' RASHEED AHMED SOOMRO, J.---By this common judgment, we intend to dispose of these three connected Appeals against assailing the impugned judgment dated 29.04.2015 passed by learned Special Judge, Anti-terrorism Court, Larkana in Crime No,25 of 2013 of P.S. Phuloo District Khairpur Mir's under sections 324, 353, 148, 149 read with section 7(h) of Anti-Terrorism Act, 1997 as well as its offshoot cases bearing Crime Nos.26, 27, 28 and 29 of 2013 of P.S. Phuloo District Khairpur Mir's whereby learned trial Court awarded conviction and sentences to the present appellants/accused as well as proclaimed offenders namely Ali Murad and Abdul Qadir as under:-- a) Under section 324 read with section 149, P.P.C. To suffer R.I. For ten years. b) Under section 353 read with section 149, P.P.C. To suffer R.I for two years. c) Under section 148, P.P.C. To suffer R.I. For two years. d) Under section 7(h) of Anti-Terrorism Act, 1997 to suffer R.I. For ten years and pay fine of Rs,20,000/- each and in case of default in payment of fine to further undergo S.I. For one month more.
(e) Under section 23(i)(a) of Sindh Arms Ordinance to suffer R.I. For ten years and pay fine of Rs,20,000/= each and in case of default in payment of fine to further undergo S.I. For one month more.
2. All the sentences awarded to the appellants were directed to run concurrently and they were also extended benefit of section 382-B, Cr.P.C.
3. Briefly the facts of the prosecution case are that initially on 14.5.2013 one Sahib Khan Brohi lodged FIR that on 06.5.2013 his brother Hazar Khan Brohi and one Abdul Aziz Veesar riding on motorcycle had lastly gone to Larkana as reported by them on mobile phone. Thereafter they slid not return and also their mobile phone went off therefore, suspecting their abduction by unknown accused, the FIR was lodged under sections 365-A, 344, P.P.C. Read with section 7(e) of ATA, 1997 vide Crime No,71 of 2013 of P.S. Ratodero District Larkana in which investigation followed for recovery of abductees.
4. Thereafter on 15.5.2013 at about 0600 hours, SIP Dili Jan, SHO P.S. Ratodero lodged FIR vide Crime No,25/2013 stating therein that on that day i,e.
15.5.2013 he was available at Police Station when he received spy information that Hazar Khan Brohi and Abdul Aziz Vessar, the abductees of Crime No,71 of 2013 under section 365A, P.P.C. Of Police Station Ratodero are confined in the house of accused Mohammad Khan alias Muhammad Khasho Tamani Chandio situated near Baharo Taluka Gambat District Khairpur Mir's. On receiving such information, the complainant conveyed the same to his higher officers through wireless and he along with his subordinate staff duly uniformed and armed with service weapons left Police Station in Police Vehicle No,S-7034 vide Roznamcha Entry No,40 and went towards pointed place.
On the way several Police Officers along with their police staff, named in the FIR, also joined them and the entire police entourage was about 100 in number and they all reached at the pointed place at about 0500 hours they raided the said house and saw six accused and one lady as well as two persons tied with iron chains with cot. The accused party on seeing police in uniform fired upon them with intention to kill them when police party took position and retaliated firing in their defense.
The encounter lasted for about five minutes and ultimately two accused made their escape good while making firing while four of them were arrested along with their weapons. ASI Allah Warrayo and ASI Ali Akber were appointed as mashirs and then accused arrested were inquired about their identity out of whom, one person disclosed his name as Mohammad Khan alias Mohammad Khasho Tamani. Chandio and one unlicensed pistol was recovered from his possession, which was found empty, the other person disclosed his name as Ghulam Mustafa Khaskheli and one unlicensed SBBL gun was recovered from his possession which was found empty, the third person disclosed his name as Samandar alias Qurban Brohi and one unlicensed SBBL gun was recovered from his possession which was found empty and fourth accused disclosed his name as Abdul Latif alias Roshan Tamani and one unlicensed pistol with empty magazine was recovered while lady accused disclosed her name as Mst. Naseem Lashari and one black colour purse was recovered from her possession which contained motorcycle documents in the name of abductee Hazar Khan Brohi. She also disclosed that she used to cook food for accused and wash their clothes. During personal search of accused nothing was recovered. Besides, the two abductees namely Hazar Khan Brohi and Abdul Aziz Veesar were found sitting on a cot whose arms were tied with iron chains, who disclosed to police party that above named accused persons have abducted them from bus stand Ratodero. Such mashirnama was prepared under the signatures of above mashirs and then the above apprehended accused persons along with abductees were brought at Police Station Phuloo District Khairpur Mir's where the complainant SIP Dili Jan SHO Ratodero lodged the FIR on behalf of the State to the above effect. Besides four separate FIRs bearing Crime Nos.26, 27, 28 and 29 of 2013 of P.S. Phuloo were also registered against the above four accused/appellants for keeping unlicensed weapons.
5. On completion of investigation, the cases were challaned and appellants/accused were sent up to stand trial before learned Special Judge, ATC Khairpur, from where cases were transferred to ATC Larkana, as per order of Sukkur Bench of this Court vide Letter No,7859 HCSS dated 30.04.2014.
6. The Appellants denied the charges and claimed their trial.
7. The prosecution examined abductee Hazar Khan Brohi at Ex.15, P.W-2 Abdul Aziz Veesar, abductee at Ex.16, P.W-3 SIP Abdul Sattar at Ex.18, who produced the FIR at Ex.18-A, letter No,604 dated 17.5.2013 issued by Senior Superintendent of Police, Khairpur Mirs for the constitution of Joint Investigation Team at Ex.18-B, PW-4 PC Ghulam Hussain Mashir at Ex.19, who produced the mashirnama of place of wardat at Ex.19-A, PW-5 SIP Dili Jan/complainant at Ex.21, who produced mashirnama of arrest of accused and recoveries of weapons and abductees from them at Ex.21-A, attested photocopy of roznamcha entry No,40 at Ex.21-B, FIR No,26/2013 of P.S. Phuloo District Khairpur Mirs at Ex.21-C, FIR No,27/2013 P.S. Phuloo District Khairpur Mirs at Ex.21-D, FIR No,28/2013 P.S. Phuloo District Khairpur Mirs at Ex.21-E, FIR No,29/2013, P.S Phuloo, District Khairpur Mirs at Ex.21-F, letter No,1443 dated 14.5.2013 issued by Senior Superintendent of Police Larkana for constitution of J.I.T in Crime No,71/2013 under section 365-A of PS Ratodero at Ex.21-C, PW-6 ASI Allah Warrayo, mashir at Ex.22, PW-7 ASI Allah Dino I.O. At Ex. 24 and PW-8 SIP Maqsood Ahmed I.O. At Ex.25 he produced the ballistic report at Ex.25-A P.W No,9 at Ex.16. Prosecution closed its side vide statement at Ex.27.
8. In the Statements under Section 342, Cr.P.C. Appellants denied the allegations of the Prosecution and claimed that the incriminating articles have been foisted upon them, they claimed their innocence and false implication that the private P.Ws have not deposed against them. However, neither the appellants examined themselves on oath under section 340(2), Cr.P.C. Nor any defence witness.
9. We have heard learned counsel for the appellants and learned D.P.G appearing on behalf of the State and have gone through the entire evidence and the material available on record.
10. Learned counsel for the appellants argued that the appellants/ accused are innocent and have been falsely booked by the police in this case with mala fide and ulterior motives; the private witnesses/abductees Hazar Khan Brohi and Abdul Aziz Veesar have not implicated the present appellants in the commission of offence in clear terms, which negates the entire case. It is further argued that allegedly encounter took place between six accused armed with guns and pistols and the police party comprising on about 100 police personnel which lasted for about five minutes but none from either side received any single injury nor any bullet is reported to have hit to any vehicle etc; that it is also surprising that despite the said house/place of confinement of abductees was surrounded and attacked by large number of police personnel duly armed with service weapons but yet imaginarily two accused out of six were successfully fled away without being hurt therefore, the manner and fashion in which alleged occurrence took place does appeal to a prudent mind and rather cast serious doubt upon the veracity of the entire prosecution case. They next argued that having spy information, complainant did not take any pain to associate any private person to act as mashir and all the P.Ws are Police Officials, who were interested, hostile and inimical to the appellants; that in respect of recovery of crime weapon both the abductees in their cross- examination clearly stated that recovery of crime weapons was not made from the present appellants/ accused in their presence; that one of the mashirs of recovery and arrest namely ASI Akber Chandio was not examined by the prosecution; that weapons allegedly recovered from accused were sent to ballistic expert with the delay of about 20 days and such delay casts dent upon the prosecution case; that the prosecution case suffers from multiple dents, which creates doubt; they lastly pointed out that during trial in the main case i,e. Special Case No,21 of 2014 arising out of Crime No,71/2013 of P.S. Ratodero under section 365-A, Cr.P.C., the abductees namely Hazar Khan Brohi and Abdul Aziz Veesar in their depositions clearly stated that the present appellants/accused were not the same persons, who abducted them; such statements were accepted by the learned trial Court. Accordingly, by judgment dated 29.4.2015 the present appellants/ accused along with other co-accused have been acquitted in the said case that the impugned judgment is not warranted by law and is liable to be set aside.
11. Learned D.P.G. Appearing for the State has supported the impugned judgment on the ground that the accused were apprehended in police raid; incriminating weapons were recovered from their possession and the abductees were also recovered from their possession; no doubt the abductees have denied the involvement of present appellants in their abduction but yet, sufficient evidence was brought on record to connect the present appellants/accused in the commission of offence.
12. Heard the arguments and perused the record. Allegedly on spy information, Police Party comprising of about 100 police personnel raided a house for recovery of abductees Hazar Khan, Brohi and Abdul Aziz Veesar of main case bearing Crime No,71/2013 of P.S. Ratodero under section 365-A, Cr.P.C., where six accused armed with guns and pistols available in the said house made straight firing upon police party which was retaliated by police party and the encounter lasted for 5 minutes but surprisingly no body from either side received any injury nor scratch nor any bullet was hit to any vehicle and it is imaginary; that two accused persons out of six accused successfully fled away from the scene while four accused/appellants along with their weapons were apprehended along with a lady accused and abductee Hazar Khan Brohi and Abdul Aziz Veesar, does not appeal to a prudent mind and casted dent into prosecution story.
13. Admittedly the police party conducted said raid on spy information and despite having prior information no effort was made for associating private person to act as mashir and attest the very occurrence, arrest and recovery thus recovery of weapons is clear violation of section 103, Cr.P.C.
14. That both the abductees, who are star witnesses of the prosecution in their evidence have clearly deposed that the appellants/ accused present in Court were not the same who abducted them. In cross-examination they also stated that recovery of crime weapons was not made in their presence. However P.W/Complainant SIP Dili Jan and P. W/mashir Allah Warrayo repeated the same story in verbatim as given in the FIR and the testimony of such highly interested and partisan witnesses cannot be taken as gospel truth or based sole ground for conviction in absence of any other independent evidence which is lacking in the prosecution case which cast fatal blow to the veracity of very occurrence and commission of offence in view of above statement of both P.Ws/abductees.
15. In respect of recovery of crime weapon from the possession of appellants/accused, both the abductees in their cross-examination clearly stated that recovery of crime weapons was not made from the present appellants/accused in their presence. Apart from above, sending of the crime weapons to ballistic expert for forensic report with delay of 20 days of their recovery also added further doubt into the prosecution case. Thus, in view above coupled with non-compliance of section 103, Cr.P.C., it can safely be presumed that alleged recovery of crime weapons was not made from the possession of the Appellants as alleged by the prosecution.
16. It would be suffice to refer here case of Mumtaz alias Laloo v. The Sate reported in 2015 M LD 1117, in which in the very identical circumstances, the allegation against the accused was that he along with co-accused fired upon the complainant party (police) with intention to kill the Police Party and the trial Court convicted the accused in the said case while in the main case the accused persons were acquitted from the charge of abduction of abductce who was allegedly recovered during incident of encounter with Police. The Division Bench of this Court observed in the aforesaid case that while in cross firing none from either side received any injury nor any bullet was hit to any vehicle, the case of the prosecution becomes doubtful, therefore, while extending benefit of reasonable doubt, accused in the case under sections 324, 353, P.P.C. Were acquitted, therefore, the above case is fully applicable in the circumstances of the case.
17. In another case of Farooq Ahmed v. The State (2013 YLR 998), it has been held that there was cross firing for above 10 minutes with the sophisticated weapons but no one received injury/scratch from both sides. Even no damage was caused to the police mobile of the Police Officials and the Appellants were acquitted.
18. It is settled law the prosecution has to prove' its case beyond shadow of any reasonable doubt and if slightest doubt occur in the prosecution case with regard to the commission of alleged offence, then its benefit should be given to the accused not as a matter of grace or concession but as a matter of right as held in the case of Tariq Pervaiz v. The State reported in 1995 SCM R 1345.
19. From the above discussion and in view of statements of abductees namely Hazar Khan Brohi and Abdul Aziz Veesar denying involvement of present appellants/accused in their abduction and encounter with police or recovery of any weapon from the appellants has created the shadow of doubt upon present case, therefore, the prosecution has failed to bring on record convincing and cogent evidence for connecting the accused/appellants with the commission of alleged offence.
20. For the foregoing reasons, the conviction recorded by the learned trial Court is not sustainable.
Consequently, the appeals were allowed by a short order dated 03.08.2016 and the Appellants were acquitted of the charges. These are the reasons for the above said order.