' FAROOQ ALI CHANNA , J.---By this common judgment we intend to dispose of three criminal appeals, referred to above filed by the appellants Allah Bux, Gulzar, Ali Hassan and Niaz alias Niazoo against the same judgment dated 30-11-2012 passed by learned Judge Anti-Terrorism Court, Khairpur Mirs, in Spl. Case No,62/2011 culminated FIR No,118/2011, Police Station, Gambat Offence under sections 365-A, 324, 353, 148, 149, P.P.C., convicting the appellants under section 324, P.P.C.
Read with section 149, P.P.C., and sentencing them to suffer RI for ten years and to pay fine of Rs,50000 each, in default thereof to suffer RI for six months more. The trial Court also convicted the appellants under section 353, P.P.C. Read with section 149, P.P.C. And sentenced them to suffer RI for two years and to pay fine of Rs,5000 each in default thereof to suffer SI for one month more. The trial Court also convicted the appellants under section 7 of Anli Terrorism Act, 1997 and sentenced them to suffer RI for 10 years and to pay fine of Rs,50,000 each, in default thereof to suffer RI for six months more. All the sentences were ordered to run concurrently. The benefit under section 382-B, Cr.P.C. Was not extended to the appellants on the ground that such type of criminal elements have hostage our society and made the life of innocent citizens miserable.
2. Concisely facts of the case are that complainant ASI Altaf Hussain Mirani lodged FIR at Police Station Gambat that on 16-5-2012 he along with his subordinate staff HC Taimoor, PC Ghulam Hussain, PC Khair Muhammad, PC Deedar Ali and PC Irshad Ali left PS at about 1100 hours for patrolling under the roznamcha entry No,4 in police mobile bearing Registration No,SP-6095. During patrolling he received spy information that notorious dacoit Mehboob alias Muhib alias Billo Narejo along with his gang is, trying to shift abductee from Manjhand place towards Katcha area. Such information he communicated to his high up. In the meanwhile ASI Muhammad Idress Lashari incharge Police Picket Khuhra along with his sub-ordinate staff came there and accompanied the complainant party towards the place of incident. At about 1215 hours they reached at pointed place and saw ten persons who were identified to be Mehboob alias Muhib alias Bilo Narejo,
2. Gul Narejo,
3. Rafiq Narejo,
4. Ali Hassan, 5.Akhtair Jakhar, 6.Sadam Jakhar,
7. Niaz alias Niazoo Khemtio,
8. Allah Bux,
9. Pathan Narejo,
10. Gulzar Ujjan, they all were armed with Kalashnikovs. All the accused persons on seeing the police party started straight firing upon them with intention to commit their qatl-i-amd. The police in retaliation also opened fires, such encounter continued for 15 minutes. During encounter captivity of dacoits by taking the advantage of encounter escaped from their captivity and came to police party, whereas the accused persons escaped away by taking the advantage of BANANA GARDEN. The abductee on inquiry disclosed his name to be Karim Bux son of Abdul Rehman Soomro, he further disclosed that on 8-5-2011 when he was rotating the water to his land he was kidnaped for ransom complainant ASI Altaf Hussain Mirani prepared such mashirnama of recovery of abductee at spot and thereafter came at PS where he lodged FIR.
3. The I.O. After completing the investigation submitted challan. The prosecution to substantiate the charge has examined abductee Karim Bux, complainant ASI Altaf Hussain Mirani, ASI Nisar Ahmed, PC Muhabat Ali Mahar, SIP Hadi Bux Khuhro, PC Muhammad Hassan, PC Mohammad Awais and HC Syed Fazal Shah and Inspector/SIO Muhammad Amin Pathan.
4. The trial court recorded the evidence of prosecution witnesses, examined the appellants under section 342, Cr.P.C. And after affording an opportunity of hearing to the counsel for both the side convicted and sentenced the appellants as referred to hereinabove.
5. Learned counsel for the appellants have contended that the evidence of prosecution witnesses contains material contradictions, discrediting their evidence, learned counsel have pointed out that according to the evidence of ASI Altaf Hussain Mirani, he received spy information at 11.30 am whereas, PW Muhammad Awais has deposed that ASI Altaf Hussain informed him about spy information at 11.00 am about half an hour prior to receipt of alleged spy information. Learned counsel have further argued that per prosecution the encounter had taken place for 15 minutes and both the parties had made indiscriminate firing but as per mashimama only 10 empties were recovered from the place of incident which creates doubt in the alleged exchange of firing.
Learned counsel have also pointed out that as per prosecution case the abductee was brought at PS whereas; as per evidence before trial court the abductee was dropped in his village and thereafter police party came at Police Station and lodged FIR. Besides the above contradictory version of police witnesses the abductee has not supported their version. Learned counsel has further argued that the investigation was not conducted in terms of section 9(1) of Anti-Terrorism Act, 1997 which requires that all offences under this ordinance except the offences in respect of which the investigation has already been completed and final report under section 173, Cr.P.C. Has been submitted in court, shall be conducted by a joint investigation team, the above mandatory requirement was not complied with and investigation conducted by SIO, alone was the violation of above statutory provision making the investigation legally defective benefit of which must go in favour of appellant.
6. Conversely learned APG on confrontation could not controvert the above proposition of law.
However, he has contended that private witness Karim Bux was declared hostile therefore, his evidence will not discard the ocular testimony of other witnesses and circumstantial evidence. The police officials are good witnesses as any other citizen and unless enmity and malice is proved against them their evidence cannot be discarded simply on the ground that they are serving in police department. The appellants have alleged no enmity or malice compelling the prosecution witnesses to implicate the appellants falsely and give false evidence on oath. He has further contended that nowadays crime for kidnapping for ransom is alarming and the criminal elements involved in such a heinous crime have made the peaceful life of innocent citizens miserable, some of the families due to fear have shifted to some other places. In these circumstances the accused involved in such heinous cases does not deserve any leniency. The contradictions pointed out by learned defence counsel are not fatal to prosecution and minor contradictions in such heinous crime must be ignored to meet the end of justice. Learned APG has prayed that appeals may be dismissed.
7. We have perused the impugned judgment and examined the record. As per prosecution case the star independent public witness of the incident was Karim Bux .Soomro, who allegedly was kidnapped and hostage by the appellants and absconding accused, who were trying to shift his custody. It is further case of prosecution that said abductee Karim Bux during encounter succeeded to escape from captivity of accused and came to the police party, he narrated the facts of his kidnapping for ransom. This witness in the evidence before the trial court has not supported the case and has narrated a different story. He has deposed that on 8-5-2011 at about 1200 hours he was kidnapped for ransom by eight culprits, he remained for eight days in their captivity and, escaped during the night hours when he got chance and went to his relatives at Naudero district Larkana and contacted his father and brother who along with police party came there and took him to his village. He narrated the above facts to the police, This witness did not identify the appellants before the trial court, therefore, SPP declared the witness hostile and with the permission of trial Court cross-examined him. However nothing has come on surface helpful to the prosecution to prove the charge against the appellants.
8. The perusal impugned judgment further reflects that the trial court has convicted the appellants relying upon the evidence of police officials who no doubt are good witnesses as other citizens.
However, if the occurrence was witnessed by a public witness besides the police personnel and the said public witness denied the occurrence to have taken place at all, the evidence of police personnel should be above board, confidence inspiring and not only sufficient to prove the charge but to rebut the evidence simultaneously furnished by public witness denying the occurrence. It is further case of prosecution that complainant and other police personnel had identified the culprits apparently from some distance in a tense situation due to apprehension of encounter and the culprits had hidden themselves in a BANANA GARDEN which usually the offenders while selecting time to commit some crime as in this case chosen to shift the abductee to some other place, takes all possible precautions to conceal their identity, such identification in our view is one of categories of "SUSPECT EVIDENCE" which ordinarily it is not safe to convict the accused on such evidence.
Beside above, as per prosecution case there was exchange of firing for 15 minutes between police personnel and notorious dacoits, they both are presumed to be expert shooters but no C one from either side had sustained fire arm injury, the mashirnama of wardhat also does not show any damage to police mobiles or to BANANA crop which creates doubt in the alleged incident of encounter. It is settled principle of criminal law that evidence led by prosecution leaving room for doubt as to identity of accused and reflecting on credibility of prosecution witness, the accused would be entitled to the benefit of such doubt not as a matter of grace and concession, but as a matter of right.
9. These are the reasons of our short order dated 18-7-2013 whereby the appeals were allowed and the impugned judgment was set aside and the appellants were acquitted.