2011 PLP 2194 (YLR)

SALMAN HAMID, J.

In terms of Order dated 1-2-2005, the learned Vth Additional Sessions Judge, Larkana, (Vth A.S.J,L), exercising powers under section 203, Cr.P.C. dismissed direct Complaint No.11 of 2005 preferred by Allah Wassayo son of Haji Muhammad Saffar (complainant).

2. Aggrieved by such an Order, present Criminal Revision Application under sections 435 and 439, Cr.P.C. (Cr.R.A) was filed by the above mentioned complainant.

3. The facts for the purposes of disposal of the Cr.R.A are that the complainant, filed the referred direct complaint before the Vth ASJ,L against proposed accused named therein i.e. Muhammad Sadiq who was TPO Sadar Larkana, at the time of filing of the complaint and Abdul Malik who was then S.H.O. Rasheed Waggan Police Station and against four unidentified police constables of the referred police station on the allegations that on 16--3-2005, when the complainant was sitting in his Otaq with his family members, with his deceased son Zulfiqar Ali and Haji Pir Bux and Muhammad Waris, above-named accused who were plain clothes and armed with weapons, barged into the Otaq and took away complainant's deceased son Zulfiqar Ali on the allegation that the deceased Zulfiqar Ali was required for investigation.

4. To the dismay of the complainant, on the next day i.e. 17-3-2005, he received information on cell phone from his two relatives namely Mashooq and Manzoor, that dead body of deceased Zulfiqar Ali is lying in CMC hospital, Larkana. It was also informed by the above two relatives to the complainant that at such time they also saw Abdul Malik Bhutto, S.H.O. Police Station Rasheed Waggan and other police constables in the hospital. Upon their arrival at the hospital they tried to find out the reason of death of deceased Zulfiqar Ali from the police but to no avail. Instead they received threats of dire consequences from the police that if any complaint is made against them by the complainant it would not be good. Dead body of Zulfiqar Ali was taken from the hospital; last rites were performed and thereafter above direct complaint under section 200, Cr.P.C. was filed against the accused mentioned therein for offences punishable under sections 302, 342, 504 and 220, P.P.C.

5. After necessary inquiry and/or evidence of the witnesses from the complainant side, Vth ASJ,L came to the conclusion that the evidence, that was led from the complainant's side was insufficient, inconsistent and full of doubts. Therefore, the complaint failed.

6. Learned counsel for the applicant argued that the impugned Order instead of holding preliminary inquiry has acquitted the accused persons which was not warranted under the law; and that though there was overwhelming evidence available against the proposed accused, complaint was dismissed by Vth ASJ,L by getting influenced by the fact that it was against police officials.

7. Defending the impugned Order, the learned State counsel, argued that the impugned Order is just and proper and has been passed after looking into the evidence minutely that was brought on record and the Vth ASJ,L having come to the conclusion that no case was made out, the complaint was dismissed and rightly so. It was also mentioned that in fact deceased Zulfiqar Ali lost his life in a police encounter and that he was required in many criminal cases.

8. Heard arguments. Perused the record.

9. Evidence of the witnesses namely Muhammad Waris and Pir Bux and that of the complainant would show that the same was consistent with the contents of the complainant and there was nothing available in the evidence to discredit the same. The postmortem report dated 17-3-2005 would show that Zulfiqar died because of firearm injuries. It would further show that deceased Zulfiqar Ali received lacerated punctured wound measuring 3/4 c.m x 3/4 c.m deep on the mid-right side of the back which was shown to be a bullet entry wound. The postmortem report would further show that yet another lacerated punctured would measuring 3/4 c.m x 3/4 c.m muscle deep on upper point of back of left thigh inverted margin entry wound was available. The Report prima facie shows that both the wounds had been caused from the bullets which entered deceased Zulfiqar Ali from behind/back. It therefore, prima facie suggests that deceased Zulfiqar Ali was made to run by the police and was killed to show that his death was an out-come of police encounter.

10. Looking the case from this angle, it appears that the ground of encounter as taken by the police was an afterthought and had been raised to cover up their acts of omission and commission, whereby innocent life of Zulfiqar Ali was lost.

11. Coming to the argument of the learned counsel for the State that the deceased Zulfiqar Ali was required in criminal cases, it would be clear from the documents placed on the record that F.I.R No.130 of 2001 under sections 324, 353 and 17/3 H.O of Police Station Taluka was cancelled, whereas other F.I.R No.20 of 2005 under sections 379, 215, P.P.C. of Police Station Taluka also met the same fate. Third F.I.R No.4 of 2005 under sections 353, 324, 401, P.P.C. of Police Station Rasheed Waggan in which F.I.R he was taken away from the Otaq of the Complainant, Zulfiqar Ali was shown, "killed". All this goes to prove, prima facie, that indeed Zulfiqar Ali was taken away from his Otaq forcibly and subsequently he was killed, seemingly in a fake police encounter. Even if for the sake of arguments it is accepted that Zulfiqar Ali was a notorious criminal and he was wanted in criminal case and/or criminal cases were pending against him, still it was open to no one to take his life in the manner and fashion it has been seemingly taken by the accused persons named in the complaint. Zulfiqar Ali has been deprived of fair and unbiased trial. Every person is innocent, unless proven guilty through process of court of law.

12. Having said as much, this brings me to the specific observations of the Vth ASJ,L. It is mentioned in the impugned Order that Allah Wassayo, the Complainant mentioned in his statement before the court that Zulfiqar was not available with them. It is unfortunate to note that the Vth ASJ,L on its own reached to such a wrong conclusion inasmuch as that in the deposition of Allah 'Wassayo, the complainant, it is clearly mentioned that "on 16-3-2005, I along with Pir Bux, Muhammad Wario was available in my house when a police mobile came and the police enquired about Zulfiqar who was also available with us." Thus it was clearly mentioned by the complainant that deceased Zulfiqar Ali was available with them in the Otaq. It is best known to the Vth ASJ,L that despite such deposition of the complainant, why he recorded and/or observed otherwise? As to the observation of the Vth ASJ,L as available in the impugned Order that, "the complainant has neither got recorded the statement of any person of the locality nor even cited the name of any such person in support of his claim nor produced any documentary evidence to show that he had agitated the matter before the higher authority of police after taking away his son by above named accused forcibly from his house" is of no significance inasmuch as that if the Complaint would have been admitted, all that is required of would have been followed. This chance was snatched away by the Vth ASJ,L by passing the Impugned Order.

13. It is very astonishing to note that in the impugned Order it was mentioned that, he (complainant) has disclosed [any] "no reason about his failure to get held the postmortem of the deceased". The postmortem report dated 17-3-2005 must have been available on record, the contents whereof have also been reproduced above, which clearly shows that indeed postmortem of deceased had been undertaken which prima facie shows that he was hit from behind.

14. Looking at the case and/or the impugned Order from the above angles, I find that grave injustice has been caused to the complainant by refusing to entertain his complaint and its dismissal by the Vth ASJ,L. Under the circumstances, the impugned Order is set aside and the concerned court is directed to bring the complaint on regular file and proceed with it expeditiously in accordance with law.

15. The Cr.R.A is disposed of in terms of the above.

16. A copy of this Order be forwarded to M.I.T to look into the matter and take appropriate action against the concerned Judge who passed the Impugned Order. H.B.T./A-72/K Order accordingly.