IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR
Special Anti-Terrorism Appeal No.D-66 of 2015
Before;
Mr. Justice Zafar Ahmed Rajput
Mr. Justice Irshad
Ali Shah
Appellants: 1. Mumtaz
Ali Machhi.
2. Roshan Ali Machhi.
(Now confined at Central prison Sukkur)
Through Mr. Shabbir Ali Bozdar
advocate.
The State: Through Mr. Syed Sardar Ali Shah Rizvi, Additional
Prosecutor General Sindh
Complainant. Ghulam Mustafa
through Mr. Ghulam Murtaza
Korai, advocate.
Date of hearing: 12-01-2023
Date of judgment: 12-01-2023.
J U D G M E N T
IRSHAD ALI SHAH, J- It is alleged that the appellants with rest of
the culprits being members of wandering gang assembled at National Highway
adjacent to police picket Deh Moro Taluka Moro, to commit dacoity
and in that way deterred the PC Ghulam Muhammad and PC Yaqeen
Ali from discharging their lawful duty as public servants by making fires at
them with intention to commit their murder, as a result of such fires, PC
Ghulam Muhammad lost his life and then they fled away by taking away with them his
official Rifle, for that the present case was registered. On investigation, the
appellants and co-accused Rustam, Qurban
and Sain Rakhio were challaned, their case was amalgamated with the cases relating
to recovery of unlicensed weapons and police encounter and they were charged
accordingly, which they denied and prosecution to prove it examined in all 14
witnesses and then closed its side. The appellants and the said co-accused in
their statements recorded u/s 342 Cr.P.C denied the
prosecution’s allegation by pleading innocence, they examined none in their defence or themselves on oath. On conclusion of trial
co-accused Rustam, Qurban
and Sain Rakhio were
acquitted while the appellants were convicted u/s 302, 149 PPC r/w section 6/7
(a) ATA and sentenced to undergo Rigorous Imprisonment for life; they were
further convicted u/s 13 (e) West Pakistan Arms and sentenced to undergo
Rigorous Imprisonment for 03 years and to pay fine of Rs.10,000/- and in
default whereof to undergo simple imprisonment for 03 months by learned Judge,
Anti-Terrorism Court, Naushahro Feroze,
vide judgment dated 03-08-2015, which was impugned by the appellants before
this Court by preferring three separate appeals. Subsequently, the appeals
relating to recovery of unlicensed weapons on completion of jail terms were not
pressed by the appellants and were disposed of accordingly.
2. It is contended by learned counsel for
the appellants that they being innocent have been involved in this case falsely
by the police at the instance of the complainant; it was night time incident,
therefore the identity of the appellants was doubtful; the weapons and the
empties have been subjected to expert examination with delay of about four
months and on the basis of same evidence, co-accused Rustam,
Qurban and Sain Rakhio have been acquitted. By contending so, he sought for,
acquittal of the appellants by extending them benefit of doubt. In support of
his contention he relied upon case of Zeeshan @ Shani Vs. The State (2012 SCMR 428)
3. Learned APG for the State and learned
counsel for the complainant have sought for dismissal of the instant appeal by
contending that the appellants themselves have accepted the impugned judgment
by not pressing the disposal of their appeals relating to recovery of
unlicensed weapons, the prosecution has been able to prove its case against
them beyond shadow of doubt and their case is distinguishable to that of the acquitted
accused.
4. Heard argument and perused the record.
5. It was inter-alia stated by complainant Ghulam Mustafa that he was
wireless operator in police department and on the night of incident was on
leave. Nothing has been brought on record, which may suggest that on the night
of incident, the complainant was on leave. It was further stated by the
complainant that PC Ghulam Muhammad was his nephew and together with PW/PC Yaqeen Ali was performing his duty at the place of
incident; he and PW Mumtaz Ali went to serve dinner to
them, which they took and in the meanwhile there assembled the appellants and
others being armed with Kalashnikovs and guns with intention to commit dacoity and then they deterred the PC Ghulam Muhammad and
PW/PC Yaqeen Ali from discharging their lawful duty
as public servants by making fires upon them with intention to commit their
murder. PC Ghulam Muhammad sustained fire shot injuries, the appellants and
others then made their escape good by taking away with them by his official Rifle,
there came PW Ghulam Hussain
Dahiri SHO PS Moro who referred PC Ghulam Muhammad in
injured condition to Taluka Hospital Moro through PW/ASI
Sharif Wagan. The evidence of PW/SIP Ghulam Hussain Dahiri is silent with regard to the availability of the complainant
at the place of incident. As per postmortem report the death of deceased was
instantaneous, if it is believed to be so, then it
belies the complainant that the PC Ghulam Muhammad was referred to Taluka Hospital Moro in injured condition. It was further
stated by the complainant that they then tracked the foot prints of culprits
through PW/PC Arbab Ali, which led them to the Otaq of appellant Mumtaz Ali. PW/PC
Arbab Ali has not been examined by the prosecution.
His non-examination could not be overlooked. It was essential to prove that the
foot prints of the culprits were actually tracked. It was further stated by the
complainant that PC Ghulam Muhammad died of such injuries and then he lodged
the report of the incident with Police Station Moro. Initially, names of the
appellants alone were disclosed therein. Subsequently, names of the co-accused Rustam, Qurban and Sain Rakhio were disclosed by the
complainant before police on 9th day of incident by way of further
statement. As per PW/PC Yaqeen Ali, it was he, who
actually disclosed the name of appellant Mumtaz to
the complainant. If it was so, then identity of the appellant Mumtaz Ali by the complainant in person was doubtful. On
asking, it was stated by the complainant that the incident lasted for one
minute. PWs Mumtaz Ali and PW/PC Yaqeen
Ali belied the complainant in that respect by stating that it lasted for about 08/10
minutes. As per medical officer PW/Dr. Abdul Haq, the
dead body of deceased was brought at Taluka Hospital Moro
by PC Manzoor and he was found sustaining bullet
injuries. PWs ASI Sharif and PC Manzoor have not been
examined by the prosecution. Their examination was essential to prove that the
deceased died at spot or on his way to Taluka
Hospital Moro or otherwise. The FIR of the incident has been lodged with delay
of about 17 hours; such delay has not been explained plausibly by the
prosecution as such same could not be overlooked. It was the case of
indiscriminate firing; yet, none excepting the deceased sustained the fire shot
injuries, which has put cloud of doubt on the versions of complainant and his
witnesses with regard to their availability at the place of incident. Perhaps
in that context, it was contended by learned counsel for the appellants that
the incident had taken place in a manner, other than the one as is alleged by
the prosecution. None was examined from the locality to ascertain the
correctness of the incident; such omission could not be ignored on the part of
I/O SIP Abdul Majeed. It was stated by I/O SIP Abdul Majeed that appellant Mumtaz Ali
surrendered at Police Station, while appellant Roshan
Ali was apprehended after encounter, subsequently from them were recovered the
crime weapons and robbed Rifle, those as per learned counsel for the appellants
have been foisted upon them, if for the sake of arguments, it is believed that
those have not been foisted upon them, even then such recovery is not enough to
maintain conviction against the appellants in murder charge for the reason that
those weapons together with empties have been subjected to forensic examination
with delay of about four months to its recovery. None has been examined by the
prosecution to prove the safe custody and transmission of the said weapons and
empties to forensic expert. The disposal of the appeals, relating to Arms
Ordinance case, other than merits, on completion of jail terms, may not be
taken a conclusive proof to hold the appellants guilty of the murder charge. By
awarding no punishment to the appellants for offence punishable u/s 324, 353,
402 and 393 PPC, they impliedly have been acquitted for said Penal sections,
even by learned trial Court. On the basis of same evidence co-accused Rustam, Qurban and Sain Rakhio have already been
acquitted by learned trial Court by extending them benefit of doubt. In these
circumstances, it is rightly being contended by learned counsel for the
appellants that the appellants too are entitled to such benefit.
6. In case of Muhammad Asif vs
the State (2008 SCMR 1001), it
has been held by Hon’ble apex Court that;
“…..yet there is a delay of about two hours
which has not been explained. Similarly P.W.7 stated during cross-examination
that the police reached the spot at twelve noon and about half an hour was
consumed in conducting inquest proceedings and thereafter the dead body was
sent to the hospital. He further stated that he accompanied the dead body which
was taken in a wagon to the hospital and that it took only 15 or 20 minutes in
reaching the hospital. In that case the dead body would have been received at
the hospital by 1-00 p.m. On the contrary, the doctor, who is an independent
witness, stated that he immediately started post mortem examination after the
receipt of body and the time of post-mortem given by him was 4-50 p.m. that
means that the body remained at the spot for quite some time. The F.I.Rs. which are not recorded
at the police station suffer from the inherent presumption that the same were
recorded after due deliberations…...”
7. In case of Sardar Bibi and others
vs. Munir Ahmed and others (2017 SCMR 344), it
has been held by the Hon’ble Apex Court that;
“When the
eye-witnesses produced by the prosecution were disbelieved to the extent of one
accused person attributed effective role, then the said eye-witnesses could not be relied upon for the purpose
of convicting another accused person attributed a similar role without
availability of independent corroboration to the extent of such other accused”.
8. In
case of Muhammad Mansha
vs The State (2018
SCMR 772), it has been held by the Hon’ble
Apex Court that;
“4….Needless to mention that while
giving the benefit of doubt to an accused it is not necessary that there should
be many circumstances creating doubt.
If there is a circumstance which creates reasonable doubt in a prudent mind
about the guilt of the accused, then the accused would be entitled to the
benefit of such doubt, not as a matter of grace and concession, but as a matter
of right. It is based on the maxim, "it is better that ten guilty persons
be acquitted rather than one innocent person be convicted".
9. In view of above, the conviction and
sentence awarded to the appellants, (the subject matter of instant appeal) are
set-aside, consequently, they are acquitted accordingly, they shall be released
forthwith, if not required to be detained in any other custody case.
10.
Above of the reasons of short order
dated 12-01-2023, whereby the instant appeal was allowed.
JUDGE
JUDGE
Nasim/P.A