2008 P Cr (PLP)

KHAWAJA NAVEED AHMED, J.

The present criminal miscellaneous application has been filed by the eight applicants namely Muhammad Aslam Khan, Irfan Ali Bahadur, Syed Safdar Ali Shah, Inspector Ishaq Lashari, Sub-Inspector Asif Jameel Qureshi, Inspector Sarwar Khan, Mir Faroosh, and Nazeer Ahmed alias Nazroo who are facing trial in case F.I.R. No. 101 of 2006 Police Station Sakrand under sections 364, 302, 342, 201, 202/34, P.P.C. seeking Quashment of the proceedings pending against them in the Court of Sessions Judge, Nawabshah. Main ground urged in the present application is that the charge against the present applicants is groundless and even in case the entire police record in the hands of prosecution is taken into consideration, still there is no possibility of conviction of any of the accused persons who are Government servants and have served imprisonment as under trial prisoner for a period of more than a year. This is a much publicized case and whole controversy started when F.I.R. No.101 of 2006 was lodged at Police Station Gadap by Application No.1 Muhammad Aslam Khan, who was at the relevant time posted as Head of Lyari Task Force, A.D.R.C., Karachi. The contents of F.I.R. No.101 of 2006 Police Station Gadap are reproduced hereunder:

"On 12-7-2006, statement under section 154, Cr.P.C. Duty Officer, Police Station Gadap Town, Karachi. Today on 12-7-2006, I, S.P. Aslam Khan, head of Lyari Task Force, A.D.R.C., Karachi received information through special spy that accused Mashooq Brohi, who is wanted in cases of abduction for ransom and other heinous offences to Sindh Police and Government of Sindh for whom the Government has announced award on his arrest namely Mashooq Brohi dead or alive. D.S.P. Irfan Bahadur, Umer Shahid Hamid T.P.O., Lyari, Inspector Muhammad Ishaq Lashari, Sub-Inspector Asif Jamil Qureshi, Sub-Inspector Muhammad Iqbal, Sub-Inspector Mir Faroosh, Inspector Nasirul Hassan S.H.O. Police Station Baghdadi, Inspector Ozair Shah, S.H.O. Police Station Sher Shah, Inspector Muhammad Ismail Lashari A.S.-I. Arif Shah A.S-I., Mujeeb, A.S.-I. Muhammad Ameer, A.S.-I. Abdul Ghani, Lyari Town, A.S.-I. Raja Khalid and the employee on Government Mobiles reached at Konkar Road, Dagara Hotel on the road and surrounded the area when at the time of 0730 hours, accused Mashooq Brohi with his three companions riding on silver colour car on which number plate of ADG-648 was affixed were coming. Upon pointation made by accompanying special spy they were given signal to stop when accused Mashooq Brohi who was sitting on the driving seat. Suddenly with his three companions opened fire and started firing on me, S.P. and accompanying officer with an intention to kill and had thus interfered in the performance of Government duties. Firing was so harsh that if not countered there was apprehension of loss of lives, therefore, for such reasons and for self-defence, I S.P. countered the firing in response. In encounter accused Mashooq Brohi got injured and his three companion accused firing on the police escaped from the place of incident. Injured accused Mashooq Brohi, in whose possession Kalashnikov without number and ten live loaded rounds with chamber magazines were recovered and from his Shalwar's Nefa on left side, one pistol .9 mm without number and 6 rounds loaded magazine and from front seat one unnumbered repeater with 5 rounds was also recovered. On the back seat one magazine SMG in which 28 rounds were loaded was also recovered. Accused Mashooq Brohi was arrested according to rules in presence of the witnesses namely (1) Inspector Muhammad Ishaq Lashari, and (2) Inspector Nasirul Hassan. Recovered unlicensed arms and ammunitions were taken into possession by police and were sealed at the spot. At once, injured accused Mashooq Brohi was sent for treatment through Inspector Sarwar Khan and employees on Government Mobiles to Jinnah Hospital along with special spy. The name of absconding accused was known as (1) Yamin, and (2) Siddique Kalhoro Abro, whom I, S.P. can identify if they appear. Injured accused Mashooq Brohi and his absconding companions. Such actions falls within the provisions of sections 353/324/186/34, P.P.C. and 13-D of the Arms Ordinance. The car of the accused bearing Registration ADG-648 Honda City was taken into possession by the police from which firing at the accused persons in Government Mobile No.SP-6364 was made resulting into the loss. The offence has been committed within the jurisdiction of this police station, therefore, statement by hand' through Sub-Inspector Amir Faroosh for registration of case is sent herewith. After registration of case for future investigation, Copy of the, F.I.R. and the statement may be sent to T.P.O." On the other hand it came in the press that notorious criminal Mashooq Brohi was not killed in encounter as was claimed by applicant Muhammad Aslam and his team, but the deceased person was another person namely Rasool Bux Brohi, who was husband of Lal Bibi. Lal Bibi had lodged F.I.R. No.101 of 2006 under sections 364/302/342/201/ 202/34, P.P.C. against the entire police team, who had participated in the encounter in which according to them notorious criminal Mashooq Brohi was killed. Mst. Lal Bibi had lodged F.I.R. No.101 of 2006 at Police Station Sakrand, which is reproduced hereunder:-- "The complaint is that I am working in the houses and I am doing domestic work in the house and reside at the aforementioned address. My deceased husband Rasool Bux son of Muhammad Brohi aged about 34-35 years was working at Hub Chowki on the land of Iqbal Memon. On 7-7-2006, Muhammad Shoukat, Rasool Bux and his cousin Muhammad Siddique came to village from Hub Chowki where they disclosed the name of Khadim Brohi who is resident of Hub Chowki who had stated that he is coming to Sakrand and shall arrange for the father Muhammad Ismail brother Muhammad Hassan and uncle Ibrahim their respective sureties. My father-in-law, brother-in-law and uncle Ibrahim who were detained at Central Prison, Hyderabad. On 8-7-2006 Khadim Brohi had telephoned on the mobile phone of my husband and stated 'that you both should not come as he is reaching Sakrand himself. Upon this my husband and cousin Muhammad Sidiq son of Muhammad Ibrahim Brohi both together prepared themselves to go to Sakrand. On 10-7-2006 at 9-30 a.m. my husband tang me up on my mobile phone and told the meeting with my nephew Rafiq and he wants to talk with uncle Hashim and stated that Rs.2,000 are to be arranged and for that Khadim Brohi and Nazir Brohi are guarantors. He further stated that he, Siddique and Nazir Khashkheli are going to Hyderabad by bus. Rafiq stated that he will talk to me after some time. At about 9-45 a.m. Rafiq spoke with my husband on mobile phone and stated that he could talk with father Hashim but my husband's mobile was switched off. At the evening time from Sakrand Khadim Brohi talked with my husband's nephew Rafiq on telephone and stated that he has got them departed namely Rasool Bux, Siddiq and Nazir Khaskheli in Bus No. P-0118 to Hyderabad and with them in the said bus Shoib Khan Chandio, resident of Village Hakim Chandio, Taluka Sakrand was also accompanying. I informed Ghulam, Qadir Brohi that your guest Nazir alias Nazroo Khashkheli along with guarantors has gone. At that time it was 9-45 a.m. near link road, National Highway, which goes towards Hyderabad, near village Mir Khan Laghari Road, one Government .mobile and private car some persons were sitting in police uniform and without uniform that is in plain dress who brought your guest from the bus and took them blind-folded. I also watched them and look for them, they tried their best but found nothing. On 13-7-2006, I saw in the newspaper the photographs of my husband was printed in the newspaper and there was a news captioned that dacoits "Mashooq Brohi" has been killed in police encounter by S.P. Choudhary Aslam, head of Lyari Task `Force A.D.R.C., Karachi seeing the photographs, I along with my mother-in-law, whose name is Pathani and my husband's uncle Ghulam Hussain reached Karachi where at Edhi Centre Sohrab Goth at the cold storage I identified the dead body of my husband I requested the Edhi Centre people for the delivery of dead body of my husband who upon such demand required a police letter. I went to police and demanded the letter. The police stated that you say that this dead body is of "Mashooq Brohi" but I refused and when I said that this body is of my husband Rasool Bux Brohi. Upon this police refused to give the letter and the dead body. Again on 18-7-2006 I reached Karachi and received the dead body of my husband Rasool Bux Brohi from police and brought the same at village. Accordingly burial took place. Thereafter, the result is that I being the complainant at the police station against Ch. Aslam and members of his team A.D.R.C. at the above place of Wardat who have killed my husband Rasool Bux Brohi with an intention to kill and his cousin Siddique Brohi and Nizam Khaskheli and had taken them to Karachi where my husband Rasool Bux Brohi had been kept in illegal custody for two days and after giving torture to him in the name of dacoit Mashooq Brohi and had murdered him in false police encounter and remaining to have been kept at a secret place. This is coincidence that number of both the F.I.Rs. is 101 of 2006, but police stations and their sections of law are different even the complainants are different. The learned counsel for the applicant has informed this Court that after registration of F.I.R. by Gadap Police at the instance of S.P. Muhammad Aslam Khan, a Human Rights Case bearing No.3861-K of 2006 was filed before the Honourable Supreme Court in respect of murder of Rasool Bux Brohi and the entire legal machinery was put in motion, which resulted registration of version of Mst. Lal Bibi in the shape of F.I.R. No.101 of 2006 at Police Station Sakrand. The said F.I.R. has already been reproduced above. However, the Honourable Supreme Court while disposing of the human rights case mentioned above was pleased to observe as under:

"The trial Court to proceed with the matter independently without being influenced in any manner from the present proceedings." The learned counsel has also drawn my attention towards two F.I.Rs. viz. F.I.R. No. 61 of 2003 registered at Police Station Hoosri under section 412, P.P.C. and other F.I.R. No. 59 of 2003 registered at Hyderabad on 4-6-2003 under sections 302, 147, 148, P.P.C. read with section 324, Q&D Ordinance. These both F.I.Rs. had implicated one Nooral. The complainant of both the above mentioned F.I.Rs. had approached the Honourable Supreme Court and Honourable Supreme Court had registered Human Rights Case No.6354 of 2006 against the family members of Mashooq Brohi. It was submitted by the learned counsel for the applicant's that after lodging the F.I.R. Mst. Lal Bibi (wife of deceased), Mst. Pathani (mother of the deceased), Muhammad Ismail (father of the deceased), Muhammad Hashim (father-in-law of the deceased) and uncle Ghulam Hussain had appeared before the Justice of Peace on 8-8-2006 duly empowered under the provisions of section 22-A of the Code of Criminal Procedure as Magistrate at Karachi and had stated that they had lodged the F.I.R. at the instance of their relatives against the police officials. However, they further stated that they had appeared before the Investigating Officer along with their affidavits vide Station Diary arrival Entry No.10 and Departure Entry No.17, and had disowned their earlier statements had exonerated the present applicants from the charge. The Investigating officer had recorded further statements of the said Prosecution witnesses and complainant who had not implicated the applicants with the commission of alleged offence. It was also submitted that not only the above said prosecution witnesses have exonerated the applicants but on 10-10-2006 Muhammad Azeem, Ali Hasan and Sahib Khan Chandio have appeared before the Investigating Officer and denied the facts narrated by the complainant Lal Bibi, in the F.I.R. They had not the case of the complainant as stated by her in First Information Report. It was contended by the learned counsel for the applicant's Aamir Mansoob Qureshi that the case of the prosecution rests upon the evidence of seven witnesses namely (1) Azeem Khan (The Driver of the Bus), (2) Ali Hasan (Conductor of the Bus), (3) Nazro Khaskheli, (4) Sahib Khan, (5) Ghulam Qadir and Muhammad Siddique alias Panhi. Learned counsel while referring the statements of the above referred prosecution witnesses contended that none of the above said witnesses have implicated the applicants in their statements recorded before the learned Judicial Magistrate (Sakrand) at Nawabshah. The star prosecution witness namely Muhammad Siddique alias Pandhi has retracted from his statement under section 164 of Criminal Procedure Code and have filed constitutional petition before this Honourable Court bearing No.500 of 2006 stating therein that his statement under section 164 of Criminal Procedure Code was recorded by police under duress and under coercion. It was further pointed out that star witness Muhammad Siddique also made statement in shape of an affidavit before the learned Sessions Judge Nawabshah on 16-11-2006 who is seized of the case. Learned counsel for the applicants emphasized that after filing of such affidavit the Court had framed the charge and had examined the alleged sole star witness of the prosecution case namely Muhammad Siddique alias Panhi under the direction of the Honourable Supreme Court in Criminal Bail Petition bearing No.33-K of 2007. The witness has turned hostile to the prosecution. It is further submitted that alleged incident had taken place on 10-7-2006, while F.I.R. had been lodged on 21-7-2006, after the delay of more than 11 days after deliberations and consultation. It is argued that deceased Mashooq Brohi had assumed different names in order to conceal his identity. His names are Mashooq Brohi, Noor Muhammad alias Nooral alias Rasool Bux, alias Mashooq Brohi, alias Khairo alias Allah Dino. It was further submitted that D.N.A. test was conducted and the same was received by the Senior Superintendent of Police Investigation Zone-III, Karachi under report dated 2nd September, 2006 issued from the Ministry of Science and Technology, Government of Pakistan, 87, West Canal Bank Road, Thokar Niaz Baig, Lahore. The learned counsel had also pointed out and drawn the attention towards the D.N.A. report which is reproduced hereunder:

"Centre for Applied Molecular Biology Attention: Senior Superintendent of Police Investigation Zone-III Karachi. Subject: D.N.A. Test in case F.I.R. No.101 dated 12-7-2006 under sections 53/324/186/34 Police Station Gadap, Investigation Zone-III, Karachi. Evidence Material Received: Following evidence material was received by hand of Inspector Dilawar Hussain Police Station Gadap Zone-III Karachi on 19-7-2006. A sealed envelope bearing one seal of "ASHML" containing nails of deceased Mashooq Brohi son of Muhammad Ismail Brohi. Standard samples received A sealed envelope bearing two seals of "ASHML" containing blood sample of Mst. Pathani wife of Muhammad Ismail Brohi in a tube. . A sealed envelope containing blood sample and saliva sample of Muhammad Ismail Brohi. Items Description 1.0 Nails of deceased Mashooq Brohi. 2.0 Blood samples of Mst. Pathani wife of Muhammad Ismail Brohi. 3.1 Blood sample of Muhammad Ismail Brohi son of Saindad 3.2 Saliva sample of Muhammad Ismail Brohi son of Saindad. Methodology: Deoxyribonucleic acid (D.N.A.) was isolated from above mentioned items except item 3.2 (Saliva sample of Muhammad Ismail Brohi) by organic extract procedure and amplified by polymeruse chain reaction (PCR) using AMPF/S identifier kit. The amplified products were analyzed on 3100 Genetic Analyzer. Results: The D.N.A. profile obtained from item 1.0 (nails of deceased) shares the allele at each locus with the D.N.A profile obtained from them 2.0 (Blood sample of Mst. Pathani) and item 3.1 (Blood sample of Muhammad Ismail Brohi). D.N.A. analysis was not conducted on item 3.2 (Saliva sample of M. Ismail Brohi). Conclusion: Mst. Pathani (item 2.0) and Muhammad Ismail Brohi (item 3.1) are the biological parents of deceased Mashooq Brohi (item 1.0). (Sd.) (Sd.) Mr. Manzoor Hussain Dr. Shaheen N. Khan Research Officer Incharge CAMB Forensic Services CAMB Forensic Services Laboratory Laboratory" Learned counsel further invited my attention that case F.I.R. No.101 of 2006 of Police Station Gadap lodged by applicant No.1, Muhammad Aslam Khan was disposed of under class "B". The applicant No.1, had filed Criminal Miscellaneous Applications bearing Nos.258 and 259 of 2006 against the order of learned Magistrate who had accepted the report under section 173, Cr.P.C. under Class "B". The said order was set aside by this Honourable Court with the direction to reinvestigate the case headed by the I.-G.P. The case was Re-investigated and challaned in the Court. The learned counsel has relied upon the following authorities:

(1) Ch. Muhammad Ashraf v. The State 1990 PCr.LJ 347, (2) Imtiaz Hussain and others v. The State 1991 MLD 1980, (3) Muhammad Sultan and others v. The State 1996 PCr.LJ 1508, (4) M.S. Khawaja v. The State PLD 1965 SC 287, (5) Moin-ul-Islam v. The State 1992 PCr.LJ 1641 (6) Muhammad Hanif Pathan v. The State PLD 1999 Kar. 121, (7) Imtiaz Hussain, and others v. The State 1991 MLD 1980, (8) Mian Munir Ahmad v. The State 1985 SCMR 257, (9) Muhammad Khalid Mukhtar v. The State PLD 1997 SC 275 (10) Miraj Khan v. Gul Ahmed and 3 others 2000 SCMR

122. The learned Additional Prosecutor-General Mr. Saleem Akhtar has opposed the application for quashment of proceedings. His main contention is that there are 27 witnesses cited in the challan out of which certain witnesses have been examined under section 164, Cr.P.C. namely Nazroo, Ahmed, Azeem and Sahib Khan on 19-8-2006. He has argued that in this case the prosecution evidence can be divided into three parts. First part is statements under section 164, Cr.P.C. as stated above, second part is statements of the hostile witnesses and third part is reliance on the documents of counter version i.e. the case instituted by the accused persons. He has further stated that the accused have not exhausted remedy under section 265-K, Cr.P.C. and have directly come to the High Court. The learned State counsel argued that prosecution has evidence of 27 witnesses. He has relied upon case-law reported as:

(1) Bashir Ahmed v. Zafar-ul-Islam PLD 2004 SC 298, (2) The State through Advocate-General, Sindh v. Raja Abdul Rehman 2005 SCMR 1544, (3) The State v. Asif Ali and others PLD 2001 SC 536, (4) Ghulam Nabi and others v. The State 1996 PCr.LJ 1335, (5) Mehboob Alam and 3 others v. The State PLD 1996 Kar. 144, (6) Gulzar and others v. The State 1996 PCr.LJ 80 (Karachi). In reply to this Mr. Aamir Mansoob, has argued that the summons of Mst. Lal Bibi and other witnesses have been issued for more than 15-20 times but they are not appearing. He states that all the applicants belong to Karachi Police and their going to Nawabshah is dangerous for their lives. They are posted on high rank of police and need security of life for attending the Court proceedings. I have perused the entire record produced before me and the case law referred by the parties. I myself am of considered view that provisions of section 561-A, Cr.P.C. are neither additional nor alternate remedy and it should not be invoked unnecessarily. I am also of the view that High Court should not assume the role of trial Court under its inherent jurisdiction and trial Court should be allowed to perform its duty in the normal course. I am in agreement with the case-law produced by both the parties. In criminal cases the case-law is always applicable in accordance with the facts of each case. As far as, the facts of present case are concerned these are very peculiar in nature. Here in this case the police party has claimed encounter of a dacoit while complainant party had claimed kidnapping and cold-blooded murder of an innocent person, who was not a dacoit. Police party claims that dacoit had assumed different names and was using different identities in order to conceal his real identity. We are not living in a scientific era. During these days the science and technology has advanced so much that identity of a man can not be concealed. D.N.A. test is almost a conclusive proof of one's identity. In my humble opinion after receipt of the report of D.N.A. test in respect of identity of Mashooq Brohi, the entire controversy should have been resolved and the case of Mst. Lal Bibi should have been closed by the prosecution. I do not understand how the prosecution has challaned both the cases in the Court i.e. one of encounter and other lodged by Mst. Lal Bibi. Since Mst. Lal Bibi has lost interest in the case and all the relatives of deceased Rasool Bux have resiled from their earlier statements and have disowned the prosecution case, in my humble opinion proceeding with the case will be an exercise in futility. Only eight applicants have applied for quashment of proceedings while the remaining accused have not applied to this Court. However, after going through the entire record of the case I am of the considered view that there is no possibility of conviction of the accused in this case even if entire evidence in the hands of prosecution is brought on record. The report of D.N.A. test in respect of deceased in case F.I.R. No. 101 of 2006 Police Station Gadap has falsified the claim of the complainant and her witnesses in this case. I therefore, quash the proceedings pending in the Court of Additional Sessions Judge, Nawabshah against all the accused. Criminal Miscellaneous Application No.101 of 2008 stands disposed of. H.B.T./M-115/K Proceeding quashed.