NAZAR AKBAR, J. Both the above named Appellants were tried by learned Judge, Anti-Terrorism Court No.IV, Karachi. Appellants' cases were bifurcated on the ground that appellant No.2 was juvenile at the time of offence but his cases were also tried by the same court, though separately.
Appellant No.1 faced Special Cases Nos.25/2020, 25-A/2020, arising out of FIRs. Nos.446 and 447/2019 under sections 353/324/34, P.P.C., read with section 7 of the Anti-Terrorism Act, 1997 and under section 23(1)(a) of the Sindh Arms Act, 2013 respectively and appellant No.2 faced Special Cases Nos.25-C/2020 and 25-B/2020 arising out of FIRs Nos.446 and 443/2019 under the same offences. All the FIRs were registered at Police Station Manghopir, Karachi. On conclusion of trial, the trial Court, vide separate but identical judgments dated 29.09.2020, convicted and sentenced both the accused/appellants as under:- "(a) Accused Muhammad Sohail son of Jahan Shah found guilty of the charges of offences under sections 324/353/34, P.P.C., read with section 7(h) ATA, 1997, he is convicted and sentenced to suffer imprisonment for five years, and fine of Rs.20,000/- (Rupees twenty thousand), in case of default of payment of fine, he shall further suffer imprisonment for six months.
(b) Accused Muhammad Sohail son of Jahan Shah also found guilty of the charge of offence punishable under section 23(1)(a) of Sindh Arms Act, 2013, is convicted and sentenced to imprisonment for three years and fine of Rs.10,000/- (Rupees ten thousand), in case of default in payment of fine, he shall further suffer imprisonment for six months.
All the sentences shall run concurrently. The benefit of section 382-B, Cr.P.C. shall be extended to accused Muhammad Sohail son of Jahan Shah."
Accused/Appellant Sherullah son of Abdul Malik was convicted and sentenced as under:- "(a) Accused Sherulalh son of Abdul Malik found guilty of the charges of offences under sections 324/353/34, P.P.C., read with section 7(h) ATA, 1997, he is convicted and sentenced to suffer imprisonment for five years, and fine of Rs.20,000/- (Rupees twenty thousand), in case of default of payment of fine, he shall further suffer imprisonment for six months.
(b) Accused Sherulalh son of Abdul Malik, also found guilty of the charge of offence punishable under section 23(1)(a) of Sindh. Arms Act, 2013, is convicted and sentenced to imprisonment for one year and fine of Rs.2,000/- (Rupees two thousand), in case of default in payment of fine, he shall further suffer imprisonment for one month.
All the sentences shall run concurrently. The benefit of section 382-B, Cr.P.C. shall be extended to accused Sherulalh son of Abdul Malik."
2. Precisely, the facts of prosecution case are that on 21.12.2019 at about 03:00 hours, police party of Site Super Highway Industrial Area Police Station East, Karachi (SSHIA, P.S.) headed by ASI Miandad Alumni and comprising H.C. Roohul Amin, P.C. Waris Khan and P.C. Arbab along with Rangers' mobiles and officials on spy information reached at Sultanabad, near Poultry Farm, Pahari Manghopir, Karachi. On seeing police party accused persons armed with sophisticated weapons started firing upon police party with intention to kill them. In retaliation and self-defense, police party also started firing upon them. Resultantly, one accused succumbed to injuries on the spot, while two other accused who sustained bullet injuries were apprehended by police. On enquiry the accused persons disclosed their names as Muhammad Sohail and Sherullah (present appellants) and they also disclosed name of the deceased accused as Abdullah Masood. On personal search of accused Sohail, police party recovered from his possession one pistol of .30 bore, loaded magazine with three live rounds and two mobile phones, while from the possession of accused Sherullah one magazine of 09mm bore, loaded with five live bullets and one mobile of Vigo Tell.
Accused persons failed to produce valid licenses of the arms and ammunition.
3. After completion of legal formalities three FIRs were lodged against them at Manghopir Police Station District West Karachi by State through ASI Miandad of Police Station Site Super Highway, District East, Karachi. Investigation was also entrusted to SIO Inspector Allah Ditta Chaudhary of Police Station SSHIA of District East, Karachi. He on conclusion of investigation, submitted challan/charge sheets on 08.02.2020 against the appellants/accused under the above mentioned sections.
4. On 17.03.2020, case of accused/ appellant Sheruallah being Juvinile, was bifurcated from the case of accused Muhammad Sohail. Learned Judge, Anti-Terrorism Court by order dated 13.04.2020 decided to hold joint trial in both the cases of accused/appellant Muhammad Sohail as provided under section 21-M of the Anti-Terrorism Act, 1997. Then the trial Court framed charge against the accused Muhammad Sohail at Ex:6. Accused pleaded not guilty and claimed to be tried.
5. Both the cases of accused/appellant Sherullah were also amalgamated as provided under section 21-M of the Anti-Terrorism Act, 1997 by order dated 13.04.2020. Then the trial Court framed charge against the accused Sherullah at Ex:6. Accused Sherullah also pleaded not guilty and claimed to be tried.
6. In order to prove its case, prosecution examined six (06) Prosecution witnesses. PW-1, complainant, ASI Miandad Almani posted at SSHIA, Police Station East Karachi was examined at Ex:07, PW-2 H.C. Rohul Amin posted at SSHIA, Police Station East Karachi was examined at Ex:08, PW-03 Dr. Muhammad Nadeemuddin posted as Additional Police Surgeon, Liyari, Karachi was examined at Ex:09, PW-04, ASI Nasir Lodhi posted at Police Station Manghopir, Karachi was examined at Ex:10, PW-05 Syed Tahir Ali Shah complainant of FIR No.492/2019 of Police Station Mobina Town, Karachi was examined as Ex.12), PW-06 Inspector/IO Allah Ditta posted at SSHIA, Police Station East Karachi was examined at Ex:13. Thereafter, the learned A.P.G. closed the prosecution side vide statement dated 12.09.2020 at Ex:14.
7. Statements of accused were recorded under section 342(1) of Cr.P.C. They denied the prosecution allegations levelled against them. Accused Muhammad Sohail stated that he was picked up from his residence and police official demanded illegal gratification and on refusal, they implicated him in this false case, nothing was recovered from him nor any such incident took place. Accused Sheruallah stated that he was already in illegal custody of police and neither such incident took place nor anything was recovered from him. Both the accused claimed to be innocent. They neither examined themselves on oath under section 340(2), Cr.P.C nor produced any witness in their defense.
8. Learned trial Court after hearing the learned counsel for the parties and examination of evidence, by separate judgments dated 29.09.2020, convicted and sentenced the accused/ appellants as stated above. The appellant Muhammad Sohail against the judgment of his conviction filed Spl. Crl. A.T. Appeals Nos.135 and 136 of 2020. On 26.11.2020 only said two 'appeals of appellant Muhammad Sohail were fixed before this Bench when this Court enquired about the case of co-accused Sherrullah as to whether he has filed appeal against his conviction or not, it transpired that his consolidated Appeal No.157/2020 was also pending. Therefore, on 22.12.2020 Spl.
Crl. A.T.J.A. No.157 of 2020 was also fixed for hearing along with the Spl. Crl. A.T. Appeals Nos. 135 and 136 filed by appellant Muhammad Sohail.
9. We have heard learned counsel for the appellant Muhammad Sohail as well learned Deputy Prosecutor General and perused the record.
10. Mr. Muhammad Akram Khan, learned counsel. for the appellant Muhammad Sohail has made submissions that the appellants are innocent and have been falsely implicated with mala fide intention by the police. He has contended that entire trial against the appellant was illegal and unlawful since the alleged encounter is said to have occurred within the territorial jurisdiction of Police Station Manghopir, District West, Karachi and encounter have been shown between appellants and police of Police Station SSHIA of District East, Karachi. Even inquiry and investigation of the alleged offence has not been assigned to the Manghopir Police officials. The action taken by police of SSHIA P.S. of District East, Karachi was without jurisdiction and, therefore, the story of prosecution was not only illegal but also creates doubts on account of absence/silence of prosecution agency of P.S Manghopir in whose jurisdiction the incident had taken place. He further contended that not a single private person from the area was called in order to prove the prosecution story and the trial Court has believed a fake story as true to convict the appellants against the law. He further argued that the appellants/accused were arrested illegally and later on the police caused injuries to both the appellants to falsely make out a case of encounter. He further contended that as per prosecution case, Rangers officials also accompanied them when the alleged encounter took place but none of the Rangers' officials were cited as prosecution witnesses. He argued that the evidence produced by the prosecution is not only inconsistent, conflicting and contradictory but also untrustworthy, dishonest and false as such the prosecution has miserably failed to establish case against the appellants, therefore, the conviction awarded to them is bad, illegal and not warranted as there are serious contradictions in the evidence of prosecution witnesses. He lastly prayed for acquittal of the appellants.
11. Mr. Abrar Ali Khichi learned Deputy Prosecutor General argued that prosecution had examined six PWs and they had fully supported the prosecution case. He further argued that in the police encounter co-accused Abdullah Masood sustained injuries and died on the spot, whereas the appellants were injured when arrested by the police and weapons were recovered from the possession of the accused/ appellants and the trail Court for the sound and valid reasons convicted and sentenced the accused/ appellants. Learned D.P.G. has, however, shown his surprise to the fact that how police from District East Karachi has gone to District West, Karachi to face encounter when there is no record of presence of police of District West, Karachi on the place of incident. He has, however, supported the impugned judgment and prayed for dismissal of the instant appeals.
12. The prosecution story in all the three FIRs Nos. 446, 447 and 448 of 2019 are based on the statement of ASI Miandad Almani of Police Station SSHIA, District East, Karachi and the FIRs have been registered at P.S Manghopir, District West, Karachi. In the first FIR, the offence reported is under sections 353/324/34 of P.P.C. read with section 7 of ATA, 1997 and in the two other FIRs, the common offence is under section 13(1)(a) of Sindh Arms Act, 2013 against the two appellants. One more FIR bearing No.449/2019 available at page-85 of paper book (Ex:7/G) was also registered against a dead person Abdtinab Masood for alleged recovery of an unlicensed 9mm pistol bearing No. NCAC-13787 loaded with five live rounds from the deceased.
13. The case of prosecution is that complainant ASI Miandad of SSHIA Police Station of District West, Karachi has reported to ASI Nasir Lodhi of Police Station Manghopir of District East, Karachi that on 21.12.2019 while on patrolling duty along with other staff at Maymar More at 11:30 p.m., he received directions from police station SSHIA to join Rangers' party parked at 4-K Chowrangi in District East and after joining them, they went to Police Station Manghopir where he made his entry at the said P.S. in the roznamcha and thereafter went to Sultanabad Pahari and as soon as they reached there,' the accused party on seeing them opened fire on Police and Rangers officials and in retaliation and self defence of their firing, one suspect died and two sustained injuries. The record shows that in all six witnesses were examined by the prosecution. Among the six witnesses, three PWs namely, PW-1 ASI Miandad Almani, PW-02 H.C. Roohul Amin, and PW-06 PI/IO Allah Ditta belong to Police Station SSHIA, District East, Karachi are star witnesses. PW-04 ASI Nasir Lodhi, belongs to Police Station Manghopir, District West Karachi has recorded statement of complainant PW-01, ASI Miandad of Police Station SSHIA at Abbasi Shaheed Hospital after the action has already been completed. The evidence of PW-03 Dr. Muhammad Nadeemuddin is important as it helped us in understanding the nature of encounter and the nature of injuries sustained by the rival parties if at all it was an encounter. The evidence of witness PW-05 Syed Tahir Ali Shah has surprised us. Why and how he was asked to appear in the instant case is a million dollars question? He has produced FIR No.492 of 2019 registered at Police Station Mobina Town available at page-179 of paper book (Ex:12/A), though it has no nexus with the instant case arising from FIR Nos. 446, 447 and 448 of 2019 of Manghopir P.S. The inclusion of a private person as witness from the jurisdiction of Mobiria Town P.S. in a case of simple encounter at a distance of around 13 Kms away in Manghopir Police Station though said encounter is not even pursuant to any FIR nor it was sudden encounter in a bid to foil robbery / dacoity etc. This witness is neither police informer nor he knew the culprits. His inclusion in the inquiry and investigation in the instant case was sheer inefficiency and incompetency of the Investigation Officer as it has nothing to do with a brutal murder of a man in the jurisdiction of District East by the police of District West against whom CRO is Nil. His evidence did not improve the case of prosecution to kill a human being in an encounter by police.
14. The gest of relevant evidence of two police officials PW-1 and PW-2 who participated in the encounter; and PW-6, Investigation Officer all from SSHIA P.S. as well as evidence of PW-4, ASI Nasir Lodhi, only police officer of Manghopir P.S in whose territory the incident took place, as well as evidence of doctor is as under: -
(1) PW-01 (complainant) ASI Miandad Almani of Police Station SSHIA in his cross-examination made the following admissions:-- i. It is correct to suggest that in departure entry from Police Station SSHIA for patrolling duty it is not mentioned that police party was equipped with weapons. ii. When (we) were busy in patrolling duty at Maymar More at about 11:30PM, I received direction from PS to join Rangers Party. After receiving such information we rushed towards the 04-K Chowrangi where Rangers Party was present. iii. The distance between Maymar More where I received information and 4-K Chowrangi where.
Rangers Officials were present is about 30/35 kilometers. iv. I don't remember exact number of Rangers officials but they were boarded in 06 mobiles. v. It is correct to suggest that today I have not produced entry kept at roznamcha register at Police Station Manghopir. vi. We consumed 45 minutes in journey from Police Station Manghopir to place of incident. vii. We accompanied with Rangers mobiles and were going straight towards the pointed place. viii. We were (remain) present at Police Station Manghopir for about 02/03 minutes and then left for pointed place at about 02:00 AM. ix. The encounter was continue for about 10/12 minutes. x. I do not remember exact number of bullets fired by both the parties but both the parties fired approximately 40/50 rounds. xi. It is correct to suggest that none from the police and Rangers sustained bullet injury, police mobiles were also not hit during encounter. xii. We consumed one hour in whole the proceedings of encounter, arrest and recovery. xiii. The injured accused were shifted to hospital, Rangers Officials, P.C. Waris and Rooh-ul-Amin were accompanied them. xiv. It is correct to suggest that Ranger Officials are not associated as mashirs of arrest and recovery. xv. It is correct to suggest that digit 1928/20 SPFA are engraved on the body of pistol produced before the court.
(2) PW-02 H.C Roohul Amin of Police Station SSHIA in examination-in- chief stated as below:- On 21.12.2019, I was posted at Police Station Site Super Highway. My duty were from 08:Opm to 08:00am. I along with ASI Miandad, PC Waris and Driver/PC Arbab left PS for patrolling duty in APC Mobile-I in the area During patrolling ASI Miandad received information regarding presence of accused persons, we rushed towards pointed place i.e. Manghopir ,mountain area along with Ranger officials........................ From the possession of deceased accused one 09mm pistol along with magazine loaded five round was also secured. From his front pocket colour copy of CNIC in the name of Qasim was also secured....................................................................... ASI of Police Station Manghopir came to hospital where he recorded the statement of ASI Miandad.
In his cross-examination PW-2, made the following admissions:- i. ASI Miandad received information regarding presence of accused persons at about 12:30 AM when we were present at Maym ar Mor. ASI informed us that he received information regarding presence of accused persons and we were directed to join Rangers' party. ii. I don't remember exact place when we joined Rangers officials but after receiving information we returned back to Police Station Site Superhighway from where we left for Police Station Manghopir and in the way we joined Rangers officials. They were boarded in two mobiles. iii. I don't remember exact time when we joined Rangers officials but we reached at PS Manghopir at about 02:00 AM. iv. At the time of encounter distance between police/Rangers and accused persons was about 60/70 yards. When we reached at the place of incident accused persons straightaway fired upon police/Rangers party. v. It is correct to suggest that in result of such encounter none from police/Ranger party sustained bullet injury, police/ Ranger mobile were also not hit. vi. I can't say exact numbers of bullet fired by both the partiesbut 50/60 rounds were fired by both the sides. vii. It is incorrect to suggest that ASI Miandad did not secure blood stained earth from place of incident. viii. It is correct to suggest that blood stained earth is not present before the court today. ix. It is correct to suggest that mobile recovered from possession of accused Sohail are not produced before the court today. x. I, ASI Miandad and PC Waris fired with official weapons during encounter. xi. It is correct to suggest that it is not mentioned in my 161, Cr.P.C. statement that on which part of body of accused persons sustained bullet injury.
(3) PW-04, ASI Nasir Lodhi of Manghopir P.S. stated that he has recorded following statement of PW-01 under section 154, Cr.P.C. (Ex.7/8) at the Abbasi Shaheed Hospital:- Tonight I, ASI Miandad Almani, posted at Police Station Site Superhighway accompanied with officials HC/19255 Roohl Amin, PC/14409 Waris Khan and PC Arbab along with official APC and Rangers mobile officers and officials on secret information at 0300 hours arrived at Sultanabad near Poultry Farm Hill Manghopir so on the hill the accused persons having seen the police and Rangers approaching towards them started firing at the police and Rangers with their firearms with an intention to cause death. Acting in self-defence, I, the ASI, got the accompanying officials to return fire with official SMG and due to the retaliatory fire by the police one accused died on the spot whereas two accused persons got injured and fell down. The injured accused persons were apprehended with the help of accompanying officials and Rangers who upon enquiry, mentioned their names as 1. Muhammad Sohail son of Jahan Shah and 2. Sherullah son of Abdul Malik and mentioned the name of their deceased accomplice as Abdullah Masood son of unknown, whose physical search, due to unavailability of private witnesses was carried out in presence of accompanying officials HC Roohul Amin and PC19255 Waris Khan so clutched in his right hand one .30 bore pistol, without number, having magazine loaded with three live rounds, on whose barrel "PAK MADE" is inscribed, was recovered from accused Sohail. From further physical search two mobile phones G-Five were recovered from the right side pocket of his wearing qameez whereas from the right side pocket of accused Sherullah one magazine of 9mm pistol loaded with five live rounds and from the left side pocket of his , wearing qameeez one mobile phone VigoTel was recovered. Whereas from the physical search of deceased accused Abdullah Masood, clutched in his right hand one 9mm pistol bearing No.NCAC137S7 having loaded magazine with five live rounds whereas from is further physical search a color copy of CNIC in the name of Qasim son of Abdul Umar holding CNIC No.42401- 0724267-7 was recovered from the front side pocket of his wearing qameez. Sought licenses of recovered weapons from the injured accused persons which they failed to produce. This act of the deceased and injured accused persons is found punishable under sections 353/ 324/34, P.P.C. and the crime of recovery of weapon is found punishable under section 23(i)(A) SAA therefore, the injured accused persons were duly arrested. The recovered weapon from the accused persons were separately sealed up whereas in torch light collected three empties of SMG, five empties of 9mm and three empties of .30 bore from the spot and sealed them up. I have brought the deceased and injured accused persons through Rangers mobile and APC to the Abbasi Shaheed Hospital for medical treatment and police proceedings. Now statement under section 154, Cr.P.C is handed over to ASI Nasir Lodhi of Police Station Manghopir for registration of cases. Further, two motorcycles H125 bearing Registration No.KMD-6427 and HBF-2559 which were in use of the accused persons, were seized into police custody under section 550, Cr.P.C. whereas the injured accused persons are being treated.
POLICE ACTION I, D/O ASI Nasir Lodhi, do hereby certify that the recorded statement under section 154, Cr.P.C. was copied verbatim. From contents of the report the nature of offence is found punishable under sections 353/ 324/34, P.P.C. read with 7 ATA and the recovery of weapons from the accused persons is found punishable under section 23(i)(A) SAA. Whereas, I, the Duty Officer, carried out proceedings under section 174, Cr.P.C. in respect of the deceased accused after obtaining permission from the MLO. Prepared memo. regarding examination of dead body, obtained cause of death. The body of the deceased was sent to the Chippa cold storage for search of legal heirs and obtained the ML reports of the above injured persons. Now having returned to the PS, registered the case against the above deceased and injured accused persons. Investigation of the case shall be carried out by SIO of PS SITE Superhighway. Whereas separate cases regarding recovery of weapons from the accused persons are being registered. Copies of FIR shall be distributed as per rules.
In his cross-examination PW-04 made the following admissions:- i. I received a call from Operator of Orangi Base at about 06:30 am. It is correct to suggest that entry (Ex-10/A) is carbon copy of Raznamcha register, while time and date is mentioned with pen. ii. It is correct to suggest that on inquest report (Ex:10/B), time is overwritten and no signature or stamp is affixed on it. iii. I recorded 161, Cr.P.C statement of ASI Miandad Almani at Abbasi Shaheed Hospital. I completed whole proceedings and left Abbasi Shaheed Hospital at about 10:00 a.m. iv. It is correct to suggest that police letter (Ex:09/A) does not contain the time of its issuance.
(4) PW-06 SIO Inspector Allah Ditta of Police Station SSHIA in examination-in-chief, among others, stated as below:- On 21.12.2019, I was posted at PS Site Super Highway as SIO. Investigation of crime Nos. 446/2019, 448/2019 and 449/2019 of Police Station Manghopir were entrusted to mevide entry No.30,...................................I also sent letter to CRO for obtaining previous criminal record of accused Sohail, I produce such letter as Ex.13/E. Incharge CRO verbally informed me that accused has no previous criminal record. The recovered weapon were sent to FSL for examination on 24.12.2019, I produce such letter as Ex.13/F ............................................................
As per FSL examination report the recovered weapon from Sohail matched with empties sent to FSL in crime No.143/2019 of PS FB Industrial Area, I informed of Crime No.143/2019 ..........................................................
In his cross-examination PW-06 made the following admissions:- i. It is correct to suggest that I have not produced any entry regarding deposit of case property in Malkhana of PS. ii. It is correct to suggest that registration number of police mobile is not mentioned in memo of site inspection; vol. says I proceeded to place of incident in my private car. iii. I consumed 40/45 minutes in preparation of memo. of site inspection. iv. It is correct that I have not secured blood stained earth from place of incident. v..........................................................................................................................
After completion of site inspection I left place of incident at about 08:45 PM. vi. It is correct to suggest that I have not obtained any entry regarding issuance of weapon to official at the time of leaving for patrolling duty. vii. It is correct to suggest that I have not produced entry regarding bullet fired by the police officials, vol. says that I obtained copy of Koth Register -which reflects that 20-20 rounds were issued to PC Waris Khan and H.C Roohulamin and after encounter Roohulamin deposited 10 empties and Waris Khan deposited 08 empties. viii. It is correct to suggest that official weapon which was used in encounter was not sent to FSL for examination. ix. It is correct to suggest that at the time of encounter Ranger's official were also accompanied with police party. x. It is correct to suggest that none from Ranger's official was cited as witness in this case. xi. During investigation I have not inquired that how many mobiles of Rangers' official and police official sustained any gunshot injury during encounter and government vehicle was also not hit. xii. It is correct to suggest that that during encounter one Waheed Kan alias Abdullah Masood was dead, who was dacoit and not innocent citizen. xiii. It is correct to suggest that on fabric bag in which weapon allegedly recovered from accused Sohail, name/signature of witness are not available. xiv. It is correct to suggest that I have not provided extra bullet for testing to FSL. xv. It is correct to suggest that during my investigation it was not came on record that from where accused purchased the 'pistol and how it came in his possession. xvi. It is correct to suggest that in my investigation report I have not mentioned cause of delay in sending weapon to FSL. xvii. It is correct to suggest that I have not produced discharge slip of accused Sohail issued by hospital.
(5) PW-03, Dr. Muhammad Nadeem Uddin in examination-in-chief deposed:- On 21.12.2019, I was posed as Additional Police Surgeon Liyari, at Abbasi Shaheed Hospital. On the same day, at about 05:30 am, injured, namely Muhammad Suhail son of. Jan Shah at about 05.04, aged 17 years and the dead body of Abdullah Masood son of unknown were brought by Inspector Ahmed Hussain of Rangers, with history of firearm injury during encounter. I got noted the entry at police control to ASI Abid Hussain through phone. I examined Muhammad Suhail son of Jan Shah and noted the following injuries.
INJURIES.
1. Lacerated wound middle forehead measuring 1 cm x 0.2 cm
2. Swelling and bruise over anterior right side forehead measuring 03cmx03cm
3. Abrasion and swelling over left anterior side tibia and fibula measuring 1cmx10cm.
4. Abrasion left anterior side tibia and fibula upper 1/3 measuring 2cmx2cm.
5. Abrasion right medial side tibia and fibula measuring 3cmx2cm.
6. Abrasion right medial side tibia and fibula measuring 4cmx2cm.
7. Swelling over right side face near injury number-02.
The nature of injuries were reserved. I advised X-Rays. The kind of weapon of injury No.01 is secondary pellets. The injuries No.02-07 were sustained by hard and blunt weapon. Then I issued final supplementary report. As per radiological report issued by the radiologist Abbasi Shaheed Hospital. X-Ray skull left tibia and fibula right fibula showing few metallic density shadow in soft tissue of frontal skull. No fracture seen in skull, knee and legs in these view. Hence, the reserved injuries from 01-07 were declared as Shuja-e-Khalifah and the reserved Injuries Nos.03, 04, 05 and 06 were declared as Jurah-e-Ghair Jaifah Damiyah. I produce MLC as. Ex-09/B and supplementary report as Ex-09/C.
I noted the following injuries of Sherullah during examination.
INJURIES.
1. Abrasion over left side chin measuring lcmx0.2cm.
2. Abrasion right side lateral knee joint measuring 1 cmxlcm.
3. Abrasion right anterior side knee joint various sizes
4. Abrasion left side knee joint various sizes.
5. Abrasion selling over left thigh tenderness positive.
6. Lacerated wound over left lateral side of heel 3cm0.2cm muscled
7. Swelling over left side of face measuring 2crrixlcm.
The nature of injury number-01 declared as Shuja-e-Khafifa and injuries Nos.2 to 07 were reserved for X-Ray opinion. The kind of weapon is hard and blunt and the duration of injuries was fresh.
Then I issued Final supplementary report. The patient was admitted on 21.12.2019 and discharged on 04.01.2020, at Jinnah Postgraduate Medical Centre, Karachi, and operation done screw and fixation.
As per Radiological report' issued by Radiologist of Abbasi Shaheed Hospital, X-Ray skull left femur, left and right knee joint left foot, showing displaced fracture of left femur neck and few tiny metallic density shadow seen at soft tissue of leg. No fracture seen on other view of X-Ray.
Hence, the reserved injury No-05 and 04 were declared as Jurah-e-Ghair Jaifah Dainaiyah. The reserved injury No.-06 was declared as Mutalihmah. The reserved injury No-07 was declared as Shujah-e-Khafifah. I produce photocopy of police letter as Ex-09/A. I produce MLC bearing No- 0820/19 as (Ex-09/B), Supplementary Medico Legal Report as (Ex-09/C) and discharge card as Ex- 09/D.
ABDULLAH (DECEASED)
The dead body of Abdullah Masood son of, unknown were brought at about 04:59 am, I started the postpartum at about 08:00 am and end at about 09:30 am.
EXTERNAL EXAMINATION.
He was vested in brown colour shalwar Kameez with baniyan.
The condition of body was fresh. The rigor mortis were developing. General features were identifiable. No sign of decomposition. Post mortem liquidity (P. M .L) not fixed. Tongue inside mouth. No bleeding from ear, nose and mouth.
Surface wound injuries.
INJURIES.
01. The firearm would of entry left anterior side of chest measuring about 0.5cm x 0.5cm, inverted margin, rounded in shape, no blackening and charring seen. Exit wound over left lower chest measuring 2cm x 2cm, everted margin.
2. Firearm wound of entry left anterior side of chest, medical 'side, measuring 0.5cm x 0.5cm, cavity deep, Inverted margin, no blackening and charring seen. Exit wound right lateral side middle of chest measuring 1.5cm x 2.5cm, everted margin.
3. Firearm wound of entry right lateral side of chest, measuring 0.5cm x 0.5cm, inverted margin, no blackening and chairing seen. Exit wound over epigastria measuring 2.5cm x 2.5cm, everted margin.
4. Firearm wound of entry right anterior side chest, near axilla, measuring 0.5cm x 0.5cm, inverted margin no blackening and charring seen. Exit wound over left lateral side of chest, projectile recovered and handed over to I.O.
5. Firearm wound of entry, left back of elbow joint measuring 0.5cm x 0.5cm, muscle-d with clinical fracture, no blackening and charring seen. Exit wound left anterior side radius ulna measuring 3cm x 3cm.
6. Firearm wound of entry over left back side lower 1/3 forearm, measuring 0.5cm x 0.5cm, inverted margin, no blackening and charring seen. Exit wound left anterior - side lower 1/3 forearm, muscle and tenderness exposed measuring 10cm x I0cm.
7. Firearm wound of entry left anterior side of thigh in middle, measuring 0.5cm x 0.5cm, muscle- d, inverted margin, no blackening and charring seen.
Exit wound left medial and middle side of thigh, measuring 2cm x 2cm.
08. Firearm wound of entry right gluteal region, measuring 0.5cm x 0.5cm, inverted margin, no blackening and charring seen. Exit wound over right anterior side lower 1/3 of thigh, everted margin.
All injuries were anti mortem. Duration of injuries and death is instantaneously. The duration of death and post mortem is 05/06 hours.
INTERNAL EXAMINATION Head On opening scalp no bruise or mark of injury seen inner and outer surface of scalp. No bonny abnormality on this examination. Thorax On opening the chest. The cavity was filled with blood. The firearm projectile damaged the base of heart and right and left lung. All structure found pale.
Abdomen On opening the abdomen cavity. The firearm projectile damaged the liver, stomach and large intestine. All structure found pale.
Neck On opening the neck. Trachea placed centrally. Hyoid bone found intact.
Viscera No viscera was retain. Spinal cord Spinal cord not opened.
OPINION/CAUSE OF DEATH Death occurred due to Irreversible hemorrhagic shock leading to cardiorespiratory failure as result of firearm over chest and abdomen.
Cross-examination of PW-03, Dr. Muhammad Nadeem Uddin is reproduced below:- .............................................................It is correct to suggest that the name of Rangers official who brought the injured and dead body is not mentioned in police letter. It is correct to suggest that in MLC same time is mentioned when the injured was brought to the hospital. It is correct to suggest that bloodstained cloth of (accused) Suhail were not sealed by me. Accused Suhaii sustained firearm injury from the distance of more than six feet. It is correct to suggest that police letter (Ex-09/A) is a photocopy.
15. The learned trial Court on the basis of above evidence after hearing counsel for the parties framed identical points for determination in both the cases. The difference was only that name of accused was Sherullah mentioned in the case arising out of FIR Nos.446/2019 and 448/2019, while exercising jurisdiction as juvenile Court for the trial of accused Sherullah, Relevant points for determination are reproduced below:- POINT NO.01.
Whether on 21.12.2019 at about 0300 hours, at Sultanabad near Poultry Farm, Pahari Manghopir Karachi, accused namely Muhammad Sohail son of Jahan Shah along with his accomplices Waheed Khan alias Abdullah Masood (deceased) and Sherullah son of Abdul Malik (whose case has already been bifurcated/separated vide order dated 17.03.2020), had opened fired upon police party, with intention to kill them and deterred them from discharge of their lawful duty, also created sense of fear and insecurity in society, as alleged?
POINT NO.02.
Whether the complainant ASI Miandad Almani of PS SSHIA Karachi, at the same time, date and place arrested the accused Muhammad Sohail and recovered one .30 Bore pistol, loaded magazine with three live bullets from the possession of arrested accused?
16. The close scrutiny of evidence of the star witnesses PW-1 reproduced above who is also the complainant and PW-2 who participated in encounter were more than enough to conclude that the entire story was false and concocted. The prosecution has failed to obtain corroboration of the story of complainant from the Rangers who were eye-witnesses as they were accompanying the police party in six mobiles. He did not disclose name of anyone of the officials of Rangers. His statement that P.C Waris and P.C Roohul Amin accompanied the injured and deceased to the hospital was contradicted by Doctor Muhammad Nadeemuddin (PW-03). The doctor did not mention names of P.C Waris and P.C Rooh-ul-Amin in his deposition. He categorically stated that the injured and dead body were brought by Inspector Ahmed Hussain of Rangers, and therefore, he informed the police control. It means that none of the police officer was accompanying the injured and deceased. The prosecution has miserably failed to produce any evidence against the appellants showing their involvement in any crime that prompted the police party from SSHIA P.S. of District East to start an action at 11:30 PM on 21.12.2019 against the appellant who at the relevant time were more than 35 miles away at Maymar More to rush to get hold of appellants at Manghopir Pahari, situated in the jurisdiction of Manghopir Police Station in district East, Karachi. In any case according to the Police Rules, 1934, once the police of District East, Karachi has received any information of offence in the jurisdiction of District West, the police of District East were required to take action only in accordance with the provision of section 166, Cr.P.C read with Rules 25.3 and 25.4 of the Police Rules, 1934. Rules 25.3 and 25.4 of Police Rule are reproduced below:- 25.3. When the occurrence of a cognizable offence in another police station jurisdiction is reported, the fact shall be recorded in the daily diary and information shall be sent to the office in charge of the police station in the jurisdiction of which the offence was committed. Meanwhile all possible lawful measures shall be taken to secure the arrest of the offender and the detection of the offence.
25.4. (1) If a police officer after registering a case and commencing an investigation discovers that the offence was committed in the jurisdiction of another police station he shall at once send information to the officer incharge of such police station.
(2) Upon receipt of information such officer shall proceed without delay to the place where the investigation is being held and undertake the investigation.
Admittedly the record does not show that there was any information with the police of SSHIA P.S on the record to act against the appellant nor they have informed Manghopir Police Station before taking action within the jurisdiction of Manghopir Police Station and that is why none from the police of Manghopir Police Station joined the police party from SSHIA nor "proceeded" to place of incident at their own. In fact in the present case SSHIA police had no written information about any offence having been committed by the appellant nor any previous criminal record of the appellants has been produced by prosecution at the trial. To the contrary, CRO of accused is Nil.
The Investigation Officer P.W-6 from P.S SSHIA in his examination in chief has stated that "Incharge CRO verbally informed me that accused has no previous criminal record". And in cross- examination as quoted above, he has categorically conceded that "it is correct to suggest that today I have not produced entry kept at roznamcha register at Police Station Manghopir". What about any entry at P.S, SSHIA? Any entry by SHO or duty officer, P.S SSH1A showing direction given to ASI Miandad Almani at 11:30 PM during patrolling duty was also not produced. The other evidence which confirms that whatever action has been taken by SSHIA P.S in Manghopir Pahari in District East, Karachi was without prior information to the Manghopir police of District West is the evidence of Doctor of Abbasi Shaheed Hospital who on receiving the injured and the dead body at about 5:00 am before giving treatment to the injured he has informed the police control to ASI Abid Hussain through phone and the said police control entry No.7 is mentioned on the medical certificate EX:9/B. It is also corroborated by PW-4 ASI Nasir Lodhi of Police Station Manghopir when he stated that at 6:30 hours he received an information from the operator of Orangi Base through phone that Dr. Muhammad Nadeem Uddin of Abbasi Shaheed Hospital has informed that one deceased and two injured have been brought at the hospital by Rangers. Even this information to police at Manghopir P.S was passed on after one and half hour of phone by MLO from Abbasi Shaheed Hospital. Had it been already in the knowledge of Manghopir police, at least one police officer from the Manghopir police station ought to have accompanied the injured and/or the injured should have been referred with a medico legal letter from Manghopir P.S. It means till 6:30 hours the Manghopir police was unaware what was happening in the jurisdiction of their area. PW- 4 is the only police officer from the Manghopir P.S in whose jurisdiction the alleged encounter between the appellants and police of SSHIA P.S has taken place and this PW-4 has not even suggested in his examination-in-chief that there has already been an entry in police station that police officers of SSHIA are performing duties under whatever name within the jurisdiction of P.S Manghopir. Even the complainant ASI Miandad Almani of P.S. SSHIA in his statement under section 154, Cr.P.C at the Abbasi Shaheed Hospital has not mentioned that any entry has been made by him at Manghopir P.S prior to encounter. In view of the fact that the prosecution has failed to bring on record relevant entries of SSHIA P.S to begin the action and/or entry at Manghopir P.S to continue the action within the jurisdiction and/or any other entry showing presence of criminals at the place of encounter, it cannot be said that police was justified in taking action against the accused and killing a man in the name of encounter. It is now well settled principle of aw that roznamcha entries of departure and arrival of police is mandatory to prove the very presence of the police at the relevant time at the place of incident. If in the above otherwise obvious situation, still some help is required from a case-law, one may refer to the judgment in the case of Abdul Sailor v. The State (2002 PCr.LJ 51) and the case of Waris v. The State (2019 YLR 2381). In these cases failure to produce entry of departure and arrival from police station has been declared a case of serious doubts in the prosecution story for which benefit has to go to the accused. In this context reliance is also placed on the case of Mohammad Hayat and 3 others v. The State (2018 PCr.LJ Note 61) wherein it was observed that:-
15. Admittedly, in the cases in hand arrival and departure entries were not produced before the trial Court in order to prove that police party, in fact proceeded to the place of occurrence and recovered two abductees and arrested accused Muhammad Hayat with Kalashnikov. Roznamcha entries of second episode of arrest of co-accused and recovery of weapons have also not been produced. This lapse on the part of prosecution has cut the roots of the prosecution case, thus, rendered entire episode shrouded by doubt. This omission by itself was enough to disbelieve the evidence of police officials. It is also admitted fact borne out from the record that Kalashnikovs allegedly recovered from the appellants were neither sealed at spot nor the same were sent to Ballistic Expert for report. Conviction under section 13(d), Arms Ordinance, 1965 could not be maintained unless weapons allegedly recovered were sealed at spot and opinion of Ballistic Expert was produced in order to prove that weapons so recovered were infact functional.
17. In the case of appellant an important fatal lacuha in the prosecution story is that one .30 bore pistol without number was allegedly recovered from appellant Mohammad Sohail (FIR No.447- Ex: No.7/F). And according to FSL report, a .30 bore pistol sent to FSL was also rubbed number, however, at the trial before the court a .30 bore rubbed number pistol was not produced. The complainant on seeing the case property confirmed that "It is correct to suggest that digit 1928/20 SPFA are engraved on the body of pistol produced before the court". It means the alleged pistol recovered from the appellant was not produced before the Court. The forensic report (Ex:13/D) has completely contradicted the use of .30 bore pistol rubbed number by any of the appellants for firing on the police since it was not produced in court. Consequently, the empties of .30 bore pistol, even if matched, would not be a proof of firing by the appellant on the police party. The .30 bore pistol and empties mentioned in FSL report were not produced in Court. Likewise the allegation that five (5) shots from .9mm pistol were fired by the deceased is also not proved. The FSL report shows that two of the empties were not fired from the .9mm pistol recovered from the deceased. The I.O has not explained why he failed to produce the allegedly rubbed number pistol recovered from appellant Sohail and from where he got two empties of .9mm pistol which did not match with .9mm pistol allegedly used by the deceased. In similar fashion the use of official weapon by police to kill one of the accused, too, is not proved since I.O has not sent official weapon to Forensic Laboratory for matching thirteen empties of 9.62 x 39 mm weapon recovered from the scene of incident. Therefore, the so-called weapons recovered from the accused and empties from the crime scene have become highly doubtful in the light of documentary evidence of FSL report.
18. In addition to the failure of prosecution to produce in Court the entire case property mentioned in the FIR particularly the pistol allegedly recovered from appellant, the FSL report has made the case of prosecution even more doubtful since safe custody of weapons and empties was not established. The Investigation Officer has received case properties including weapons and empties on 21.12.2019 but he did not send the weapons and empties immediately to the Forensic Laboratory and retained the same till 24.12.2019 for three days with him. The Investigation Officer PW-6 has not explained that where have been these weapons and empties during this period. No entry of handing over of these weapons and empties to any Malkhana incharge of P.S Manghopir or P.S SSHIA has been produced by the Investigating Officer. In his cross-examination, the I.O has categorically admitted that "In my investigation report I have not mentioned cause of delay in sending weapon to FSL". Not only this, he has also confirmed in his cross-examination that "It is correct to suggest that on fabric bag in which weapon allegedly recovered from accused Sohail, name/signature of witness are not available". This admission also confirms that there was no justification for trial court to rely on FSL report as a proof of so-called attack on the police by the accused party and even convict appellant for the offences under section 23(1)(a) of the Sindh Arms Act, 2013. The delay in sending the weapon to FSL has always been considered fatal to prosecution case by the superior courts. We may refer to the case of Kamaluddin alias Kamala v.
The State (2018 SCMR 577). The relevant observations of the Hon'ble Supreme Court in the said case are reproduced below:- "4. As regards the alleged recovery of Kalashnikov from the appellant's custody during the investigation and its subsequent matching with some crime-empties secured from the place of occurrence suffice it to observe that Muhammad Athar Farooq DSP/SDPO (PW18), the Investigating Officer, had divulged before the trial court that the recoveries relied upon in this case had been affected by Ayub, Inspector in an earlier case and thus, the said recoveries had no relevance to the criminal case in hand. Apart from that safe custody of the recovered weapon and its safe transmission to the Forensic Science Laboratory had never been proved by the prosecution before the trial court through production of any witness concerned with such custody and transmission."
In the case in hand as discussed above even pistol produced in Court was not the one mentioned in the FIR and memo. of recoveries. The I.O has also willfully and deliberately failed to produce mobile phones recovered from the appellants Sohail and Sherullah and also a CNIC recovered from the person of deceased before the court despite the fact that these articles were also mentioned in the first information report given by the complainant PW-1 to the duty officer of Manghopir Police Station. In the cross-examination PW-2 HC Roohullah stated that "It is correct to suggest that mobile recovered from possession of accused Sohail are not produced before the court today". The prosecution never produced these mobiles for the simple reason that on producing these mobile phones, the court could have called the mobile data to confirm the whereabouts of the appellants at the time of incident and their prior connection with each other.
19. The most important thing to be noted in the prosecution story is that the action begins by SSHIA police at 11:30 PM on 21.12.2019 when the culprits were 40 kms away from them at Manghopir Pahari in district West, Karachi. The complainant himself has admitted that the distance from the place where he received the information i.e Maymar More to the place where he met the Rangers known as 4-K Chowrangi is about 30/35 kms and they reached at the pointed place around 2:45 AM. It means from the time of information received to the time of reaching at the place of incident, almost 3 hours have been consumed. Admittedly the police has not recovered anything stolen or robed from the possession of appellants and place of incident. The place of incident is not a home or even a covered area. It was an open to sky place and in the cold weather of December, 2019 the appellants waited till 2:45 AM for at least 3 hours and on seeing one police mobile and six mobiles of Rangers, they attacked them instead of trying to escape from there on two motorcycles in their use. All this makes the story even more unbelievable.
20. In view of the above discussion of the evidence against the appellants, we have already allowed these appeals by short order dated 22.12.2020. The short order is reproduced below:- We have heard learned counsel for the appellant as well as learned D.P.G at length. The arguments have been concluded and from perusal of record and evidence we have noted following fatal lacunas in the story of prosecution: -
(i) The I.O. and the police officials involved in this case being Allah Ditta of P.S SITE Superhighway Industrial Area, H.C Rooh-ul-Amin and H.C Waris Khan, claimed to have reached at the place of encounter, situated at Manghopir, near Poultry Farm, District West from Maymar Morr, District Malir, along with staff after traveling a distance of more than 40KM as if no other nearby police station/ mobile was available to reach to the place of incident.
(ii) It transpired that in fact none else but H.0 Rooh-ul-Amin and H.C Waris Khan killed the deceased who was identified as Abdullah Masood by co-accused Sohail (who was in a serious injured condition), but from the body of the deceased NIC No. 42401-0724267-7 having name of Qasim son of Abdul Samad was found, whereas, PW-06 in his cross-examination mentioned the deceased as Waheed Khan alias Abdullah Masood, and most surprisingly no "Receipt of Handing Over of Dead Body" was produced in the Court, nor there is any document to show as to where the dead body was sent, or to whom it was handed over from the hospital after post mortem.
(iii) The I.O. claimed that the encounter took place in the jurisdiction of Police Station Pirabad/Manghopir in which only the police party from Police Station SITE Superhighway Industrial Area and Rangers participated but alarmingly not a single police official from the local police station, in whose jurisdiction the encounter took place ever came to the site where the alleged encounter continued for hours.
(iv) The medical examination of the two accused who barely survived the alleged encounter shows that they were brutally tortured by hard and blunt weapons causing seven injuries each on different parts of the bodies of present appellants Muhammad Sohail and minor accused/appellant Sherullah of about 17 years of age.
(v) Not a single bullet fired by any of the accused/ appellants and the deceased (who was found dead with a gun in his hand) hit the mobile of Police or Rangers, or any of the several police/ rangers' officials involved in the encounter.
(vi) To prove the encounter, the I.O. has not even bothered to send official weapons for FSL to verify that the bullets which killed the deceased were in fact fired by the official weapons of H.C Waris Khan and Rooh-ul-Amin, who have admitted making fires upon the accused/deceased.
(vii) The deceased as per medical report received 8 firearm injuries, 4 bullets pierced through his chest, 1 each hit his gluteal region, elbow joint, forearm and thigh, which makes it to be a case of the deceased having been killed by a Firing Squad.
(viii) In the cross-examination, the I.O has not solved the mystery that from where the P.S SITE Superhighway Industrial Area police reached to the place of encounter and even the entry within the jurisdiction of the place of encounter has not been produced which literally reduces the case of prosecution to ashes.
In view of the above facts, issue notice to all the police officials involved in this case named in column. No.6 of the Challan dated 08.2.2020. Each one of them should submit their independent explanation in writing within 15 days as to why action should not be taken against each of them under section 27 of the Anti-Terrorism Act, 1997.
At the same time, SSP Malir Karachi or SSP under whose jurisdiction, P.S SITE Superhighway Industrial Area falls, should also conduct an independent comprehensive enquiry and submit a report about the incident reported in FIR No.446/2019 to this Court within 15 days for our perusal in the chambers, and to take disciplinary action against the police officials of his jurisdiction for crossing jurisdictional boundaries of their Police Station as well as for violating law and procedures laid down for enquiry and investigation under the Code of Criminal Procedure, 1898 and the Police Rules, 1934. Initial enquiry report should be submitted to this Court within 15 days through MIT-II for our perusal in the chambers for further proceedings, at which date these police officials should also be present. For further proceedings under section 27 of ATA, 1997 to come up on 11.01.2021.
In view of the above, for the reasons to be recorded later on, the instant Spi. Crl. A.T. Appeals Nos.135, 136 and 157 of 2020 are allowed and the impugned judgment of conviction and sentence awarded to appellants (1) Muhammad Sohail son of Jahan Shah and (2) Sherullah son of Abdul Malik in Special Cases Nos.25/2020, 25-A/2020, 25-C/2020 and 25-8/ 2020, arising out of FIRs Nos.446/2019 under Sections 353/324/34 P.P.C. read with Section 7 ATA, 1997, FIR No.447/2019 and FIR No.448/ 2019 both under Section 23(1)(a) of Sindh Arms Act, 2013, all registered at P.S. Manghopir, Karachi, is set aside. In result thereof, appellants (1) Muhammad Sohail son of Jahan Shah and (2) Sherullah, son of Abdul Malik are acquitted of the charge. They may be released forthwith, if they are not required by any other Court in any other crime/ offence.
21. In compliance of short order, we have been informed that the SSP, East has already filed a report and replies to show cause notices by police officials have also been filed. A separate order will be passed in the proceedings under section 27 of the ATA, 1997 after examining replies of show-cause notices and hearing of the police officials/officers in accordance with law.
22. Above are the reasons for our short order dated 22.12.2020.