2001 PLP 989 (YLR)

GHULAM RABBANI, J.

These two appeals tiled by appellant Anwar alias Anoo, Rabdino alias Ayub and Gul Muhammad respectively arise out of the same judgment, dated 7-3-1996 delivered by Special Court- No-I, S.T.A., Hyderabad in Crime No.9 of 1992, under sections 302, 324, 353 and 34, P.P.C. of Police Station Hoosri, Hyderabad convicting each of them to suffer life imprisonment and to pay fine of Rs.1,00,000 each or in default to suffer R. I. for 3 years more; and further that each appellant to pay Rs.1,00,000 as compensation to the legal heirs of deceased Alain alias Papoo. They have been given benefit of section 382-B, Cr.P.C.

2. It is pertinent to note in the first place that the above two appeals relate to an other crime of abduction of Alain alias Papoo a deceased/victim in the instant case and of two others by the appellants. The said crime was registered at Police Station Hoosri under section 365-A read with section 109/34, P.P.C. for which the appellants were tried in Special Case No. 14 of 1993 and sentenced to suffer life imprisonment and forfeiture of their entire property vide judgment, dated 7-3-1996. The appellants challenged before this Court their conviction and sentences by separate appeal Nos.85 and 93 of 1996 which have already been allowed and their conviction and sentences stand set aside.

3. Brief facts of the prosecution case, in the instant matter, are that some person including deceased Alain alias Papoo were abducted by the present appellants in company of other accused persons who kept the abductees in confinement in a jungle. On 25-12-1992 the Police raided the hide-out of the appellants when the encounter with the Police took place during which abductee Alain alias Papoo was killed and his dead body was recovered by the Police. The dead body of dacoit Amir Bux who was killed during encounter was also found lying nearby at that time while the three appellants surrendered themselves before the Police and were arrested. It is alleged that appellants in company of deceased decoit Amir Bux killed the abductee Alain alias Papoo in furtherance of their common intention. It is stated that fire-arms were recovered from the appellants.

4. After completion of investigation the appellants were challaned. LAter, the trial Court, on 14-3-1993, framed the following charge against the three appellants: "That on or about 25-12-1992 from 8-30 a.m. to 2-20 p.m. in the sugarcane cultivation of Rashid Muhajir situated in Deh Molan, you along with deceased dacoit Ami Bux alias Amiroo duly armed with K.Ks., Rifles and guns in furtherance of your common intention did commit murder of abductee Alam alias Papoo by intentionally causing his death with the burst of K.K. and thereby committed an offence punishable under section 34, P.P.C. and within the cognizance of this Court. And I hereby direct that you be tried by this Court on the abovesaid charge. "

5. During trial, the prosecution examined witnesses namely, P.W.1 Muhammad Yaqoob, Magistrate (Exh.) who had conducted identification parade of the accused/appellants and had also recorded 164 statements of P. Ws. Abdur Rahman, Baboo and Mir Muhammad. He produced Mashirnama of identification as Exh. 7 and also confirmed to have recorded 164, Cr.P.C. statements of aforementioned P.Ws. which stood already exhibited as- Exhs. Nos. 14, 22 and 23 in abovementioned Special Case No. 14 of 1993 verified the same and produced their photocopies as Exhs. Nos.8, 9 and 10, P.W.2 Abdur Rahman (Exh. 11), P.W.3 Mir Khan (Exh.12), P.W.4 Taj Muhammad, Magistrate (Exh.14) who admitted to have recorded confessional statements of the accused/appellant which also stood exhibited in above Special Case No. 14 of 1993 as Exhs. 27, 28 and 29 and produced their photostat copies as Exhs.15, 16 and 17, P.W.5. Sawan (Exh.18), a Mashir of recovery of blood-stained clothes of deceased Alam alias Papooo Mandwani and also Mashir of identification of the accused/appellant who produced Mashirnama of said recovery as Exh.19 and also verified Mashirnama Exh.7, P.W.6 Mujahid Ali Shah, S.I.P. (Exh.21) who verified the Mashirnama of arrest and recovery of fire arms from appellants, Mashsirnama of recovery of arms of deceased decoit Amir Bux and Vardat which stood already exhibited in Special Case No. 14 of 1993 as Exhs.31 and 32, verified the same and produced their attested copies as Exhs.22 and 23, P.W. Ghulam Nabi Shar, A.S.-I. (Exh.24), P.W.8 Ahmed Khan Police Inspector/S.H.O., Hoosri Police Station and Investigating Officer (Exh.26) who produced F.I.R. as Exh.27 and verified Exhs.22 and 23 and P.W.9 Dr. Abdul Khalique (Exh.28) who had conducted post-mortem of dead body of Alam alias Papoo. The prosecution closed its side vide statement Exh.29. Then, the statements of appellants Gul Mohammad, Rab Dino and Anwer alias Anoo were recorded as Exhs.30, 31 and 32 respectively. Neither they examined themselves on Oath nor they led any evidence. The trial Court, after hearing learned counsel for parties passed the impugned judgment convicting and sentencing the appellants as stated above.

6. We have heard learned counsel for the parties and with their assistance we have also gone through the material available on record.

7. The prosecution case hinges on ocular evidence, confessional statements of appellants and their identification parade, alleged recovery of fire-arms from them and recovery of fire-arms of deceased dacoits Amir Bux and medical evidence.

8. So far as the ocular evidence is concerned the prosecution has examined P.Ws. Abdul Rehmarr-(Exh.11). Mir Khan (Exh.12), Mujahid Ali Shah, S.I.P. (Exh.21), Ghulam Nabi Shar, A.S.-I. (Exh.24) and Ahmed Khan, Police Inspector/S.H.O. and Investigating Officer (Exh.26). P.W. Abdul Rehman did not support prosecution case. He was declared hostile and was cross-examined by the Special Public Prosecutor but nothing tangible could be elicited from him. He even denied that his 164, Cr.P.C. statement was recorded before any Magistrate. He simply stated that the S.H.O. had obtained his signature on the said statement. Mir Khan P.W.3 has stated that he, deceased Papoo and one Baboo Thahim were kidnapped by three armed dacoits; later on Baboo Thahim was released whereas, he and deceased Papoo were taken away at the lands of Bashir Halepota where they remained for about 3 nights and 4 days. He stated that he saw Ali Machi among three dacoits. Note: Ali Machi has already been acquitted in Criminal Case No. 14 of 1993 by trial Court in the final judgment. According to him the dacoits namely present appellants while moving from one place to another looted other persons also and that he, too, at the instance of the three dacoits, looted the persons coming on the camel carts and caught hold one person namely Abdul Rehman who was taken with them; and also that when the dacoits were in the jungle he managed to escape and cane to the village and lodged the report and subsequently identified the present appellants before the Magistrate. In his cross- examination, he admitted that the Police did not record his statement but his statement was recorded on the Court notice. He further stated that after 17/18 days of his release by the dacoits the present appellants were arrested. This witness has given a lengthy statement in this case but, it does not pertain to the specific charge framed against the appellant. He has not stated anywhere that the abductee Alam alias Papoo was killed by any of the present appellants or that they had abetted the commission of alleged offence. P.W. Mujahid Ali Shah is S.H.O. of Hoosri Police Station. He narrated the incident about the encircling the dacoits, their surrender and recovery of arms. In his statement he has stated that as soon as the three appellants surrendered before the police they stated that one of their colleague Amir Machi was killed in encounter and before dying he killed abductee Alam alias Papoo. Through this witness it has come on record that it was Amiro who killed the abductee Alam alias. Papoo and none of the three appellants was B involved in the alleged offence. The evidence of this witness does not place any responsibility on the present appellants for the murder of deceased abductee Alam alias Papoo, P.W. Ghulam Nabi Shar is A.S.I.P. of Police Station Hoosri. He has narrated the facts about the encircling of the sugarcane cultivation and arrest of appellants on their surrender. According to him, the appellants narrated before the police that the dacoit Amiro Machi had killed Alam alias Papoo and that the said dacoit was killed in Police encounter. This witness also failed to prove that the murder was committed by any of the appellants or for that matter they participated in the said offence in any manner whatsoever. P.W. Ahmed Khan, S.H.O. of Police Station Hoosri has narrated the story of encircling of the sugarcane cultivation and arrest of appellants on their surrender. He also stated that the appellants at the time of their surrender informed that Amiro Machi had killed Alam alias Papoo and that he himself was killed in the police encounter and also that he went inside the sugarcane cultivation and found the dead bodies of the abductee Alam alias Papoo and that of Amiro alongwith ammunition. This witness has not even remotely implicated the present appellants in committing murder of Alam alias Papoo.

9. As far the confessional statements of the appellants at Exhs. 8, 9 and 10 are concerned, it is significant to note that the appellants in their 342, Cr. P..C. statements have denied to have made these statements. They have stated that they were not produced before Magistrate for recording their confession. These statements were produced by prosecution in Special Case No. 14 of 1993 and photocopies of the same have been produced in the manner stated above. It may be noted that in the said case, the appellants have already been acquitted by us today by a separate judgment. Be that as it may, it shall not be out of place that the crime is alleged to have been committed within territorial jurisdiction of Hoosri Police Station which is not within jurisdiction of Mukhtiarkar and F.C.M., Matiari who has recorded the aforementioned confessional statements. P.W. Taj Muhammad, Mukhtairkar Matiari who recorded these statements, has admitted that at the relevant time Police Station Hossri had got its own ACM at Hyderabad where there are so many Magistrates as well. He has further admitted that though he does not remember but, perhaps it might be 6-00 p.m. or 8-00 p.m.. when he completed the confessional statements and that each of which took half an hour or 45 minutes in its recording. He also stated that at that time perhaps office time was from 3-00 a.m. to 4-00 p.m. though a suggestion was given to him in his cross-examination that on that day viz. Thursday, the office timings were up to 2-00 p.m. which he did not deny but stated that he could not say so. The office timings may be up to 2-00 p.m. or 4-00 p.m., it, however, is apparent that the Magistrate has recorded confessional statements after office time was over. This P.W. has stated that Police. Station Matiari has its own lock-up anti that after recording confessional statements he sent the appellants through the same S.H.O. who had brought them for recording their confessional statements to hand over their- custody to jail. He has admitted that Nara Jail and Central Jail are closed after 5-00 p.m. daily. It is not even known that the accused, though sent through the same police, were handed over to the judicial custody but it becomes apparent that he delivered the custody of appellants after the relevant prison was closed. This P.W. has further stated that the appellants showed their bodies to him about marks of violence. He has also admitted that neither crime number is mentioned in confessional statements nor sections under, P.P.C. are mentioned therein and that he had not even asked the appellants . as. to in which crime they were going to record their confessional statement and further that answers written in all the confessional statements are stereotype. He has also stated that he had not written separate certificates in the confessional statements but the same are printed in the forms. Admittedly, the accused were arrested on 25-12-1992 whereas the confessional statements have been recorded on 7-1-1993 i.e. after about thirteen days without any explanation for such inordinate delay in the afore-stated manner, and circumstances. Be that as it may on perusal of these confessional statements it appears that the same are consistent on the point of murder of deceased Alam alias Papoo Mandvani. All the three appellants have stated therein that said abductee was in the custody of deceased dacoit Amiro Machi who killed him and he himself was killed in Police encounter. However, none of the appellants has implicated him in these statements in commission of crime with which they are charged. In the circumstances, these confessional statements have no evidentiary F value against the appellants and cannot be made basis to uphold their conviction.

10. As far as identification of the accused person is concerned it does not lend' support to or improve the case of the prosecution with regard to the specific charge levelled against the appellants. Similar is the case of the recoveries of fire-arms from the appellants and the medical evidence.

11. Beside above, it may be noted that initially the F.I. R. was lodged under sections 302, 324 and 353/34, P.P.C. but the charge was framed only under section 302 read with section 34, P.P.C. Nevertheless, the trial Court convicted .the appellants under section 302/34, P.P.C. and also under sections 324 and 353, P.P.C. for which they were not charged. Since the appellants were not charged with last-mentioned sections as such they cannot be convicted for the offences falling under these sections.

13. In view of the above, by our short order, dated 29-9-2000, we had allowed these appeals and set aside the judgment, dated 7-3-1996 passed by the trial Court. These are the reasons for the same. N.H.Q./M.A.K./G-58/K Appeals accepted.