Cr.Acquittal Appeal No.D-69 of 2010.
Mr.Justice
Ahmed Ali Shaikh.
Mr.Justice Salahuddin Panhwar.
-
Appellant: Lal Bux through Mr.Nizamuddin Baluch
Advocate.
Respondents: Muhammad
Rafique and others through Mr.A.R.Farooq
Pirazada Advocate.
Mr.Zulifquar
Ali Jatoi DPG.
Date of Hearing: 15th Novmber, 2012.
J U D G M E N
T. -
SALAHUDDIN PANHWAR, J- Appellant/complainant Lal Bux has assailed
the order dated 5.7.2010 passed by the Judge Anti-Terrorism Court, Sukkur in
Special Case No.32/2010 title Re.State v Muhammad Rafique and others whereby
application under Section 265-K, Cr.P.C moved on behalf of respondents/accused
was allowed and they were acquitted.
2. Concisely the relevant facts of the
prosecution case are that on 20.07.2005 at 0830 hours, complainant Lal Bux
Shambani lodged the report with Police Station Kandhra, alleging therein that
he and his uncle Mail Khan Shambani aged about 45/50 years used to reside
together in the same village. In the year 2003 a dispute on the matter of
agricultural land occurred between the complainant party and Rafique Ahmed
Shambani and in that dispute several persons were killed from both the sides
and such cases are pending trials against each other in the Sessions Court,
Sukkur. It is alleged that Rafique Shambani party was threatening that they
will kill the complainant party and will get revenge. On the day of incident
i.e 20.07.2005 complainant and his relatives namely Mail Khan, Badshahdino,
Subhan, Motan, Miro Khan, Allah Jurio, Ashique Hussain, Ghulam Shabir and Aslam
all resident of own village deh Ghanghiro proceeded from their village and were
going towards Sessions Court, Sukkur for attending the Court and they reached
near Tool Plaza near village Shambani and while they were waiting for some vehicle,
at about 6.20 AM in the morning they saw one tractor trolley coming from
northern side on which accused namely Rafique, Umed Ali, Ghous Bux, Rasheed,
Bachal, Shamasuddin, Aslam, Talib, Moula Bux, Pinyal, Adam, Ahmed, Muhammad
Hassan, Rehman, Qadroo, Sanaullah, Ali Gohar, Shamroze, Rajoo, Bahawal, all
Shambani by caste armed with Kalashinkovs and guns were present and they
suddenly alighted from the tractor trolley and overpowered upon complainant
party. It is further alleged that accused Pinyal and Bahawal Shambani
instigated rest of the accused to kill the complainant party, thereafter on
such instigation the accused persons opened direct fires from their respective
weapons upon the complainant party. Accused Bahawal and Pinyal had also fired
upon the complainant party and in the firing of accused persons, complainant and
PW Aslam at once fell down on the ground and took shelter of the Babar trees
and in the ditches beside the road.l The
fire shots of accused hit to Mail Khan, Badshahdino, Subhan, Motan Khan, Meero
Khan, Allah Jurio, Ashique Hussain and Ghulam Shabir Shambani. Thereafter all
the accused persons went away on the same tractor trolley towards southern side
by raising slogans. In the meanwhile on the fire shots reports Sachal and
Mukhtiar Shambani came running there and the complainant party narrated the
facts of incident to them. Then complainant saw that Mail Khan, Badshahdino,
Subhan, Motan Khan, Meero Khan, Allah Jurio, Ashique Hussain had sustained the
fire arm injuries of Kalashinkovs and guns, their blood was oozing and were
lying dead. PW Ghulam Shabir also sustained the fire arm injury and he was
lying in injured condition. Complainant then immediately sent the injured to
3. After usual investigation the accused
were sent-up to stand trial in the Court of Anti-terrorism Sukkur and
subsequently the case was transferred
from ATC-III to ATC-I, Sukkur. During the pendency of case respondents/accused
preferred an application under section 265-K, Cr.P.C. The learned trial Court
after hearing the parties allowed the said application.
4. Learned counsel for the
appellant/complainant has inter alia contended that the respondents/accused
were implicated in a heinous case of murder but the learned trial Court wrongly
extending the benefit of plea of alibi acquitted the accused persons;
reinvestigation report is not binding upon the trial Court that without trial
and given an opportunity to the complainant party the impugned order was
passed, directions of the High Court were not meant to make injustice but trial
Court was bound to proceed with the case.
5. Conversely, the learned counsel for the
respondents/accused contended that the instant case was re-investigated by SP
Khairpur wherein the case against the accused so also others including police
officials was found bogus and the accused were found innocent. Being old case
directions were issued by the High Court vide order dated 20.10.2009 to
conclude the trial within a span of three months; during the investigation it
was surface that at the time of offence the accused were in police lockup.
6. Learned DPG appearing for the State, has
not supported the impugned order.
7. Heared the arguments of the learned
counsel for the parties and perused the impugned order and the material
available on record.
8. Before deciding this appeal we have to
see the scope of application under section 265-K, Cr.P.C. From plain reading of
Section 265-K, Cr.P.C a special provision is given to the trial Court that in
cases where insufficient evidence is available and there is no likelihood of
conviction in such circumstances the trial court can exercise extra ordinary
powers of Section 265-K, Cr.P.C and burry the case inception while exercising
such special powers, the trial Court has to see the record available as deemed
correct and if such available evidence will be treated as correct and true in
that position whether sufficient material is available for conviction or not.
If the trial Court comes to the conclusion that whatever material is in
possession of the prosecution, if it would bring on record , and it deems as
correct is even then there is probability of conviction in such circumstances
trial Court has power to acquit the accused persons. On this analogy we have to
examine instant case. Since the trial Court has relied upon the reinvestigation
therefore it will be pertinent to reproduce the same:-
“From the re-investigation of the above
murder case the facts came on record that on 20.7.2008 ASI Ghulam Shabir
Panhyar was incharge at PP Gendahoo PS Sorah, where complainant Muhammad
Rafique Shambani and Shamasuddin Shambani lodged N.C reports and both the
parties were called by I/C PP for enquiry on 18.7.2005, Muhammad Rafique,
Shamroze and other party Muhammad Bachal, Muhammad Rasheed, Shamasuddin and
Saleem appeared at PP where the parties quarreled each other. ASI Ghulam Shabir
Incharge PP Gendaho PS Sorah in order to avoid further clash, took preventive
action in between the parties U/S 107/151 Cr.P.C, arrested them and produced
them before the SHO and also such proceeding was submitted before the competent
court of Civil Judge & Judicial Magistrate, Nara and the accused persons were
confined at Sub Jail Nara. ASI Ghulam Shabir Panhyar had performed his lawful
duty and his arrest in the above murder case is against the law and he is
innocent at all in the murder case. SIP/SIO Ashfaque Ahmed Shaikh has entangled
ASI in the murder case with ulterior motives. On the day of incident accused
Muhammad Rafique, Shamroze, Muhammad Bachal, Abdul Rasheed and Shamasuddin
Shambani were confined in Judicial Lockup Nara and they had not come out from
Sub Jail, no evidence against HC Jalaluddin Shar incharge Judicial Lockup Nara
has come on record so he is also innocent in the case and further that the
accused persons namely Umed Ali, Ghous Bux, Aslam, Talib, Moula Bux, Pinial,
Adam, Bahawal all Shambani by caste were available in the “Khairat” of Sardar
Ahmed Khan Shambani on the day of incident”.
As to the ground of plea of alibi on which
the accused persons have been acquitted, admittedly except complainant none has
been examined specially to substantiate the plea of alibi accused persons have
not examined a single witness nor trial Court has made any efforts to verify
the veracity and authenticity of plea of alibi.
9. As to the reliance made by
reinvestigation it is suffice to say that now it is a authoritative proposition
of law that investigation or reinvestigation report is not binding upon the
trial Court, moreover if it was the case of two version but trial court has
failed to put the same in a juxta position.
10. As to the directions of High Court for
concluding the trial within three months, does not mean that under influence or
under the garb any Court can be permitted to curtail the basic procedure and
nock-out the trial on merits.
11. It is pertinent to mention that the
complainant party was not having trust upon the presiding officer for which was
transfer application was filed but inspite of that the trial Court issued NBWs
against prior witnesses and in pursuance of NBWs complainant was arrested and
was produced before the trial Court. Trial Court made attempt to examine the complainant
but he refused on his refusal he was sent to prison and on the next day again
was produced but he action refused to depose thereby State Counsel declared him
as hostile and requested for permission to cross examination, therefore in
these circumstances since this is a murder case only one witness was examined,
therefore reproduction of cross examination is material:-
“I do not remember whether I had lodged FIR
on 20.7.2005 or not. I can not give the names of accused persons who had
committed the offence. I do not remember the exact place of incident.
Note:-The demeanor of the witness is
objectionable. This case was fixed for evidence on 29.6.2010 and NBWs were
issued against the PWs. On 29.6.2010 the complainant appeared and the learned
SPP asked him to record his evidence, but he refused to give evidence, although
his presence was secured through MNW issued against him hence he was asked by
the SPP of this court as well as the Presiding Officer of this court to record
his evidence, but he refused to do so and he was asked to furnish surety in
view of the subsistence of the NBW against him, but he failed to furnish surety
as well, thus he was remanded to custody for want of the surety and the case
was adjourned to 30.6.2010. Again this PW/complainant was asked by the SPP to
given evidence in the court, but he flatly refused. He was also called in court
and was asked by the Presiding Officer to give evidence or to furnish the
surety but he refused either to give evidence or to furnish the surety, therefore,
he was remanded to jail and the case was adjourned for today. Today he has been
put in the witness box for recording his evidence in presence of the parties
and their advocates, his conduct is arrogant in replying questions of the
learned SPP. In view of his evasive replies to the relevant questions of the
learned SPP and in view of his harsh behavior the learned SPP declared him
hostile and sought permission for his cross examination which was allowed. In
reply to the questions of learned SPP in cross examination of the witness he
adopted the same arrogant conduct saying that he does not know any thing and he
cannot give the names of accused persons of this case and that he cannot give
the exact place of incident. In view of such situation such statement is
recorded”.