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.