' MUHAMMAD ISMAIL BHUTTO, J.---This judgment will dispose of Special Anti-terrorism Appeal Nos.4 of 2008 and 10 of 2009 as they arise out of one and same crime. The appeals have been directed against the judgment dated 9-2-2008 and 4-2-2009 passed by Anti-Terrorism Court, Sukkur.
2. The facts giving rise to the present appeals are that on 5-6-2004 complainant Inspector Abdul Qudoos Kalwar, R.I. Police Line, Sukkur received telephonic message from DPO, Sukkur that dacoit Anwar Magsi convicted of ATC was present at his village along with his companions namely, Najaf Jatoi, Balak Misrani, Jatoi Murtaza alias Nooro and Hashim Magsi who had assembled with intention to commit some crime and after receipt of such information, complainant along with other police personnel left police headquarter in APC duly armed with service weapons and ammunitions under Entry No,73 at 2324 hours and proceeded to the pointed place and the police of different police stations also arrived there, where police saw on the light of vehicle nine persons who were armed with K.Ks. Available outside the house of accused Anwar Magsi, who were identified by complainant party as Anwar, Moula Bux, Balkhsher, Najaf, Nooro, Muneer, Hashim armed with K.Ks. And Kouro and Ghulam Hussain armed with guns and one tractor was also parked near the accused persons. Police party directed the accused by mega phone to surrender to which accused persons fired upon complainant party with intention to kill them and police party also fired upon accused persons in self defence. Such encounter lasted up-to 0630 hours and police saw two persons from the side of accused were lying dead having sustained fire arm injures, two persons surrendered while five succeeded to make their escape good by taking the benefit of dark night. Complainant party further saw that K.K. Without number was lying beside dacoit Anwar Magsi with 7 bullets in the magazine, accused Kouro Magsi had also died and a DBBL gun was lying before him along with live cartridges in bag. Police arrested Moula Bux Magsi and recovered one K.K. From his possession. Police also arrested accused Ghulam Hussain along with DBBL gun. Both accused failed to produce license of weapons and on enquiry they disclosed the names of accused, who fled away. The tractor was also taken into police custody and such mashirnama was prepared at the spot in presence of mashirs. Thereafter complainant leaving inspector Abdul Sattar Sattar Phul and others over dead bodies brought accused and weapons at police station where complainant lodged the F.I.R.
3. After registration of F.I.R., the police started the investigation and on conclusion of investigation Challan was submitted against accused in main case as well as two separate cases under. Arms Ordinance before this Court, showing accused Moula Bux and Ghulam Hussain under arrest whereas remaining accused as absconders. However, the case of appellant Balaksher was bifurcated by order dated 29-1-2005. After judgment passed by ATC-III, appellant of appeal No,4 of 2008 preferred Appeal No,6/2006 before this Court, wherein case was remanded to the trial Court with observations to record evidence of SIO Anwar Khanzada.
4. After framing of charge the prosecution produced 7 witnesses and the documentary evidence as well to prove its case based on ocular account, medical evidence, recoveries and other circumstances. While concluding the trial the appellants as mentioned above were found guilty on the basis of finding that the prosecution had established its case to their extent, therefore, they were convicted and sentenced by two separate judgments, mentioned above.
5. It is contended by learned counsel for the appellants that the learned trial Court has failed to appreciate that the prosecution could not establish its case beyond any shadow of doubt; that actually the prosecution evidence was inconsistent and defective which in no case proved the prosecution case. He further submits that there are contradictions between the ocular and medical evidence. He further submits that encounter took place between the police and accused persons, but it is impossible as none from the police party received any injury. The encounter started from 0145 hours and lasted at 0630 hours and only from the side of accused, two persons lost their lives and two had surrendered before police. It is impossible that when the place of incident is house of accused Anwar which is surrounded by compound wall then how accused received injuries which resulted in loss of two lives of accused. He further submits that it was night time incident and there was possibility of mistaken identification of accused and prosecution story appears to be unbelievable. Recovery of DBBL gun and K.K. From the accused is doubtful as no independent and respectable person of the locality has been examined though the incident had occurred in village.
He further submits that both the deceased received injuries only on their legs, which is lower part of body when it is stated that there was exchange firing between the police and dacoits and there was a wall in between them then how it is possible that two persons received injuries only on their legs. It seems that police caused injuries to accused directly. He further submits that appellants are in jail since 6-6-2004 and 14-6-2005. According to evidence of prosecution witnesses incident had taken place at the house of accused Anwar Magsi (deceased) near outer door of house. Deceased were fired from near distance. There is blackening and charring present on the dead bodies of deceased.
6. On the other hand, learned DPG for the State contended that the prosecution case is based upon ocular account, medical evidence, recoveries and that the evidence in connection with all these aspects, is quite convincing due to which learned trial Court rightly observed that the prosecution has succeeded to prove the guilt of appellants. He further submits that on the information of DPO, Sukkur police reached at the house of dacoit Anwar Magsi to arrest him, who was already convicted by Anti-Terrorism Court and in encounter two culprits including Anwar had lost their lives and two accused surrendered before the police along with their respective weapons. In view of this he submits that appeal be dismissed.
7. We have heard the learned counsel for the appellants, learned DPG for the State and have gone through the evidence of P.Ws. And material available on record. It shows that this is a real incident which took place at the house of deceased accused Anwar as complainant has stated in his F.I.R.
That on the directions of DPO, Sukkur they went for arrest of accused Anwar and when they reached there encounter took place between dacoits who were seen on the headlights of mobile and electric bulbs. Further more it is also an admitted fact that encounter had taken place in the house of deceased accused Anwar where police had seen nine persons, out of them five made their escape good while two lost their lives and two surrendered before the police. In their evidence, complainant and eyewitnesses who had participated in the encounter and in their presence appellants had surrendered themselves along with their respective weapons, have fully supported the version of prosecution and their version is also supported, by the medical evidence so also circumstances evidence of recovery of crime weapons.
8. So far arguments of learned counsel for the appellants that deceased accused received injuries on legs which is lower part of body is concerned, after going through postmortem of deceased accused Anwar and Kouro, it controverts the arguments as it is clear from the postmortem reports that deceased Anwar received in all 14 injuries of entry and exist having no blackening and charring. He received injuries on mid of, spinal cord, below left nipple, below right scapular region, left shoulder, mid of left upper arm, right upper leg, upper portion of right chest and right renal region so also deceased accused Kouro received as many as 23 entry and exist wounds on different parts of his body as left shoulder, below left specular region, below left nipple, left upper arm, left thigh, left upper leg, upper leg, right hand, occipital region on the head, lower jaw of mouth and renal region and there was no blackening and charring present, which also shows that deceased accused were fired from far distance and not from the close range.
9. The upshot of the above discussion is that the prosecution has been able to make out a case against the appellants. The arguments made by the learned counsel for the appellant have nor force. The judgments of the trial Court do not want interference. The appeals are, therefore, dismissed and the impugned judgments are upheld. These are the reasons of our short order announced on 22nd July, 2009, whereby we had dismissed the appeals.