1. This judgment disposes of Criminal Appeal No. 160 of 1978 and Criminal Appeal No. 292 of 1978. Both these appeals arise from the same judgment of Additional Sessions Judge, Dadu dated 3rd July, 1978, whereby he acquitted the three appellants in two appeals before me of offences under sections 307 and 401, P.P.C. But convicted all the three appel--lants under section 353, P. P. C. And sentenced each one of the appellants undergo R. I. For 12 months and they were further convicted under section 13-A, Arms Ordinance and sentenced to R. I. For two years and to pay a fine of Rs. 500 each, or in default to undergo further R. I. For 6 months, The sentences were to run concurrently.
2. On 28October, 1974 at 700 hours a report Exh. 20 was sent by P.W. Abdul Hakeem S. H. O. At Dadu Police Station from a place near Deh Chanrath, District Dadu, which was transcribed as an F. I. R.
3. Exh. 26 on the same day at 300 hours by P. W. 3 Qurban Ali in 154, Cr. P. C. Book maintained at Dadu, Police Station, the same reads as under:--- "The S. P. Dadu received a spy information that some armed persons have gathered at the ditch in Deh Chanrath for committing dacoity. Accordingly under the command of D.S.P. Dadu at about 3- 00 hours I accompanied by namely A. S. I. Ghulam Rasool, H. C. Muhammad Bux, F.C. Muhammad Ramzan, F. C. Chibar Khan F. C. Haji Kamal, F. C. Ghulam Dastagir, H. C. Sheralli, F. C. Haji Photo, F. C.
4. Shah Muhammad, Gadehi No. 176, S.H.O. Of Police Station Rukan Muhammad Siddique A. S. I.
5. Hussain Bux, H. C. Ghulam Hyder, H. C. Allahdino, F. C. Gulsher Khan, F. C. Ghulam Hyder. F. C.
6. Muhammad Urs and the staff of Police Line Dadu, namely SIP Shabir Ahmad, LN Hayat Khan, LN.
7. Buxal Khan, F. C. Pir Bux, F. C. Wali Muhammad Haji Khan, Ali Bux, Ghulam Rasool, Muhammad Ali, Mir Hazar Khan, Muhammad Ismail, Rahmatullah, Ghulam Qadir, Muhammad Ali, Qurban Ali, being armed with weapons and in uniforms set out and along the Dadu canal parked the power wagonth and jeep near the bridge leading towards Jhalo. From there we proceeded by foot along the katcha road leading from Mori to Jhalo and after covering two miles according to spy information we picked up Mashirs, namely Shah Muhammad son of Haji Buxal Jamali resident near Chachar and Murid son of Hafiz Allah Jurio Solangi resident of' Dadu. I and 8 others police personnel stand at a distance of 3 furlongs, towards north-west of the ditch. The S. H. O. Mr. Muhammad Siddique of Police Station Rukan made seven police personnel to stand from north-east and police personnel of Line were made to stand from eastern side. At about 05-30 a. m. While we were standing by taking the position, there were opened two fires at my party and at the party of Muhammad Siddique S.H.O. Of P.S. Rukan and they also gave Hakkals that we should be killed. We told them that we are police personnel whereupon again two fires were opened at my party. In response where of we also started firing which continued upto 0630 a. m. Thereafter the accused persons out of whom two were armed with rifles, with bayonets and one with a gun ; raised their weapons and declared that "we are ready to surrender" "ourselves". We both parties having given Hakkals and aimed the rifles towards them, put all the three accuse-d under arrest together with their weapons.
8. They disclosed their names as Ali Manzoor, Police Constable No. 435, Ayoob Panhwar and Ghulam Kadir Panhwer. From the possession' of Ali Manzoor a .303 bore rifle bearing No. 90941, with bayonet, a .303 bore rifle bearing No. D-66461 with bayonet from the posses--sion of Ayoob Panhwar and from the possession of accused Ghulam Qadir, a -12 bore single barrel gun bearing No. 149644 of Sikandar Company were secured. During search of the persons of the accused, three currency notes each of Rs. 10 were secured from butt of the rifle accused Ali Manzoor. Thereafter we saw inside the ditch. There is a 'Lai' tree there. Under the aforesaid Lai tree is lying a bundle which contained two police dresses, two bags civilian shirts and trousers, belts, caps, a bottle of antimony, and a pair of scissors. The twenty empty-shells of -303 bullet and empty shells of 12 bore cartridges were secured from the two places, which appeared to be fired by the accused persons.
9. During the firing opened by the police, I opened five fires, S. H. O. Muhammad Siddique five fires, A.S.I. Ghulam Rasool three fires, A.S.I. Hussain Bux three fires. H.C. Ghulam Hyder two fires, H. C.
10. Ahmad Bux two fires, F. C. Haji Photo two fires and F. C. Chibar Khan opened six fires, out of which total twenty empty shells were secured. Six Bullets were misfired which were secured. As all the above three accused together with weapons have gathered to commit the offence, and on encircling of the police, the accused have opened the direct fires, therefore, the accused have committed the offences punishable under sections 401, 353, 307, P. P. C. And 13-D Arms Ordinance, recorded on the white paper was sent to Police Station, Dadu through F. C. Chibbar Khan for recording the same in book maintained under section 154. Cr. P: C. And for making compliance under section 157, Cr. P. C."
11. The three appellants were arrested under a Mashirnama Exh. 10 which showed their arrest and recoveries of weapons from them namely, one revolver from Ali Manzoor, one revolver from Ayub, and one single barrel gun from Ghulam Qadir. The Mashirnama of recoveries was witnessed by two Mashirs namely Muhammad Mureed who was not examined and Mashir Shah Muhammad P. W. 1.
12. The bundle containing different articles was recovered from a Lai jungle near about the place of offence and 20 empty shells of bullets were also seen there and empty shells of -12 bore were also seeing lying there and the same is mentioned in a Mashirnama Exh. 11 witnessed by the same Mashirs.
13. The case of the prosecution as mentioned in the above F.I.R. Has been proved by P. W. 4 Abdul Hakeem who was the S. H. O. At that time and who has investigated this case and was the Incharge of Police Party. He has reiterated the contents of the F. I. R. And has deposed that the Police Party had surrounded the ditch and they were fired upon from the ditch. The Police Party had disclosed its identity but yet the firing had continued from the ditch and after some firing the appellant surrendered with two revolvers and one gun. They could not produce on demand any licence of the revolvers and gun. There is nothing in the cross-examina--tion of this witness which could shutter his testimony. No question was put to him by Ali Manzoor. And no question has been put on behalf of Ghulam Qadir that Ghulam Qadir bad been arrested by Bhan Saeedabad Police earlier and then handed over to Dadu Police. The deposition of Shah Muhammad was fully supported in all details by P.W. 2 Ahmed Baksh Head Constable of Dadu Police. Another important prosecution witness examined was P. W. 3 Muhammad Siddiq who was the S.H.O. Of Rukan Police Station and had fully supported the complainant Abdul Hakeem. His deposition remained intact as no damage was done in the cross-examination. The Police Officers depositions were corroborated by P. W. 1 Shah Muhammad, who was a Mashir of the recoveries and who is resident of a place near village Kacher which is some distance away from the vardat. This Mashir has supported the police witnesses on all the important aspects of the encounter with Police and recoveries of revolvers and gun. He has denied the suggestion that he used to visit the Police Station, Dadu. He is the cultivator and there is no reason as to why he should not be believed. Merely the fact that he has made some incorrect statement in respect of distance between the place of incident and Padu city or in respect of the other Mashir does not mean that he has made any contradiction in respect of material particulars.
14. I, therefore believe his testimony. Even without his testimony the evidence of the Police Officers appears to be convincing.
15. The accused in their statements had made a total denial in both the Courts. Ghulam Qadir also stated that be was arrested by Dhan Saeedabad Police first and later on banded over to Dadu Police but he did not put a single question to any of the Police Officers in respect of this stand taken by him in his statement under section 342, Cr. P.C. And it is therefore, a mere afterthought. He has not given the date even as to when he was arrested by Dhan Saeedabad Police. He examined D. W.
16. Koural Shah in his defence but D. W. Koural Shah's deposition is mere hearsay as he admitted in cross-examination that some one informed him at the otaq that Ghulam Qadir was taken by Police. D. W. Ghulam Nabi who is the brother of Ghulam Qadir accused is a Head Constable in Sind Constabulary in Dadu and be also deposed that S.H.O. Abdul Hakeem of Dhan Saeedabad Police had taken away his brother appellant Ghulam Qadir and he had complained about that to the Prime Minister of Pakistan. He has produced a letter dated 11November 1975 sent by Commissioner, Hyderabad to D. L-Q. Police asking to remove his grievance against the S. H. O., Dadu. This letter is insignificance as it does not give any details of grievance, and moreover, it is a letter issued after one year of the incident, and hence it can hardly have any significance -in respect of an offence which took place on 28th October 1974, D. W. Ghulam Nabi was, therefore rightly disbelieved by the Additional Sessions Judge as, in spite of being a Head Constable of Police, he had made no protest within reasonable time of 28th October 1974, and no question relevant to such defence hail been put to any of the P.Ws.
17. D. W. 3 Muhammad Umer and D. W. 4 Abdul Ghafoor had tried to show that Police had taken away appellant Ayoob from his house, but again this defence was afterthought as Ayoob had not put such question to any of the P. Ws. Therefore, the defence tendered was of no significance.
18. Appellant Ali Manzoor had not put any question at any time to any of the P. Ws. And it, can, therefore, be safely presumed that he has not seriously challenged the case of the prosecution.
19. Today, he submitted before me a letter asking that he had a dispute with S. H. O. Khair Muhammad Lashari of Mirpurkhas and that S.H.O. Had been instrumental in foisting this case upon Ali Manzoor through his cousin Abdul Hakeem Lashari of Dadu Police.
20. I do not find any justification for this assertion on the part of Ali Manzoor as he never questioned the deposition of P. Ws. He pointed out to me that I had acquitted him in another case, but I find from my judg--ment in Cr. A. No. 182 of 1978 that I have dismissed his appeal on 6th October, 1979 in respect of his conviction under section 5(2) of Act II of 1947 read with section 409 of P.P.C. Whichth was in respect of the rifle No. 660461, which had been entrusted to him at Mirpurkhas as a Police Constable and he had decamped with the same rifle which had been produced in that case.
21. The result of the above discussion is that I do not find any force in the two appeals filed by Ayoob and Ghulam Qadir on one side and by Ali Manzoor on the other side and the same are hereby dismissed.
22. But, since, the appellant Ali Manzoor has remained in custody from 28th October 1974 till today, therefore, in view of provision of 382-B, P. P. C. I am of the opinion that his sentence of imprisonment should be 6 reduced to the period already undergone by him till today and he should, therefore, be released if not required in any other case. The appeal is dismissed otherwise.