MUHAMMAD MOOSA K. LEGHARI, Having been involved in F.I.R Crimes Nos.92 of 1998, 16 of 1999, 54 of 1999, and 76 of 1999 registered at P.S Gambat, District Khairpur under sections 302, 324, 353, 148, 149, P.P.0 and 13(d) Arms Ordinance read with section 7 of the Anti-Terrorism Act, 1997, the appellants along with absconding accused Mukhtiar, Rano and Sadiq were tried in Special Cases No,5/1999, No, 61/1999, No,49/1999 and No,82/1999 by the Judge, Special Court for Anti-Terrorism Sukkur and Larkana Division at Sukkur. The appellants were convicted and awarded death penalty under section 7 (a) of Ordinance XXXIX of 2001. A fine of Rs,2 lacs was also imposed on each of the appellants and in case of failure to pay the same, each of the appellants was to undergo R.I. For two years more. Besides, each of the appellants was awarded R.I. For 14 years under section 7(b) of the above said Ordinance. A fine of Rs,1,00,000 was also imposed upon each of the appellants and in case of non- payment thereof, each of them was to suffer R.I for one year. They were, however, granted benefit under section 382-B, Cr.P.C. Furthermore, appellants Latif, Sohbat and Bago alias Gul Beg Mari were also convicted under section 13(d) Arms Ordinance and sentenced to suffer R.I. For three years and to pay a fine of Rs,50,000 each and in case of non-payment of fine, each of them was to undergo R.I. For one year more. In this case too benefit under section 382-B, Cr.P.0 was allowed. However the absconding accused namely Mukhtiarkar Mari, Rano Jatoi and Siddiq Kaleri were acquitted by the learned trial Court on the ground that no sufficient evidence was found against them.
2. The facts of the prosecution case, based on the F.I.R registered by S.I.P. Qalandar Bux Soomro on behalf of the State, are that on 28-8-1998 he along with his subordinate staff as named in the F.I.R duly armed with Government weapons left Police Station Gambat vide Roznamcha Entry No,29 dated 27-8-1998 at 1945 hours for patrolling purpose. When they reached. Fakir Mill Police Picket, they heard fire reports from Dukhar Minor. They immediately rushed towards the place of firing and at 2205 hours when they reached the Link Road, they noticed that encounter between the dacoits and police personnel posted, at Police Picket Fakir Mill was going on. The police party alighted from the, vehicle and started firing after taking positions. The firing continued for. About 20 minutes and when firing stopped, the complainant was informed by L.P.C. Muhammad Hanif Hingoro, In charge Police Picket Fakir Mill, that on the day of incident the said P.0 along with P.C. Luqman, P.C. Sikandar Ali and P.C. Inayat Ali were patrolling and when they reached the place of incident, they saw 7/8 dacoits on the road on the light of motorcycle. The dacoits noticing their presence, started direct firing upon the complainant/police party with the intention to kill them whereupon they- also returned fire in their defence. P.C. Inayat. Ali sustained fire-arm injuries as a result of firing made by the dacoits and when the encounter ended the police party saw that P.0 Inayat Ali had expired. In the meantime,'Gu1 Hassan Larik, D.S.P/SDPO, also arrived along with his staff and was apprised of the facts. 'Footprints of 7/8 persons were available on the place of incident. At the distance of about 100 paces they heard cries and when the police party reached there, they saw on the torch light that the notorious dacoit Sikandar Ali alias Sikoo Jatio lying on the ground in seriously injured condition. One Kilashnikov and one bag of bullets was also lying beside him. According to the prosecution story, said Sikandar Jatoi succumbed to the injuries. However, before his death he disclosed the names of his accomplices to be Sadoro Mari, Bago Mari, Sohrab Chandio, Siddiq Kaleri, Rano, Mukhtiar Jatoi and one unidentified person. The police party left the dead body of the deceased dacoit Sikandar Ali and P.0 Muhammad Hanif and followed footprints which led towards Tando Masti Station but after some distance the same disappeared. Such report was registered.
3. After completion of the investigation appellant/accused Latif Chandio was challaned in the case on 12-3-1999. Subsequently, absconder Sohbat Chandio was arrested and such report was submitted on 19-4-1999, while accused Bego alias Gul Beg Mari was arrested and sent up for trial as per report dated 29-11-1999. Accused Sadoro Mari was arrested and challaned before the. Court on 26-1-2000. However, remaining accused namely Mukhtiar, Rano and Siddique could not be arrested, therefore, their cases were ordered to proceed in their absence after necessary publication as required under the Anti-Terrorism Act, 1997.
4. A formal charge was framed against all the accused persons present before the Court to which they pleaded not guilty and claimed to be tried. Resultantly the trial concerned.
5. The prosecution in support of their case examined as many as 16 witnesses which included P.W.
L.P.C. Muhammad Hanif, complainant Qalandar Bux Soornro, P.W Mumtaz Hussain who acted as Mashir of inspection, identification tests of all the appellants, P.W Salahuddin Assistant Mukhtiarkar, P.W Niaz Hussain Shaikh, Mukhtiarkar, Muhammad Arif Kalwar, Assistant Mukhtiarkar i,e, the Magistrates who conducted the identification tests, two Medical Officers and the police personnel in whose presence the weapons were recovered.
6. On closure of the prosecution Side, the statements of the accused/appellants were recorded under section ,342, Cr.P.C. All the appellants denied the prosecution allegations and pleaded their innocence. Accused Latif Chandio alleged that he was falsely implicated at the instance of Latif Shar, the Mashirs were set up and tutored by the police. Accused Sohbat stated that his actual name is Subhan Ali and that his original N.I.0 was taken away by the police. He also stated that he had enmity with Wadero Noor Khan Chandio and Ghazi Khan Chandio. Accused Bego alias Gul Beg Mari alleged that he was involved in the case due to matrimonial disputes by H.C. Talib Mari.
Accused Sodoro also pleaded that he was falsely implicated by the police for which he had complained to Sardar Nawab Phulpoto also.
7. Defence witnesses were also produced by accused Latif, Sadoro and Sohbat. However, none of the appellants examined himself on oath.
8. On the basis of the evidence, the appellants were convicted and sentenced in terms as stated in the opening paragraph.
9. We have heard Mr. Shoukat H. Zubadi, learned counsel for the appellants and Mr. Habib Ahmed, learned A.A.-G. For the State.
10. It was contended on behalf of the appellants that a false case of fake encounter was foisted by the police, the identification tests were conducted in gross violation of settled principles of law, notwithstanding the fact that the identification of accused on the headlight of the motorcycle was doubtful, It was argued that the conviction was unsustainable as the prosecution had failed to prove the case against the appellants.
11. Learned A.A.-G attempted to support the impugned judgment. However, he was at pains to meet the contentions raised by the defence and to explain the infirmities in the prosecution case.
12. We have carefully considered the arguments advanced at the bar and have also minutely scanned the evidence adduced on record with the able assistance of the learned counsel for the parties.
13. The case of the prosecution rests upon the evidence of P.W.P.C. Muhammad Hanif. He was the only witness who, according to the prosecution case, saw accused/appellants on the headlight of motorcycle. Evidently, it was a momentary glimpse of the accused while the appellants had indulged into an encounter with P.W. Hanif and deceased P.C. Inayat Ali. Certainly the identification on the headlight of the motorcycle was weak type of evidence requiring strong corroboration but the same was badly lacking. P.W. Haneef was not able to say when the Mashirnama was prepared.
He admitted that it was not prepared before him. He was unable to disclose the names of the Mashirs.. He further deposed that he was informed by Gambat Police that one accused had been arrested and he was directed to appear in the Office of Mukhtiarkar for the identification purpose. It was astonishing to note that P.W Haneef did not speak of any other identification test, except the one conducted in respect of appellant Latif. His examination in chief was absolutely silent on this aspect. The Motorcycle which was the source of light for alleged identification was neither secured by the police, nor produced in the Court.
14. According to the complainant Qalandar Bux Soomro, he left P.W. Hanif and others at Tando Masti Railway Station but according to P.W. Hanif, S.H.O. Left him along with P.C. Luqman and P.C.
Sikandar Ali over the place of vardat to look after the dead body of deceased dacoit Sikandar Ali alias Sikoo. According to P.W. Haneef, the S.H.O. Reduced into writing the names of the co-accused allegedly divulged by deceased Sikandar immediately before, his death. But neither the S.H.O conformed to the above statement, nor did he produce any such statement in the Court notwithstanding the legal position that the statement of deceased co-accused would not be used against other accused. The complainant S.H.O. Could not recollect as to how many empties were recovered from the place of vardat.
15. Though according to P.W. Tamseel Ahmed dead bodies were taken to the hospital by the S.H.O., yet the perusal of post-mortem report of deceased Inayat Ali and Sikandar Ali shows that dead bodies of both of them were brought by P.C. Ali Dino Malah. The date' of death of deceased P.C.
Inayat is shown as 28-8-1998 while the date of death of Sikandar Ali is shown as 27-8-1998 at 10 p.m. The probable time that elapsed between the death and post-mortem of deceased Inayat as shown in the post-mortem report is about one hour, while the said time in respect of deceased Sikandar is about 12/15 hours, though according to the prosecution both of them died in the encounter. Thus, there was a glaring conflict of timing in the version given in the. F.I.R., and the post- mortem report. This contradiction was not explained anywhere, resulting into one more dent having been caused in the prosecution case.
16. P.W. Mumtaz Hussain who acted as Mashir of the identification test along with Aijaz Ali, the real brother of P.C. Inayat, belonged to Taluka Kot Digi. Both the above persons acted as Mashirs of inspection, and identification test which took place on three different occasions. Identification test of accused Latif was held on 3-3-1999, identification test. Of Sohbat was held on 12-4-1999, while the identification test in respect of Bagoo and Sadoro was respectively conducted on 27-11-1999 and 11-12-1999. All the identifications were conducted through Gambat Police, where P.W. Haneef was posted at the relevant time. P.W. Mumtaz Hussain and Aijaz Ali acted as Mashirs of all the identification, irrespective of the fact, that they were residents of Taluka Kot Digi and their village was situated at the distance of 25 K.Ms. It was deposed by P.W. Mumtaz Hussain that police had been calling them at P.S thereafter they were taken to the Magistrates. Mashirnama of idefication test conducted by P.W Magistrate Muhammad Arif was admittedly written by one P.C. According to the Magistrate Niaz Hussain, accused was standing in his Court till identification test was held. In the circumstances, it could be inferred with ease that the accused, the identifier and Mashirs, all of them were arranged and produced by Gambat Police. In light of the facts and circumstances as discussed above, such mock identification tests were worthless, thus could hardly be relied upon.
17.The .Recovery of the crime weapons was not established, as neither any independent, witness was associated to witness the recovery nor the weapons were recovered from the exclusive possession of the appellants. Moreover, alleged recovered weapons were never sent to the Ballistic Expert except one K.K. And bullets recovered from the place of occurrence. The alleged recoveries in such situation were of no consequence. According to the police, it was a case of encounter in which police personnel made random firing thereby killing one dacoit, but no empties were produced in the Court. The Ballistic Expert's report shows that only ten empties were sent for examination. None of the policemen was hurt in the encounter, thus making it a mystery. Though it was claimed that P.W. Haneef sustained injuries, but he was never G referred for treatment and certificate. The said P.W. Did not even depose that he was injured in the encounter.
18. In nutshell, there were material contradictions in the evidence, the identification test were inconsequential having been conducted in H blatant contravention of the established principles of law, and the recoveries were unbelievable.
19. It was quite astonishing to note that the learned Judge while convicting the appellants', out rightly acquitted the absconding accused, without discussing evidence against them and assigning lucid reasons. Though the impugned judgment was quite lengthy, yet it was sherry, lacking in the ingredients of a judicial verdict for want of sound and valid reasons for arriving at the conclusion. It seems that despite the absence of convincing positive evidence, the appellants were convicted, which in no circumstances could be sustained.
20. It is a well settled principle of dispensation of justice in criminal cases that guilt against the accused must rest surely and firmly on the evidence produced in the case and plan inference of the guilt may irresistibly be drawn from the evidence.
21. On the basis of the settled principles of dispensation of criminal justice and the evidence available on record as discussed hereinabove, we are fully convinced that the prosecution had failed to bring the guilt home to the accused/appellants. Thus the conviction was not warranted by law. The judgment of conviction in such circumstances was bound to be reversed/set aside.
22. Accordingly we allowed the appeals by following short order dated 28-1-2003:- "Mr. Shoukat Hussain Zubaidi and Mr. Habib Ahmed, A.A.-G. Have completed their arguments. With their assistance we have gone through the evidence, on record. We have given our anxious consideration to their contentions based on factual and legal aspects and for the reasons to be recorded separately the appeal is allowed and the conviction and sentences passed against the appellants are set aside. The reference for confirmation of death sentence against the appellants is rejected. The appellants may be set at liberty if not required in any other case." Above are the reasons for the short order.