2024 PLP 546 (MLD)

NAIMATULLAH PHULPOTO, J.

Appellant Umed Ali alias Umedo Narejo was tired by learned Judge ATC, Khairpur in Special Case No.40-A of 2009 arising out of Crime No.03/2009 Police Station, Phullu registered for offences under sections 324, 353, 148, 149, P.P.C. read with section 7 ATA, 1997. After regular trial, the appellant was convicted vide judgment dated 25.08.2021 for the offence under section 324 read with section 149, P.P.C. and sentenced to suffer for ten years R.I and to pay fine of Rs.50,000/- and in case of default in payment of fine, he shall suffer further R.I for six months. The appellant was further convicted for the offence punishable under section 353 read with Section 149, P.P.C. and sentenced to suffer R.I for two years. The appellant was also convicted for the offence under Section 7 ATA, 1997 and sentenced to suffer for ten years R.I and to pay fine of Rs.50,000/- and in default thereof, he shall suffer further R.I for six months. The appellant has challenged the impugned judgment through instant appeal.

2. The brief facts leading to the filing of appeal are that on 02.03.2009 SHO/SIP Maqsood Raza Manganhar of Police Station Phullu left the Police Station along with his sub-ordinate staff vide roznamcha entry No.10 dated 02.03.2009 at 15.00 hours for patrolling duty. During patrolling, it is alleged that SHO received spy information that notorious dacoits Mushtaque alias Mustoo son of Ghulam Qadir Narejo, Himath alias Yaseen son of Piyaro Narejo, Ali Gul Narejo, Murad Narejo, Muhib alias Sheedi Narejo and present appellant Umeedo son of Lal Bux Narejo were present near village Abul Narejo in the forest for committing some crime. On such information, police party proceeded to the pointed place and reached there at 1700 hours. Appellant and others while seeing the police party fired upon police party and police party also fired in their self-defence. It is the case of the prosecution that appellant was identified by SHO Maqsood Raza Manganhar and his staff. Appellant Umedo was carrying K.K at the time of incident and other culprits were also armed with K.Ks. During the encounter police officials of Police Station Tando Masti arrived for help/rescue of police party of Police Station, Phullu. It is alleged that in the encounter PC Muhammad Khan sustained fire arm injury and appellant and others succeeded in running away. Thereafter, injured PC was referred to Hospital at Gambat for his treatment and FIR was lodged against the appellant and others at Police Station, Phullu vide Crime No.03/2009 on behalf of State at 2130 hours for the offence under sections 324, 353, 148, 149, P.P.C. read with Section 7 ATA, 1997. After usual investigation, final report was submitted against the accused persons. Present appellant was shown as absconder.

3. Co-accused Muhib alias Sheedi faced the trial before the learned Judge ATC and he was convicted vide judgment dated 18.10.2012, he preferred Crl. Jail Appeal No.77/2012 and challenged his conviction. His sentence was reduced to that of already undergone; however, his appeal was dismissed vide judgment dated 10.08.2017. Thereafter appellant was arrested in some other case and he faced the trial in this case. Learned Additional P.O has pointed out that in the first round trial, the appellant was convicted in his absentia by the learned trial Court and he preferred Criminal Appeal No. D-72/2019 against his conviction in absentia, this Court vide order dated 03.09.2019 set aside the conviction and sentence awarded to the appellant in his absentia was set aside and remanded case to the trial Court for fresh trial by providing an opportunity to the appellant during trial.

4. Learned trial Court after remand of the case, framed charge against the appellant as Exh.3. Appellant pleaded not guilty and claimed to be tried.

5. At the trial prosecution examined PW-1 Inspector Maqsood Raza Manganhar, PW-2 PC Mohammad Khan Odhano (Injured/eye-witness) at Exh.08, PW-3 SIO/Inspector Hamid Ali Jumani, P.W-4 ASI Gul Bahar Korai (mashir) and PW-5 Dr. Azharuddin Farooqi. Thereafter, prosecution side was closed.

6. Trial Court recorded the statement of appellant under section 342, Cr.P.C., in which he claimed false implication and denied the prosecution allegations. Appellant further stated that he has been acquitted of the charge in a off-shoot case. The appellant did not examine himself on oath and also declined to lead evidence in his defence.

7. We have heard learned counsel for the appellant, learned Additional P.G and re-examined the evidence available on record.

8. We have come to the conclusion that the prosecution had utterly failed to prove the case against the appellant for the reasons that encounter took place on 02.03.2009 at 1700 hours and it was reported at Police Station at 2130 hours with the delay of 04 hours and 30 minutes for which no plausible explanation has been furnished by the prosecution. Prosecution case was based on spy information, it was a day time incident and the police officials had sufficient time to collect independent persons of the locality but SHO avoided. According to prosecution evidence, appellant was identified by the police officials but police officials have failed to disclose as to how they knew the appellant before the incident. I.O. has failed to produce roznamcha entry No.21 in which the names of other accused persons have been mentioned. Non-production of roznamcha entry No.21 cuts the roots of prosecution case.

9. Injured PC Muhammad Khan in his evidence has leveled the general allegations. Police encounter continued for about 1 hour and not a single injury was caused to any of the accused. Prosecution story appears to be un-natural and unbelievable. From the place of incident according to the evidence, 15 empties of K.K fired by appellant were recovered, but those empties were neither sealed nor sent to expert for report. It is the case of the prosecution that during the encounter SHO approached the Police Head Quarter/Control room for his help and at his request police parties of various Police Stations reached at the spot for rescue operation. SHO P.S. Phullu had failed to produce call data of Head Quarter/Control room for the satisfaction of the Court. Police officials of various police stations participated in police encounter, but only one police constable sustained injury. It was desirable that investigation should have been conducted by some other agency. The standard of proof in this case should have been far higher as compared to any, other criminal case when according to the prosecution it was a case of police encounter. It was, thus, desirable and even imperative that it should have been investigated by some other agency. Police, in this case, could not have been investigators of their own cause. Such investigation which is woefully lacking independent character cannot be made basis for conviction, when it is riddled with many lacunas and loopholes listed above, quite apart from the after thoughts and improvements. It would not be in accord of safe administration of justice to maintain the conviction and sentence of the appellant in the circumstances of the case. We, therefore, by extending the benefit of doubt allow this appeal, set aside the conviction and sentences awarded and acquit the appellant of the charges. He be set free forthwith if not required in any other case".

10. These are the reasons of a short order dated 02.11.2022, whereby the appeal was allowed. JK/U-1/Sindh Appeal allowed.