1. ' GHULAM DASTAGIR A. SHAHANI, J.---By this common judgment, I intend to dispose of the above- titled four criminal appeals.
2. ' Accused/appellants Rehmatullah, Muhammad Bilal and Muhammad Saleem who were facing trial in S.C. No, 561/2005 (F.I.R. No, 131/2005 Police Station Gizri Karachi under sections 395/34, P.P.C.
3. Were convicted under section 395, P.P.C. And sentenced to suffer R. I. For seven years and to pay fine of Rs, 15,000 each or in default to suffer S.I. For six months.
4. ' Accused appellants Rehmatullah, Muhammad Bilal and Muhammad Saleem who were facing trial in S.C. No, 562/2003 (F.I.R. No, 132/2005 Police Station Gizri Karachi under sections 324/353/34, P.P.C.) were convicted under section 324, P.P.C. And sentenced to suffer R.I. For five years and to pay fine of Rs, 10,000 each or in default to suffer S.I for four months. They were also convicted under section 353, P.P.C. And sentenced to suffer R.I. For one year, with direction that both the sentences shall run concurrently.
5. 'Facts of the prosecution case as per F.I.R. Lodged by Fahad Zubair as Crime No,131/2005 Police Station Gizri under sections 395/34, P.P.C. Are that at about 2-45 hours when complainant entered in his house he saw five accused persons and he came to know their names as Rehmatullah, Muhammad Bilal and Saleem. The accused on the pointation of arms, took him in the room, they robbed golden ornaments, four bangles, one pair tops, one locket, pair of earring having Zargoon, one pair gort crown stone; one pair brown Kundan stone and two silver chains and two mobile phones Sony Ericsson and one Samsung and cash worth Rs, 8,000. Mother of complainant raised hue and cries on the upper balcony, which attracted the Mohallah people, who called the police, due to which accused jumped on the wall of another bungalow but police surrounded them. The accused party started firing upon the police and in defence police also made firing ultimately three accused namely Rehmatullah, Muhammad Bilal and Saleem were arrested but their two companions succeeded to escape whose names were disclosed by the arrested accused as Imran and Waqar. One 30 bore pistol along with four live bullets and partly robbed amount of Rs,4,040 was secured from the possession of accused Rehmatullah, one revolver of 30 bore pistol along with two live bullets and one mobile phone Samsung were secured from the possession of accused Bilal and from the possession of accused Saleem one pistol of 32 bore along with three live bullets and one robbed mobile phone Sony Ericsson. Whereas, other robbed property was taken away by escaping accused. After usual investigation the case was challaned before the Court of law and absconded accused were declared absconders under sections 87 and 88, Cr.P.C.
6. And a formal charge was framed against appellants/ accused, who did not accept guilty and claim trial. Prosecution examined complainant, P.W. Waqar Zubair he produced memo. Of site inspection, P.W. Shahid Zubair mashir of arrest and recovery and site inspection, who produced such memo. P.W./PC Syed Arif Abbas who is also mashir of arrest and recovery, P.W./ASIP Zafar Ali who produced F.I.R, P.W./PC Shah Jahan mashir of recovery and arrest. P.W./Inspector Irfan Ahmed Khan and P.W./S-I.P. Nafees Ahmed, Investigating Officer of the case. Appellants were examined under section 342, Cr.P.C. Where they denied the allegations of the prosecution. However they did not examine themselves, but examined one Khadim Hussain in their defence. Trial Court framed points for determination.
7. ' Facts of the prosecution case are that A.S-I: Zafar Ali lodged F.I.R. At Gizri Police Station being Crime No, 132/2005, under sections 324/353/34, P.P.C. Stating therein that on 18-6-2005 along with S.H.O. Irfan Ahmed Khan, P.C. Shahzada and P.C. Asif Hussain was busy in patrolling in the area. At 0241 hours received information from (15) Madadgar through wireless that some dacoity were available in a Bungalow No, 52/2, 9th Commercial Street No,4, DHA, Karachi, therefore, he along with policy party reached, at a particular place and they noticed that five accused were running they tried to arrest them but accused started firing upon them with intention to kill them. However, police partly succeeded to apprehend three accused who disclosed their names to be Rehmatullah, Muhammad Bilal and Muhammad Saleem, whereas, two accused made their escape good from the scene. The arrest of those three accused were effected in presence of private witnesses/inmates of the said bungalow. Arms and ammunition, as well as the robbed property were secured from the possession of the arrested accused. Property was brought at Police Station where F.I.R. Of committing dacoity was registered by the owner of the bungalow, so also present F.I.R. Respectively.
8. ' After usual investigation, appellants were challaned before the Court of law. Accused were declared absconders by the Trial Court. A formal charge was framed, prosecution examined complainant (Fahad Zubair) who produced F.I.R., as well as memo. Of arrest and recovery, P.W.
9. Waqar Zubair, who produced memo of site inspection, P.W. Shahid Zubair, mashir of arrest and recovery, as well as site inspection memo. , P.W. /P. C. Syed Arif Abbas who is mashir of arrest and recovery, P.W. /A. S . I. P. Zafar Ali, arresting officer who produced F.I R. P.W./P.C. Shah Jelian mashir of recovery and arrest, P.W./Inspector Irfan Ahmad Khan who headed the police party, arrested the accused and Investigating Officer S-I.P. Nafees Ahmed. Appellants were examined under section 342, Cr.P.C. Where they denied the allegations of the prosecution. However, they did not examine themselves, but examined one Khadim Hussain in their defence. Trial Court also framed separate points of determination in the present matter.
10. ' Mr. Abdul Razzak learned counsel for the appellant Rehmatullah, states that there me major contradictions in between the complainant, as well as the witnesses in both the matters on the basis of which appellants/accused can be acquitted. However, in last 'he added that appellants/ accused will be satisfied if period, which they have served be treated as undergone in view of the decisions made time to time by the Honourable apex Courts. Reliance is placed by him in an unreported case of Criminal Appeal No, 53/2007 (Raza Ahmed v. The State) decided on 24-1-2008, as well as in Criminal Appeal No,210 of 2003 (Muhammad Jameel and others v. The State) decided on 25-4-2006, Constitution Petition No, D-535/2006 (Majeed ur Rehman v. The State) decided on 15-9-2006, Abdul Ghafoor v. The State (2007 YLR 700), Fayyaz Hussain and others v. The State (2006 PCr.LJ 1996) and Raja Jamil alias Jamshed v. The State) (2005 YLR 1292) respectively, wherein sentence to the appellants/accused was ordered to run concurrently. On the other. Hand Mr. Zafar Ahmed APG and. Mr. Muhammad Ayaz Khan learned State Counsel concede that they have no objection if the sentence awarded to the appellant/accused be ordered to run concurrently and the period served be ordered to be undergone.
11. ' Heard learned counsel for the appellants/accused, as well as to the learned A.P.G. So also Mr. Muhammad Ayaz Khan learned State counsel respectively and with their assistance perused the material available on record.
12. ' Prosecution examined Fahad Zubair who deposed that on 18-6-2005 at about 2-45 a.m. After parking his car where he was going to his house he found five culprits being armed with pistols, they put their guns on him and directed him to keep quiet and to go with them inside the house. On commotion his father Shahid Zubair and brother Waqar Zubair came, but culprits on the pointation of the weapons kept them to sit in one of the room. His mother who was on the first floor on hearing commotions raised. Cries. Culprits robbed two mobile phones, Rs,4,000 as well as golden ornaments. However, on hearing cries of his mother someone called Police, whereon culprits jumped in the adjacent house. However, after exchange of firing, police apprehended three culprits, whereas, two succeeded to run away. Police recovered mobile phones and cash from the culprits, but jewelry could not be recovered. Police also recovered pistols. The culprits disclosed their names to be Rehmatullah, Bilal and Saleem. Complainant identified the accused so also mobile phones, whereas, for notes (sic) lying in the Court, he was not confirmed. He also identified pistols and one revolver, so also bullets and empties to be same, recovered by the police.
13. ' Next prosecutions witnesses was Waqar Zubair who deposed that complainant is his brother and P.W. Shahid Zubair is his father. On 18-6-2005 at about 8-45 a.m. When they all were present in their house and his brother Fahad had gone to the office. They heard commotions, hence he and his father came out from their rooms and found that there were five culprits having pistols/guns in their hands and put the same on his brother Fahad. On gunpoint they robbed two mobile phones, cash, as well as jewelry from the house, but on cries of his mother someone called the police and culprits started running outside the house and further that exchange of firing took place between the culprits. Police succeeded in apprehending three culprits, but two ran away. Police took the culprits so also the articles recovered from them to Gizri Police Station. He also identified the accused present in Court to be same.
14. ' Third witness namely, Shahid Zubair father of the complainant deposed that on 18-6-2005 at about 2-45 a.m. When he was in his room heard some commotion and came out of his room and on ground floor found five culprits near the front gate had encircled his son Fahad Zubair P.W.
15. Waqar Zubair had also came in the meantime, they on the pointation of pistols directed them' to go along with them in the house and give them the belongings. His wife who was standing at the second floor noticed all these things and she bolted the door from inside and started crying in the balcony. He further states that on the direction of dacoits, he also called his daughter from her room. Culprits looted gold ornaments, Rs,8,000 cash and two mobile phones namely Samsung and Sony Ericsson from them, they put them in the room of their elder son, on the ground floor.
16. Somebody called police and they started ringing bell. Accused started running from the near door of their bungalow. Encounter took place between the police and dacoits and they heard the fire shot report. After stoppage of firing they came outside their house and found that police had apprehended three decoits and recovered three pistols, empties, two mobile phones, cash of Rs, 4,440 and police prepared such mashirnama of arrest and recovery. He also identified the accused persons present Court.
17. ' Next witness of the prosecution PC Syed Arif Abbas deposed that he was posted at police station and on 18-6-2005 he along with S.H.O. Irfan Cobra, ASJP Zafar, Driver/PC Shah Jehan were on patrolling duty in a police mobile. At about 2-41 a.m., they received information from 15 Centre that there were dacoits in a 9th Commercial Street Bungalow No, 51/2 Phase-IV, DHA. They reached at that bungalow within two or four minutes and saw five dacoits were escaping away. They encircled them to stop but they started firing upon them, and in their defence, they also fired. He made six fires from his S.M.G. And PC Shah Jehan also made five fires, they succeeded to apprehend three of them while two escaped away. The apprehended accused disclosed their names as Rehmatullah, Saleem and Bilal. On enquiry that disclosed the names of escaped accused as Imran and. Waqar.
18. From possession of accused Rehmatullah one. 30 bore pistol without number with four live bullets were secured and one 32 bore revolver was secured from accused Bilal with two live and two empties and one mobile phone Samsung was also secured from accused Bilal. From accused Rehmatullah cash of Rs,4,000 was also recovered. One 32 bore pistol, without number loaded with three rounds were secured from accused Saleem. ASIP Zafar Ahmed prepared the memo of arrest and recovery on the spot, in his presence and in presence of PC Shah Jehan, complainant Fahad and P.W. Shahid also signed the said memo. He saw case property to be same.
19. ' P.W. Zafar Ali was examined who deposed that on 18-6-2005 he was posted at Police Station Gizri.
20. When he was on patrolling with PC Arif and PC Shah Jehan in police mobile at about 2-40 a.m., he received message from 15 Centre that there was an information of dacoits in Bungalow No,52/2, 9th Commercial Street, Phase-IV, they reached at that bungalow where they saw five persons were trying to escape away while jumping over the compound wall of the bungalow. On seeing them they started firing upon them they also fired in their defence. However, they succeeded to apprehended three accused while two remaining made their escape good. During firing owner of the bungalow namely Zubair also came out. On enquiry accused disclosed their names to be Rehmatullah, from his possession one 30 bore pistol loaded with four rounds and robbed property cash Rs, 4,040 were secured. Other accused disclosed his name as Bilal and from his right hand one revolver 32 bore loaded two lives bullets and two empties one robbed Sony Ericsson mobile phone were secured. Accused were arrested and on the spot prepared the memo. Of arrest and recovery of the property in presence of Shahid Zubair, PC Shah Jehan and PC Arif. He recorded the statement of complainant Zubair under section 154; Cr.P.C. In respect of dacoity committed in his bungalow and obtained his signatures, thereafter he brought the accused and property at Police Station where he lodged the F.I.R. Of encounter. He also lodged separate F.I.R. Against accused under section 13(d), Arms Ordinance.
21. ' Prosecution examined P.W. Shah Jehan who deposed that on 18-6-2005, he was posted at Police Station Gizri and on that date he along with S.H.O., ASIP Zafar and PC Arif were on patrolling duty in the area. During patrolling when they reached at Jabal Chowrangi they received information that there were some dacoits in the Bungalow No, 52/2, 9th Commercial Street, Phase-IV, DHA, Karachi, and when they reached near the spot, they heard noise of firing and also saw some culprits running away from the darkness beside bungalow. They fired in their defence and they encircled the culprits and apprehended three of them, while two succeeded to run away. He fired five rounds from SMG, while PC Arif fired, six rounds from his SMG. The apprehended accused disclosed their names as Rehmatullah from whom one pistol loaded with four rounds and cash of Rs,4,040 were secured. Other accused disclosed his name as Bilal from whom 32 bore revolver with three rounds and one mobile phone Samsung were secured. Third accused disclosed his name as Saleem, from whom one 32 bore pistol with two rounds and one mobile phone Sony Ericsson were secured. ASIP Zafar Ali secured 11 round SMG from the place of incident. Complainant Zubair Shahid and Fahad were also present at the time of incident. Accused were arrested and property was recovered. ASIP Zafar prepared the memo of arrest and recovery in his presence and in presence of PC Arif. He signed on the memo. Case property was sealed at the spot.
22. ' S.H.O. Irfan Ahmad Khan deposed that on 18-6-2005, he was posted at Police Station Gizri. On that date he along with PC Shah Jehan and PC Arif left the Police Station for patrolling. During patrolling he received information from 15 Centre that there were dacoits in the Bungalow No,52/2, 9th Commercial Street, Phase-IV, DHA Karachi. On such information they reached there and saw that five persons were running 'away, who were pointed out by the resident of Bungalow namely Zubair.
23. They chased them and tried to capture them, but they started firing upon them, they also fired in their defence. Thereafter they succeeded to apprehended three of them who disclosed their names as Rehmat, Bilal and Saleem. They secured one 32 bore pistol with four live rounds and cash of Rs,4,040 from possession of accused Rehmat. One 32 bore revolver with two live bullets and two empties and one Samsung mobile phone front Bilal. One 32 bore pistol loaded with three bullets and one Sony Ericsson mobile and Saleem were secured. The apprehended accused disclosed the names of their companions to be Imran and Waqar who escaped away. ASIP Zafar prepared the memo, of arrest and recovery on the spot. Thereafter, accused and property were brought at police station, where F.I.R. Lodged. Two cases were registered one of dacoity and another of encounter.
24. Complainant Zubair lodged F.I.R. Of dacoity case while another case was lodged by ASIP Zafar, Investigating Officer recorded his statement in both the cases and he identified the accused present in Court.
25. ' S-I.P. Nafees Ahmad deposed that on 18-6-2005 he was posted at Police Station Gizri. He received copy of F.I.R. No,131/05 under section 395, P.P.C. And F.I.R. No,132/05, under sections 324/ 353/34, P.P.C. And F.I.Rs, Nos,133/05, 134/05 and 135/05 under section 13(d), Arms Ordinance along with memo of arrest and recovery and case property viz. One 30 bore pistol with four bullets live, 32 bore pistol with three live bullets and revolver with two live bullets and two empties of 32 bore and 30 bore, 11 empties of SMG, one Samsung mobile and another mobile phone Sony Ericsson and cash of Rs, 4,040 and custody of accused Rehmatullah, Muhammad Bilal and Muhammad Saleem for further investigation from Police Station. He visited place of incident shown to him by the complainant Fahad Zubair and prepared such memo in presence of witnesses namely Fahad Zubair and Waqar Zubair. He recorded statements of witnesses i.e, complainant Fahad Zubair, Shahid Zubair and Waqar Zubair, ASIP Zafar, S.H.O. Irfan Ahmad, PC Shah Jehan and PC Arif Hussain under section 161, Cr.P.C. He sent the arms and ammunition to Forensic Science Laboratory for report and submitted the challan.
26. ' One perusal of evidence there are minor contradictions in between the statement of complainant and eye-witnesses A as P.W. Waqar Zuabri in his examination deposed that accused looted jewelry from their house, whereas, complainant deposed that jewelry was snatched from his sister.
27. Complainant in his examination deposed that when police came the culprits jumped adjacent house, whereas, Waqar Zubair deposed that culprits started running outside of their house.
28. However, their father Shahid Zubari deposed the accused started running from the rear door of their bungalow. From evidence further reveals that complainant deposed in cross-examination that his brother and father signed documents at police station, whereas Waqar Zubair, as well as Shahid Zubair deposed that they signed mashirnama of Wardat at his house. P.W. Waqar Zubair deposed that he had not signed any documents at Police Station, complainant specifically deposed that culprits robbed Rs, 4,000 from them, whereas, P.W. Shahid Zubair during examination deposed that robbed amount of Rs, 8,000 which was not recovered from the accused and police recovered an amount of Rs, 4,440 from accused including three pistols, empties, two mobile phones. Whereas P.W. Shahid Zubair admitted that there was no bullet marks inside the house, but in cross-examination he states that some empty bullets were recovered from the compound of their house and some from outside. So far examination-in-chief is concerned, PC Syed Arif Abbas states that Rs, 4,000 were recovered from accused Rehmatullah, whereas in examination-in-chief in last he identified cash of Rs,4,040. Whereas, only Rs, 4,000 were recovered from accused. He further admitted in his cross that six empties were produced in Court though memo of arrest and recovery two empties of pistol and revolver each, were shown to recovered. P.W. Zafar Ali during cross-examination categorically deposed that they saw the culprits when they jumped over the wall connected with main gate. And they did not push the bell of the bungalow in order to call the complainant, but on firing they came out from residence though P.W. Shahid Zubair deposed that police mobile had come outside the house and they started ringing the bell and accused became panicky and they then started running from the rear door of his bungalow: So far P.W. Shah Jehan is concerned, this witness has also contradicted the, evidence and has improved the case by saying that when they reached near, they heard noise of firing. This witness altogether made different statement by saying that they saw that five persons running away, who were pointed out by the residents of bungalow namely Zubair, whereas, complainant has stated that when police came the culprits became panicky and jumped in the adjacent house. According to this witness he himself received message from 15 at Centre about 2-10 or 2-15 a.m. Whereas, Zafar Ali deposed that he received message from 15 Centre, that there was information of dacoits in a bungalow. So far the deposition of ASIP Nafees Ahmad is concerned, he has contended that there was no Chowkidar and security guards in the street, Whereas, ' P.W. Shah Jehan deposed that there were two security guards at the place of incident and P.W.
29. Syed Arif Abbas admitted in his cross-examination that there were Chowkidar and Guards at the place of incident.
30. ' So far Crime No, 132/2005 of Police Station Gizri Karachi recorded under sections 324/353/34, P.P.C.
31. As a Criminal Jail Appeal No, 249/2007 and Criminal Jail Appeal No, 159/2008 is concerned, the present matter is also related and upshot of the crime No, 131/2005 of Police Station Gizri, Karachi and only offence and names of the complainant are different and matters have been separated from each other. I have perused the material with the assistance of all the learned counsel related to said case and appeal. There are also some contradictions of similar nature in-between complainant and P.W. Namely Zafar Ali Irfan Ahmad, PC Shehzado and Asif Hussain respectively.
32. 'However, on perusal of evidence discussed above in both the matters, the appears minor contradictions in depositions, but that cannot be brusl aside or discarded as person can be convicted even on the basis of evidence one of the witnesses who establishes the case. However, each and every case is to be decided in its own merits and benefit doubt is to be extended in favour of the accused.
33. ' However, in view of material and basic evidence accused/appellants named above are rightly nominated and fully involved and guilty of the offences and convicted rightly by the Trial Court on the basis of evidence, as minor contradictions can be overruled by virtue of time. No illegality or infirmity in both the judgments is found or pointed out and findings of Trial Court are on the whole reasonable and not arrived at by disregarding any provision of law or any accepted principles concerning appreciation of evidence. The law relied upon by the learned counsel is relevant to some extent, though facts of the present case in hand are not similar and identical. However, benefit of doubt is always extended in favour of accused as stated above, hence same is extended to the appellants namely Rehmatullah, Muhammad Bilal and Muhammad Saleem and order that both the convictions and sentences recorded by the Trial Court run together and the B conviction and sentence awarded to the appellants/accused by taking lenient view is modified and reduced to extent of period which they already undergone and the accused who are in custody be released forthwith if not involved in any other case subject to payment of fine in each case as ordered by the Trial Court. Bail bond of accused/appellant Rehmatullah is discharged.
34. ' With above observations and modification Criminal Jail Appeals Nos.248 of 2007, 158 of 2008, 249 of 2007 and 159 of 2008 are disposed of.
35. Sentence reduced.