1994 P Cr (PLP)

Appellant Sadru Shaikh alias Kashmir Khan alias Faqira son of Kehar Khan in Criminal Appeal No.173 of 1993 and appellant Badloo Kosh alias Gulloo son of Dhani Bux in Criminal Appeal No.174 of 1993 were both jointly tried by the learned VIth Additional Sessions Judge, South Karachi who by his judgment, dated 28-4-1993 convicted both the appellants under section 307/34, P.P.C. and sentenced them to suffer imprisonment for life. In addition, both the appellants were also convicted for an offence under section 353, P.P.C. and sentenced to suffer R.I. for one year and fine of Rs.5,000 or in default of payment of fine to undergo R.I. for six months more. The said sentences were ordered to run concurrently. Both the appellants challenged their said conviction and sentence under the aforesaid appeals. As the said appeals arise out of the same judgment, the same are being disposed of by this consolidated judgment. The prosecution case is that on 17-10-1986 a police party was keeping a watch at Bungalow No.L-185, Block 13-D, Gulshan-e-Iqbal, Karachi when at about 9-15 a.m. two persons came on a motor-cycle at the said bungalow. They knocked the door of the said bungalow, at that time, A.S.I. Niaz Ali who was incharge of the police party identified those two persons to be Sadru Shaikh and Badloo Kosh. They tried to catch hold of the said accused but they started firing and also tried to escape. On account of their firing, Police Constable Sur Buland received fire-arm injury and fell down. The accused persons were chased and when they reached Block-D between House Nos.R-47 and R-95, Head Constable Zamarud fired with his rifle causing injury to Sadru Shaikh who fell down while the other accused Badloo Kosh managed to escape. In the meanwhile Inspector Noor Ahmed Shaikh, S.H.O. of Police Station Gulshan-e -Iqbal also reached there who recorded the 154, Cr.P.C. statement of the Head Constable Zamarud. The said statement is supposed to have been forwarded to Police Station Gulshan-e-Iqbal through Constable Anis Ahmed but neither copy of the F.I.R. was produced through any witness nor Constable Anis Ahmed was examined in this case. Even the Investigating Officer, Inspector Noor Ahmed Shaikh could not be examined as he is said to have expired. The investigation was conducted by the police and finally after recording the statement of the witnesses, the challan was submitted. To prove its case the prosecution examined P.W.1, Constable Zamurud, complainant, VW.2 Constable Sur Buland Khan injured, P.W.3 H.C. Khalid Pervez, P W.4 Ghulam Sarwar an independent witness, P.W.5 Inspector Abdul Hameed, Investigating Officer, P.W.6 Dr. Abdul Ghafoor and P.W.7 Dr. Captin Niaz. In addition, Court-witness, A.S.I. Syed Muhammad Shoaib was examined regarding none availability of some witnesses. After the conclusion of the trial the prosecution side was closed and the statements of both the appellants were recorded under section 342, Cr.P.C. The statement of appellant Sadru is Exh.26. He has denied the prosecution allegations and stated to have been falsely implicated in this case. He neither wished to be examined on oath nor wanted to examine any defence witness. The statement of Badloo Kosh is Exh.27, he has also denied the prosecution allegations and claimed to have been falsely implicated. He also did not wish to be examined on oath nor wanted to examine any defence witness. At the conclusion of the trial, both the appellants were convicted and sentenced by the trial Court as already mentioned herein above. I have heard both the learned counsel Mr. M. Ilyas Khan and Mr. Shaukat Hayat, Advocates for the two appellants and Mr. S.ZA. Qureshi, Advocate for the State. Learned counsel submitted that the copy of the F.I.R: has been deliberately suppressed while the date and time of recording the 154, Cr.P.C. statement has not been mentioned. Regarding the medical certificate, the same are photostat copies and there is overwriting. No identification parade was held in this case as admitted by P.W.5 There is major contradictions in the evidence of the witnesses regarding the incident. Material Police Officer have not been examined in this case. The motor-cycle, on which the two accused are said to have arrived at the spot, was never recovered and there is no explanation about the same. Mashirnama of Wardat has not been prepared in this case but the memo. of arrest indicates a different place of incident. There is supposed to have been an encounter but no empties have been secured from the place of Wardat. On account of material shortcomings in the prosecution case, Mr. S.ZA. Qureshi, learned counsel for the State did not support the impugned judgment. I have carefully' gone through the evidence available on record and I have also perused the impugned judgment. After carefully evaluating the evidence on record, I have no hesitation in observing that the impugned judgment is not sustainable for the reasons which I shall presently discuss. The prosecution case rests heavily on the evidence of four material witnesses namely P.W. Constable Muhammad Zamarud, P.W. Constable Sur Buland Khan, P.W. Head Constable Khalid Pervez and P.W. Ghulam Sarwar if we compare the evidence of these witnesses, it will be noticed that each of them is giving a different version of the manner in which the incident has taken place. According to P.W.1 Constable Muhammad Zamarud, he is the complainant in this case and according to 154, Cr.P.C. statement lodged by him, he had stated that it was A.S.I. Niaz Ali who had seen and identified the two accused when they had knocked the door and it is only when they tried to catch hold of the accused that they started running away. It was by their firing that Constable Sir Buland Khan received injury. The accused persons were chased and in Block 1-D between House No.R-47 and R-95 he had shot appellant Sadru Shaikh in his leg. When this witness is examined in Court, he has given a different version. In his examination-in-chief he states that they were sitting inside the bungalow when two persons came and knocked at the door, the door was opened and the two persons seeing them in uniform, started firing as a result of which Head Constable Sir Buland Khan received fire-arm injury on his leg. This means that the said injured Sir Buland Khan must have received injury when he was inside the room of the said house but according to the 154, Cr.P.C. statement the police party was not stationed inside the house nor Sir Buland Khan received injury inside the house. Again according to this witness one pistol and four live bullets were recovered from appellant Sadru Shaikh but according to Mashirnama of recovery Exh.9 one .32 bore revolver and 5 empties have been recovered. This witness was cross-examined and in the cross-examination he has made some fantastic admissions which is not part of the prosecution case. For instance, he admits in his cross-examination that when they went at the said bungalow for duty, nobody opened the door but the door was lying open and they locked the same from inside. In respect of the culprits he admits that they entered from the back door and directly came in the room where they were sitting. This admission clearly belies the version given by him in his 154, Cr.P.C. statement. Admittedly, no identification parade has taken place in this case. According to this witness he has not mentioned in what manner the two accused had come to the said house. As compared to what has been stated by complainant Muhammad Zamarud, P.W.2 Constable Sir Buland Khan states that on the said date he alongwith others were on watch outside Bungalow No.185 and that they were sitting at a distance of 20 yards from the said house when the two persons came on a motor-cycle at the main entrance of the bungalow, this obviously mean at the gage of the bungalow. This witness states that it was at that time they encircled the accused and tried to apprehend them when appellant Sadru Shaikh fired and hit him at his right leg and Head Constable, Zamarud also fired which hit Sadru Shaikh. It may be noted if this version is correct, then both Constable Sir Buland Khan and appellant Sadru Shaikh must have received injuries outside Bungalow No.185-L but the Mashirnama of arrest shows otherwise. In the Mashirnama of arrest it is mentioned that the accused persons were actually chased by the police party at some distance and it was between two houses in Block 1-D when accused Sadru Shaikh was arrested after he had caused injury to Constable Sir Buland Khan. Constable Sir Buland Khan admitted in his cross-examination that on the date of incident they were not sitting inside the bungalow. The third witness Constable Khalid Pervez gives a third version. According to him when they reached at the said bungalow they were sitting at the door of the bungalow when two persons came on the motor-cycle and started firing on them. This version is contrary to the one given by the complainant and P.W. Sir Buland Khan. It may be mentioned that according to the prosecution no identification had taken place in this case but this witness Constable Khalid Pervez states that identification parade did take place and that he had picked out appellant Badloo Kosh in the said identification parade when the accused was mixed with 20 to 25 other persons. He even states that the motor-cycle was secured by the police but there is no Mashirnama to that effect. Another circumstance which is to be noted is that according to 154, Cr.P.C. statement the accused persons had come on, a motor cycle which was without registration number but this witness P.W. Khalid Pervez states that the motor-cycle was with registration number. In his cross-examination he had admitted that many people had gathered at the Wardat at the time of incident but the surrounding neighbours have not been examined as witnesses in this case. The fourth witness P.W. Ghulam Sarwar is supposed to be an independent witness. He is shown to be resident of House No.116, Block 13-C, Gulshan-e-Iqbal. According to this witness the incident took place at 9 a.m. near his house when two persons came in a rickshaw, they got down from the rickshaw and at that time, the police personnel were in private dress. They were encircled by the police when there was exchange of firing. This witness has admitted in his cross-examination that he has acted as Mashir of arrest in this case in respect of appellant Sadru Shaikh and the other accused from the said bungalow. It may be mentioned that it is not the prosecution case that co-accused Badloo Kosh was also arrested at the spot. This witness further admits in his cross-examination that accused Sadru Shaikh did not fire at the police party. This witness denied a suggestion that he had stated in his police statement that the incident had taken place in bungalow No.L-116, Block 13-G but P.W.5 Abdul Hameed, Investigating officer, has admitted in his cross-examination that, according to the statement of this witness, the incident had taken place near bungalow No.L-116. It may be noted that according to the 154, Cr.P.C. statement the incident started from bungalow No.185-L and ended between House No.R-4? and R-95. It will thus appear that P.W. Gulfam Sarwar who is the only independent witness in this case his evidence is also contrary to the 154, Cr.P.C. 8tatemerit and contrary to the prosecution case. From the discussion of the evidence of the aforesaid witnesses, it will appear that all the four of them have given different versions. The evidence of the said witnesses is contrary to the case as set up in the 154, Cr.P.C. statement and their evidence is intra contradictory also. It appears that the witnesses are not even aware where the incident started and where it ended. Apart from the aforesaid witnesses, A.S.I. Niaz Ali who is supposed to have identified appellant Sadru Shaikh at the time of Wardat has not been examined without any explanation. Inspector Noor Ahmed Shaikh has also not been examined and A.S.I. Syed Muhammad Shoaib has been examined to that effect but he did not examine any witness nor ascertained the death of Inspector Noor Ahmed Shaikh or the non-availability of two private witnesses P.W. Ghulam and Mirza Atique. Dr. Abdul Ghafoor has been examined by the prosecution as injured appellant Sadru Shaikh was medically examined by him. He has produced the medical certificate which shows that there is overwriting and it is photostat copy. Under one of the column the history is shown as "assault" and the word "assault" has been scored off and on its right side, it is mentioned "encounter". The same position is there in respect of medical certificate of injured Constable Sir Buland Khan. The entire evidence on the record after its appraisal clearly indicates that the incident did not take place in the manner as alleged by the prosecution. At this stage another question also arises whether it was the police who started the firing or it was accused who had fired first at the police. The place where the incident had taken place is not certain, there were empties and a revolver was recovered as per the prosecution case but there is no explanation why it was not sent to ballistic expert for report. The learned trial Judge under point No.2 has observed that a revolver has been recovered alongwith five empties from appellant Sadru Shaikh which shows that the accused had fired at the police but the learned trial Judge lost sight of the fact that Constable Muhammad Zamarud stated in his evidence that it was a pistol and four live bullets which were recovered. The version which has been given by Constable Zamarud in his 154, Cr.P.C. statement was not corroborated by him as per his version in Court. As already mentioned the four material witnesses have given four different versions as to how the accused came, how the incident started, where they were positioned, at what place the accused fired on the police etc. All these circumstances do not establish the case that the appellant attempted to kill any member of the police party. It may be noted that appellant Sadru Shaikh was arrested at the spot but that by itself will not establish the prosecution case. In order to establish its case, the evidence which has come on record contradicts the prosecution case. In my opinion it was necessary in this case to prepare the Mashirnama of Wardat but surprisingly neither A.S.I. Niaz Ahmed prepared the Mashirnama of Wardat nor the investigating Officer P.W.5 Inspector Abdul Hameed prepared the same as admitted by him. In these circumstances it is difficult to believe the case and the version as set forth by the prosecution. Consequently, the case against both the accused/appellants appears to be doubtful and accordingly they are entitled for an acquittal. In the light of my above discussion, both the appeals are allowed and the conviction and sentence awarded to the appellants is set aside. The appellants are to be released forthwith if they are not required in any other case. N.H.Q./S-1068/K Appeals accepted.