' NAIMATULLAH PHULPOTO, J---Appellant Ghulam Rasool alias Bhoro was tried by learned Judge, Anti-Terrorism Court, Badin in Special case No,5 of 2010 under sections 302/324/337-H(ii)/34, P.P.C.
Read with section 6/7 ATA 1997 and vide judgment dated 22nd October, 2010, appellant Ghulam Rasool, absconding accused SIP Imdad Panhwar and WHC Ali Hassan were convicted under sections 302/34 P.P.C. Read with section 6(2)(a) punishable under section 7(a) of Anti-Terrorism Act, 1997 and sentenced to imprisonment for life and to pay the fine of Rs,100,000 each. The fine if realized was ordered to be paid to legal heirs of deceased in equal share. In case of default in payment of fine, the accused were directed to suffer one year each more S.I. They were also convicted under sections 324/34, P.P.C. Read with section 6(2)(b) read with section 7(b) of Anti- Terrorism Act, 1997 and sentenced to suffer 10 years' R.I each with fine of Rs,50,000 which was directed to be paid to the injured, and in case of default, they were directed to suffer more Six months' R.I each. However, sentences were directed to run concurrently and benefit of section 382-B, Cr.P.C. Was also extended.
2. Brief facts of the prosecution case are that complainant Wazir lodged F.I.R. Police Station Sujawal stating therein that on 5-2-2010 in the morning, he along with his step brother Wali Mohammad son of Hussain, cousin Saleem son of Taroo and Ali Nawaz son of Taro Solangi were preparing to collect the woods in the forest, when at 6-00 a.m., S.H.O. Bello Imdad Panhwar, armed with Kalashnikov, WHC Ali Hassan Shaikh armed with K.K and Ghulam Rasool alias Bhoro armed with Kalashnikov entered the house of complainant. S.H.O. Bello asked the complainant party that case has been lodged against them at the Police Station Bello, and they should accompany the police party. The complainant party went with them to some distance ahead of their house, S.H.O. Bello Imdad Panhwar, who was holding Kalashnikov, made straight fire upon Wali Mohammad who fell down on the ground. WHC Ali Hassain Shaikh gave straight fire with his Kalashnikov upon Saleem and constable Ghulam Rasool alias Bhoro gave burst of Kalashnikov upon P.W Ali Nawaz who also fell down on the ground and complainant saved his life by hiding in wheat crop. Thereafter the S.H.O., WHC and Constable went away while firing in the air. Complainant saw a Govt. Mobile which was standing at the road and two policemen were found sitting there, that vehicle went away on hearing the voice of firing. Ali Mohammad son of Taroo, Allandino son of Hussain and Nazir son of Khudadino Solangi and other village people came running there. Complainant saw that Wali Mohammad had died away, Saleem and Ali Nawaz were lying unconscious on the ground. Injured were taken 'to Daro Hospital for treatment by Ali Mohammad, Allandino and Nazir whereas complainant remained at the spot where dead body of Wali Mohammad was lying. Nazir .Informed the complainant on phone that injured were taken to Daro Hospital but Doctor referred them to.
Civil Hospital Hyderabad and they were taking the injured to Hyderabad but in the way of Hyderabad City Saleem died. Complainant brought the dead body of Wali Mohammad to Civil Hospital Sujawal for postmortem and came at Police Station and lodged the Report. On completion of investigation, police submitted challan against the appellant.
3. Charge against appellant Ghulam Rasool alias Bhoro was framed by learned Judge, Anti- Terrorism Court, Badin at Exh.9, under above referred sections. Appellant met the charge with denial and claimed to be tried.
4. In order to substantiate the charge, prosecution examined the following witnesses:-
(1) P.W.1 Complainant Wazir Ali (2)
P.W.2 Ali Nawaz
(3) P.W.3 Ali Mohammad
(4) P.W.4 Mohammad Hussain
(5) P.W.5 A.S.-I. Zahid Hussain
(6) P.W.6 Mohammad Akram Tapedar (7). P.W.7 P.C. Shoukat Ali 8) P.W.8 Abdul Khaliq Medical officer
(9) P.W.9 Noorullah Larik Medical officer
(10) P.W.10 Peerano Khan
(11) P.W.11 Muhammad Ismail Jat I.O.
5. The statement of appellant was recorded under section 342, Cr.P.C. In which the appellant has denied the prosecution allegations and pleaded innocence. While reply to the question that have you anything to say? Stated that he was innocent and the police involved him in this false case with enmity of police officers/persons and prayed for justice.
6. Learned trial court after hearing the learned counsel for the parties and after assessment of the evidence, recorded conviction against the appellant as mentioned above.
7. We have carefully heard Mr. Syed Mehmood Alam Rizvi Advocate for appellant and Mr. Khadim Hussain Khooharo Deputy Prosecutor General and perused the entire evidence.
8. The fact that deceased Wali Mohammad Waloo and Saleem died unnatural death by means of fire arm injuries is not disputed and P. Ws. Received injuries by discharge from the fire arms. Now we would discuss the evidence of medical officers, who conducted the postmortem examination of deceased persons and examined the injured persons.
9. P.W.8 Abdul Khaliq Medical officer has stated that on 5-2-2010 at 7-00 a.m. Injured Ali Nawaz was brought. He was examined and the Doctor found the following injuries:- "Fire arm injury wound of entry with lacerated and inverted margins measuring 2 cm x 2 cm over right side back of lumber region with wound of exit with lacerated and averted margins measuring 3 cm x 3 cm over right side of lower chest."
10. P.W.9 Noorullah Larik Medical officer has deposed that on 5-2-2010 at 12-00 noon dead body of Wali Mohammad Waloo was brought by villagers for autopsy.
The Medical officer found the following injuries:- "Chest: Wound of entry punctured penetrating wound measuring 2.5 cm x 2.5 cm into cavity deep on left side of chest below left scapula. On opening chest left lung found damage with pooling of blood, 6/7th left side ribs found fractured, free fluid in plural cavity.
Wound of Exit: Punctured penetrating wound measuring 4 cm x 4 cm into cavity deep on right side of abdomen in right hypo chondriun. On opening the abdomen liver found damaged ruptured, right kidney ruptured, stomach found ruptured. There is pooling of blood in abdomen cavity.
Opinion: Cause of death is cardio respiratory failure due to excess of blood of loss and rupture of liver, right kidney due to fatal fire arm injury.
11. The said medical officer also conducted postmortem of deceased Saleem and found the following injuries:-- Wound of entry: Punctured penetrating wound measuring 1 cm x 1 cm into cavity deep on back of right lumber region parallel to 5th lumber vertebra.
Would of Exit: Lacerated wound measuring 5 cm x 5 cm with everted margins en right lumber region of abdomen. On opening the abdomen the right kidney found ruptured, right side colon intestine found ruptured with bleeding, liver, spleen stomach, left kidney were normal.
Opinion: Cause of death is cardio respiratory failure due to excess of blood of loss and rupture of right kidney due to fatal fire arm injury.
12. The efficiency and integrity of the Doctor have not been questioned, therefore, we have no hesitation to hold that both the deceased died unnatural death and injured persons received fire arm injuries as described by the medical officer.
13. In order to substantiate the charge, prosecution recorded the evidence of following witnesses.
14. Complainant Wazir Ali has deposed that present incident has occurred on 5-2-2010 at 6-00 a.m., at that time he along with his step brother Wali Mohammad, cousin Saleem and Ali Nawaz were making preparation to go to forest, at that time three unknown persons entered into the house of the complainant, they were armed with Kalashnikovs, made firing, fires hit to his step brother Wali Mohammad, who died at the spot. He could not identify the assailants. He has stated that villagers took the injured Ali Nawaz and Saleem to hospital. Thereafter, he brought the dead body of deceased Wali Mohammad to Taluka Hospital Sujawal and after postmortem brought deceased to Police Station Sujawal where, he lodged the F.I.R., but its contents were not read over to him. He has categorically stated that accused present before the trial court was not same. He was declared hostile and was cross-examined by learned Special Public Prosecutor, he has denied the suggestion that he had given obliging statement in favour of accused.
15. P.W. Ali Nawaz has deposed that on 5-2-2010 at 6-00 a.m., he along with complainant Wazir Ali, P.W. Saleem and deceased Wali Mohammad were making preparation at home for cutting woods from the jungle, suddenly three persons namely S.H.O. Bello Imdad Panhwar, PC Ghulam Rasool and WHC Ali Hassan appeared at their house, they were armed with Kalashnikovs. Police officials asked the complainant party to accompany them to the Police Station as case has been registered against them. He has further deposed that they proceeded with S.H.O. Towards police station, but on the way, S.H.O. Imdad Panhwar fired a burst upon Wali Mohammad, who died at the spot, WHC Ali Hassan made straight fire, which hit P.W. Salem and he fell down and went unconscious. Regarding the present appellant, he has stated that accused Ghulam Rasool did not make any fire from his Kalashnikov. In the cross-examination, P.W. Ali Nawaz has clearly stated that accused Ghulam Rasool was not present at the time of incident when unknown persons attacked upon the complainant party.
16. P.W. Ali Muhammad has stated that on the day of incident at 6-00 a.m., he was present at his house, he heard gun shots report, he went outside of the house, where saw Wali Mohammad had expired on account of fire arm injuries. P.W. Saleem and Ali Nawaz were lying injured. He has also not implicated any of the accused.
17. P.W. Mohammad Hussain has acted as mashir of the inspection of the place of wardat and produced such mashirnama as Exh.14/A. He had also acted as mashir of inspection of the dead bodies and mashir of injured person.
18. P.W. A.S.-I. Zahid Hussain has stated that he recorded F.I.R. Of the complainant at his verbatim vide Crime No,8 of 2010 under sections 302/324/337-H-2/34, P.P.C. Read with 6/7 ATA, 1997 of Police Station Sujawal.
19. P.W. Mohammad Akram Tapedar had visited place of wardat, it was shown to him by complainant. He took necessary measurements and directions of the prosecution witnesses, formulated points prepared such sketch in presence of the mashirs and produced it at Exh.16/A.
20. P.W. PC Shoukat Ali has stated that on 6-3-2010, SIO Ismail Jat of Sujawal Police Station had arrested accused Ghulam Rasool alias Bhoro near his house and personal search was conducted but nothing incriminating was recovered, such mashirnama was prepared. He acted as mashir.
21. P.W. HC Peerano Khan has deposed that SIP Mohammad Ismail Jat made him mashir of the recovery of Kalashnikovs and SMG left by accused who were police officials at Police Station Bailo, such mashirnama was prepared. He was made as mahir and co-mashir was PC Imdad Ali. In cross-examination he has replied that all the articles produced by him were in his possession in his room and its key was with him and accused were absconding at the time of recovery of weapons at Police Station
22. P.W. SIP/SIO Mohammad Ismail has deposed that on 5-2-2010, he has received copy of F.I.R.
No,8 of 2010 under sections 302/324/ 337-H-2/34, P.P.C. Read with section 6/7 ATA, 1997 for investigation. He went to the Sujawal hospital, received two dead bodies of Wali Mohammad and Saleem, inspected dead bodies in presence of mashirs and prepared such mashirnama. He had also noted down injuries of Ali Nawaz in presence of mashirs, thereafter handed over dead bodies to the legal heirs of the deceased and prepared mashirnama of recovery of clothes of deceased in presence of mashirs for sending the same to the Chemical Examiner, then he submitted application to the Mukhtiarkar for preparation of the sketch of the place of wardat, the same was prepared. He has stated that on 6-3-2010 he had arrested accused Ghulam Rasool alias Bhoro and submitted challan showing SIP Imdad Panhwar and WHC Ali Hassan as absconders.
23. On the conclusion of the evidence, after hearing the learned counsel for the parties, learned Judge, Anti-Terrorism Court, Badin vide judgment dated 22-10-2010, convicted appellant Ghulam Rasool and the absconding accused SIP Imdad Panhwar and WHC Ali Hassan in their absentia as stated above. The impugned judgment has been challenged before this Court.
24. Mr. Syed Mehmood Alam Rizvi learned Advocate for appellant Ghulam Rasool alias Bhoro argued that accused SIP Imdad and WHC Ali Hassan were convicted in absentia in this case, they had preferred Appeal No,58 of 2010 before this Court, their conviction and sentence were set aside by judgment dated 18-9-2012 and case against them was remanded back to the trial court for decision afresh. Learned Advocate for appellant Ghulam Rasool alias Bhoro further contended that eyewitnesses of the incident have not implicated appellant in the commission of the offence, complainant was declared hostile and other eye-witnesses have not supported the case of prosecution. Provisions of section 34, P.P.C.
Have been wrongly applied by the trial court. In support of his contention he has relied upon the case of SRIPATHI and OTHERS. V. STATE OF KARNATAKA (AIR 2010 SC 249).
25. Mr. Khadim Hussain Khooharo, D.P.-G. Supported the impugned judgment and argued that provisions of section 34, P.P.C. Are attracted in this case.
26. We have carefully perused the evidence of the complainant Wazir Ali, he has clearly stated that accused present in the Court was not same. P.W Ali Nawaz has stated that S.H.O. Imdad Panhwar fired from his Kalashnikov at Wali Mohammad, who died at the spot, WHC Ali Hassan fired upon P.W Saleem, he fell down. Present appellant did not make any fire at the time of incident. In the cross- examination he has replied that appellant Ghulam Rasool was not present at the time of incident.
P.W-Ali Mohammad has also not implicated the present appellant in the commission of the offence. Remaining evidence is of formal in nature and nothing incriminating was recovered from the possession of the accused. After close scrutiny of evidence, we have come to the conclusion that eye-witnesses of the incident have not implicated the appellant in the commission of the offence. P.W. Ali Nawaz has stated that accused S.H.O. Imdad Panhwar fired upon Wali Muhammad and he died and WHC Ali Hassan fired upon Saleem and present accused was standing at the place of incident at that time, but in cross-examination he replied that appellant was not present at the time of incident and unknown persons had attacked upon the complainant party. In these circumstances, learned trial court has failed to appreciate the evidence in accordance with the principle of law. There was no evidence against appellant. Reference can be made to the case of Sripathi and others v. The State of Karnataka (AIR 2010 SC 249), it is held that:- "Section 34 has been enacted on the principle of joint liability in the commission of a criminal act.
The section is only a rule of evidence and does not create a substantive offence."
27. In our view, burden to prove its case beyond reasonable doubt squarely rests on the prosecution and prosecution has failed to discharge its burden, we have no hesitation in coming to the conclusion that prosecution has failed to establish its case against appellant. In the result, we accept this appeal and set aside the conviction and sentence dated 22-10-2010 awarded by learned Judge, Anti-Terrorism Court Badin to
28. The appellant Ghulam Rasool alias Bhoro. Appellant Ghulam Rasool alias Bhoro shall be released forthwith, if he is not required in some other case.