2018 P Cr (PLP)

ADNAN-UL-KARIM MEMON, J.

Present appeal is directed against the impugned judgment dated 26.04.2014 passed by learned Special Judge Anti-Terrorism Court, Shikarpur in S.C. No. 80/2008 Re: State v. Nawab and others, by which the learned Judge had convicted the appellant under section 302(b), P.P.C. read with section 149, P.P.C. and sentenced him to suffer imprisonment for life for each murder and to pay compensation of Rs.100,000/- to Legal heirs of both the deceased, in case of default of payment of compensation, he shall suffer R.I. for six months more. He was also convicted under section 324 read with section 149, P.P.C. for ten years and to pay compensation of Rs.10,000/- to the injured, in case of default thereof to suffer R.I. for six months more. He was also convicted under section 353, P.P.C. to suffer R.I for 02 years. He was also convicted under section 7(a), A.T.A., 1997 for imprisonment for life and to pay fine of Rs.100,000/-, in case of default thereof to suffer RI six months more. The appellant was also convicted under section 7(c), Anti-Terrorism Act, 1997 and sentenced to suffer R.I for four years and to pay fine of Rs.10,000/- and in default of payment of fine to suffer R.I. for six months more. All the sentences were directed to run concurrently with benefit of section 382-B, Cr.P.C.

2. The brief facts giving rise to the present appeal are that on 03.12.1998 at 07-00 a.m. an encounter took place between the police and dacoits Ali Bahar Teghani and his party at hideouts of dacoits on the other side of river. The party of dacoits was consisted of 40/55 dacoits. The dacoits fired from their rocket launchers and other weapons at the police party. The police party also retaliated, however, SIP Mushtaq Ahmed and PC Ghulam Hussain lost their lives, whereas PC Shah Murad sustained fire-arm injuries. The encounter continued up to sunset time thereafter the dead bodies of police officials and injured were taken to the hospital and then FIR was lodged against the dacoit Ali Bahar Teghani and 14 others who were identified by the police party at the vardat as Mehar, Noor Hussain, Nooruddin, Saifal, Panah, Nawab, Oghan, Dosoo, Hakim, Timmo, Ghousoo, Khan Mohammad, Peroze and Arslah.

3. During the course of investigation, the police arrested accused Bello, Saleh alias Deedar, Alam and Arbi, and submitted charge-sheet in the case, showing remaining accused as absconders. The case proceeded against the above named accused and they were convicted by the learned trial Court vide judgment dated 25.4.2002. However, the said judgment was set-aside by this Court in Crl. Jail Appeal No.D-37/2002 vide judgment dated 21.2.2003.

4. Subsequently, on 17.05.2010 Appellant Oghan and co-accused Nawab and Khan Muhammad were arrested. The learned trial Court framed the amended charge against appellants Nawab and Khan Muhammad, who pleaded not guilty and claimed trial. During the course of trial, accused Nawab and Khan Muhammad were released on bail by this Court, who later on jumped the bail. Consequently, case proceeded against the appellant Oghan only.

5. During trial proceedings, the learned trial Court examined. P.W-1 Dr. Abdul Rasheed Abro, Ex.16. PW-2 ASI Muhammad Ramzan Ex.17. PW-3 SHO Abdul Hameed Ex.19. PW-4 HC Imamdin Ex. 20, he produced FIR copy Ex. 20/A. PW-5 PC Shah Murad Ex.21. PW-6 PC Ali Nawaz Ex.22. PW-7 PC Ali Nawaz Ex.24, he produced photostat copy of 164, Cr.P.C. statement Ex.24/A.

6. The statement under section 342, Cr.P.C. of appellant was recorded at Ex. 27 wherein he denied the allegations and pleaded false implication. Appellant examined himself on oath under section 342(2), Cr.P.C. at Ex.28.

7. After considering the material available on record, the learned trial Judge convicted the appellant as mentioned above under the impugned judgment. The appellant being dissatisfied with the impugned judgment has preferred the present appeal.

8. Mr. Ali Ahmed Khan, learned counsel for the appellant contended that the impugned judgment rendered by the learned trial Court is against the basic spirit of criminal justice system thus not sustainable in the eyes of law. He next argued that the learned trial Court failed to appreciate that the case against the appellant could not be proved beyond the reasonable shadow of doubt; that all PWs have categorically stated that prior to the alleged encounter, they did not know the accused persons then how it was possible for police to disclose their names in FIR. He next argued that the ocular evidence is not corroborated by medical evidence coupled with other evidence of the witnesses on the point of day, time and place of encounter. He next contended that PW Muhammad Ramzan and Abdul Hameed have not disclosed the name of the appellant in their deposition. He next added that no specific role was assigned to the appellant either in the FIR or in the evidence of prosecution witnesses then how he participated and with what weapon he was armed at the time of encounter. He further added that mere recognizing the appellant at the spot without corroboration with other evidence is not sufficient to prove the guilt against the appellant and to convict him without any iota of evidence which is against the basic norms of justice. He next contended that during cross-examination P.W Ali Nawaz admitted and deposed that he was examined by the learned Judicial Magistrate under section 164, Cr.P.C. on 23.10.2001, after lapse of three years from the date of encounter. He further admitted that at the time of recording his statement four accused persons were arrested and were produced before him which casted serious doubt in the prosecution story thus conviction of the appellant on that basis is not sustainable in the eyes of law. He next contended that P.W Shah Murad admitted that appellant was not known to him prior to the police encounter nor had any relationship with him, nor he was on visiting terms or was his class-fellow; that the appellant was not arrested nor appeared at Police Station B-Section prior to this incident. Learned counsel further contended that the impugned judgment is full of material contradictions and sketchy nature and no concrete evidence was brought on record by the prosecution before the learned trial Court to prove the guilt of appellant and to award severe punishment of life imprisonment but the learned trial Court over looking all these lapses on the part of prosecution, convicted the appellant without any justifiable reasons which has caused miscarriage of justice.

9. Mr. Khadim Hussain Khooharo, learned Additional Prosecutor General has supported the impugned judgment without dilating upon the evidence of prosecution.

10. We have heard the learned counsel for the appellant and learned Additional Prosecutor General for the State and perused the material available on record with their assistance.

11. Perusal of record shows that incident of police encounter took place on 3.12.1998, Police registered FIR of encounter on the same day at about 1800 hours on the directives of higher officers with the assertion that when the police party were crossing the river at about 7-00 a.m. the police boat reached in middle of the river, the dacoits on seeing them proceeding towards their dwell started firing upon the boat and fired rocket launchers with intention to kill police party which fire hit PC-Ghulam Hussain who was sailing the boat, he fell down into the river and the boat turned over. The encounter continued and during exchange of firing, SIP-Mushtaque Ahmed Gadani and PC-Shah Murad received firearm injuries at the hand of dacoits. It is further added in the FIR that they saw dacoits who were 40/45 in number and police, officials identified them to be one Ali Bahar, Mehwal, Noor Hassan, Saifal, Panah, Nawab, Oghan, Doso, Hakim, Timoo, Ghouso, Khan Muhammad, Feroze and Arsallah, all by caste Teghani. It is added by them that SIP-Mushtaque Ahmed succumbed to injuries and died.

12. We have scanned the entire evidence of the prosecution witnesses, it reflects that PW Muhammad Ramzan (Ex. 17), PW SHO Abdul Hameed (Ex.19), PW Shah Murad (Ex.21) and PW Ali Nawaz (Ex.22) did not deposed anything against the appellant, so much so, they did not take the name of appellant in their deposition so much so PW Shah Murad has deposed that the accused persons were standing at the distance of 2-1/2 kilometers away from police party while PW Ali Nawaz, deposed that he was standing at the distance 1-1/2 furlong from them. PW Imamuddin (Ex.20) although identified the appellant but admitted that the appellant was not known to him. None of the prosecution witnesses was able to give ocular account of the incident with specific role of the appellant. Even, none of the prosecution witnesses have deposed about the position of appellant at the occurrence and about weapon he had and if we consider the distance between the police party and accused party in the light of deposition of PWs Shah Murad and Ali Nawaz it is humanly impossible to identify the person specially after sun set and in thick jungle. It is also a matter of record that though the name of appellant is mentioned in the FIR as accused/ dacoit but no previous record of the appellant in respect of offences he had committed earlier has been produced, even none of the prosecution witnesses have been able to depose anything showing that the appellant was previously known to him, under such circumstances merely identifying the appellant in court at the time of evidence by some of the PWs without giving any account of his role in the alleged incident is not sufficient to convict the appellant, in commission of alleged incident.

13. We would like to refer the judgment dated 21.02.2003 passed by this Court in Cr. J.A. No. S-37 of 2002, whereby co-accused Belo, Saleh, Alam and Arbi were acquitted in same crime on the same set of allegations and evidence brought by the prosecution and the prosecution has also levelled the same charge against the present appellant.

14. For the foregoing facts and reasons we are of the considered view that prosecution has miserably failed to establish guilt of the appellant therefore, the instant appeal is allowed the conviction and sentence awarded to the appellant vide impugned judgment dated 26.04.2014 is set aside and appellant is directed to be released forthwith if not required in any other case. These are the reasons of our short order dated 07.6.2017, whereby the appellant was acquitted. JK/O-2/Sindh Appeal allowed.