed one.

24.     It is surprising to see the contents of FIR and the evidence produced by the prosecution before the trial court where only 07 police officials arrested the 09 accused/appellants at the spot who were armed with deadly and automatic weapons and having huge live bullets and said police officials made such recovery without any loss or damage of anybody.

25.     It is well settled principle of law that heinous nature of offence is not sufficient to convict the accused as the accused continues with presumption of innocence until found guilty at the end of the trial, for which the prosecution is bound to establish the case against the accused beyond any shadow of reasonable doubt by producing confidence inspiring and trustworthy evidence, It is also well settled principle of law that if a single circumstance creates doubt in the prosecution case its benefit must go to accused not as a matter of grace or concession but as a matter of right. The principle expressed by saying that to be on the safer side, the acquittal of ten guilty persons is to be preferred to the conviction of a single innocent person. A very high standard of proof is, therefore, required to establish the culpability of an accused person. We find in the present case that the prosecution has failed to produce confidence inspiring and trustworthy evidence against the appellants as discussed above in detail. Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR 1345), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), Muhammad Akram v. The State (2009 SCMR 230) and Muhammad Zaman v. The State (2014 SCMR 749).

26.              In view of above and while relying upon the precedents, appeals were allowed by our short order dated 07.01.2020, impugned judgment dated 26.06.2019 passed by learned Judge Anti-Terrorism Court, Khairpur Mir’s was set-aside and the appellants were acquitted of the charge. They were in jail and were directed to be released forthwith if not required in any other custody case and above are the detailed reasons of our short order. 

 

                                                                                             JUDGE

                                                                          JUDGE

 

 

 

 

 

 

Ihsan.