IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Crl. Jail Appeal No. D- 13 of 2011.

Present:

Mr. Justice Naimatullah Phulpoto.

Mr. Justice Salahuddin Panhwar.

Inayatullah @ Zahid @ Farho Chandio. …………...Appellant.

Versus

The State. ...…..…Respondent.

Mrs. Najaf Shah, Advocate for the appellant.

Mr. Imtiaz Ali Jalbani, A.P.G.

Date of hearing: 23.04.2014.

Date of Judgment: 22.05.2014.

J U D G M E N T

Salahuddin Panhwar, J-. Through above captioned appeal, appellant has assailed the judgment dated 19^th January, 2011, passed by learned Judge, Anti-Terrorism Court Larkana in Spl. Case No.50/2009 “Re-Inayatullah @ Zahid @ Farho & others, whereby learned trial Court convicted appellant Inayatullah @ Zahid @ Farho and absconding accused Saleem and Arebello Chandio under sections 324,34 PPC r/w Section 6/7 of ATA 1997, and sentenced them to suffer R.I for ten years each, with compensation payable to the victims/injured persons to the tune of Rs.50,000/- each. In default whereof to suffer R.I for six months more. Through same judgment learned trial court also convicted the appellant under section 13(d) of Arms ordinance 1965 and sentenced to suffer R.I for seven years, with fine of Rs.25,000/- in default whereof to suffer R.I for six months more. All sentences were ordered to run concurrently with benefit of Section 382(b) Cr.P.C. to the appellant for the period he remained in custody during course of trial.

2. Succinctly, relevant facts of the prosecution case are that on 16.9.2009, on behalf of the State, SIP / SHO Saifullah Bughio of PS Waris Dino Machhi lodged FIR at police station Dhamrah, contending therein that “last night some culprits had caused injuries to HC Ghulam Mustufa Qureshi and PC Ghulam Murtaza Jarwar of Police station Ratodero and their official weapons were also snatched from them, so he was directed by high ups through wireless for making Nakabandi, thus complainant party left police station Waris Dino Machhi in government vehicle No.SP-6101 under roznamcha entry No.14 at 1930 hours; reached at road leading from Larkana to Ratodero, where the SPO Ratodero ordered them to make Nakabandi at Aitbar Chandio link road. Under such directions complainant party at 0400 hours reached at link road leading towards village Haji Aitbar Chandio near bridge of the minor (Wah) where, under the head lights of mobile they saw four persons, with open faces, coming from Southern side, they were identified as Inayatullah alias Zahid alias Farho son of Ameer Ali by caste Chandio r/o Masti Khan Chandio armed with repeater, Saleem armed with Kalashnikov, Arbelo armed with guns both sons of Abdul Haleem Chandio resident of Taluka Larkana, Dawoo alias Daman son of Faqir Mohammad Malangi r/o near Mirwah Taluka Larkana armed with gun. They, in order to commit offence waylaid them, thereby complainant party introduced their identity as police; meantime all four accused while deterring the police party from discharging their lawful duty caused straight firing upon them in order to commit their murder. During this another mobile of Dhamrah police station, headed by ASI Ghulam Rasool Tunio, joined them. Then police party took their positions at the side of road and retaliated the firing of accused. During the encounter the accused Saleem Chandio had fired from his Kalashnikov upon PC Mohammad Ramzan Jatoi which hit him on his left leg; accused Inayatullah alias Zahid alias Farho fired from his repeater upon PC Haji Khan Mamnani which was hit him on his left elbow and left leg. Accused Saleem Chandio straightly fired from his Kalashnikov upon PC Mohammad Yaseen Abbasi which hit him on his left arm and right arm. After an encounter of 10 minutes three accused persons made their escape good while accused Inayatullah alias Zahid alias Farho Chandio was apprehended by police alongwith repeater and bag of cartridges. Due to non-availability of private mashirs, mashirnama was prepared in presence of PC Altaf Hussain and PC Haroon Khan. Accused and property were brought at police station where complainant lodged the FIR(s).

3. After necessary investigation police submitted challan/charge sheet whereby appellant was shown in custody while accused persons namely Saleem, Arbelo Chandio and Dawoo alias Daman Malgani were shown as absconders. Proceedings under section 87/ 88 Cr.P.C were completed against absconding accused persons by learned trial court except accused Dawoo alias Daman who was reported to have died hence proceedings against him were abated.

4. After completing such legal and procedural formalities and that of Section 265( c ) Cr.P.C, the charge was framed against appellant and two absconding accused persons, to which he pleaded not guilty and claimed for trial.

5. To substantiate its case, prosecution examined PW-1 ASI Ghulam Rasool Tunio as Ex.15 who produced copies of two FIRs as Ex.15-A and 15-B; PW-2 PC Ali Gul as Ex.16; PW-3 TC Haji Khan Mamnani as Ex.19; PW-4 complainant SHO Saifullah as Ex.20 who produced entry and mashirnama of arrest of accused and recoveries from him as Ex.20-A to 20-B respectively; PW-5 SIP Zahid Ali Abro as Ex.21 who produced mashirnama of seeing injuries of injured persons and place of vardat as Ex.21-A to 21-B respectively; PW-6 PC Ali Bux as Ex.24; PW-7 PC Altaf Hussain as Ex.25; PW-8 HC Mohammad Zaman Jatoi as Ex.26; PW-9 HC Mohammad Yaseen as Ex.27 and PW-10 Dr. Ashok Kumar as Ex.28 who produced provisional and final medical certificate as Ex.28-A to 28-E respectively. Thereafter, learned SPP submitted statement for calling second mashir PC Ali Bux as Ex.23. Thereafter, side of prosecution was closed vide statement as Ex.29.

6. The appellant in his statement, recorded at Ex.30, under section 342 Cr.P.C while denying the prosecution case, professed his innocence, however, he did not examine himself on Oath nor led evidence in his defence as provided under section 340 (2) Cr.P.C.

07. Learned counsel for the appellant has contended that according to prosecution occurrence had happened in night time and accused persons were identified on the source of light with specific allegations, even it is alleged that who caused injuries to whom, thus the manner thereof is no appealable to a prudent mind; weapon recovered from the appellant was neither sealed at the spot, nor same was sent for ballistic expert, though it is claimed that such weapon was used in the incident. It is also case of the prosecution that police in retaliation caused fire shots upon accused persons but none received injury from accused side even mobile parked there were not damaged. According to mashirnama three injuries were received by P.W Haji whereby medical certificate shows, he received only two injuries; per prosecution that some accused persons caused “Danda” blows to police official and snatched their official weapons thereby they chased and after encounter with accused persons they apprehended the appellant, whereas F.I.R states that police officials were on patrolling when they reached at link road of Aitbar Chandio, above accused persons armed with weapons were available with intention to commit offence they signaled them, thereafter, they caused firing, thus both versions are contradictory to each other. It is alleged that appellant caused injury to PC Haji Khan but no final medical certificate was produced, even P.W Haji khan did not bother to get his x-ray, though that was required by doctor for final medical certificate. In support of contentions, counsel relied upon case of Abdul Majeed v. The State (1998 P.Cr.L.J 1847), M. Siddique and others v. The State (1997 P.Cr.L.J 810) and Dost Muhammad alias Sowali v. The State (2005 MLD 1489).

8. Conversely, learned A.P.G. while refuting the above contentions has argued that injured witness has categorically deposed against the appellant; sufficient evidence was available, hence sentence awarded by the trial Court is in accordance with law.

09. After careful consideration of contentions raised by the learned counsel for the appellant as well as A.P.G. and scanning the ocular, medical and circumstantial evidence, it would be pertinent to mention that the FIR is not a substantive piece of evidence but, it is just an information about the occurrence, to set the law into motion for the purpose of investigation but this position shall stand changed in matter (s), reported by police officials in cases of encounter with police, with simple reason that informant is one of the eye-witnesses and is supposed to be a well trained police official hence cannot be believed to have signed the document (FIR) with some lacuna (s) or addition therein by the recorder of the document (FIR) hence in such like cases the FIR is of a pivotal role. We would take the advantage of the case law reported in 2011 SCMR Page-45 wherein it was held:-

‘FIR carries great weight and plays a pivotal role in a criminal case. Once the complainant is examined in Court then FIR loses its that much importance and is reduced to the position to the extent to be used only to corroborate as provided U/A 153 of Qanun-e-Shahdat order or contradicts its maker in the manner as required under Article 140 of the Qanun-e-Shahadat Order”

It is a matter of record that in the instant case the prosecution has specifically claimed to have gone for Nakabandi on information that some culprits caused beating and snatched official weapons from HC Ghulam Mustufa Qureshi and PC Ghulam Murtaza Jarwar and such NAKABANDI resulted into a face-off with culprits, thus it is quite safe to say that prosecution was required to prove the root of the incident but it is quite strange that during course of trial the prosecution confined itself only to the extent of incident of face-off with culprits, hence it is a matter of record that prosecution neither examined such police officials (injured HC Ghulam Mustufa Qureshi and PC Ghulam Murtaza) nor claimed that the appellant or escaped co-accused were the same culprits who snatched official weapons from said officials after beating them. Thus, it would be safe to say that prosecution failed in attempting to establish the claimed manner of the incident.

10. The evidence of the complainant is material. The relevant portion thereof is reproduced hereunder:-

“On 16.9.2009 ….we reached at water course bridge. It was at about4.00 a.m. I saw and identified four culprits namely Inayat alias Zahid alias Pharo armed with repeater, Saleem Chandio armed with Kalashnikov, 3 Arbab Chandio armed with gun and 4 Daim alias Daoo Malgani armed with gun, who were coming from southern side and also came on the road, I identified them on Head light of our mobile vehicle. They on seeing us in police uniform opened straight firing upon us with intention to commit our murders. We police also opened straight firing upon the culprits in defence. During the encounter culprit Saleem fired with his Kalashnikov straight upon PC Mohammad Zaman which hit on left leg , accused Inayat alias Zahid alias Pharo opened straight firing with his repeater on TC Haji Khan which his on his left arm elbow and left thigh , accused Saleem opened straight fire with his Kalashnikov which hit to PC Mohammad Yaseen on his left arm and right arm, these all injured PCs fell down. Meantime, ASI Ghulam Rasool Tunio a/with his police personnel reached on spot. They also participated in the encounter. Thereafter, all the culprits opened indiscriminating firing in order to create terror in the locality. The encounter was continued for 10 minuets.

Perusal of above evidence it appears that indiscriminate firing was made by four culprits upon the police party and they were at the close distance, but surprisingly the prosecution has no where claimed that there was even a single scratch to the police mobile particularly when :

Per PW Ali Gul

“The accused persons were opening fire from Southern side of point / Saleh bridge. Accused persons were opening fires upon us at the distance of 25/30 paces’

Per PW Haji Khan

“We saw the accused persons at the distance of about 10/15 paces wherefrom the accused started firing upon us”

Per complainant Saifullah

“The culprits opened firing upon us at the distance of about 30/35 paces away. I fired 63 rounds with G-3 Rifle. …..I alighted from the vehicle immediately took position with the side of Banks of lands”

The absence of marks of firing on police mobile (s) is quite strange and unbelievable hence appears to have caused a dent in the prosecution story which, otherwise, should stand to the test of logic and reasons particularly, when it has been lodged by a well trained and qualified police official who, per his claim, is also one of the eye witnesses of whole incident.

11. There is another interesting aspect of the case which comes to light from scrutiny of the mashirnama of place of incident. It was a case of the prosecution that the culprits namely Inayat alias Zahid alias Pharo was armed with repeater, Saleem Chandio with with K. Kave, 3) Abab Chandio with gun and 4) Daim alias Daoo Malgani armed with gun. This means that out of four culprits three were armed with such weapons wherein the ‘cartridges’ were used and there had been an encounter of more than 10 minuets wherein culprits made indiscriminate firing upon the police party but quite surprisingly only ‘six empties of cartridges’ , fired by accused persons, were secured. The recovery of such numbers of empties of cartridges is contradictory to the claim of the prosecution or least create a doubt in the claim of the prosecution that there was serious indiscriminate firing by accused persons which continued upto ten minutes. The mashirnama of sirzamin further reflects that ’13 empties of G-3 and 16 of .7.62, fired by police party, were secured. The recovery, being so, also contradicts the claim of the prosecution witnesses wherein they have:

Per PW Ali Gul

‘I consumed 15 rounds in the encounter’

Per complainant Saifullah

“I fired 63 rounds with G-3 Rifle. I cannot say about the firing of rounds fired by remaining P.Cs’

Per HC Mohammad Zaman

“I consumed 77 rounds with my SMG’

“We police party opened 600/700 fires upon accused party’

12. It is worth to add here that every police official has to give the account of every single bullet, allocated to him hence when the police officials claiming to have used about 600/700 rounds then how empties in such quantities were not recovered from the place of incident. The answer to such question could be nothing but that incident was not so, as claimed by the prosecution. It is also unbelievable that use of 600/700 rounds by the police could bring no harm to four culprits, who were available at very short distance and their position was such that all the police officials, even those came during encounter, properly identified all culprits with their names, addresses and weapons, allegedly held by them.

13. At this juncture, it would be pertinent to mention that, we cannot lose sight of the fact that there are injured witnesses from the side of the prosecution who have been alleged to have received the injuries during face-off. Needless to add here that mere injuries are not sufficient to stamp the witness a witness of truth but his testimony should stand to the test of reasons and logic in circumstances of the particular case. It is a claim of the prosecution through complainant that ‘I alighted from the vehicle immediately took position with the side of Banks of lands’ hence if the police party had taken the cover / shelter of the banks of the lands it should have been their upper body which could have been exposed to firing and not lower part, therefore, seating of the injuries also brings an element of doubt towards the manner wherein such injuries have been claimed by the prosecution. Besides this, the manner in which PW injured Haji Khan avoided to get his x-ray of his injuries, allegedly caused by appellant, also allows to presume an adverse inference against the prosecution within meaning of the Article 129 of the Qanun-e-Shahadat Order. Moreover, candidly allegedly recovered weapon and cartridges were not sealed nor sent to ballistic expert with regard to status of such recovered weapon from the possession of the appellant which also allows to hold an adverse inference against the prosecution.

14. In view of what has been discussed above we are of the considered view that the manner of the incident, as claimed by the prosecution, does not stand well to the test of reasons and logics as there are number of dents in the prosecution case, thus it would not be safe to hold conviction in such circumstances because the Safe Criminal Administration of Justice always demands that ‘even a single doubt if found reasonable is sufficient to warrant acquittal of the accused’ as held in case of Muhammad Zaman (SCMR 2014 749).

15. Accordingly, the appeal is accepted and judgment of the learned lower court is hereby set-aside. Appellant shall be released forthwith, if not required in any other case crime.

JUDGE

Ansari.