ZULFIQAR ALI SANGI , Through instant appeal, the appellant Mohammad Moosa alias Mooso, has assailed the judgment dated 06.10.2018 passed by learned Judge, Anti-T errorism Court, Ghotki Mirpur Mathelo in Special Case No.01 of 2017 arising out of Crime No.07/2012 offence under sections 302, 324, 353, 148, 149, P.P.C. and 7 ATA, 1997, registered at Police Station, Gemro District Ghotki. Whereby the appellant was convicted and sentenced as under:-- For offence under section 302(b), P.P.C. read with section 149, P.P.C., to suffer R.I for 'Life' and to pay fine/compensation of Rs.300,000/ to the legal heirs of the deceased as required under section 544-A, Cr.P.C. and in case of default in payment of fine/compensation, to suf fer S.I. for six months more.
For offence under section 353, P.P.C. read with section .149, P.P.C., to suffer R.I. for two years and to pay fine of.
Rs.30,000/- and in case of default of payment of fine, to suf fer S.I. for three months more.
For offence under section 148, P.P.C., to suffer R.I for three years and fine of Rs.30,000/- and in default of payment of fine to suf fer S.I. for three months more.
For offence under section 324, P.P.C. read with section 149, P.P.C., to suffer R.I for ten years and to pay fine of Rs.50,000/- and in case of default in payment of fine to suf fer S.I. for 06 months more.
For offence under section 7(1)(a) of ATA, 1997, to suffer R.I. for `Life' and fine of 200,000/- and in case of default of payment in fine to suf fer S.I. for six months more.
For offence under section 21-L of ATA. 1997, to suffer R.I. for Five years and fine of Rs.50,000/- and in default of payment of fine to suf fer S.I. for three months more.
All the sentences awarded to the appellant/accused were ordered to run concurrently , Appellant was extended benefit of section 382-B, Cr .P.C.
2. Precisely , the prosecution case is that on 12.02.2012, the complainant SIP Altaf Hussain Shah lodged the FIR of Crime No. 07/2012 at Police Station, Gemro wherein he alleged that on the said date he along with his staff was present at Police Station, where he received spy information that wanted accused in Crime No.12/201 1 under section 382, P.P.C. and Crime No.01/2012 under section 382, P.P.C. namely Mooso Lolai and others were present in village of Mooso Lolai. The complainant conveyed such information to SDPO Ghotki and asked for further Police personnel for their help. Thereafter , complainant along with his staff left Police Station in Government vehicle under entry No.17 at about 0530 hours and proceeded towards the pointed place. It was about 0630 hours, when they reached in village Islam Chachar , where SDPO Ayaz Ali Memon, SIP/SHO Mohammad Waris Gadani of Police Station A-Section Ghotki, SIP Noor Moha mmad Junejo of B-Section, Ghotki, SIP/S HO Abu Bakar Gabole of Police Station, Adilpur , SIP/SHO Mohammad Shahban Malhan of Police Station, Sarhad, SIP/SHO Saleem Raza Kolachi and ASI Altaf Hussain Korai of Police Station Kacho Bindi-I along with their staff in government vehicles also reached there. Thereafter , all the police personnel proceeded towards the pointed place for the arrest of absconders and when at about 0700 hours, the police party reached Khan waro paho near village Mooso Lolai where they stopped the Police mobiles and got down. In the meantime, armed persons encircled the Police party , who were identified to be 1. Mooso,
2. Jatoi,
3. Janan,
4. Aagho,
5. Mureed,
6. Nazir ,
7. Shabir ,
8. Abdul Rehman,
9. Goroo Q Suhino, 10.Jeewan,
11. Soomar ,
12. Jogi all armed with K. Kovs,
13. Kouro,
14. Qabil 15. Munawar , 16.
Mehar ,
17. Sheroo,
18. Karam,
19. Behram,
20. Dahar all armed with G-3 rifles,
21. Wazeer ,
22. Sono,
23. Bashir ,
24. Allah Bux,
25. Bagan armed with rifles and 18 unknown persons who were armed with K.Kovs, except one who was armed with a rocket launcher . On seeing the police party , they made straight fire upon the complainant party to commit their murder and the firing was retaliated by police. During the encounter , ASI Altaf Korai proceeded ahead towards the accused persons. Meanwhile, he received firearm injuries at the hands of accused Mooso, Mureed and Goro alias Suhno and fell down by raising cries on the ground. The said encounter was lasted for about 30 minutes and then all the accused succeeded to run away by taking advantage of the forest towards the southern side. The SDPO and other police officers went to chase the accused. Thereafter , the complainant saw that ASI Altaf Hussain Korai had received firearm injuries on various parts of the body and died at the spot. Thereafter , the dead body of the deceased was shifted to taluka Hospital Ghotki and handed over to ASI Suhrab Khan for postmortem.
Therefore, the complainant came at the police station and such FIR was registered against the accused on behalf of the state. After the usual investigation, the police submitted challan against the appellant and other accused before the competent Court of law .
3. After completing the formalities trial court framed the charge against the appellant, to which he pleaded not guilty and claimed to be tried.
4. To prove its case, the prosecution examined PW-1. Medical Officer, Arbab Ali being well conversant with the signature of deceased Dr. Moula Bux Waso at Ex.62. PW-2. Complainant Altaf Hussain Shah was examined at Ex.63. PW-3. SIP Saleem Raza at Ex.64. PW-4. Inspector Shahban Ali was examined at Ex.65. PW-5. ASI Suhrab Khan Chachar was examined at Ex.66. PW-6. Inspector/ I.0 Saifullah Solangi was examined at Ex.67. Tapadar Anees Ahmed was examined at Ex.68 who produced the sketch of the place of wardat at Ex.68-A. Thereafter , learned APG closed the prosecution side vide statement dated 30.06.2018 at Ex.69.
5. After completion of prosecution eviden ce, learned trial court recorded the statement of the appellant/accused in terms of section 342, Cr.P.C. wherein he denied the prosecution case and claimed his innocence, however , neither he examined himself on oath nor led evidence in his defense.
6. The learned trial Court after hearing the Counsel for the appellant learned APG for the State and considering the evidence, passed impugned judgment, which has been assailed through instant appeal.
7. Learned counsel for the appellant contended that the appellant is innocent and is involved by the police with mala fide intentions; that major contradiction in the evidence of witnesses is available, the same were not appreciated by the trial court; that prosecution failed to establish its case against the appellant beyond a reasonable doubt; that in the first round the trial court disbelieved the evidence of the same witnesses and acquitted the 19 co-accused vide judgment date 25.05.2017; that the principle of falsus in uno falsusin omnibus is applicable to the present case; that nothing was recovered from the possession of appellant which connect him with the commission of offence; that identification of above 25 persons by police officials who were not known to them was doubtful; that allegation against the appellant were of general nature. Lastly , he prayed that the appellant may be acquitted by extending him the benefit of the doubt. He relied upon the cases of Khizar Hayat Son of Hadait Ullah PLD 2019 SC 527, Imtiaz alias Taj v. State 2018 SCMR 344 and Ali Muhammad v. The State 2007 YLR 894 .
8. Learned D.P.G for the state contended that prosecution proved the case against the appellant by producing trustworthy and inspiring confidence evidence; that the appellant was very dangerous person of the area having head money imposed by the Government ; that about 15 FIRs were registered against the appellant and such were produced in the evidence; that no mala fide or enmity is suggested against the police officials for false implication.
Lastly contended that the trial court rightly convicted the appellant and prayed that the appeal of the appellant may be dismissed.
9. We have heard learned Counsel for the parties and have examined the record carefully with their able assistance.
10. Admittedly the case was tried against 19 co-accused prior to the arrest of the appellant and after considering the entire evidence learned trial court disbelieved the evidence of the prosecution and acquitted the said 19 co accused vide Judgment dated 25.05.2017. The trial court in Paragraph 27 of the aforesaid Judgment recorded the following reasons for acquittal of that 19 co-accused person:- "27. Now on the above touchstone, when prosecution evidence weighed it shows that, prosecution version suffers from many infirmities, contradictions and exaggerations, as the complainant deposed that he received information at 0530 hours regarding passing of accused from village Mooso Lolai and he conveyed such information to SSP, but rest of the PWs have deposed that complainant has passed on such information to DSP by saying that accused Mooso Lolai is available at his village, whereas SIP Shahban has deposed that he received information from SDPO Ayaz Memon at 05.15 a.m., means much prior of receiving of information by complainant himself. Case of prosecution is that all the Police staff reached near village Islam at 6:30 a.m. and wherefrom they proceeded towards village of accused where they reached at 7:00 a.m. but SIP Saleem Raza has deposed that he reached at village Islam at 6:00 a.m. where all other Police parties were already available, while SIP Shahban has deposed that all the Police parties were available at P.S Gemro at 6:30 a.m. wherefrom they proceeded towards pointed place which was at the distance of about 13/14 K.M., while ASI Sohrab has depo sed that they left Police Station, Gemro and no other police party came at Police Station, Gemro, while complainant has deposed that they (Police parties) gathered at village Islam, wherefrom place of incident would be at the distance of 3/4 K.Ms. On the point of identification of nominated accused all the PWs have deposed that they are unable to identify accused by their names, while ASI Suhrab has deposed that other police party has disclosed names of the accused to him as all the pws have spent very short time during the posting at Police Station but surprising enough SIP Saleem Raza has deposed that at the time of receiving call DSP has disclosed names of all the accused. On the numbers of accused complainant has deposed for 21, while SIP Shahban has deposed for 39 and SIP Ali Raza has stated that they were 43. On the point of distance at the time of encounter between accused and Police, SIP Shahban has deposed that they were at 30/32 steps away . while deceased was at the distance of 10/12 steps away from accused, while PW SIP Saleem Raza has deposed that distance between accused and Police party would be two furlongs and again said it would be 10/11 furlongs. As per SIP Saleem Raza all accused were available in open plot, while SIP Shahban Ali has deposed that there was wheat crop in between police party and accused at the time of encounter , while ASI Suhrab has deposed that there were trees of `Kandis', Lai, bushes and Babur at the place of incident and Babur trees were high in height while the bushes and Kandis were in different size in height and remaining PWs have deposed that it was a thick jungle. Huge number of accused is shown in FIR with different sort of weapons and alleged encounter continued upto 30 minutes, during which Police party have also fired thousands of fire shots, but surprisingly none of 6/7 police mobiles nor the private vehicle of deceased have received a single fire shot and only 60 empties were secured from the place where police party was allegedly available at the time of encounter .
SIP Shahban has deposed that they were still available in their police mobiles when accused opened fires upon them, thereafter , they alighted and took position for retaliation, while remaining PWs have deposed that first they alighted from the vehicle and took position thereafter , accused started firing upon police. Prosecution case is that complainant shifted the body at hospital after formulation of mashirnamas, but SIP Saleem Raza has deposed that first they chased escapee accused in company of complainant Altaf Shah and then returned at PS, while SIP Shahban has deposed that they consumed 2 to 2 1/2 hours in chasing accused upto the distance of one KM.
Complainant has deposed that first he prepared memo of securing of empties and then shifted the dead body at hospital, while as per memo it was prepared after lodgment of FIR. All this variations creates serious doubt, suggesting that either complainant and PWs were not in same company or they deposed with certain improvements, which not only falsify assertion of complainant and eye-witnesses but shows that PWs in order to suit the situation make certain dishonest improvements while deposing before this Court, which indicates that their testimony is not above board. By making such improvements they made their conduct absolutely like unreliable witnesses, who have not respect for truth and are capable of telling a lie and changing statements as and when it suits to them."
11. After the Judgment of co-accused when the same set of witnesses appeared before the trial court for evidence against the appellant they again gave contradictory evidence on each aspect of the case. Complainant Altaf Hussain was examined as PW.2 and deposed in the examination-in-chief that they identified accused namely Mooso Lolai, Goro, Janib, Jagan, Jatoi, Murred, and Wazir, however , he did not remember the names of other identified accused persons, all accused while seeing the police party made straight firing upon them, thereafter , they also exchanged cross firing. During firing, ASI Altaf Korai proceeded ahead and had fallen down by raising crises and said that he had sustained firearm injuries. He stated in the cross-examination that at the time of incident, all the accused fired upon ASI Altaf Hussain Korai. He admitted that befor e registration of present FIR, the accused were not acquainted with him and on the day of the incident he saw the accused for the first time. From the perusal of this piece of evidence of the complainant, it is clear that he had never seen that whose fire hit to the deceased and even the witnessing of the incident in such a situation created serious doubt. Moreover , the complainant in the earlier depositions nominated several persons whose names, he not taken at the time of evidence of the present appellant. Further , the accused Jatoi was already acquitte d by the trial court along with 18 other accused.
12. PW-3 Saleem Raza was examined he also given contradictory evidence, he stated in his examination-in-chief that they saw and identified accused namely Mooso, Jatoi, Goro, Murred and others accused nominated in the FIR, whose names he cannot recall. He further deposed that accused were armed with G-3 rifles and Kalashnikovs and all accused started firing upon them to commit their murder , they also retaliated the firing after alighting from vehicles in their defence. He deposed that ASI Altaf Korai proceeded ahead and sustained firearm injuries at the hands of accused Mooso, Mureed and Goro, who had fallen down by raising crises. During cross-examination he stated that they had proceeded from the police station in the private Datsun pickup. It was driven by a private driver . He admitted during cross-examination that the complainant gave the names of accused Wazir, Bashir , Sono, and Allah Bux in the FIR due to confusion. He further in cross-examination deposed that accused Mooso was firstly seen and identified at the place of wardat at the distance of 10/11 furlongs. This witness also gave contradictory evidence from the first evidence so also from the statement under section 161, Cr .P.C.
13. PW-4 Shahban deposed that when they reached at the otak of accused Mooso Lolai, he identified accused as Bagan, Abdul Rehman, Allah Bux, Goro, Mureed, Dahar and other names he does not recall. He further deposed that all accused fired upon them and they also fired upon accused persons. During the encounter , ASI Altaf Hussain Korai moved ahead and sustain ed the firearm injuries by accused Mooso, Goro, and Mureed. Accused Abdul Rehman has already been acquit ted by the trial court. His evidence is also found contradictory with his earlier evidence.
14. Another witness Sohrab Khan who was also eye-witness and mashir of the incident who nominated 27 persons with their names and further deposed that Investigation Officer in his presence secured 14 empties of 7.62 from the place where accused Mosso, Mureed and Goro were available and 35 empties of 7.62 and 25 empties of G-3 rifle from place where police party was available so also at the distance of one furlong 45 empties of 7.62, 35 empties of G-3 rifle and 7 empties of 222 rifle fire by accused whereas there was no evidence that any of the accused was armed with 222 rifles at the time of incident. The complainant during cross-examination admitted that in the FIR specifically 222 rifles are not shown to be possessed by any accused.
15. The prosecution failed to prove the place of encounter as to where such encounter took place, in this regard; PW Saleem Raza stated in his cross-examination that when they reached Khan Waro Paho, accused came out from the otak of accused Mooso which was in open place. Due to winter season accused were sitting outside of the otak on the 15/16 cots but PW Sohrab Khan deposed in his cross-examination that there was no any otak at the place of the incident, even no any cot or pillow was available there, PW Shahban during cross-examination stated that at the time of firing, there was raw wheat crop at the place of wardat. Whereas PW Sohrab during cross- examination stated that the place of incident was jungle and there was no cultivat ion of wheat crop at the time of the incident. Conduct the witnesses clear ly showed that neither they were present at the time of incident nor they witnessed the incident and the entire story was managed.
16. Prosecution also failed to establish the place of receiving firearm injury by the deceased Altaf Hussain Korai as complainant stated in cross-examination that at the time of firing ASI Altaf Hussain Korai was at the distance of about 30/40 feet away from him and in between that distance trees, bushes and kandis were available whereas PW Saleem Raza stated in cross-examina tion that at the time of firing, there was plain ground, PW Shahban stated in the cross-examination that at the time of firing, there was raw wheat crop at the place of wardat.
17. The encounter in between the accused and police and the presence of witness es at the time of encounter was also doubtful as Complainant admitted during cross-examination that at the time of firing the distance in between accused and ASI Altaf Hussain Korai was about 100 or 150 feet, PW Saleem Raza stated in cross-examination stated that the distance in between accused and police party was about 10/11 furlongs at the place of incident and ASI Altaf Korai was in his police party and was standing beside him at the distance of 2/3 furlongs and PW Sohrab Khan deposed during cross-examination that the distance in between accused and police party was about 100 feet.
18. The identification of the accused persons at the time incident by the police personals was also doubtful as the complainant stated during cross-examination that before registration of present FIR, the accused was not acquainted with him and on the day of incident he saw the accused first time, however , he was identified by the other staff of police party . PW Saleem Raza deposed during cross-examination that accused Mooso had neither studied with him nor he belongs to his community , even during his posting tenure, he had not appeared at Police Station Kacho Bindi as accused or PW, he further deposed during cross-examination that he identified the accused Mooso at the time of incident at the distance of about 10/11 furlong while in lying position at the place of wardat.
PW Shahban admitted during cross-examination that all accused were seen by him the first time on the spot. PW Sohrab Khan during cross-examination deposed that he firstly physically saw the accused Mooso at the time of the incident. When the police party first time saw the appellant and the appellant was never seen by police party before the incident then how they identified that it was appellant Mooso which created very serious doubt in the prosecution case.
19. All the prosecution witness admitted enmity in between Lolai and Chachar community at the time of incident and it was also admitted by all the witnesses that most of the police personal who took part in the incident belongs to Chachar community and all the accused persons belongs to Lolai community , witnesses also admitted that several personal including the son and brother of the appellant were murdered by the persons of Chachar community and such FIR were also registered which shows that entire story of encounter has been managed.
20. We have examined the statement of accused under section 342, Cr.P.C. and found that trial court had not put to appellant all incriminating piece of evidence brought on record by the prosecution during the trial viz recovered empties of bullets and the bloodstained mud or clothes of deceased nor the medic al evidence the postmortem, but the same were relied upon by the trial court while passing the judgment of convictio n against the appellant which is totally against the scheme of criminal law. It is a settled principle of law that all the incriminating piece of evidence available on record in shape of examination-in-chief, cross-examination or re-examination of witnesses are required to be put to the accused, if the same are against him while recording his statement under section 342, Cr.P.C in which the words used "For the purpose of enabling the accused to explain any circumstances appearing in evidence against him." which clearly demonstrate that not only the circumstances appearing in the examination-in-chief are put to the accused but circumstances appearing in cross-examination or re-examination are also required to be put to the accused if they are against him because the evidence means examination-in- chief, cross- examination and re-examination, as provided under Article 132 read with Articles 2(c) and 71 of Qanun-e-Shahadat. Order , as has been held by Honourable Supreme Court of Pakistan in case of Muhammad Shah v . The State (2010 SCMR 1009 ).
21. It is a well-settled principle of law that a piece of evidence or a circumstance is not put to an accused person at the time of recording his H statement under Section 342, Cr.P.C. the same could not be considered against him as has been held by Honourable Supreme Court of Pakistan in cases Imtiaz alias Taj v. The State and others (2018 SCMR 344), Qadan and others v. The State (2017 SCMR 148) and Mst: Anwar Begum v. Akhtar Hussain alias Kaka and 2 others (2017 SCMR 1710 ).
22. The important aspect of the case is that learned trial court disbelieved the entire evidence of the same witnesses recorded in the first round when 19 co-accused were tried and acquitted, again in the second trial, the evidence of same witnesses was recorde d for the appellant and trial court believed the evidence and awarded the sentence. In such a situation the dicta laid down by the Honourable Supreme Court of Pakistan in case Khizar Hayat (PLD 2019 SC 527 ) is applicable where it was held as under:-
21. We may observe in the end that a judicial system which permits deliberate falsehood is doomed to fail and a society which tolerates it is destined to self-destruct. Truth is the foundation of justice and justice is the core and bedrock of a civilized society and, thus, any compromise on truth amounts to a compromise on a society's future as a just, fair and civilized society . Our judicial system has suffered a lot as a consequence of the above mentioned permissible deviation from the truth and it is about time that such a colossal wrong may be rectified in all earnestness. Therefore, in light of the discussion made above, we declare that the rule falsus in uno, falsus in omnibus shall henceforth be an integral part of our jurisprudence in criminal cases and the same shall be given effect to, followed and applied by all the courts in the country in its letter and spirit. It is also directed that a witness found by a court to have resorted to a deliberate falsehood on a material aspect shall, without any latitude, invariably be proceeded against for committing perjury .
22. The prosecution is duty-bound to prove it's case beyond reasonable shadow of doubt by producing confidence- inspiring and trustworthy evidence and if a single circumstance creates doubt in the prosecution case its benefit must go to accused not as a matter of grace or concession but as a matter of right. We find in the present case that the prosecution has failed to produce confidence-inspiring and trustworthy evidence against the appellant as discussed above in detail. Reliance can be placed on the case of Tariq Pervez v . The State (1995 SCMR 1345 ).
23. We, therefore, allow the instant appeal and acquit the appellant namely Muhammad Moosa alias Mooso Lolai son of Qadir Bux by extending him the benefit of the doubt and set aside the impugned judgment of trial Court dated: 06-10-2018 passed by learned Judge Anti-T errorism Ghotki at Mirpur Mathelo in Spi. Case No.01/2017 under FIR No.07/2012 for the offence under sections 302, 324, 353, 148, 149, P.P.C. and 7 A.T.Act, 1997 registered at Police Station Gamro, Distric t Ghotki. The appellant is directed to be released forthwith, if not required in any other custody case.
24. The appeal stands disposed of in the above terms.