2016 P Cr (PLP)

SHAHAB SARKI, J.

Appellant Hazaro Pitafi has impugned the judgment dated 29.04.2014 passed by the learned IVth Additional Sessions Judge, Mirpur Mathelo in Sessions Case No.202 of 2012 (State v. Hazaro and others) arising out of Crime No.01/2012 of Police Station, Dad Laghari for offences under Sections 324, 353, 368, 371-A, 147, 148, 149, P.P.C. whereby he was convicted under section 147 read with section 149, P.P.C. to undergo R.I for 02 years and to pay fine of Rs.5000/- to each victim and in default to suffer S.I. for one month, for offence under section 148 read with section 149, P.P.C. to undergo R.I for 03 years and fine of Rs.5000/- to each victim and in default thereof to suffer S.I. for one month, for offence under section 324 read with section 149, P.P.C. to undergo R.I. for 10 years, for offence under section 353 read with section 149, P.P.C. to undergo R.I. for 02 years, for offence under section 368 read with section 149, P.P.C. to undergo R.I. for 10 years and fine of Rs.5000/- to each victim and in default to suffer S.I. for one month and for offence under section 371-A read with section 149, P.P.C. to undergo R.I. for 10 years and fine of Rs.5000/- to each victim and in default to suffer S.I. for three months. All the sentences were directed to run concurrently and benefit of section 382-B, Cr.P.C. was also extended in his favour.

2. Brief facts of the prosecution case, as per the FIR lodged by complainant SIP/SHO Abdul Hameed Shaikh of Police Station, Dad Laghari are, that on 31.12.2011 he was available at the Police Station when he received spy information that one Hazaro (present appellant) along with his accomplices had abducted three women from Faisalabad for the purpose of selling them and he is going to cross Bridge of Mitho Shahani on his way towards Kherohi. Thereupon the complainant informed the SSP Ghotki and requested for Police aid and he along with his other staff members reached at the pointed place where a special team of ASI Gamno Khan also reached and at about 1900 hours, from about 100 or so paces, they identified the present appellant along with others on the light of Government Vehicle and saw that the appellant and others, being armed with Kalashinkovs and shot guns, were taking three women and crossing the Bridge. The police officials allegedly got off from their vehicles and asked the accused party to surrender but they started firing upon the police party with intention to commit murder, whereupon the police party also retaliated and such firing continued for about 15 minutes. The prosecution story further is that all the accused managed to escape under the cover of darkness and three women came towards the police party and stated that they had gone to Faisalabad to purchase clothes, where one Mst. Muneeran Punjabi took them to her home and mixed some intoxicants whereupon all the three women were taken from Faislabad and thereafter they were secured today because of police intervention. It is further stated in the FIR that these three ladies gave the names of three unidentified persons who had shot guns as Liaquat, Amjad and Muneer Punjabi.

3. Subsequently, the mashirnamas were prepared and on 03.01.2012, 164, Cr.P.C. statements of all the three ladies namely Maria alias Seemi alias Mumtaz, Mst. Razia Kalsoom alias Kiran and Mst. Sajida were recorded by the IInd Civil Judge and Judicial Magistrate, Mirpur Mathelo, in which all the three ladies stated that they went to one Muneeran's house as she was a lady tailor where Amjad and Liaquat were also available and the said Muneeran served them intoxicated food whereafter they all became unconscious. They also stated that there were six Sindhi persons available at her house and when they became conscious they found themselves in Sindh where the other persons were calling one Sindhi person as Hazaro. They further stated that they were maltreated and were being shifted to some other place when the police arrived and they were saved. Since no person was arrested at the time of recording these statements therefore there was no cross examination of these ladies.

4. The present appellant was arrested on 05.03.2012 whilst he was already in custody in some other case and was found at District Jail Ghotki. Police submitted the challan against appellant Hazaro while all the other accused were all shown as absconders.

5. The charge against appellant Hazaro under the aforementioned Sections was framed on 25.07.2012 to which he pleaded not guilty and claimed trial. One of the co-mashir namely Ghulam Shabeer, who was WHC at CIA Mirpur Mathelo was examined as PW 1 vide Exh.06 and he produced the mashirnama of recovery of women and also produced the mashirnama of the scene of offence and recovery of empties. Complainant SHO Abdul Hameed Shaikh was examined as PW 2 vide Exh. 07 and he produced the departure and the arrival entries and FIR. ASI Gamno Khan was examined as PW3 vide Ex.08 and ASI Qasim Ali was examined as PW 4 vide Exh.10 and he produced the mashirnama of arrest of the appellant. Finally Muhammad Islamul Haq who was the Magistrate, who had recorded the statements of the ladies, was examined as PW 5 vide Exh.12 and he produced the three 164, Cr.P.C. statements recorded by him.

6. Thereafter statement of appellant under section 342, Cr.P.C. was recorded and the impugned judgment was passed.

7. Learned counsel for the appellant has argued that appellant Hazaro was arrested due to enmity with the police and he has no concern with the alleged offence. He has submitted that even though the alleged encounter took place for more than 15 minutes but neither any person has been injured nor any Vehicle of the police has been damaged. He has also submitted that no independent person has been associated by the police even though they had prior information. He has further submitted that the appellant was not arrested at the spot nor any recovery has been effected from him. He has finally argued that the case under sections 324 and 353, P.P.C. is not made out from the facts of the case whereas no evidence has been led by the prosecution with regard to the offence as alleged under sections 368, 371-A, P.P.C. In this regard he has submitted that 164, Cr.P.C. statements were recorded behind the back of the appellant and no cross examination was conducted from them and neither were they produced at trial, and in such circumstances he has prayed for acquittal of the appellant and setting aside of the impugned judgment. In support of his contention, he has placed reliance upon 1994 PCr.LJ 1765 (Abdul Rasheed and others v. The State), 1993 PCr.LJ 1749 (Jaffar Iqbal and others v. The State), PLD 200 Pesh. 204 (Rizwanullah v. The State), 2006 PCr.LJ 1827 (Muhammad Arif v. The State), NLR 1980 AC 190 (Gul Muhammad v. The State) and 1971 PCr.LJ 224 (Selehon v. The State).

8. Learned DPG appearing on behalf of the State has submitted that the appellant is a habitual offender and there is sufficient circumstantial evidence to connect him with the charged offence. He has further submitted that there is no enmity of the prosecution with the present appellant and consequently no false implication can be asserted. He has further submitted that the police officials are as good witnesses as any other and their testimony cannot be brushed aside. He has finally argued that the efforts were made to produce the alleged abductees but since they were not available at the given address therefore their statements under section 164, Cr.P.C. can be considered in terms of Article 47 of the Qanun- e-Shahadat Order, 1984.

9. I have heard the arguments of the learned counsel for the parties, perused the entire record and gone through the cited case law.

10. In the instant case after careful perusal it is observed that admittedly neither any injury has been caused to the police personnel nor any of their vehicle is shown to have been damaged. There are general allegations of firing against the accused persons and no specific and overt act has been attributed to the present appellant. Although the police has allegedly recovered the empties from the place of incident but since no recovery of any weapon has been made from the present appellant, therefore it cannot be said that he made any firing or not. The police officials have also not produced any evidence with reference to ammunition which was issued to them and which was accounted for, and on this count also the case of the prosecution is doubtful.

11. Regarding the other piece of evidence against the appellant, the learned trial Court has placed its reliance on 164, Cr.P.C. statements of the three ladies. It is a well settled proposition of law that a statement under section 164, Cr.P.C. is not a substantive piece of evidence until and unless the maker of the said statement is confronted by the defence during trial. Even when the statements of the alleged victim ladies were recorded, the appellant was not available and therefore no cross-examination could take place. Learned DPG has placed reliance upon Article 47 of the Qanun-e-Shahadat Order, 1984, which is reproduced as follows:- "

47. Relevancy of certain evidence for providing, in subsequent proceeding, the truth of facts therein stated. Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable; Provided that; the proceeding was between the same parties or their representatives-in-interest; the adverse party in the first proceeding had the right and opportunity to cross-examine; the question in issue were substantially the same in the first as in the second proceeding". When the above Article is examined it provides a situation wherein the evidence given by a witness in judicial proceedings (in this case before a Magistrate) shall be relevant for the purpose of proving the stated fact. But one of the Provisos to the said Article, which controls the relevancy and admission of the evidence, is that the party against whom the said statement is being made should be provided an opportunity for cross examination, which in the instant case is not available. There are a number of judgments of the superior Courts where in a similar situation it has been held that it is the duty of the prosecution to produce its best evidence before the Court and where no right of cross-examination has been provided to an accused then it would be deemed that prejudice has been caused to him. In the criminal administration of justice it is the bounden duty of the prosecution to establish its case beyond any shadow of doubt and to put its best evidence forward. In the instant case, I am afraid that the prime evidence has not been produced before the Court in the shape of the three victim ladies allegedly recovered and therefore the prosecution has miserably failed to connect the appellant with the commission of offence under sections 368 and 371-A, P.P.C. The evidence of the police official is not sufficient to entail conviction.

12. I have also examined the case diaries of Sessions Case No.202/2012 and I find that no serious efforts were taken for procuring the attendance and consequent deposition of three ladies though BWs were issued on few dates but returned un-served.

13. In view of the aforementioned circumstances, the prosecution has miserably failed to establish its case against appellant Hazaro Pitafi, therefore the instant appeal is allowed, the impugned judgment dated 29.04.2014 passed by the learned IVth Additional Sessions Judge, Mirpur Mathelo, is set aside and the appellant is acquitted in the case. He shall be released forthwith if not required in any other criminal case. HBT/H-8/Sindh Appeal allowed.