1. ' Abdul Hayee Kureshi, C.Jr- In Sessions Case No,252/1981 (originally of the Court of Sessions Judge, Sanghar) thirteen person, namely, Ghulam Shabbir Khalyar, lmdadullah Unar, Shah Nawaz Junejo, Muhammad Hassan, Ch. Muhammad Yaqoob, Shah Muhammad, Abdul Ghafoor, Muhammad Aslam, Noor Muhammad, Muhammad Muneer, Ghulam Qassim, Mir Muhammad Khan Lashari and Dr. Muhammad Afzal were placed on trial for offences under section 302 read with sections 34/109, 120B, P.P.C/364 read with sections 109/201/218/197, P.P.C. Three other persons, namely, Sobo, Muhammad Yousuf and Ali Nawaz, all Police Constables of Sanghar Police Station, were also involved in that case, but they were not tried, as they were dead. Jam Sadiq Ali, a former Minister of the Government of Sind, and Police Constable Lal Khan of Sanghar Police Station, were shown as absconders. After the examination of all evidence, but before the announcement of judgment, Ghulam Shabbir and Imdadullah, who were respectively the. Superintendent of Police, and Deputy Commissioner, Sanghar, at the relevant time, had also absconded. By the judgment, dated 18th November, 1981, by Mr. Qadeer Muhammad Qureshi, who was appointed exofficio Additional Sessions Judge, Hyderabad, for trial of this case, accused Shah Nawaz, Muhammad Hassan and Dr. Muhammad Afzal were acquitted, whereas the remaining accused were convicted. Accused Abdul Ghafoor, Shah Muhammad, Muhammad Aslam, Noor Muhammad, Muhammad Muneer and Ch. Muhammad Yaqoob were convicted under section 302/34, P.P.C., whereas accused Ghulam Qassim was convicted under section 302/109 P.P.C. Each one of them was sentenced to death.
2. Accused Muhammad Yaqoob was also convicted under section 201, P.P.C. And sentenced to R.I. For three years, and pay a fine of Rs,1,000(in default R.I. For three months) and also under section 218, P.P.C. And sentenced to two years' R.I. In addition, accused Muhammad Yaqoob and accused Shah Muhammad (now dead) were ordered to pay compensation of Rs, 5,000 each (in default R.I. For one year), whereas accused Abdul Ghafoor, Aslam, Noor Muhammad, Muhammad Muneer and Ghulam Qassim were also ordered to pay compensation of Rs, 2,000 each (in default R.I. For six months). Such order of compensation does not indicate as to whom was compensation payable.
3. These 7 accused persons have filed an appeal through Mr. Allahdino Memon. Accused Muhammad Aslam was convicted under section 302/34, P.P.C. And sentenced to death, whereas accused Mir Muhammad was convicted under section 218, P.P.0 and sentenced to R.I. For two years. These two accused, namely, Muhammad Aslam and Noor Muhammad have also filed separate appeals through Mr. Muhammad Hayat Junejo. The case for confirmation of the sentence of death imposed on each one of the persons, who were so sentenced, has been submitted to this Court.
4. Complainant Muhammad Yaqoob is aggrieved by reason of acquittal of accused Shah Nawaz and Muhammad Aslam, and he has filed a Revision Application to challenge such acquittal. State has also filed an acquittal appeal to challenge the acquittal of accused Shah Nawaz, Muhammad Hassan and Dr. Afzal.
5. ' The confirmation case, appeals by convicted accused, the acquittal appeal filed by State, and the Criminal Revision Application filed by complainant Muhammad Yaqoob have been heard together.
6. We may state that the acquittal appeal filed by State was not pressed by Mr. Azizullah K. Shaikh, appearing as special Public Prosecutor, on behalf of the State. Complainant Muhammad Yaqoob made no appearance in the Revision Application that was filed to challenge the acquittal of Shah Nawaz and Muhammad Hassan.
7. ' We have heard Mr. Muhammad Hayat Junejo, for appellants Muhammad Aslam (Criminal Appeal No, 224/1981), Muhammad Yaqoob (Criminal Appeal No, 225/1981), and Mir Muhammad Lashari (Criminal Appeal No, 220/1981). We have also heard Mr. Abdul Qadir Halepota, for appellant, Ghulam Qassim (Criminal Appeal No, 225/1981), and Mr. Allahdino Memon for appellants Abdul Ghafoor, Noor Muhammad and Muhammad Muneer (Criminal Appeal No, 225/1981). We have also heard Mr. Abdur Rasool Agha, who had appeared for the acquitted accused Shah Nawaz and Muhammad Hassan (Acquittal Appeal No, 63/1982), and Mr. Abdul Wahab Khan for acquitted accused Dr. Muhammad Afzal (Acquittal Appeal No, 63/1982).
8. ' The prosecution story is mainly disclosed by complainant Muhammad Yaqoob (P.W.3) and Head Constable Muhammad Aslam (P.W.12). It is stated that one Ali Bux Junejo, a prominent figure of Sanghar, and friend of absconding accused Jam Sadiq Ali, was murdered on 5th October, 1973 in Sanghar Town. A report to that effect was lodged, and investigation was started by the Sanghar Police, headed by Ch. Muhammad Yaqoob. Since the assailants were not arrested, a curfew was imposed in the town of Sanghar, presumably to comb the town for arrest of the assailants. A large number of persons were apprehended and brought to Sanghar Police Station. It is then said that even absconder Jam Sadiq Ali, a then sitting Provincial Minister, came to Sanghar with an intention "to supervise the investigation of the case" as stated by complainant Muhammad Yaqoob. It is then stated that, on the morning of the following day, viz. 6th October, 1973, approver Muhammad Aslam, who was a Head Constable at the Sanghar Police Station, was asked by accused Ch. Yaqoob, the S.H.O. Of the said Police Station, to go to the office of the Deputy Commissioner and District Magistrate, Sanghar, viz. Lmdadullah Unar, and meet the Sharistedar of the said Magistrate.
9. The approver, Muhammad Aslam, states that he was told by accused S.H.O. Ch. Yaqoob that six people will be handed over to him by the Sharistedar of the said Court, and they should be brought to Sanghar Police Station. Approver Muhammad Aslam, alongwith four constables, two out of whom were Soba Khan and Ali Nawaz, went in a van to the office of the District Magistrate, where they met Abdur Rashid, his Sharistedar (P.W.I7), and the latter sent for six persons, who were sitting outside the office in the compound of the Court. It is stated that Imdadullah Unar was also sitting in the Court, and he directed approver Aslam to take those six persons to the Police Station, who were accordingly handcuffed by approver Aslam, and brought to the van, which was standing out side.
10. The names of these six persons, who are the deceased in this case, are Umad Ali Sanjarani, Mehrab Sanjarani, Ali Sher Shah, Hamzo, Alidad alias Dad and Jan Muhammad Sanjarani. It is stated that four, out of these persons, were accused in one case under the Goonda Act, and two more were accused in another case, and that both these cases were fixed in the Court of the District Magistrate for hearing on 6th October, 1973. At the time when the six deceased were given in custody of approver Aslam, Sadoro (P.W.5), who was the brother of deceased Mehrab and a brother-in-law of deceased Umad Ali, was present in the Court of the District Magistrate, as he had also come with his relative to the Court. Muhammad Hassan was also present there. This witness also states that all the six deceased persons were called in the Court Room and, thereafter, they came out in handcuffs. On asking deceased Mehrab told them that they had been arrested under the orders of the District Magistrate, who had directed their being taken to the Police Station. The six deceased persons were brought to the Police Station, and their custody was handed over to accused Muhammad Yaqoob, who was S.H.O. Of Sanghar Police Station. At Sanghar Police Station, several persons were found to be sitting, and Sadoro identified at least two out of those persons to be Ghazi Khan (P.W.6) and Rakhial. It is stated that these two persons were also the followers of Pir Sahib Pagaro. The story then is that, at about mid-day, the six deceased persons were put in the lock-up.
11. ' The next leg of the story is that, at about sunset time on the same day, accused Muhammad Yaqoob came, alongwith some Policemen of Sanghar Police Station, and directed that the six deceased be taken out of the lock-up, from where they were taken to a quarter within the Police Station compound, and approver Muhammad Aslam states that these six persons were taken to that quarter for the purpose of being beaten, so that confession should be extorted. It is in evidence that such quarters are bachelor quarters in the Police Station, and are located in the northeast corner of the compound of the Police Station. Approver Muhammad Aslam further states that he was told by accused Muhammad Yaqoob that information in regard to death of Ali Bux should be extorted from these six persons, so that such information could be conveyed to Jam Sadiq Ali, who was then a Minister, and had also come to Sanghar Police Station for such purpose. The approver, therefore, discloses that he, alongwith other Policemen, started beating the deceased with sticks, shoes, fists, slaps, and leather hunter. The story discloses that the beating was so severe that fierce cries were raised, which were even heard by such persons, who had been detained at the main building of the Police Station. It is stated that two, out of these six persons, became unconscious after beating, which continued for more than an hour, and thereafter these two persons were carried by the Policemen on their shoulders and brought back to the lock-up, where they were kept. In fact, Ghazi Khan, who was present at the Police Station, having been called as a uspect, has stated that these two persons, namely Mehrab and Umad were in such bad condition that he thought that they were dead. In regard to the remaining four, it is stated that some injuries have been caused to them also.
12. ' The next link in the story is that, at about 11.00 p.m. On 6th October, 1973, approver Aslam was called from his house by S.H.O. Muhammad Yagoob, and he went to the Police Station, when he was told that the six persons had to be taken to Khipro Sub-Jail, and a police party had also been formed for such purpose. This party consisted of A.S.!. Shah Muhammad, Head Constable Abdul Ghafoor, Constables Noor Muhammad, Muhammad Aslam, Muhammad Munir, Lal Khan, Muhammad Yousuf, Soba Khan and Ali Nawaz. It is stated that accused S.H.O. Muhammad Yaqoob had told this police party to take arms and ammunition from Head Constable Khaliluddin (P.W.11), and entry was made in the Station diary maintained at Sanghar Police Station (Exh. 42) at 11-00 p.m. Reading as: "S.H.O. Accompanied by A.S.!. Shah Muhammad, H.C. Abdul Ghafoor, H.C. Muhammad, P.C. Sobha Khan, P.C. Muhammad Aslam, P.C. Noor Muhammad, P.C. Lal Khan, P.C. ' Muhammad "Yousuf, Muhammad Muneer and Ali Nawaz left for holding patrolling and Nakabandi at Mithrao canal".
13. The S.H.O. And Police Constables were provided one rifle with twenty bullets per head. This entry is made by H.C. Khaliluddin, and he has stated that the signatures of persons, whose names were mentioned in the Station diary, were obtained by him in token of delivery of the weapons and bullets. It is stated that six handcuffs were also given by H.C. Khaliluddin, but the Station diary does not show that the delivery of these six handcuffs was evidenced by any writing in the Station diary.
14. It is stated that the six deceased were handcuffed with their hands behind their backs, and taken into the Police van. S.H.O. Yaqoob and A.S.I. Shah Muhammad sat in the front seat with the driver, P.C. Ghulam Qassim. This van then proceeded by metalled road to Khipro. Approver Aslam has stated that, when the van started going towards Khipro by the metalled road, he saw two jeeps following the van, and this was when the van had covered a distance of three, or four miles and reached Bakharo Mori. The topography given by approver Aslam shows that the road to Khipro starts from Bakharo Mori, but the van in which the six deceased were carried, did not proceed to Khipro, but in another direction towards. Kanan Mori. At Kanan Mori, the van stopped and the two jeeps, that were following the van, also stopped at some distance from Kanan Mori. The incident is said to have occurred at Kanan Mori.
15. ' The story then is that S.H.O. Yaqoob and A.S.I. Shah Muhammad got down from the van, and asked all the members of the police party to get down and bring down the six prisoners, who are deceased in the case. It is stated by approver Aslam that the six deceased persons were made to stand at a distance of four to five paces from the police party, which had been divided into two parties, and each party was handed over three persons from amongst the deceased. The prisoners were made to stand at a distance of four, or, five paces from each party. It is stated that accused S.P. Ghulam Shabbir Kalyar came at the spot, and directed S.H.O. Yaqoob to shoot all the six prisoners, and, at that time, accused lmdadullah Unar and Jam Sadiq Ali were sitting in the jeep which, as stated above, was standing at some distance. The approver then states that all of them, viz he as well as the other Police Officers (excluding Kalyar) shot at the prisoners, and each one of them fell down dead. The approver is stated to have fired six shots. Thereafter, the Police party went towards the jeeps, and they found accused Ghulam Shabbir Kalyar and lmdadullah Unar, with absconder Jam Sadiq Ali, sitting in one jeep. It is stated by the approver that absconding accused Jam Sadiq Ali had a white chadar on his shoulder. In the second jeep, they saw accused Shah Nawaz Junejo and Muhammad Hassan Junejo sitting in the front seat with four other persons sitting in the back seat. These four persons are stated to be armed with guns. Thereafter, accused Muhammad Hassan Junejo came out from his jeep, and went to the other jeep, in which absconding accused Jam Sadiq Ali was sitting with accused Ghulam Shabbir Kalyar and lmdadullah Unar, and he took out some rifles, guns, pistols and leather belts, containing bullets, and thereafter accused Muhammad Hassan and Shah Nawaz Junejo went alongwith approver Aslam, Head Constable Abdul Ghafoor, P.C. Sobha Khan and S.H.O. Muhammad Yaqoob to the place, where the dead bodies of the six persons were lying. The accused, Shah Nawaz and Muhammad Hassan, fired in the air, and thereafter from out of the weapons, that had been brought out from the jeep, in which absconding accused Jam Sadiq Ali was sitting, one weapon was kept by the side of each deceased, and one belt, containing cartridges or bullets, was tied to the body of each deceased. The handcuffs were removed. It is stated that, after this was done, accused Imdadullah Unar, Ghulam Shabbir Kalyar, Shah Nawaz Junejo, Muhammad Hassan Junejo and absconder Jam Sadiq Ali left in their jeeps. Some blank papers were sent for from Sanghar Police Station, and the same were delivered by Head Constable Khaliluddin. Some blank forms of inquest reports were also obtained. A report was, thereafter, lodged at Sanghar Police Station by S.H.O. Yaqoob Khan under sections 307, 332, P.P.C. And section 13-D of the Arms Act. This Report is Exh.53, and the same shows that Police party, consisting of S.H.O. Yaqoob and subordinate staff, namely, A.S.I. Shah Muhammad, H.C. Abdul Ghafoor, H.C. Muhammad Aslam, LNC Ali Nawaz, LNC Sobha Khan, P.C. Muhammad Muneer, P.C. Noor Muhammad, P.C. Lai Khan, P.C. Muhammad Aslam, and P.C. Muhammad Yousuf left Sanghar for patrolling and Nakabandi. That Malik Sher Muhammad and Ghulam Qadir were taken from Frontier Hotel in Sanghar town for any assistance that might be necessary. The Report states that, while patrolling, they reached Bakharo culvert, and, on 7th October, 1973, at one hour passed mid-night they formed two parties, one consisting of A.S.I. Shah Muhammad, P.C. Muhammad Aslam, LNC Ali Nawaz, P.C. Muhammad Muneer, P.C.
16. Muhammad Yousuf, and P.C. Noor Muhammad, who went for Nakabandi on the eastern side, and the other party, consisting of S.H.O. Yaqoob, H.C. Abdul Ghafoor, Muhammad Aslam, P.C. Sobha Khan and P.C. Lal Khan on the western side. It states that, at 2.00 a.m. Shah Muhammad flashed the torch and gave a Hakal to some people to stop, introducing themselves as a Police party. They found six persons, coming towards them and even S.H.O. Muhammad Yaqoob gave a Hakal to stop, but those six persons started direct firing whereupon the Police party also opened fire in self- defence. Such firing continued for some time, but thereafter the firing by the intruders stopped, so that Police party also stopped firing. It is stated in the Report that such persons died, and they were six in number, and each one of them had a firearm, which was either rifle, or, gun, or, country-made pistol. This Report was registered by accused Mir Muhammad, an Inspector of the C.I.A., Sanghar.
17. Dead bodies were sent for post-mortem examination, and subsequently delivered to the relatives of the deceased, namely, Sadoro and Muhammad Hassan. It is stated in the evidence of Sadoro that he, alongwith Muhammad Hassan, had gone to the hospital to identify the dead bodies, and there were black marks of beating on the bodies of the six deceased and they had buIllet injuries on their chests.
18. ' The story then is that D.I.-G. Abdur Rahim Riasani had also come to Sanghar Police Station on 7th October, 1973 to make enquiries, and some complaints were made to him by some members of the Police party, who had actually killed the six deceased. These complaints were to the effect that they were unwilling to kill them, but had done so on account of compulsion and fear. The Deputy Inspector-General of Police told such people to keep quiet, because it was an encounter. It is stated that, within two days, each one from the party, who are alleged to be the killers of these six deceased, was given a reward, and, such amongst them, who were not confirmed in their posts, were confirmed.
19. ' Complainant Muhammad Yaqoob, who is a disciple of Pir Sahib Pagaro, as the six deceased persons also are, read in the daily newspaper "IBRAT" on 8th October, 1973 that the six deceased persons had been killed in an encounter with the Police. He has stated that he was shocked, because four days before the publication, four out of the deceased, namely, Umad Ali, Jan Muhammad Mehrab and Lal Khan were with him. Complainant Muhammad Yaqoob then went to village Haji Jan Muhammad, where Umad Ali and Mehrab used to live, and, in that village, he met Sadoro and Muhammad Hassan. These two persons told Muhammad Yaqoob that they had gone to Sanghar on 6th October, 1973, where the case of these deceased persons under Goonda Act was pending. They also told him that a Police van came there, from which Head Constable Muhammad Aslam (the approver) came down, and thereafter the six deceased were handcuffed and taken away. Sadoro and Muhammad Hassan had also told complainant Muhammad Yaqoob that they had followed the Police party, taking away the six deceased to Police Station, and that they had enquired as to why the six deceased persons had been arrested, and that Ghazi Khan and Rakhial, who are also the followers of Pir Sahib Pagaro, were at the Police station, as they had been called for interrogation in the case of murder of Ali Bux. Sadoro and Muhammad Hassan also told complainant Muhammad Yaqoob that they had gone to the Police Station on 7th October, 1973, where Ghazi Khan and Rakhial had informed them that, on the previous day, viz. 6th October, 1973, at sunset time, the six deceased persons had been taken out from lock-up, and thereafter taken to a room (stable) for beating. They also told him that the beating was so severe that the six deceased were crying, and thereafter, on the same night, the six deceased persons were taken away in a Police van by ten, or twelve police personnel and S.H.O. Muhammad Yaqoob, absconder Jam Sadiq Ali, accused Imdadullah Unar and accused Ghulam Shabbir Kalyar also followed the police van in a jeep. It may, however, be stated that complainant Yaqoob was related to deceased Mehrab Sanjarani. Complainant Muhammad Yaqoob, on getting such information from Sadoro and Muhammad Hassan, suspected the publication in daily "IBRAT" and he wanted to approach higher authorities to inform them about the matter. It is stated by complainant Muhammad Yaqoob that he went to the Court of Sub-Divisional Magistrate to make a complaint, but the same was not entertained, so that he came to Shahdadpur, and got an application to Inspector-General of Police written and typed. This application is Exh. 29 and is made on 11th October, 1973. In this application, disclosures made by Sadoro and Muhammad Hassan to complainant Muhammad Yaqoob are referred to. It is, however, stated that, on the evening of 6th October, 1973, the six deceased had been taken out from the lock-up for the stable behind the Police Station by S.H.O.
20. Yaqoob, A.S.I Shah Muhammad and other Constables, and the six deceased were beaten, in spite of raising cries and entreaties not to kill them. It is then stated that "later on some doctor was also called, who declared Mehrab and Umad Ali dead and other four about to die." It then states that, thereafter, the six deceased persons were taken away to an unknown destination. It is stated in the application that the six deceased persons had been challaned in the Goonda Act cases due to political rivalries, as they were the followers of Pir Sahib Pagaro, and that they had been killed on account of political enmity. This Report was enquired into by the C.I.A. Police as well as Mr. Abdur Rahim Riasani, D.I.G. But nothing happened, so that the prosecution case is that, being a political murder, the accused were protected. However, after the proclamation of Martial Law, the complainant, Muhammad Yaqoob, made another application on 1st August, 1977 to Lt.-Gen. Jehanzeb Arbab, Martial Law Administrator Sind. This complaint is very brief and may be re- produced. It read as follows:- "My near three relations namely (1) Mehrab, (2) Umed Ali, (3) Jan Muhammad, (4) Hamzo, (5) Syed All Sher Shah and (6) Dadan, were shot dead by the Sanghar Police on 8th October, 1973, I sent a written complaint to the Inspector-General of Police Sind, Karachi, on 11th October, 1973, against the accused persons mentioned in the application. Jam Sadiq Ali, the former Minister of the Government of Sind and Muhammad Khan Junejo; the then Home Secretary of Sind, were also responsible for these murders. I also enclose herewith a copy of weekly Zindagi which contains the details of the incident given by a journalist regarding these murders".
21. ' It may be stated that, in the issue of a weekly known as "ZINDAGI" relating to the week beginning 22nd October, 1973, and ending 28th October, 1973, a publication had appeared under the caption "Police encounter or murder incident"? In this publication, the photos of deceased persons had been published, and a suspicion had been expressed that the story of encounter with the Police was false, but, in fact, the six deceased had been murdered. This publication has been placed on record as Exh.
34. Reference to this publication has become necessary, because several witnesses have stated that they were activated to give evidence, or, make disclosures because of this publication.
22. ' The application made by complainant Muhammad Yaqoob to Lt.-Gen. Jehanzeb Arbab was forwarded to Ansaruddin Ansari, an Assistant Director in the F.I.A. At Karachi. It was accompanied by the earlier complaint made by Muhammad Yaqoob on 11th October, 1973, as also a photo copy of weekly "Zindagi". This was registered as a Report and a case under section 302/120-B, P.P.C. (Exh.
23. 230). The investigation was then entrusted to Haji Khuda Bux, another Assistant Director. However, Ansaruddin Ansari examined complainant Yaqoob, Sadoro, Muhammad Hassan, Ghazi Khan and Rakhial. A further statement of complainant Yaqoob was recorded on 11th August, 1977. The Station diary of Sanghar Police Station was seized on 14th August, 1977. A.S.I. Muhammad Aslam, P.C.
24. Muhammad Aslam, P.C. Muhammad Muneer and H.C. Abdul Ghafoor were joined in the investigation. He saw the place of incident in the presence of Mashirs Hamzo and Ghulam Mustafa.
25. Khuda Bux, thereafter, took over the investigation. He recorded the statements of S.H:O. Muhammad Yaqoob, A.S.I. Shah Muhammad, Muhammad Aslam, Din Muhammad, Aslam son of Muhammad Ismail, Muhammad Qassim, Muhammad Muneer, Abdul Ghafoor and Noor Muhammad. All these persons were arrested on 16th August, 1977. Muhammad Aslam, approver, was sent to the Court of Mukhtiarkar and First Class Magistrate, Hyderabad, for recording his confession, and the same was recorded on 16th August, 1977. This Police Officer also arrested Ghulam Shabbir, S.P. And lmdadullah Unar, District Magistrate, who were posted in Sanghar district at the time of incident. Shah Nawaz Junejo was also arrested on 16th August, 1977. Muhammad Hassan Junejo was arrested on 17th August, 1977. On this date, accused Abdul Ghafoor, Ghulam Qassim and Shah Muhammad were produced before the Mukhtiarkar and First Class Magistrate for recording their section 164, Cr.P.C.
26. Statements. On 18th August, 1977, accused Muhammad Aslam son of Ismail, Muhammad Muneer and Noor Muhammad were produced before the Mukhtiarkar and First Class Magistrate for recording of confession. On 21st August, 1977, D.S.P. Khuda Bux made an application to the District Magistrate, Sanghar, to extend pardon to approver Aslam. On 22nd August, 1977, the investigating officer checked the movement diary of Ghulam Shabbir Kalyar, accused, in respect of the dates beginning 1st October, 1973, and ending 12th October, 1973. He also inspected the record of the Sanghar Police Station, and secured the documents, concerning the arms said to have been secured from the six deceased persons. He also obtained photostat copies of the orders of the Inspector-General of Police of Sind, relating to promotions and rewards to the Policemen, who had taken part in the encounter that is said to have taken place in the early hours on 7th October, 1973.
27. On completion of investigation, the case was sent up for trial by D.S.P. Khuda Bux.
28. ' In order to complete the narration, it is necessary to state a few more facts in regard to the Goonda Act cases, which were being tried by the District Magistrate and Deputy Commissioner, Sanghar i,e, accused Imdadullah Unar. It seems that there were two separate cases, namely, Case No,24/1973 and Case No, 25/1973. In Case No,24/1973, Mehrab Sanjarani, Umad Ali Sanjarani, Hamzo and Ali Sher Shah were the accused, and this Case was sent up by S.H.O. Shahpur Chakar Police Station. The remaining two deceased were sent up by the same S.H.O.In case No,25/1973. The prosecution case is that the six deceased were present in the Court of the District Magistrate on 6th October,1973, on which date the custody of these six deceased persons was handed over by accused lmdadullah Unar to approver Aslam, who was then a Head Constable of Sanghar Police Station. The prosecution has, however, produced evidence that, on 8th October, 1973 viz, the day following the murders, accused lmdadullah Unar called his Reader Abdur Rasheed, and asked him to bring these two cases, as changes had to be made in the diaries of these cases. It is stated that the diaries in these two cases were removed, and replaced to show that the deceased had not appeared in the Court of the District Magistrate on 6th October, 1973. By such evidence, the prosecution wishes to prove that, in order to blanket the fact of the taking away of the deceased persons from the Office of the District Magistrate, Sanghar, forged and fake diaries were written, so as to lend strength to the counter-version that the six deceased had died in an encounter, and not on account of planned beating and killing. In that context,the evidence of Police Inspector lnayatullah, who was then the Station House Officer of Shahpur Chakar Police Station, is also worth- mentioning. It seems that this witness was produced to prove that, after the death of the deceased persons, some warrants had been given to him for the arrest of the said deceased persons. This, according to the prosecution, was another act on the part of accused Imdadullah Unar to show that the deceased had not been taken from his Court on 6th October, 1973. However,Inayatullah has been treated as a hostile witness, and cross-examined by the prosecution. Head Constable Muhammad Ismail (P.W.22) has stated that some warrants were brought by S.H.O. Inayatullah two, or, three days after the alleged encounter, and he had been asked to make entries regarding these warrants in the register. He stated that entries had been made by him under the directions of S.H.O.Inayatullah.
29. ' At the trial, the prosecution examined Muhammad Sulleman (P.W.2), the Tapedar, who prepared the sketch; Muhammad Yaqoob, the complainant (P.W.3); Ghulam Mustafa Mashir of scene shown by approver Aslam to Investigating Officer on 14th August, 1977 (P.W.4); Sadoro, who was with the deceased in the Court of District Magistrate, Sanghar, who followed the deceased to Sanghar Police Station and received information from Ghazi Khan and Rakhial in regard to beating and subsequent removal from the Police Station of the deceased (P.W.5); Ghazi Khan, who had been arrested and detained in Sanghar Police Station on the day of incident (P.W.6); Ghulam Yaseen whose evidence is indentical to that of Ghazi Khan (P.W.7); Muhammad Yaqoob, who states about the deceased being taken from the Office of District Magistrate on 6th October, 1973 (P.W.8), Jamal Din whose evidence is similar to that of Ghazi Khan and Muhammad Yaseen (P.W.9); P.C. Zainuddin, who was at lock-up duty at Sanghar Police Station and saw the deceased being taken away (P.W.10); H.C. Khaliluddin, the Head Moharrir at Sanghar Police Station, who produced Station diary (P.W.11); approver Muhammad Aslam (P.W.12); Allah Bachio, Sharistedar of District Magistrate, Sanghar, who produced movement diary (P.W.13); Khanzada, who produced the T.A. Bill of accused lmdadullah Unar (P.W.14); Sain Bux, Kotar at Inspection Bungalow, who stated about association of absconder Jam Sadiq Ali with accused lmdadullah Unar, accused Ghulam Shabbir Kalyar, accused Muhammad Hassan and accused Shah Nawaz (P.W.15); Dr. Faiz Muhammad, Medical Officer, who examined deceased (P.W.16) Abdur Rashid, Shoristedar of accused lmdadullah Unar, who gave evidence about manipulation of Goonda Act record (P.W.17); Bhojraj, Additional District Magistrate at Sanghar on the day of incident, who deposed in regard to the Goonda Act cases records (P.W.18); Shamsuddin (P.W.19), the Magistrate who recorded confession of Shah Muhammad (Exh.
30. 210), Ghulam Qassim (Exh. 211), Muhammad Muneer (Exh. 213); Muhammad Aslam (Exh. 214); Noor Muhammad (Exh. 215); S.H.O. Lnayatullah, who was posted at Shahpur Chakar Police Station and was a hostile witness (P.W.20); H.C. Muhammad Ismail, the retired Head Constable of Shahpur Chakar Police Station, who produced the records relating to the fake warrants of the deceased (P.W.22); Ansaruddin Ansari (P.W.21) and Khuda Bux (P.W.23), the two investigating Officers.
31. Numerous documents have also been produced by these witnesses.
32. ' Anwar was examined as a Court witness, who produced some documents relating to an application made by accused Muhammad Yaqoob, praying that he may be granted a pardon and made an approver. Two such applications were made and both were rejected, and Court witness Anwar has produced the relevant record.
33. ' Acquitted accused Shah Nawaz Junejo denied the prosecution case, and stated that he had been implicated in the judicial confessions of the co-accused under influence of F.I.A. Officers, and even accused Muhammad Yaqoob in his statement, requesting to be made an approver, had implicated him for the same reason. He submitted a written statement, wherein he alleged enmity with the witnesses. Acquitted accused Muhammad Hassan Junejo also denied the prosecution case, and stated that deceased Ali Bux Junejo, who had been murdered on 5th October, 1973 was a distant relation of his. He denied all knowledge of the facts. He further stated that, in the confessions of the co-accused, he had been implicated on account of tutoring by the Police, and the influence of Kazi Abdus Quddus and Kazi Faiz Muhammad, who were the accused in the case of murder of Ali Bux. He alleged that, in his statement, S.H.O. Yaqoob had implicated him on account of tutoring by F.I.A. He also alleged enmity against the Police of Sanghar District, who had implicated him in some cases. He produced some certified copies of depositions in some cases with which he was concerned. Accused Muhammad Yaqoob also denied the prosecution case, but stated that he was S.H.O., Sanghar Police Station, at the relevant time. He stated that he investigated the murder case of Ali Bux Junejo, and had made enquiries from witnesses Ghazi and Ghulam Yaseen, but he had neither brought them to the Police Station nor had he confined them.
34. He denied having met Jam Sadiq Ali, and stated that he was busy in the investigation of the murder case of Ali Bux Junejo. He denied having sent approver Aslam to the Court of District Magistrate, Sanghar, to bring the deceased, and stated that he was not even present at the Police Station. He stated that he had directed his subordinate police staff to proceed for Nakabandi on the night between 6th and 7th October, 1973, and had directed Head Constable Khaliluddin to give a rifle and 20 roungs to each of the Policemen. He however, stated that he had not specifically ordered Aslam approver, or, other Policemen to go for Nakabandi. He, however, admitted the correctness of entries in the Station diary 'Exh. 42). He admitted that he was present at the time of alleged Nakabandi in which an encounter took place, which resulted in the death of these persons.
35. He went on to state that he had officially informed S.P. Ghulam Shabbir about this encounter. He denied that he, or, any other person in the Police party had kept arms and ammunition near the dead bodies of the deceased. He admitted having lodged a Report in respect of the encounter (Exh. 53). He went on to state that approver Aslam and Constable Ali Nawaz received injuries in the encounter. He stated that the co-accused had implicated him in their confessions on account of Police pressure. He admitted having made an application to District Magistrate, Sanghar, and to the trying Sessions Judge for being made an approver, but that was done under the pressure of investigating Officer Khuda Bux, who had threatened to put his wife and children in trouble. He denied having made a statement before the District Magistrate, and stated that such statement (Exh. 272) had been prepared by Haji Khuda Bux, who had obtained his signature on the said statement outside the Office of the District Magistrate, Sanghar. In regard to his application made before the trying Sessions Judge for being made an approver (Exh. 274), he stated that it was made under the influence and pressure of Ansaruddin Ansari. He also filed a written statement, wherein he relied on the counter-version in the encounter case. He also alleged enmity against the witnesses. Accused Ghulam Shabbir Kalyar admitted that he was Superintendent of Police at Sanghar on the relevant date. He denied that Jam Sadiq Ali had camped in Sanghar on 5th October, 1973, viz. The day on which Ali Bux Junejo was murdered. He stated that he did not know if the deceased persons were standing trial under the Goonda Act before the District Magistrate at Sanghar. He admitted that he had gone alongwith accused lmdadullah Unar, the District Magistrate, and D.I.G. Abdur Rahim Riasani to the scene of occurrence after receiving information about the encounter, and, at that time, accused Mir Muhammad was present at that scene. He admitted that the Inspector-General of Police had awarded promotions and cash rewards to the Policemen, who were concerned with the encounter, but it was not on his recommendation but on the recommendation of D.I.-G. Riasani. He stated that the confessions of co-accused, besides being exculpatory, were neither true nor voluntary, but those were at the instance of F.I.A. Police. He also produced a written statement, wherein he stated that he was a target of the hostility of the followers of Pir Sahib Pagaro, against whom several cases have been instituted in the district of Sanghar. Copies of such cases were also produced. Accused lmdadullah Unar admitted that he was the District Magistrate at Sanghar on the relevant date, and he had imposed curfew in Sanghar town at the request of Police, he denied that he had any connection with Ali Bux Junejo. He admitted that cases against six deceased persons and three other persons were pending in his Court, but the six deceased persons were absconding from 15th August, 1973. He denied the evidence of Sain Bux, Kotar, who had stated that he had been this accused with Jam Sadiq Ali at the Inspection Bungalow. He stated that, after getting Police Report about the encounter, he had gone with 0.1.-G. Riasani and accused Ghulam Shabbir to the scene of encounter, where Inspector Mir Muhammad was already present. He refuted the evidence of Reader Abdur Rashid, and stated that, in fact, warrants had been issued, because the deceased', who were accused in the Goonda Act case, were absconding. He denied having delivered the warrants to S.H.O. Lnayatullah, or, even having called Inayatullah. In regard to judicial confessions of co-accused, he stated that the same were neither true nor voluntary. He stated that the same were arranged by the investigating agency. He also produced a written statement, wherein he stated that this was a false case. He stated that, during the investigation, the F.I.A. Officers had pressurised him to admit some connected facts and implicate late Zulfiqar Ali Bhutto, Mumtaz Ali Bhutto and Jam Sadiq Ali, and he had refused to do the same and had also complained to the Chief Secretary and Martial Law Administrator in regard, to such pressure. He also produced some documents to show that he bore enmity with some followers of Pir Sahib Pagaro. Accused Shah Muhammad admitted that he was Assistant Sub-Inspector Police at Sanghar Police Station on 5th October, 1973 when curfew was imposed in the whole town after the death of Ali Bux Junejo. He admitted that on 6th October, 1973 he alongwith co-accused Abdul Ghafoor, Muhammad Aslam son of Ismail, Suba Khan, All Nawaz, Noor Muhammad, Lal Khan, Muhammad Munir and Muhammad Yousuf obtained a rifle with 20 rounds from P.W. Khaliluddin for the purpose of patrolling. He denied that any handcuffs were taken. He also denied that Jam Sadiq Ali, Deputy Commissioner Imdadullah Unar and Superintendent of Police Ghulam Shabbir Kalyar had come in a jeep to Sanghar Police Station at 11.00 p.m. He also denied that the six deceased were taken out from the lock-up at that time. All other allegations were denied. He, however, stated that D.I.-G. Raisani alongwith Superintendent of Police Ghulam Shabbir and Deputy Commissioner lmdadullah together with accused Mir Muhammad had come to the Vardat on the next day but he went on to state that none had made any complaint to D.I.-G Raisani. He admitted that he had deposited the clothes and arms of U.,. Six deceased persons in the police malkhana and entry to such effect was made in the station diary.
36. In regard to judicial confession made before Magistrate Shamsuddin on 17th July, 1977 he admitted that the same bore his signature but stated that he had not given the confession and his signature was obtained by compulsion. He further stated that the confession was neither true nor voluntary.
37. He alleged that his wife had been brought to the F.I.A. Office in his presence and he. Had been told that if he did not make confession she will be dishonoured. At the end of his statement he stated that on the night of the alleged incident all the six deceased persons had attacked the police party of which he was a member while it was on patrolling duty and that there was an encounter in which these persons were killed. Accused Abdul Ghafoor also made a statement substantially in similar terms as accused Shah Muhammad. He had also made a judicial confession which he stated did bear his signature but the same was obtained by compulsion and was untrue. He also made an allegation that his wife was brought by the police when he was in custody. Accused Muhammad Aslam son of Ismail admitted that he was a police constable at Sanghar on 5th October, 1973 and that he alongwith other members of the police party were given rifles and rounds. To the last question in his statement to the effect whether he had anything else to say he made a reply that his further statement was the same as that of accused Shah Muhammad. He complained that after the signing of the confession he was again handed over to F.I.A. Police.
38. Accused Noor Muhammad also made similar statement as were made by Shah Muhammad and Abdul Ghafoor. In regard to his confession he stated that he had been compelled to sign. In regard to the general question whether he had anything also to say it was stated by him that his further statement is the same as that of accused Shah Muhammad and Muhammad Aslam. Muhammad Munir, the police constable, also made similar statement. In regard to his confession he stated that he had been compelled to sign the same and it was neither true nor voluntary: In the end of the statement he stated that his further statement was the same as that of Shah Muhammad and Muhammad Aslam. Accused, police constable, Ghulam Qasim, stated that at the relevant time he was not a driver but police constable at Sanghar Police Station. He denied being present at the spot when Deputy Inspector-General, Police Raisani alongwith Ghulam Shabbir, imdadullah Unar and Mir Muhammad had visited the site. In regard to his confession he stated that it was signed by him under compulsion and that the contents were neither true nor voluntary. He went on to state that the police and the Peoples Party had been giving him threats to make a statement in favour of the prosecution. He has also denied having taken part in the encounter. Accused Mir Muhammad admitted that he was Inspector in C.I.A. At Sanghar at the relevant time. He stated that on 5th October, 1973 he atrollin duty at Khipro and he had not searched the house of any person at Sanghar. He admitted having recorded the F.I.R. Lodged by S.H.O. Yaqoob regarding encounter with the police and having visited the Vardat in connection with the investigation of the encounter case.
39. He admitted that D.I.-G. Raisani, S.P. Ghulam Shabbir and Deputy Commissioner lmdadullah had come to the Vardat. He denied that any person from the police party had complained to D.I.-G.
40. Raisani that they had been compelled to kill those six persons. He admitted having prepared mashirnama of the Vardat in the encounter case. He stated that the approver Muhammad Aslam and accused Ali Nawaz had injuries on their person and, therefore, he had given a letter to such injured persons for medical examination. He stated that the dead bodies of the six deceased were handed over to their relations by Assistant Sub-Inspector Sajjad Hussain of C.I.A. Police after obtaining receipts. This accused also filed a written statement wherein he stated that he had investigated the case honestly and to the best of his ability. He stated that he had not been given any other version in regard to the killing of the six deceased persons nor was he aware that it was a case of deliberate killing or that the encounter story was false. He has also stated that he had been asked by the F.I.A. Police to give evidence against Superintendent of Police Ghulam Shabbir, Deputy Commissioner Imdadullah and S.H.O. Muhammad Yaqoob but since he refused to give false evidence he has been implicated. He termed Aslant approver as a dishonest man. Dr. Muhammad Afzal stated that Aslam approver and accused Ali Nawaz had not been produced before him on 7th October, 1973 for examination of their injuries but the then Civil Surgeon of Sanghar had referred their case to him and he had found injuries on their person which were mentioned in the certificates. He also filed a written statement wherein he stated that on asking approver Aslam and accused Ali Nawaz had told him that they had received the injuries with the butt of the gun although they did not disclose who caused such injuries. This accused also entered the witness box as his own witness in defence. He has been cross-examined. His version is substantially the same.
41. ' The accused persons also examined witnesses in their defence. Shah Nawaz had examined Syed Akhtar Ali (Page 1336), Noor Muhammad (page 1346), Fida Hussain (page 1348), Mussarat Hussain (page 1367), lmran Siddiqui (page 1419) and Okash Ali (page 1421). Akhtar Ali had stated that when he was working as Deputy Superintendent of Police (Prosecution) at Hyderabad, one Muhammad Siddiq had brought an application bearing the orders of Superintendent of Police directing that a case be registered against Shah Nawaz Junejo under rules 42 and 49 of the Defence of Pakistan Rules. This defence witness also produced some other papers concerning the investigation of this case against Shah Nawaz Junejo. Noor Muhammad stated that on 6th October, 1973 when he was S.H.O. At Cantonment Police Station, Hyderabad, he received an application from accused Ghulam Shabbir for enquiry and report and this application had been made against Shah Nawaz Junejo. He went on to state that he had made enquiries into this application. The next defence witness is Fida Hussain who stated that he had gone to obtain the signature of accused Shah Nawaz on some nomination paper so that he could contest an election and after obtaining such nomination paper he was proceeding to Shahdadpur to file the nomination paper but Jam Sadiq Ali who was present ordered that this defence witness may be arrested and, therefore, the nomination paper could not be filed. Mussarat Hussain had been asked to bring some papers which he received when he was Superintendent of Nara Jail. It seems that such papers were not available and he made a statement to that effect. Imran Siddiqui stated that absconder Jam Sadiq Ali had filed a nomination paper to contest the election to the Provincial Assembly from Sanghar and from the same constituency Shah Nawaz Junejo had also contested. The last defence witness Okash Ali was Superintendent Jail at Karachi in 1977 when acquitted accused Shah Nawaz was in custody.
42. ' A nomination paper was shown to this witness and he stated that it had been signed by acquitted accused Shah Nawaz. The evidence of this defence witness appears to indicate that absconder Jam Sadiq Ali and acquitted accused Shah Nawaz were not on cordial terms on account of some elections and, therefore, they would not enter into a conspiracy in having the deceased persons killed. On the other hand the evidence would also indicate that at the instance of Superintendent of Police Ghulam Shabbir, Shah Nawaz Junejo had been run in for a case under rules 42 and 49 of the Defence of Pakistan Rules. It must be stated that there has hardly been any cross-examination of these witnesses.
43. ' Accused S.H.O. Choudhry Yaqoob had examined Akhtar Hussain (page 1352), Younus Masih (page 1358) and Ghulam Saroor (Ghulam Rasool)(page 1370). It seems Akhtar Hussain was sought to be examined to prove that Investigating Officer, Haji Khuda bux had been visiting the Nara. Jail where some of the accused persons were in custody and accused Imdadullah had objected against such visits. One such objection was made by an application dated 25th January, 1978 wherein it was stated that Khuda Bux was seen talking to accused Muhammad Yaqoob and inducing him to make some statement in favour of the prosecution. This application is Exh. 355 on the record. An extract from the Jail Visitors Register was also produced to show that Investigating Officer Khuda Bux had visited the Jail. The next defence witness Younus Masih is also on the point of some persons visiting Central Jail, Karachi. Defence witness Ghulam Saroor (Ghulam Rasool) was called to produce Station Diary of Shahpur Chakar Police Station presumably with the intention of showing the movement of S.H.O. Lnayatullah who had been examined as a prosecution witness but treated hostile because he did not support the prosecution case that accused Imdadullah had given him some warrants for the arrest of the six deceased persons who, according to the prosecution story, had been falsely shown in the Goonda Act Cases to be absconders. No entry from the Station Diary is relevant.
44. ' Accused lmdadullah examined Ghulam Rasool (page 1379), Allah Bachayo (page 1396), Syed Habib Ahmad (page 1424) and Nek Muhammad Shah (page 1431). Ghulam Rasool claimed to be working with Abdur Rashid who was Sheristedar of Imdadullah Unar in the Office of the Deputy Commissioner. He had been called to produce applications made by P.W. Abdur Rashid for casual leave. It seems this evidence was brought on the record to show that for the purpose of attending the office of the Investigating F.I.A. Police Abdul Rashid had been obtaining casual leave although he could have gone to the F.I.A. Office without obtaining any casual leave as that would have been construed to be part of his duty. Defence witness Allah Bachayo who was the reader in the Court of District Magistrate, Sanghar had been examined to produce the warrants that had been issued by accused Imdadullah. He also identified the signature of the accused on the case diaries. He also produced some communications from the Government of Sind to the Deputy Commissioner of Sanghar pointing out that the law and order situation in the district required more serious handling.
45. He also produced some depositions showing that acquitted accused Shah Nawaz Junejo had contested elections against Jam Sadiq Ali. D.W. Syed Habib Ahmad, Section Officer in the Service's and General Administration Department of the Government of Sind produced a letter written by accused Imdadullah to the Chief Secretary of the Government of Sind complaining about the investigating staff of F.I.A. D.W. Nek Muhammad Shah was the Assistant Registrar in the Office of the Registrar of Co-operative Societies. He stated that when Imdadullah Unar was the Registrar from January, 1976 to August, 1977 he had started taking action against Jam Sadiq Ali who was a defaulter in payment of co-operative loans. He also stated that likewise action had also been taken against Makhdoomzada Hassan Mahmood and Zulfiqar All Jamot.
46. ' Dr. Muhammad Afzal besides examining himself also examined Abid Hussain (page 1562) and Dr. Nabi Bux (page 1563). The first of these defence witnesses produced some entries in regard to doctor's duties and the second Dr. Nabi Bux by reference to the entries in the record of the Civil Hospital, Sanghar stated that Dr. Muhammad Afzal was not on duty on 7th October, 1973 and that he examined approver Muhammad Aslam and accused Ali Nawaz on 8th October, 1973.
47. ' Ghulam Qassim produced Akhtar Hussain (page 1322), Awal Zar Khan (1327) and Hussain Bux (page 1330). Akhtar Hussain Shah is an Assistant Superintendent of Nara Jail and he has deposed to the bringing of some of the accused persons to the jail for being kept in custody. It seems the witness was examined to show that even after the recording of confessions the accused were handed over to the police. Suffice to say that his evidence does not show the duration of custody of these accused persons with the police after the recording of confessions. Awal Zar Khan had brought the log book in regard to police vehicles. The intention underlying production of this witness was to show that accused Ghulam Qasim had been asked, in normal course of his duties, to take a vehicle to Sanghar Police Station on the day of the incident. Hussain Bux was examined to prove the receipts showing the delivery of the dead bodies to their relatives.
48. ' Superintendent of Police, Ghulam Shabbir, examined Ata Muhammad (page 1332), Mirza Mansoor Baig (page 1334). Ata Muhammad who was a Senior Clerk in the Office of the Superintendent of Police at Sanghar had brought the record of departmental enquiry against Approver Aslam, who had been promoted as A.S.I. Police. Mirza Masood Baig who was a Deputy Superintendent of Police at Sanghar stated that he held the enquiry against Approver Aslam and submitted a report to accused Ghulam Shabbir Superintendent of Police and the latter had issued a charge-sheet to Approver Aslam and finding him guilty he recommended that his increment be withheld.
49. ' Almost at the close of trial the two accused Ghulam Shabbir Kalyar and lmdadullah Unar had absconded. The learned Sessions Judge has devoted a substantial portion of his judgment to the effect of abscondance and determination of the question whether judgment could be announced in their absence. He arrived at the conclusion that the law did not bar the pronouncement of judgment against such absconding accused in their absence. These two accused were sentenced to death and such sentence is subject to confirmation by this Court. Before this appeal was fixed for regular hearing the office had made a reference whether the case of these two absconders should be separated fro the case of the rest of the accused whose case for confirmation had to be heard. By an order of a Division Bench of this Court it was held that by abscondance these two accused persons had forfeited the right to appeal and, therefore, their case for confirmation should also be heard alongwith the case of the rest of the accused. They continue to abscond but still we have considered their case for confirmation also.
50. ' In regard to the death of the six deceased persons in this case there can be no manner of doubt.
51. In fact a counter-version has also been stated in the defence case. ' It is stated that on the night of 6th October, 1973 a police party consisting of S.H.O. Yaqoob, Aslam Approver, accused Shah Muhammad, Abdul Ghafoor, Muhammad Aslam son of Ismail, Muhammad Munir, Noor Muhammad and Muhammad Yousur alongwith Suba Khan, Ali Nawaz and Lal Khan, (the latter three dead) had obtained one service rifle and 20 rounds each for patrol duty. A report was thereafter lodged which was lodged which was recorded by Inspector Mir Muhammad wherein it was stated that while this police party was on patrol duty the six deceased persons started shooting at then and there being an encounter such six persons died. The death of these six persons is further evidenced by the medical evidence to show that they died on account of firearm injuries. There is further evidence that the dead bodies of the six deceased were delivered to their relatives, namely, Sadoro and others. Receipts for getting the dead bodies have also been placed on record. There can be no manner of doubt that the six deceased persons in this case died an unnatural death which had been caused by firearms.
52. ' The most important question in this case is whether the version in relation to the manner in which the deceased met their death as given by the prosecution is true or the version given by the accused persons relating to encounter is true.In cases of such nature when two distinct versions are given by the rival parties in a criminal case the case has to be judged by keeping the two versions in juxta-position in order to arrive at the conclusion in regard to the truth or falsity of one or the other version. We have looked at this case in that light because in regard to the death of these six persons at the time and place stated in the two versions themselves there is no dispute.
53. ' In order to determine, whether an encounter actually took place, the most significant circumstance for consideration is, whether the evidence in ragard to obtaining the custody of, or the taking away of the deceased persons from the Court of the District Magistrate, Sanghar, on 6th of October, 1973, was reliable. If it can be believed that the deceased persons were taken away by the Police party, headed by Muhammad Aslam, approver, and that the deceased persons were in the custody of Sanghar Police on 6th October, 1973, then the case of encounter, as set up by the defence, would initially exhibit suspicion. On that point, the counter-version is that the six deceased persons were absconders in the Goonda Act cases that were pending against them before the District Magistrate, Sanghar. Such evidence in regard to the taking away of the deceased persons is, therefore, very material for the determination of this point.
54. ' There can be no doubt, and it is indeed not, controverted that each one of the six deceased persons was invloved in one, or, the other of the two Goonda Act cases that were pending before the District Magistrate, Sanghar. There can also be no dispute that these two cases, in which the six deceased persons were arrayed, were, in fact, fixed in the Court of the District Magistrate, Sanghar, on 6th October, 1973, for hearing. Approver Muhammad Aslam states that, on the morning of 6th October, 1973, he was directed by accused Yaqoob to go to the office of the District Magistrate, Sanghar, meet the Sarishtedar of the District Magistrate, and bring six people, who would be handed over in his custody by the Sarishtedar. He has gone on to state that he went to the office of the District Magistrate, alongwith three, or, four Police Constables and such party of the Police at least consisted of Police Constable Sobha Khan and Police Constable Ali Nawaz. He states that they had taken three hand-cuffs with them. He has gone on to state that they met Abdur Rasheed, Sarishtedar of the District Magistrate, who sent for the six deceased persons from the park outside the office building, though within the office compound. He has gone on to state that accused Imdadullah Unar directed him to take those six persons to the Police Station, and thereafter they were handcuffed and brought to the Police Station. He has further gone on to state that Umad Ali and Mehrab, who were closely related to some of the deceased persons, came up to him at the Police Station, and subsequently these two persons are stated to have followed the Police party, and the deceased to Sanghar Police Station. This witness has stated that these persons were put in the lock up, and that, in the evening of the said day, they were given a beating at the direction of accused Yaqoob. The approver has also stated that, shortly before midnight, these six persons were taken by a Police party to the place, where they were shot dead. The approver has been corss-examined at very great length. In cross-examination, he has made some statements, which deserve reference. He has stated that in his section 164 Cr.P.C. Statement, he "had not mentioned that Abdur Rashid, Sarishtedar, called the six persons in the Court in presence of accused lmdadullah Unar, and the fatter directed me to hand cuff them, and then asked us to take them away". This witness had also not stated in his confession that two persons, namely, Mehrab and Umar Ali, had followed the six deceased persons, and asked from him as to where were they being taken. To such extent, the omissions are neither very material, nor would those amount to any contradiction, moreso as evidence was being recorded after nearly six .Years of the incident. We may also refer to the station diary of Sanghar Police Station, dated 5th October, 1973 (Exh. 145), wherein it was stated that, on that date, accused Yaqoob Khan accompanied by A.S.I. Shah Muhammad, P.C. Noor Muhamad, Ali Nawaz and Muhammad Yousuf, had proceeded for investigation of the murder case of Ali Bux Junejo. No doubt, such an entry has been made in the station diary, and, to that extent, the learned defence counsel have stressed that the story given by approver Muhammad Aslam, that it was at 10.30 in the morning that he was asked to bring the six deceased persons from the office of the District Magistrate, should be discredited. First of all, the approver, who was a mere Head Constable, would not normally go and approach the District Magistrate, unless he was so directed by his superior Officer, and secondly the approver has, in an earlier statement, stated that he had been so directed by accused Yaqoob in the very early hours of the morning viz. 6-30 a.m. Even such a minor contradiction is not of much consequence, and we are inclined to believe that, since Ali Bux Junejo had been murdered in the town of Sanghar, S.H.O.
55. Muhammad Yaqoob must also be within that small town for the purpose of investigation, and therefore, even his going back to the Police Station for the purposes of giving directions is quite probable. This entry in the Station diary, therefore, is of very little consequence. The next witness on the point is Abdur Rasheed, the Sarishtedar in the Office of District Magistrate, Sanghar. Abdur Rasheed (P.W.17) has tendered evidence on the basis of documents, consisting of the records of the Court. He has stated that the two cases, in which the six deceased persons had been sent up to face proceedings under the Goonda Act, were fixed on 6th October, 1973, and the six deceased persons were attending the Court on all the hearings of the case, right from 17th July, 1973. He has stated that, on the fateful day, accused Imdadullah Unar came to the office at 11.00 a.m. And sent a telephone message to Police Station Sanghar, calling for Police to his office, and thereafter four or five Policemen, headed by approver Muhammad Aslam came. He goes on to state that accused Imdadullah Unar called the six deceased persons through a 'peon from the compound of the office, and handed them over to the Police party. This witness has gone on to state that, two days thereafter, viz, after the actual killing, accused lmdadullah Unar had asked him to bring the cases and remove some pages from the record for replacing the same by another fake diary to exhibit that the accused were absent on 6th October, 1973, and even on the earlier dates of hearing. He has also gone on to state that warrants for the arrest of these accused persons, together with notices to their sureties, were also got prepared by accused Imdadullah Unar. In short, the effect of such evidence is to show that accused Imdadullah Unar wanted to create evidence that the six deceased persons died in the encounter, but, to that extent, this witness has given a different version. This witness has also been cross-examined at some length. The dominant intention, underlying such cross-examination, is to show that, since this witness was a party to the destruction and fabrication of the record, he was protecting himself. To that extent, the witness has stood the test of cross-examination. In that context, the evidence of Bhojraj (P.W.18) is also relevant.
56. He has stated, as has been stated by P.W. Abdur Rahseed, that, if Imdadullah Unar, who was the District Magistrate, was not present on the date of hearing of the cases, the diaries used to be signed by this witness i,e, Bhojraj. It is in the evidence of Abdur Rasheed that, on one date of hearing, accused Imdadullah Unar was either on leave, or, tour, and therefore the diaries had been got signed by him from Bhojraj, who was then the Additional Deputy Commissioner. Witness .Bhojraj has stated in his evidence that, in October, 1973, accused Imdadullah Unar had called him to his office, and asked him to sign a diary pertaining to a previous date of hearing, which he signed, because he had been told that the record had been called by the High Court. By this evidence, the prosecution wishes to strengthen the allegation of the destruction and fabrication of the record to show that the six deceased persons had not attended the Court, and were, in fact, absconders. This witness has been cross-examined, but nothing material has emerged. In the same strain, the evidence of Sadoro (P.W.5) is the next link in the chain. He is the brother of deceased Mehrab, and a brother-in-law of deceased Umad Ali. He stated that both these deceased, alongwith the remaining four deceased, were facing proceedings under the Goonda At before the District Magistrate in 1973. He stated that, on 6th October, 1973, he had come, alongwith his brother and brother-in-law, to the Court of District Magistrate at about 8.00 a.m. Lt is common that, when accused persons in the Mufassil go to attend a Court on the date of hearing, some relatives, or, friends do accompany them. He has stated that the District Magistrate came at about 11.00 a.m. And thereafter a police party came there with handcuffs in their hands, and went inside the Court of the District Magistrate, whereafter all the deceased were called in the Court, and, after some time, he saw the deceased going out of the Court with handcuffs. He has stated that he, along with Muhammad Hassan, went towards the deceased persons, and Mehrab deceased told them that they had been arrested under the orders of the District Magistrate, and were being taken to the police station. He has stated that, thereafter, he followed the deceased persons to the Police Station, where they , saw accused Yaqoob, who was the S.H.O. And enquired about the reason for the arrest of these persons, whereupon accused Yaqoob threatened them also with arrest and asked them to leave. They have stated that so many Mureeds of Pir Sahib of Pagaro had been arrested and detained at the Police Station in connection with the murder of Ali Bux Junejo, and, among them, were also Ghazi Khan and Rakhial. This witness went on to state that, on the next morning, he had, once again, gone to Sanghar Police Station, where the same two persons were available, and they had informed him that, on the previous night, the deceased persons had been beaten, and, at about mid-night, the Police party had taken away the deceased persons. He has also deposed that, on still the following day, the dead bodies of the deceased were given to him', and he gave a receipt in token of having received the dead bodies. In cross-examination, he was confronted with his Police statements, but he stated that, in the Police statement, he had stated that the Police party had come with handcuffs, and that, when the six deceased persons came out of the office of the District Magistrate, they were handcuffed. He also stated that,accused Yaqoob had often times arrested him in some cases, 'but had thereafter released him. The next witness on the point is ,Ghazi Khan, who has stated that, after the murder of Ali Bux Junejo, 'he had been arrested, alongwith several other Mureeds of Pir Sahib of Pagaro, and brought to the Police Station.
57. He states that Rakhial was also at the police station. He has gone On to state that, on 6th October, 1973, at about mid-day, the six deceased persons were brought to the Police Station, and put in the lock up, and, at about sunset time on the same day, they were taken out, and moved to a quarter, and shortly thereafter he heard cries and noise of beating from that quarter, and thereafter the six deceased persons were brought back, and he found that Mehrab and Umad Ali were in such a bad condition that he thought they were dead. He has spoken about Sadoro and Muhammad Hassan coming to the Police Station, to enquire about the six deceased persons on 7th October, 1973 at about 8.30 a.m. To whopi he made the full disclosure. This witness has also been cross-examined, and he has stated that, some time in 1970, he had been arrested for making an attack on the person of late Zulfiqar Ali Bhutto, but he contradicted himself in the next sentence. This witness has also stated that he had been arrested in the murder case of Ali Bux Junejo. On the same point, the next witness is Ghulam Yaseen (P.W.7). He stated that, after the murder of Ali Bux Junejo, he had also been brought to Sanghar Police Station, perhaps as a suspect. He deposes that Ghazi Khan was also brought there. He has stated that, on 6th October, 1973 at about mid-day, approver Aslam, alongwith other Constables, brought the six deceased persons in handcuffs to the Police Station. He has also spoken about the beating being given to these deceased persons on the same evening, and, as a consequence, deceased Mehrab and Umad Ali, were in such bad condition that, in fact, they were physically carried by the Police Constables, and he also thought that they were dead. He has also deposed in regard to the six deceased persons being taken away at night. In cross-examination, he has stated that he had not been challaned under any case under the Goonda Act, although his father and brother had been challaned in a murder case. He has stated in his cross-examination that, on the following day, he came to know about the death of the six deceased persons. He, however, made no report to any person, and that may well be because he was in custody for twenty one days. The next witness on the point is Muhammad Yaqoob (P.W.8).
58. He is a shopkeeper from Khadro. He stated that he was facing proceedings under the Goonda Act in the Court of the District Magistrate, Sanghar, and his case was also fixed on 6th October, 1973, so that he had gone to the Court. He stated that the six deceased persons were also present, and, after the District Magistrate came, the six deceased persons were called in the office, and thereafter they were taken away by the Police in handcuffs. In cross-examination, he stated that he was an accused in a case under the Defence of Pakistan Rules. It was suggested to him that he did not know the six deceased persons, and such suggestion was repelled by him. He admitted that he had filed his nomination for the Provincial Assembly elections, but the point was not pursued further. He, however, stated that he did not belong to the Jamait of Pir Sahib of Pagaro. The next witness on the point is Police Constable Zainuddin, who was on lock-up duty at Sanghar Police Station on 6th October, 1973 from mid-night to 3.00 a.m. He has stated that, when he took charge, he found six persons in the lock-up, but no entry had been made in any register about their detention. He went on to state that, between mid-night and 1.00 a.m. In the early hours on 7th October, 1973, accused Yaqoob came, along H.C. Abdul Ghafoor, and asked him to open the lock- up , whereafter Abdul Ghafoor handcuffed these six persons and took them away in the police van.
59. On asking, he was told by accused Yaqoob that these six persons were being taken to Khipro lock- up. This witness has not named the six deceased persons, but the witness has seen the magazine "ZINDAGI", wherein the photos of the six deceased persons appeared, and he identified them. This magazine has been placed on record as Exh.
34. In cross-examination, he stated that he had not mentioned in his section 164 Cr.P.C. Statement that these six persons were put in the van by accused Muhammad Yaqoob and H.C. Abdul Ghafoor. He was asked in cross-examination, whether the condition of two out of the six deceased, while they were in lock-up, was bad, and he stated so, although he has not so stated in his examination-in-chief.
60. ' Accused Shah Muhammad, Abdul Ghafoor, Ghulam Qassim, Muhammad Muneer, Muhammad Aslam and Noor Muhammad have also made judicial confessions. In most of these confessions, the account in respect of the actual killing is of a nature that might be termed exculpatory.
61. However, in regard to the point of the six deceased persons being in the custody of Sanghar Police on 6th October, 1973, there is not much of a dispute. Each one of these accused persons has stated in the confession that the six deceased persons were in custody on 6th October, 1973, and they were taken to the bank of the canal, where they met their death. No doubt, they have retracted from their confessions, besides the same being exculpatory in the matter of actual killings.
62. However, such confessions can be used against the accused persons, who were members of the police party to the extent of showing that the deceased were at Sanghar Police Station in custody of Sanghar Police on 6th October, 1973. We are of the view that such portion of the confession can be put in the scales to heighten the value of other evidence on the point of the deceased being in Police custody.
63. On a consideration of all the material, which has been stated in the foregoing paragraphs, we are in no manner of doubt that the six deceased persons had actually been picked up from the Office of the District Magistrate, Sanghar, on 6th October, 1973 at about 11.00 a.m. Most of the witnesses are independent: particularly P.C. Zainuddin and Muhammad Yaqoob. To that extent, we may also make a mention that H.C. Khaliluddin (P.W.11) had also spoken about the detention of these six deceased. It is difficult to believe that the six deceased persons had not been attending the Court of the District Magistrate, Sanghar, for, if that was so, the enthusiasm of the Police would have led to their arrest immediately. In spite of very long cross-examination of the witnesses, nothing substantial has emerged, which might persuade us to believe that the deceased persons were not present in Court on 6th October, 1973. On a careful consideration of the bulk of this evidence, we are in no doubt whatsoever that the six deceased were in custody of the Police on 6th October, 1973.
64. ' There is another reason, which has helped us in arriving at the conclusion that the story in regard to encounter is false. Such circumstance emerges out of medical evidence in the case. It is stated in defence case that each one of the six deceased persons, who had an encounter with the Police on the night between 6th and 7th, October, 1973, was armed and was carrying a firearm. The Mashirnama of scene in the encounter case (Exh.52) is a fairly detailed document, which makes a mention of some empties that had been fired by the said deceased persons at the time of encounter. Curiously, however, out of the numerous shots that are alleged to have been fired by the deceased persons at the Police party, none had struck any Police Officer. The only injuries, which are allegedly caused to approver Aslam and P.C. Nodr Muhammad, were of very minor dimension and almost superficial. In fact, it is impossible that these injuries may have been caused by a firearm at all. In that context, we may also remark that the learned Advocate for the accused attempted to argue that this was a case, which would attract the relevant provisions relating to the right of private defence. We are of the view that the version, relating to encounter is false, but even if some one were to believe such a version, the right of private defence would not seem to extend to the killing of six persons in these circumstances.
65. ' Besides, the medical evidence also shows that some of the deceased persons received injuries on the back side of their person, and such injuries could hardly be attributed to an encounter, which normally is face to face shoting. We have, therefore, no hesitation in rejecting this version in the defence story.
66. ' The evidence in regard to presence of the accused persons at Sanghar Police Station on 6th October, 1973 is a very important piece of evidence in this case. Such evidence has all the characteristics of evidence, which very often is led in criminal cases to show that, immediately before the death of the deceased, he was accompanying, or, was in custody of the person, who is alleged to be the accused. In fact, since the accused were in police custody, a greater duty devolved on the Police Officers; working at the Police Station, to account and explain the circumstances that resulted in the death of the deceased. In that direction, the only account, or, explanation is the story of encounter, which we have disbelieved.
67. ' We shall now proceed to consider the case of each individual accused on its merits. We shall first consider the case of such accused persons, who were working at Sanghar Police Station as Police Officers, and then we shall proceed to consider the case of all other accused, namely, Ghulam Shabbir, lmdadullah Unar, Mir Muhammad and Ghulam Qassim. While considering the case of these four persons, we shall have to refer to the evidence relating to acquitted accused Shah Nawaz Junejo and Muhammad Hassan Junejo also. We may mention that acquittal appeal against these two acquitted accused have not been pressed.
68. ' We shall first consider the case against S.H.O. Ch. Muhammad Yaqoob, H.C. Abdul Ghafoor, P.Cs.
69. Muhammad Aslam, Noor Muhammad, Muhammad Muneer and Ghulam Qassim, A.S.I. Shah Muhammad is stated to have died after the conviction, and therefore his appeal has abated, and his case shall not be considered, except to the extent that evidence against him is common. It may be stated that all these accused, except Ghulam Qassim, were convicted under section 302/109, P.P.C., whereas Ghulam Qassim was convicted under section 302/109 P.P.C. Each one of them was working in Sanghar Police. Approver Muhammad Aslam was also working at the same Police Station as Head Constable on the date of this occurrence. The pieces of evidence against these accused are the evidence of approver, their judicial confessions, the Station diary maintained at Sanghar Police Station, motive and conduct emerging from their failure to disclose the occurrence to any person.
70. We propose to deal with the evidence of approver in the first instance. This approver is a Head Constable of Police, besides his evidence having all the characteristics, which evidence of such witnesses imbibe, or suffer from. Even otherwise, the law of evidence lays it down explicitly that such evidence has not to be relied upon for the purposes of basing a conviction, unless it is corroborated in material particulars. The mode of appreciation of the evidence of approver has been explained more than once by the Supreme Court. The latest case on the point is the case of Zulfiqar Ali Bhutto v. The State PLD 1979 SC 53. At page 194 of the report, under the captions "principles governing the appraisal of approver's evidence" and "the principle of double test," the then learned Chief Justice reviewed a number of leading cases on the, point, including cases from Indian jurisdiction, and observed that, although a conviction is not illegal merely because, it proceeded upon the uncorroborated testimony of an accomplice, yet keeping in view, illustration (b), appearing under section 114 of the Evidence Act which lays down a presumption that the approver is unworthy of credit, unless he is corroborated in material particulars. On fusion of the two provisions of law, the learned Chief Justice, who delivered the leading judgment on behalf of the majority of the members, observed that evidence of the approver being tainted required corroboration, but such corroborative evidence need not, by itself, be sufficient for conviction, nor does it need to concern each and every detail in the evidence of approver. It should, however, connect, or, tend to connect the accused with the crime.The discourse on the point referred to the principle of "double test", so that, besides such evidence of approver being true and reliable, it should also beg of corroboration in material particulars, not merely showing, but convincing the Court that the evidence of .The approver was true. Such corroborative evidence should also be independent testimony, emanating from source independent of the approver. These rules we shall respectfully follow for the reason that the approver has always been dubbed as a person of low character, who lets by his friends and accomplices with an intention to secure his own liberty, or, perhaps save his own- life. He also has to adhere to his version of the evidence throughout the trial, as otherwise he was likely even to forfeit a certificate from the Court that he has complied with the terms of his pardon. For all such reasons, the evidence of the approver has to be considered in a very careful manner. In the light of the principle formulated by the Supreme Court, we produced to consider the evidence of approver Muhammad Aslam.
71. ' A large portion of the evidence of Muhammadd Aslam, approver, has been dealt with in an earlier part of the judgment, when we dealt with the question, whether the six deceased persons had been secured from the office of the District Magistrate, Sanghar, and were in custody of Sanghar Police on 6th October, 1973. To that extent, we need not reproduce the same. In regard to the incident of murder itself, approver Muhammad Aslam has stated that, on 6th October, 1973, at about 11.00, or, 12.00 O'clock in the night, he was called at the Police Station by accused S.H.O. Yaqoob, and told that the said six persons had to be taken to Khipro Jail, and, for that, a Police party had been formed. The names of Police employees, forming that party, were disclosed by him, and they were deceased A.S.I. Shah Muhammad, H.C. Abdul Ghafoor, the approver himself, P.Cs. Noor Muhammad, Muhammad Aslam and Muhammad Muneer, along with P.Cs. Lal Khan, Muhammad Yousaf, Sobha Khan and All Nawaz. The last four either by reason of their death, or, abscondence, or, for any other reason were not tried. He stated that S.H.O. Yaqoob Khan told them to take arms and ammunition from H.C. Khaliluddin, the Head Moharrir at the Police Station, and one rifle with twenty bullets, was given to each one of them, after obtaining signatures on the Roznamcha (Exh. 42). An entry was made in the Station diary, which shows that A.S.I. Shah Muhammad, H.C. Abdul Ghafoor, H.C.
72. Muhammad Aslam (approver),. P.Cs. Sobha Khan, Muhammad Aslam, Noor Muhammad, Lai Khan, Muhammad Yousuf, Muhammad Muneer and Ali Nawaz were to go for patrolling and Nakabandi, and each one of them was provided with one rifle and twenty bullets. The signatures of such Police employees had also been obtained on the Station diary in token of the correctness of entry. This entry was shown to approver Aslam, who has admitted the same to be correct. It is stated in the evidence of the approver that, at the time of obtaining the rifles and bullets, S.P. Ghulam Shabbir and District Magistrate lmdadullah Unar, alongwith absconding accused Jam Sadiq Ali, were present at the Police Station. The approver goes on to state that, thereafter, the six deceased persons were handcuffed with their hands behind their backs and taken to a Police van by a Police party, in which all of them sat. He states that S.H.O. Yaqoob and Shah Muhammad were sitting in the front seat with the driver, and the said driver was P.C. Ghulam Qassim. This driver Constable, hovever, could not be indentified by approver Aslam from a distance, but, when he went near, he did identify him. He was also asked as to why he had failed to identify him and he stated that the said Ghulam Qassim had clean shaved himself, but, at the relevant time, he wore a beard. The approver went on to state the route, which was followed for reaching the place, where the murders were committed. At the spot, the approver gave a graphic and detailed account of the actual incident of killing, which reads as follows:- "Under the direction of S.H.O. Yaqoob and A.S.I. Shah Muhammad, we were divided into two parties of police constables and each party was given three prisoners. Each party and its respective prisoners then stood at either side of Kanan Mori. I was in the party which was at the western side of the Mori. The two jeeps were also parked at the side where our party was standing. Then the prisoners were made to stand at a distance of four or five paces from each party of the constables.
73. Accused Ghulam Shabbir Kaiyiar then came at the spot and directed S.H.O. Yaqoob to shoot down all the six prisoners, Accused Imdadullah Unar and Jam Sadiq Ali were sitting in the jeep at that time. S.H.O. Yaqoob then directed each party of us to shoot down the six prisoners and in case any one of us failed to do so he would be shot down. Then all of us shot at the prisoners and each one of them fell dead. I had also fired six shots at the prisoners."
74. ' After the killing, the approver went on to relate the story about the foisting of rifles, guns, pistols and bandoliers on the deceased persons, and the removal of the handcuffs that had been put on their person at Sanghar Police Station before they had started. In that context, the description of the approver is as follows:- "Thereafter accused Muhammad Hassan Junejo came out of the jeep and took out from the other jeep, in which absconding accused Jam Sadiq Ali and accused lmdadullah and accused Ghulam Shabbir Kalyiar were sitting, and he took out some rifles, guns, pistol and leather belts containing bullets. Then accused Muhammad Hassan and accused Shah Nawaz Junejo went with me, Head Constable Abdul Ghafoor, Constable Suba Khan and S.H.O. Yaqoob, to the place where the dead bodies of the six persons were lying. Then accused Shah Nawaz and Muhammad Hassan Junejo fired in the air. Thereafter accused Shah Nawaz Junejo, Muhammad Hassan Junejo, S.H.O. Yaqoob and A.S.I. Shah Muhammad placed one weapon by the side of and tied one belt containing bullets to each dead body. The handcuffs were then removed from the dead bodies by the Head Constable Abdul Ghafoor."
75. ' The approver has then stated that S.H.O. Yaqoob had directed him and A.S.I. Shah Muhammad to go to Sanghar Police Station, and bring blank papers, which they brought after obtaining the same from Head Moharrir Khaliluddin. Inquest report forms were also brought. The approver then states that, on the next morning, D.I.G. Riasani came to the Vardat in company of S.P. Ghulam Shabbir, District Magistrate Imdadullah Unar and Inspector Mir Muhammad. He stated that he, alongwith H.C. Abdul Ghafoor and P.Cs. Noor Muhammad, Muhammad Aslam, Muhammad Muneer, Lal Khan, Muhammad Yousuf, Sobha Khan and Ali Nawaz had complained to the D.J.-G. That they had been compelled to do the evil deed of killing the six persons, but they were told by the D.I.-G. To keep quiet. It must be stated that the said D.I.-G is dead now. He went on to state that Inspector Mir Muhammad then prepared Mashirnama of the spot. Next leg of the story, as given by approver Muhammad Aslam., is that the dead bodies were sent to the hospital, and First Information Report was recorded by Inspector Mir Muhammad at the dictation of S.H.O. Yaqoob. In this report, the counter-version in regard to encounter had been recorded. He went on to state that he had received no injury; nor had any encounter taken place. He also stated that he had been promoted as A.S.I. After two days, and the reward was also given to him. Thereafter, he proceeded to give an account of the second investigation that started in 1977. He also stated that he had been sent to the hospital, alongwith P.C. Ali Nawaz, for examination of some injuries which, as stated above, were extremely superficial. This approver has been subjected to very long and searching cross- examination. He had stated that he had arrived at the Police Station on 6th October, 1973, at 6.30, or 7.00 a.m. When S.H.O. (Yaqoob) directed him to bring six persons from the Office of the District Magistrate.,The learned Advocates attacked the evidence of the approver on the ground that the discrepancy in the mention of time rendered his evidence unreliable, and that this approver had improved his version by giving the time of arrival at the Police Station at 7.00 a.m. Solely with the purpose of conforming his evidence with the entries in the Station diaries, which showed that S.H.O.
76. Yaqoob had left in connection with investigation of the case of Jurejo's murder. To that extent, we may reproduce the actual sentence in nis evidence, which reads as follows:- "On 6th October, 1973, I arrived at the Police Station about 6.30 or 7 a.m. When the S.H.O. Directed me to bring the six persons from the office of the D.C. I had been seeing Rashid, the Sarishtedar of the D.C."
77. ' The sentence is divisible in two parts, namely, the time of arrival of the approver at the Police Station, and the direction given to him by S.H.O. Yaqoob to bring the persons. We are of the view that the direction had not been given at 6.30, or 7.00 a.m. For that was hardly any time to go to a Court. In fact, as stated above, the direction must have been given at about 10.00 a.m. But in regard to the presence of S.H.O. Yaqoob at the Police Station at that time, despite the entry in the Station diary, we may say that it may well be that investigation of Junejo's murder was being carried out in the small town of Sanghar and S.H.O. Yaqoob might have come back. Even the coming back of S.H.O. Yaqoob will be a step in the investigation of the murder case of Junejo, because these persons had been called in that connection. In our view, this is no contradiction, but, even if that be considered so, it is virtually immaterial. The approver was sought to be contradicted by the Police statement, which was recorded by Inspector Mir Muhammad in connection with the encounter case. He stated that he had not made that statement, but accused Mir Muhammad had written it on his own. In that context, we may say that the approver was a party to the murder of the six deceased, and initially he may well have made this false statement. However, the mere fact that an approver had, at an earlier stage, made a wrong statement will not be sufficient to rob his evidence of all its probative force. This statement may have been made in an instinct of self- preservation and even with a view to save the other perpetrators of the crime. He was confronted with his earlier statements, wherein he had not stated that S.H.O. Yaqoob had told him, after bringing the six deceased persons from the office of the District Magistrate, to enquire from the said six persons about the murder of Ali Bux Junejo, but, in the same context, he had stated that S.H.O. Yaqoob had directed them to form parties and take the deceased persons to a quarter in the Police Station and beat them. This would not be a contradiction at all, moreso when we are conscious about the conditions prevailing that often times Police even resorts to beating for the purpose of extracting confession. In his previous statement, he had not stated that, on account of beating, deceased Umad All and Mehrab Khan had become unconscious, and were taken to the lock-up after being lifted. This omission too appears to be inconsequential, in view of the fact that beating of the deceased persons had been stated. A number of omissions were then put to the approver in cross-examination, and, to that extent, the passage, appearing in his evidence, is reproduced:- "I have not stated in my statements under section 161, Cr.P.C. That accused Muhammad Hassan and Shah Nawaz Junejo and A.S.I. Shah Muhammad had also placed the weapons and the cartridges belt, on each deed body. I have stated in that statement that only Yaqoob had placed the weapons and tied the cartridge belt to each dead body. In my statement under section 164 I have stated that Muhammad Hassan Junejo got down from the jeep, took out the ammunition from the jeep of the Deputy Commissioner and then he alongwith S.H.O. Muhammad Yaqoob came to the place where the dead bodies were lying and he kept the arms and ammunition by the side of each body. In my statement before the D.M. I had not stated that accused Shah Nawaz and Shah Muhammad A.S.I. Had also placed the arms and ammunition by the side of each body. I have not stated in any of my three statements that Head Constable Abdul Ghafoor removed the handcuffs from the dead bodies. I have not stated in my statement under section 161, Cr.P.C. That I and others had complained to the D.I.-G. Raeesani that we had been compelled to do the evil dead of killing six persons. I have not stated in that statement that the D.I.-G. Told us to keep quiet and that those six persons had been killed in encounter with the police. I have also not stated in that statement that the D.I.-G. Directed us that we should state that those six persons had died during the encounter with the police. I have not stated in any of my three statements that there were no Mashirs when. Accused Mir Muhammad prepared the Mashirnama. I have not stated in any of the three statements that accused Mir Muhammad directed me and constable Ali Nawaz to deposit our arms at the police station and then come to the civil hospital. I have stated in my statement under section 161, Cr.P.C. That S.H.O. Yaqoob asked me to go to the hospital for examination. I have also stated in my statement that I had refused because I had no injury. I have not stated in my statement under section 164, Cr.P.C. That Mir Muhammad accused had asked me to go to the hospital. In that statement I have stated that I was directed by accused Yaqoob to go to the hospital."
78. ' All such omissions, it would seem do not go to the root of the matter, and these are in regard to- some details, without which also it cannot be said that the evidence of the approver in the main case is false, insofar as it relates to the manner in which the six deceased persons were . Killed, and the persons, who actually caused their death. These omissions also do not discredit the fact of beating of the six deceased persons at the Police Station, and two of them having been beaten very severely, so that they had even become unconscious, and their condition was such that one could think as if they were dead. The question of reliability of this approver against the remaining accused persons shall be considered by us in a later part of the judgment.
79. ' The next piece of evidence against the accused persons is their judicial confessions. These confessions were made by A.S.I. Shah Muhammad (now dead), H.C. Abdul Ghafoor, P.C.
80. Muhammad Muneer, P.C. Muhammad Aslam, P.C. Noor Muhammad and Constable Driver Ghulam Qassim. These confessions were recorded by Magistrate Shamsuddin.
81. ' The confession of Abdul Ghafoor states that he, alongwith co-accused, had taken the deceased persons from the lock-up in the jeep of Ghulam Qassim. It is stated that the deceased persons were taken to the place, where the murders were committed. He also stated that, at the scene, two parties of Policemen were formed, and they had been directed to fire the shots. He went on to state that he was unwilling to commit this crime, and actually made a grievance, upon which all the persons in the Police party opened firing, resulting in the death of the six persons. Finally, he gave an account in regard to the institution of fake story of encounter, and the investigation that followed by Inspector Mir Muhammad. P.C. Muhammad Muneer substantially gave the same version in regard to the taking of the deceased persons to the place of murder, dividing of the police party in two groups. He went on to state that, being ordered to shoot, they all lost their senses. He admitted that he fired three shots, but did not know, whether the bullets hit the prisoners, or, not. P.C. Muhammad Aslam has made a substantial similar confession. In regard to the actual killing, he stated that, when S.H.O. Yaqoob ordered the firing, they did not fire, and ultimately he came to set away without actually firing. P.C. Noor Muhammad, after giving the similar account in regard to taking the deceased, and forming of parties, went on to state that, on being ordered, Police fired the shots, but, because his hands were trembling, he could not fire- the shots.
82. ' On a reading of these confessions, it would appear that, insofar as the actual firing is concerned, some of the accused have tried to minimize their part and even to exonerate themselves. However, in the major part of the story in relation to what had happened after the deceased were K taken from the Police Station, the account in each one of these confessions is detailed and consistent. It also substantially corroborates the evidence of approver Aslam. Coupled with the fact that these persons did not even disclose to any other person as to what had happened, their conduct is no less important. Several times silence is very ominous and revealing. They do say that they revealed the real facts to D.I.-G Riasani on the next day, but, to that extent, the averments are false and made, because they know that Riasani, being dead, they could not be contradicted. These confessions have no doubt been retracted also.
83. Now, the question is, whether the confessions, as those are, can be considered to be corroboration of the evidence of approver, and, if so, what is the value of such corroboration. As stated above, the corroboration needs to be only in material particulars. It is not every fact in the evidence of the approver that needs to be corroborated, but, if the corroborative evidence lends a ring of truth to the evidence of the approver, it is of no little value, the admitted position being that they were in the party that had taken the six deceased persons in the dead of the night to a desolate place, where such deceased persons were killed, and, if it is also believed that each one of them had obtained a rifle and twenty cartridges, then the confessions can be used to support and corroborate the evidence of the approver.
84. ' In the above context, deceased accused Shah Muhammad in his statement in the Court admitted having gone with the Police party on the night between 6th and 7th October, 1973 to the place, where these murders had been committed, and, to a general question asked by the Court, he stated as follows:- "On the night of alleged incident all the six deceased had attacked the Police party, while we were on patrol, and, in an encounter, those persons were killed."
85. ' Accused P.C. Abdul Ghafoor, Muhammad Aslam, Noor Muhammad and Muhammad Muneer, on being asked in their statements under section 342, Cr.P.C., also stated that their statements were the same as that of Shah Muhammad. This would show that they admit that there was an encounter, in which the six persons were killed by them.
86. ' The next piece of evidence is that of motive. The learned State counsel has set up a case that, on account of the murder of Ali Bux Junejo on 5th October, 1973, suspicion had centred round the Mureeds of Pir Pagaro. It is stated in the evidence, and also not contradicted, that a rounding up of Mureeds of Pir Pagaro had started after a curfew was imposed in Sanghar town. Mr. Aziz Ullah K.
87. Shaikh states that, because the six deceased persons were Mureeds of Pir Pagaro, they had been called to the Police Station, and they were murdered solely on that account. In that context, several other factors need to be considered. It is established case that a large number of people, who were allegedly the Mureeds of Pir Pagaro, had been rounded up for the purposes of investigation. It is not the case of the prosecution, nor even the approver says, that these six persons, who are deceased in this case, were really suspected of the murder of Ali Bux Junejo. It seems, on a reading of the evidence, that the six deceased persons were taken to the Police Station for the purposes of interrogation and in the probable hope that they might be able to reveal such facts as might lead to the arrest of the actual murderers. This evidence falls far short of providing a convincing basis that they were done to death out of instinct of revenge, so as to avenge the murder of Ali Bux Junejo. If the instinct of revenge would have been the paramount reason, killing was not necessary, for the Police would have been satisfied in concocting false evidence against them, and sending up' them for trial on the charge of murder. To put the matter straight, we find nothing on the record to indicate if any of these six persons had a hand in the murder of Ali Bux Junejo. But, on the other hand, the facts are established that they were picked up from the office of the District Magistrate and taken to Sanghar Police Station, where, at the behest of S.H.O. Muhammad Yaqoob, they were taken to a small room in the Police Station in the evening and given a severe beating. The beating, in fact, was so severe that two out of the six persons, namely, Mehrab and Umad Ali, had to be carried back to the lock-up. On that point, there are other witnesses, namely, Ghazi Khan and Ghulam Yaseen, besides the approver. Disclosure was also made to complainant Muhammad Yaqoob in regard to such beating, which had been given to the six accused persons at the Police Station. The witnesses even go to the extent of stating that they thought that Umad Ali and Mehrab had actually died. In our view, such severe beating, which nearly killed Mehrab and Umad Ali, could not have remained a secret, and the remaining four deceased persons would have been very valuable witnesses in regard to such beating. S.H.O. Muhammad Yaqoob must have been scared on what had happened, and, in order to avoid any consequence of a possible complaint, or, prosecution in respect of such heartless beating, he thought the best way was to get rid of each one of the six deceased persons, and that is why the six deceased persons were taken in the dead of the night to be killed. A false story of encounter was also created for the same purpose. We do not believe that the motive was to take revenge on account of the murder of Ali Bux Junejo, but it was to conceal the fact of such severe beating, which nearly caused the death of Umad Ali and Mehrab. Moreover, the investigation in the case of the murder of Ali Bux Junejo had not proceeded afor as to convince any person that any of these six persons had a hand in the murder of Ali Bux Junejo.
88. The next pieces of evidence, that has been relied upon by the prosecution in regard to the accused, who had actually shot the deceased persons, was that, within two days of the encounter, these accused persons, who were employees in the Police Department and posted at Sanghar, were given rewards by the Inspector-General of Police and were even confirmed, or, promoted by the Inspector-General of Police. The prosecution wishes that this evidence may be used to strengthen the prosecution case, because these accused had not refused to accept the rewards, and thereby they concealed the actual fact. It is not easy to comprehend such argument for more than one reason. First of all, this evidence is superfluous, because, in regard to the encounter, the story has been disbelieved. Secondly, that such evidence will utmost amount to concealing the fact of crime, and it is established law that, if the murderer himself takes steps to conceal his crime he cannot be convicted under section 201, P.P.C. Thirdly, the grant of the promotion, or, reward was an act of the Inspector-General of Police, or, the D.I.G. Riasani, and there was nothing to show that these accused had claimed any reward. We are, therefore, of the view that the mere fact of these accused having concealed the actual fact and become a party to faking up the false story about encounter does not, in any manner, advance the case of the prosecution.
89. However, the other pieces of evidence, namely, evidence of approver, judicial confession, 342, Cr.P.C. Statements in Court, motive for the murder, detention of the deceased persons at the Police Station on 6th October, 1973, and other minor circumstances are sufficient to believe that H.C.
90. Abdul Ghafoor, P.C. Muhammad Aslam P.C. Noor Muhammad and P.C. Muhammad Muneer have committed the offence of murder. Their convictions under section 302/34 P.P.C. Are upheld.
91. ' In regard to S.H.O. Ch. Muhammad Yaqoob, the piece of evidence are common, except that he has not made a judicial confession during the investigation. However, in addition to the evidence of approver, 342. Cr.P.C. Statement in Court, motive and other circumstances, there is a further piece of evidence against this accused, which emanated from two applications made by this accused before the trial Courts, wherein he sought pardon. The first of these applications was made to the District Magistrate, Sanghar, on 15th February, 1978, and the second to the Sessions Judge, Karachi, on 18th July, 1978 (Exhs. 271 and 274). It may be stated that, on 18th July, 1978, the case was being tried by the Sessions Judge, Karachi. In the first of these applications, he stated that he wanted to state the nature of' this case, "which could be helpful for better justice", and therefore he may be called to the Court for recording of this statement. The District Magistrate, Sanghar, did call him on 1st March, 1978, and recorded his statement. In the said statement (Exh. 277), he stated that, immediately after the murder of Ali Bux Junejo, absconding accused Jam Sadiq Ali came to Sanghar, and stayed in the Inspection Bungalow: where accused Ghulam Shabbir, Imdadullah Unar and D.I.-G. Riasani were with him till late hours of the night. He went on to state that they had prepared plans for taking serious revenge from the Hurs for the murder. He stated that S.P. Ghulam Shabbir ordered him to call for the six Hurs from the Court of District Magistrate lmdadullah Unar to the Police Station, and therefore he deputed approver Muhammad Aslam with a few Constables to bring the six deceased. The suspected persons had also been called at the Police Station for interrogation. He went on to state that Jam Sadiq Ali was sure that they were involved in the murder case, and therefore, under the orders of the higher officers, the six deceased persons were taken to the quarters near the Police Station for interrogation and were maltreated. He stated that, under the orders of Jam Sadiq Ali, S.P. Ghulam Shabbir, and D.C. Lmdadullah Unar, a Police party was formed under his supervision, which inclulded A.S.-I. Shah Muhammad, approver Muhammad Aslam, H.C. Abdul Ghafoor, and P.Cs. Noor Muhammad, Muhammad Muneer, Sobha Khan, Ali Nawaz, Muhammad Aslam, Muhammd Muneer, Muhammad Yousuf and Lal Khan. This party was provided with ammunition, and thereafter, at mid-night, the six deceased were made to sit in the Police van, and the Police staff. Such van was being driven by Ghulam Qassim. He went on to state that, at a distance of twelve miles, S.P. Ghulam Shabbir stopped the jeep, and thereafter, under his orders, and also the orders of Jam Sadiq Ali and D.C. Lmdadullah Unar, the six deceased were brought down from the van. He then went on to describe the actual incident of the actual killing in the following words:- "Police staff were kept on one side of the culvert, and three prisoners and some Police staff were kept on other side of the culvert. S.P. Ghulam Shabbir Kalyar, D.C. Lmdadullah Unar and Jam Sadiq Ali said that these six persons were involved in the murder case of Ali Bux, therefore, it is virtuous deed to take the revenge of the murder from them, and that the employees who will do that job, will be given prizes and promotions, therefore, these six people were killed by the Police party, by firing shots from both the sides on the spot. In order to conceal that crime, this incident was wrongly reported and it was shown that these people have been killed during the Police encounter."
92. ' He stated that Inspector Mir Muhammad conducted bogus investigation. He, however, added that he participated in these proceedings under the compulsion of the other Officers. The District Magistrate, Sanghar, however, declined to grant any pardon to this accused. On 18th July, 1978, accused S.H.O. Muhammad Yaqoob made another application, stating that he was fully conversant with the facts of the case, and, even earlier, he had volunteered to make true and faithful disclosure of facts before the District Magistrate, Sanghar, who had called him, and recorded his statement, "which was neither verbatim nor properly worded." He stated that a number of material facts had not been considered, and therefore pardon had been refused.
93. However, the second application was also rejected on 10th August, 1978 Exh.
94. 271.
95. ' The first question is about admissibility of the statement made by S.H.O. Muhammad Yaqoob before the District Magistrate, Sanghar. The learned Advocate, appearing for this accused, has stated that this statement was not a confession within the meaning of sections 164 and 364, Cr.P.C.
96. It is further contended that this statement has been made under inducement and threats. It is also contended that the statement has been made with the intention of becoming approver, and therefore it should not be considered. It is, no doubt, true that this statement was made during the trial, and not during investigation. It is also true that all such formalities, that have to be observed before recording a judicial confession, have not been observed. However, it cannot be overlooked that the statement had been made before a judicial Officer viz. The District Magistrate, Sanghar.
97. Being made in the immediate presence of a Magistrate, a sanctity attaches to it under section 25 of the Evidence Act. There is nothing to indicate that this statement has been made under any threats, or, is a result of any inducement. After all, if an accused person, during the trial, thinks that by making full disclosure he is likely to earn his liberty, or, mitigate the offence, or, sentence, he could make a confessional statement, and the same cannot be held inadmissible for the mere reason that he had made the statement in the hope to be made an approver. He has only to thank himself for it. The accused, in this regard, has stated as follows:- "I sent application to D.M. Sanghar but it was done at the pressure of P.W. Khuda Bux who was then Assistant Director F.I.A. Police and he had threatened that he would put my wife and children in trouble who were living in police line in Hyderabad. I had not made statement Exh. 272 before D.M., It was prepared by Haji Khuda Bux who got my signature on it outside the office of D.M. Sanghar. I never appeared before D.M. Sanghar ..I see the application Exh.
274. It was made by me and sent to Sessions Judge, Karachi. But I did that under the influence and pressure of Mr. Ansaruddin Ansari the then Deputy Director F.I.A. The other purpose to make the application was to disclose all the true facts of the case before the Sessions Judge."
98. ' There is, however, nothing of significance on the record to indicate that Investigating Officer Khuda Bux, or, Ansariddin Ansari had influenced, or, pressurised S.H.O. Muhammad Yaqoob to make these applications; nor is there any evidence to show that the female members of the family of this accused were disgraced, or, even threatened with disgrace. These statements appear to be voluntary, and, insofar as the statements concern this accused, the same appear to be true, particularly when those are considered, alongwith other evidence, namely, the evidence of approver Muhammad Aslam, other documentary and circumstantial evidence.
99. ' In his evidence, the approver, Muhammad Aslam has fully implicated S.H.O. Muhammad Yaqoob.
100. He has stated that this accused had asked him to bring the six deceased persons from the office of the District Magistrate, and that he conveyed the message of this accused to Sarishtedar Abdur Rasheed, and, on reaching the Police Station with the six deceased persons, he handed them over to S.H.O. Muhammad Yaqoob, who made them sit in the veranda of the Police Station.He has further stated that he was called at the Police Station by S.H.O. Yaqoob on the evening of 6-10-1973, when those six persons were in the Police lock-up, and this accused directed him to take the six persons, who are deceased in this case, to the bachelors' quarter, and beat them, and enquire from them regarding the murder of Ali Bux Junejo, because such information had to be given to Jam Sadiq Ali, S.P. Ghulam Shabbir and D.M. Lmdadullah Unar. The approver went on to state that he was again called at the Police Station by accused S.H.O. Yaqoob at 11.00 or 12.00 O'clock in the night and told that these persons had to be taken to Khipro Sub-Jail, and therefore, Police party had been formed, and this accused was a member of that party. He states that S.H.O.Yaqoob told them to take arms and ammunition from Head Constable Khaliluddin, who have one rifle and twenty bullets to each one in the police party. He went on to state that this accused had ordered six handcuffs being given to the Police party, whereafter the police party proceeded to the place, where the murders were committed. In an earlier part of this judgment, the description about the actual incident of killing has been reproduced, as appears in the evidence of approver Aslam. The description in regard to placing of weapons by the side of the deceased persons to show that a fake story of encounter was concocted has also been reproduced in an earlier part of the judgment. In such material, that is available on the record, this accused has been fully implicated.
101. The criticism in regard to the evidence of approver Muhammad Aslam, in relation to accused S.H.O.
102. Muhammad Yaqoob, is similar to the criticism to which this evidence has been subjected to in relation to the evidence against the other accused Police Officers, and such criticism has been considered in an earlier part of the judgment, and need not be reproduced. Suffice it to say that the evidence of approver Muhammad Aslam, in-so-far as it concerns accused S.H.O. Muhammad Yaqoob is substantially correct and reliable.
103. ' The next piece of evidence against S.H.O. Yaqoob is the entry in the Station diary (Exh. 42), showing that this accused had taken a Police party from Sanghar Police Station at 11.00 p.m. On 6-10-1973 for Nakabandi duties, and he, alongwith other Police personnel, were handed over one rifle with twenty bullets per head. Nothing much could be said by the counsel in regard to the authenticity of this Station diary, and, in fact, even the accused do not appear to have challenged the same. They have, on the contrary, set up the defence that the deceased died in an encounter. In that context, a First Information Report was also lodged by "S.H.O. Yaqoob Khan at C.I.A. Police Station, Sanghar, on 7-10-1973 at 7.00 a.m. In this report, a graphic account of the alleged encounter has been incorporated, which may best be reproduced in its original words:- "We formed two parties there. One party consisting of A.S.I. Shah Muhammad, P.C. Muhammad Aslam, L.N.C. Ali Nawaz, P.C. Muhammad Muneer, P.C. Muhammad Yousif, P.C. Noor Muhammad held 'Nakabandi' on the eastern side of the causeway and other party consisting myself, H.C. Abdul Ghafoor, (paper torn) Muhammad Aslam, P.C. Sobha Khan, P.C. Lal Khan held 'Nakabandi'. On the western side of the causeway, I and A.S.I. Shah Muhammad had torches. At about 2.00 a.m, A.S.I.
104. Shah Muhammad flashed the torch, and said while giving 'hakal' to stop, and introduced ourselves to be Police Party. I also flashed the torch and found that there were six persons at the mid of the causeway, who were coming towards us. I also gave 'hakal' to stop and introduced ourselves to be police. Upon this those persons opened direct firing at us, whereupon we also opened firing in our self-defence."
105. ' Thereafter, he has detailed the other circumstances in relation to the weapons that were allegedly carried by the deceased persons. This report, which is made by S.H.O. Muhammad Yaqoob, has been admitted by him in his statement under sectiOn 342, Cr.P.C., and this accused has also admitted that "at the alleged Vardat an encounter took place between our party and six deceased, and, in the encounter, those persons were killed." These admissions by S.H.O. Muhammad Yaqoob clearly show that he had admitted the killing of the six deceased persons, although he went on to state that they were killed in an encounter. The story, as to such encounter, has been disbelieved by us in an earlier part of this judgment, and such reasons need not be reproduced now.
106. ' In regard to motive, we have already held that the motive was to conceal the beating that had been given to the deceased persons, which was of such intensity and severity that two deceased appeared to be almost dead, when they were brought to the Police Station from the quarter after the beating that had taken place on the evening of 6-10-1973. To that extent, the evidence of Sadoro and Ghazi Khan is also relevant.
107. We are of the view that all such pieces of evidence, together with the admissions made by accused S.H.O. Muhammad Yacjoob in his statement under section 342, Cr.P.C. And his applications and statement made before the District Magistrate, Sanghar, and Sessions Judge, Karachi, fully establish guilt. He has been convicted under section 302/34, P.P.C. And, to that extent, such conviction is upheld.
108. ' Additionally, accused S.H.O. Muhammad Yaqoob is also convicted under sections 201 and 218, P.P.C. It is established law that a person convicted under section 302, P.P.C. Cannot be convicted under section 201, P.P.C., and therefore the conviction under section 201, P.P.C. Is set aside. The conviction under section 212 P.P.C. Is, however, upheld, because, admittedly, S.H.O. Muhammad Yaqoob had lodged a false F.I.R. And had also taken part in the investigation by appellant Mir Muhammad into the alleged encounter case.
109. ' We now proceed to consider the case against appellant Ghulam Qassim. This appellant has been convicted under section 302/109, P.P.C. For abetting the commission of murders. Admitted case is that he was the driver of the Police van, in which the six deceased persons were taken from the Police Station to the place, where they were done to death. There is nothing on the record to indicate that appellant Ghulam Qassim knew the circumstances, under which the six deceased persons had been brought to the Police Station. In fact, he has stated in his Police statement that he was a Police Constable at Sanghar Police Lines. He has, however, denied his presence at the spot. He has made a confession, wherein also he had stated that he was employed as a driver in Police Department, and, within two, or, three days of his joining the post, a Constable had come and told him that S.H.O. (Muhammad Yaqoob) had called him, and he should reach the Police Station with a vehicle, and therefore he reached there at 9.00 p.m. He went on to state that he was asked to wait, as he had to go somewhere, and thereafter he slept in the vehicle,and he was awakened at fifteen passed mid-night and asked, whether there was sufficient fuel in the vehicle.
110. He stated that the six prisoners were brought and made to sit in the vehicle, and thereafter they went near the canal bank, where he heard from S.P. Ghulam Shabbir, and D.M. Lmdadullah Unar that the six persons had to be killed, and the Police staff opened firing, resulting in the death of these deceased. The said confession does not, at all, indicate that this accused took any part in the killing. Coming to the evidence of the approver, even he has not stated that this accused took any part in the actual killing. In fact, the approver has stated that Ghulam Qassim was only driving the van. In fact, the approver, at the first opportunity, could not identify this accused, but it seems that he was made to come near the dock of the accused and then identify him. The entry in the Station diary (Exh. 42) recorded on 6-10-1973 at 11.00 p.m., showing that S.H.O. Muhammad Yaqoob had taken a Police party for Nakabandi duty, does not mention the name of accused Ghulam Qassim. It is nobody's case that he was given any weapon from the police Head Office. This circumstance would also go to show that, for the purposes of alleged Nakabandi, this accused was not even being treated as a member of the police party. This accused also produced defence witnesses.
111. One of these witnesses is Awalzar Khan, who is a Line Officer at Sanghar. He had produced some log books from the Police Line, Sanghar, and the log books showed some entries made on 6-10- 1973. This entry has not been considered by the trial Court, but it would seem that the accused by this evidence intended to show that regular log books are maintained for obtaining vehicles from the Police Line for the purposes of being plied for duties. This document, at least, indicates that the vehicle, in which the six deceased persons and the Police party were carried to the place of murder, used to be parked in the Police Line, and not at Sanghar Police Station. Taking this circumstance to its logical conclusion, it cannot be doubted that this accused was not even expected to remain at Sanghar Police Station. This accused has been convicted under section 302/109, P.P.C. In order to prove abatement, the prosecution has always to show that the person had committed some overt act, which exhibited that he knew about the commission for crime, or, had instigated the commission of the same, or, at least facilitated its commission. The circumstances of the case of Ghulam Qassim indicate that, like any official driver, he was called to the Police Station, made to wait, and was, thereafter, asked to lift official personnel, presuming that they were going for official work. To such extent, it can be said, without any manner of doubt, that Ghulam Qassim had neither intended the commission of any crime, nor instigated any person to commit that crime, nor had any criminal intent in going alongwith the Police party. The simple reason is that he may innocently be carrying the police party and the deceased, thinking that they were going for the performance of their duty. Mr. Azizullah K. Shaikh, however, stated that the presence of Ghulam Qassim at the scene and his subsequent silence in regard to the happenings would indicate that he was guilty under sectin 202, P.P.C. He, however, did not press for upholding the conviction of this accused under section 302, P.P.C. To that extent, one must state that accused Ghulam Qassim could not do anything to prevent this offence, d his mere silence, without the attending intention,would not break his case and section 202, R.P.C. We set aside the conviction of Ghulam Qassim and acquit him.
112. ' We then proceed to consider the case against accused Mir Muhammad. ,He has been convicted under section 218, P.P.C. And sentenced to R.I. For two years. The prosecution case against him is that, on 6-10-1973 he was an Inspector of C.I.A. At Sanghar, and, in such capacity, he recorded the report lodged by accused S.H.O. Muhammad Yaqoob in regard to the alleged encounter, and investigated that offence, resulting in the submission of a charge-sheet under section 332/307, P.P.C. Against the six deceased persons.
113. ' It is not the case of any party that accused Mir Muhammad knew anything in regard to the circumstances, under which the six deceased persons had been detained at Sanghar Police Station, or in regard to the circumstances, under which these persons were done to death. In fact, he had come into the picture at 7.00 a.m. On the morning following the death of deceased persons.
114. No doubt, the trial Court found the evidence and the story about encounter to be false, and we have also arrived at the same conclusion. There is also no doubt that accused S.H.O. Muhammad Yaqoob knew that the F.I.R., which he was filing in regard to the fake encounter, was false, and probably he intended to provide blanket plan over the alleged crime.But still, the question is, whether Mir Muhammad knew that the report was false, and even if he knew, he would have been justified in refusing to record the report. In that context, the trial Judge, while dealing with the case in paragraph 125 of the judgment,has stated that the version of encounter by accused S.H.O. Yaqob in the First Information Report (Exh. 53) was false, and that he must have filed the report before accused Mir Muhammad, knowing it to be false, and with the intention of causing disappearance of evidence of murder, and with the Intention of screening and saving the offenders. Thereafter, he went on to state that there was no justification for recording the said F.I.R. By accused Mir Muhammad, and it was not necessary under section 154, Cr.P.C. And Mir Muhammad falsely recorded the report. He also stated that the statement of Aslam approver (Exh. 60). Also "appear" to have been done with full knowledge and intention of providing self-defence in the alleged encounter. The trial Court then stated that the diary maintained by accused hulam Shabbir (Exh.240) showed that Mir uhammad had been visiting Sanghar Police Station on 6-10-1973, and must have known about the actual facts of this case. We have read the diary recorded by accused Ghulam Shabbir on 6-10-1973, and we find that it does not, at all, mention the name of accused Mir Muhammad. We are disappointed at the expression of the Sessions Judge that Mir Muhammad had been visiting Sanghar Police Station on 6-10-1973, and "must have known about the actual facts of this case". First of all, there was hardly any evidence to show that Mir Muhammad had come to Sanghar Police Station in connection with the investigation of the murder case of Ali Bux Junejo. There is also total absence of evidence in regard to Mir Muhammad knowing any facts about this case, or the detention of the six deceased persons. In these circumstances, there was nothing to indicate that Mir Muhammad had knowledge that the report, which was being lodged by S.H.O. Muhammad Yaqoob, was false.
115. In order to convict the Police Officer of an offence under section 218, P.P.C., the prosecution has to show, by very reliable evidence, that he had personal knowledge in regard to the falsity of the .Allegations made by the complainant in his report, or, that he concocted some false evidence, or, he deliberately destroyed some evidence in order to screen an offender. On the other hand, we may well say that, if a Police Officer suspects the correctness of the allegations made by a complainant before him, still he would be transgressing his bounden duty if he refuses to register the case. In fact, such forbearance might even expose a Police Officer to the charge of stifling crime and deliberate default in performance of his duty. In the instant case, the report was being lodged by a responsible Police Officer, who was the head of the Police Department at Sanghar Police Station. Accused Mir Muhammad had no means of knowing that the report was false. On the other hand, there was evidence before him, consisting of Station diary, showing that a Police party had left for Nakabandi duties, and, on seeing the Vardat, he had found six dead bodies, together with arms and ammunition. This evidence, no doubt, has been concocted, but the question is, whether Mir Muhammad knew that this evidence has been concocted. To that extent, there is nothing on the record to show that Mir Muhammad knew about the evidence in regard to encounter case being false. In these circumstances, it cannot be said that Mir Muhammad intended to destroy any evidence, or, created a false evidence. In our view, his conviction under section 218, P.P.C. Is wrong in law, and not supported by facts. We, therefore, set aside his conviction and acquit him.
116. ' We will now proceed to consider the case of Ghulam Shabbir and lmdadullah Unar. These two accused were present before the trial Court until the stage of final arguments. They, however, absconded before the judgment was pronounced. The trying Judge came to the. Conclusion that, in spite of these two accused persons having absconded, the judgment, in that case, could be pronounced. He found them guilty, and passed sentence of death against each one of them under section 302/109, P.P.C. Additionally, there was a charge under section 120-B read with section 302.
117. P.P.C. On which no conviction has been recorded. They had also been convicted under section 364/109, P.P.C. For having abeted approver Muhammad Aslam and other Police Constables in the abduction of the six deceased persons.
118. ' When the appeals of the remaining accused persons became ripe for hearing in this Court, the Office had put up a note, asking whether the case for confirmation of the sentence of death imposed on lmdadullah Unar and Ghulam Shabbir should also be heard, alongwith the confirmation case of the remaining appellants, or, the case of these two accused persons should be separated from the case of the remaining accused. By a separate order of this Division Bench, we had taken the view that the conviction recorded in absence of these accused persons w6s valid, and therefore the case for confirmation should be heard alongwith the appeals of the remainino accused persons. Needless to say that the sentence passed by the Sessions Judge was not effective sentence, because the same could not be executed, unless it was confirmed by this Court. Despite the fact of the absence of these two accused, and their not having filed any appeal, we have heard their case insofar as it relates to confirmation of their death sentence.
119. ' While considering the case of lmdadullah Unar and Ghulam Shabbir, we will, as of necessity, have to refer to the evidence against absconder Jam Sadiq Ali and the acquitted accused Shah Nawaz Junejo and Muhammad Hassan Junejo, because one of the most important links in the evidence is that, at about mid-night intervening 6th and 7th October, 1973, accused Imdadullah Unar and Ghulam Shabbir, alongwith acquitted accused Shah Nawaz and Muhammad Hassan and absconder Jam Sadiq Ali, were at the Scene of murders. In that context, we shall refer to and reproduce the relevant portions of the evidence of approver. His evidence is that he had approached the Reader of the Deputy Commissioner for obtaining the custody of the six deceased persons, and he had obtained their custody under the orders of lmdadullah Unar, and thereafter he had marched off these six deceased persons to the Police Station. He has gone on to state that such persons were first locked up at the Police Station, and, in the evening, they were given a beating at the dictates of S.H.O. Yaqoob Khan, who had told him to enquire from these deceased persons regarding the murder of Ali Bux Junejo, because such information had to be given to absconder Jam Sadiq Ali and accused Ghulam Shabbir and lmdadullah Unar. He has stated that on 6-10-1973, Ghulam Shabbir had been visiting Sanghar Police Station from time to time. He has gone to state that, on the same night, at about mid-night, he was called to the Police Station, and told that these persons had to be taken to Khipro Sub-Jail, and thereafter a Police party was formed, which left the Police Station, alongwith the six deceased persons, after obtaining weapons and bullets. He has gone on to state that, at that time, accused Ghulam Shabbir and lmdadullah Unar, alongwith absconder Jam Sadiq Ali, were present in the office of S.H.O. Yaqoob Khan. He stated that, when they were going to the place, where the murders were committed, he had seen two jeeps following the van, in which the Policemen and the six deceased persons were sitting, and thereafter they proceeded to the canal, where the murders were committed. Then he went on to speak about the forming of two parties for commission of murders, and, at that time, Ghulam Shabbir came to the spot, and directed S.H.O. Yaqoob to shoot down all the six persons. According to approver, lmdadullah Unar and Jam Sadiq Ali were sitting in the jeep at that time. He went on to state that, after the murders, he went to the place, where the two jeeps were parked, and, in one of them, he found Ghulam Shabbir, lmdadullah Unar and absconder Jam Sadiq Ali sitting, with the last of these having a white Chadar on, his shoulder, and, in the other jeep, acquitted accused Shah Nawaz and Muhammad Hassan were sitting in the front seat, alongwith four other persons in the back seat, whom he could not identify. He then spoke about acquitted accused Muhammad Hassan, coming out of one of the two jeeps and going to the other jeep, in which Ghulam Shabbir, lmdadullah Unar and absconder Jam Sadiq Ali were sitting, and he took out some rifles, guns, pistols and bandoliers from that jeep. He went on to state that Muhammad Hassan and Shah Nawaz Junejo went with him, alongwith those weapons, from which some aerial firing had been mentioned by these two persons, and thereafter these two persons, who were alongwith S.H.O.
120. Yaqoob and A.S.I. Shah Muhammad placed one weapon by the side of each deceased. This is the version in regard to the actual occurrence. In addition, it is stated that lmdadullah Unar got interested in showing that the six deceased persons had died in an encounter, and therefore he got the case diaries in the two cases under the Goonda Act against the six deceased persons so manipulated and replaced as would go to show that they were absconders. In that context, the evidence of Reader Abdul Rasheed, and S.H.O. Inayatullah of Shah Pur Chakar Police Station is relevant.
121. ' Admittedly, none out of this party of five persons, viz. Accused Imdadullah Unar, Ghulam Shabbir, Shah Nawaz Junejo, Ali Nawaz Junejo and absconder Jam Sadiq Ali took part in the actual shooting. The case of the prosecution appears to be that the murders had been committed at the instigation of these persons.
122. ' In an earlier part of this judgment, we have dealt with the question of motive. The prosecution has set out a case that Jam Sadiq All was interested in taking revenge in respect of the murder of Ali Bux Junejo, and therefore he had got these six persons murdered. It is also alleged that Shah Nawaz Junejo was related to Ali pux Junejo, and thereby the prosecution wishes to implicate him.
123. There can be no manner of doubt that the six deceased persons had nothing to do with the murder of Ali Bux Junejo, and this factor renders the story of such motive absolutely improbable. On the other hand, there is evidence of a number of witnesses (discussed earlier) that, on account of beating, that had been given to the six deceased persons at the Police Station on the evening of 6- 10-1973, two out of the deceased persons, viz. Umad Ali and Mehrab not only fell unconscious, but suffered such injuries that persons, who saw them, thought that they were almost dead. In these circumstances, we have discarded the motive to be one for revenge on account of the death of Ali Bux Junejo, and we have believed that these six persons were done to death, so as to conceal the disastrous result of the beating of these persons at the Police Station in the evening. Now, the question arises, whether such beating was given at the behest, or, instigation of Imdadullah Unar, or, Ghulam Shabbir, though not mentioning the case of Jam Sadiq Ali, the absconder. The only evidence is that of the approver, who has barely stated that S.H.O. Yaqoob and told him that these accused persons wanted to know about the murder of Ali Bux Junejo. This is a very relevant statement of the approver, and, in that context, there is no corroboration whatsoever, although corroboration is available in regard to actual beating. Moreover, if the six persons were done to death in order to destroy the evidence regarding beating, it is difficult to understand why Imdadullah Unar and Ghulam Shabbir should be a party to it. We, therefore, take the view that the evidence regarding motive does not, at all, connect these accused persons with the crime.
124. ' The next piece of evidence against lmdadullah Unar and Ghulam Shabbir is that they were at the Police Station at about mid-night, when the deceased persons were taken from the Police Station to the place of murder, and that they followed the van, carrying these deceased persons, in two jeeps, and remained at the scene of murder until the murders and the placing and foisting of weapons on the deceased persons were completed. In that regard, the evidence is not unanimous.
125. The first document for consideration is the First Information Report made by. Muhammad Yaqoob Sanjarani to the Inspector-General of Police, Sind, by an application, dated 11-10-1979. In this application (Exh. 29), there is no mention whatsoever that Imdadullah Unar, or, Ghulam Shabbir, or, absconder Jam Sadiq Ali had come to Sanghar Police Station at night time when the deceased were taken in a van. It is stated in the application that Ghazi Khan and Sadoro had informed complainant Muhammad Yaqoob on 7-10-1973 viz, the same day on which murders were committed, that, on the evening of 6-10-1973, the six deceased persons had been taken out of the lock-up, and marched to a stable behind the Police Station, where they were given a beating.
126. Yaqoob Khan was informed by Ghazi Khan and Sadoro that the beating was so severe that even a doctor was called, who declared that Mehrab and Umad Ali were dead, and the remaininh four deceased persons were about to die. He then went on to state that, late at night, the said Police Officer, namely, S.H.O. Yaqoob, A.S.I. Shah Muhammad and other Constables took the six deceased persons in a police truck to an unknown destination. This would clearly show that Muhammad Yaqoob, complainant, had not been informed by Ghazi Khan, or, Sadoro that lmdadullah Unar, or, Ghulam Shabbir, or, Jam Sadiq Ali, absconder, were present at Sanghar Police Station on the fateful night. No doubt, Muhammad Yaqoob had stated, in that application, that murders had been committed by lmdadullah Unar and Ghulam Shabbir, along with the Police party, but, to that extent, it is clear from the original complaint (Exh. 29) that such information had not been given to him by Ghazi Khan, or, Sadoro, who were the source of information in this case. In fact, in cross- examination, such an omission, which, we must state, was very material, had been put to the witness, and the document being available on the record, speaks for itself. In the next complaint, which was made by complainant Muhammad Yaqoob, to Martial Law Administrator on 1-8-1977, the names of lmdadullah Unar and Ghulam Shabbir did not appear, and it is stated that "Jam Sadiq Ali, the former Minister of the Government of Sind and Muhammad Khan Junejo, the then Home Secretary of Sind, were also responsible for these murders." It is, therefore, clear to us that Muhammad Yaqoob's original complaint and the second complaint are not convincing insofar as Ghulam Shabbir and lmdadullah Unar are concerned. The next witness on the point is Sadoro (P.W.
127. 5). It may be recalled that he was the person, who had seen the six deceased persons being taken away from the office of the Deputy Commissioner, and he had followed them to the Police Station.
128. He has stated that, at the Police Station, he had met Ghazi Khan and Rakhial, who had informed him that the deceased had been beaten on the evening of 6-10-1973, and such beating made the condition of deceased Mehrab and Umad All 'precarious. He then went on to state as follows:- "They further informed us that, at 12-00 in the night, the six deceased persons were put in a police van, alongwith the Police party, and were taken away to an unknown place. After that, as they told us, S.-P. Mr. Kalyar, D.-C. Mr. Unar, and Jam Sadiq Ali followed the Police van in a jeep."
129. ' The author of this information were no other persons, but Ghazi Khan and Rakhial. They had not given such information to Muhammad Yaqoob, complainant, and such circumstance is evident from the fact that, in the original application made by Muhammad Yaqoob, it had not been so stated. Coming to the evidence of Ghazi Khan, it is, no doubt, true that in his examination-in-chief, he stated that lmdadullah Unar, Ghulam Shabbir and Jam Sadiq All had boarded a "TOYOTA" jeep, in which they had come and followed the Police van, in which these persons were taken away, but, in cross-examination (p. 295 of the Paper Book), it was stated that he had not said in the Police statement that he had seer these three persons, alongwith two/three unknown persons coming to the Police Station in a jeep. Now, this witness had not seen these accused coming to the Police Station, and it is very doubtful that he could have seen them going away, particularly when he was in custody. Moreover if he had seen lmdadullah Unar and Ghulam Shabbir at the Police Statioi on the night of 6-10-1973, he must have told complainant Yaqoob, wh should have stated so in his original application. Ghulam Yaseen has however, implicated these two accused persons, by stating that they were at the Police Station on the night of 6-10-1973. The next witnes on the point is Jamaldin Nizamani (P.W.9), who stated that he was at the Police Station, alongwith Ghazi Khan, Ghulam Yaseen and Rakhial. H ha 5 sated nothing about coming of lmdadullah Unar and Ghulam Shabbir to the Police Station on the night of 6-10-1973. The next witness Constable Zainuddin. He states that he was on lock-up duty at Sangha Police Station on 6-10-1973 from mid-night to 3-00" a.m. He went on state that the six deceased persons were in his charge. He has stated about S.H.O.
130. Yaqoob taking out these deceased persons from the lock-up between 12-00 mid-night and 1-00 a.m. And he even asked the said Officer, who told him that they were being taken to Khipro Police Station. This witness has not, at all, spoken about the presence of lmdadullah Unar, or, Ghulam Shabbir at the Police Station on the night of 6-10-1973. This witness has given a very graphic account of all the happenings at the Police Station, and he could not have omitted to mention the presence of these persons at the Police Station, if he had seen them. The next witness on the point is H.C. Khaliluddin (P.W.11). He was the Head Moharrir at Sanghar Police Station on 6-10-1973. He was the person, who had written the Station diary (Exh. 42), wherein mention had been made in regard to the delivery of arms and ammunition to the Police party that left Sanghar Police Station at about mid-night intervening 6th and 7th October, 1973. Since he was the Head Moharrir, it was his duty to record all such movements in the Station diary, which were of some importance. This witness had made no entry in regard to arrival of Ghulam Shabbir, or, Imdadullah Unar, or, Jam Sadiq All at the Police Station; nor has he stated in his evidence that these persons had come. It is common knowledge that, when the Superintendent of Police, and the District Magistrate of the district, or, as a matter of that, even the Minister of the Provincial Government would visit the Police Station, entries would be made in the Station diary, or, at least the writer Head Constable at the Police Station would identify them. The next witness, whose evidence is worth consideration in this context is Sain Bux (P.W. 15), who is Kotar (Chowkidar) of the Inspection Bungalow at Sanghar, where absconder Jam Sadiq All is stated to have come and resided. This witness has not given any date, or, day, but he stated that, at 2-00 or 2-30 a.m., five, or, six vehicles, consisting of cars, and wagons entered the Inspection Bungalow. He stated that some persons got down, and went inside the Bungalow, but he could not see them. However, he deposed that Bunday Ali, who was on duty, had gone inside the Inspection Bungalow and come out after some time, and thereafter he went inside the Bungalow with tea, and he found Jam Sadiq Ali, lmdadullah Unar, Ghulam Shabbir, Muhammad Hassan, Shah Nawaz and others, namely, Muhammad Rahim Mahar, Usman Banejo, Ali Khan Junejo, Karim Dad Junejo, Bhojraj, A.D.M. And Muhammad Bachal Memon, Deputy Collector. This evidence is hardly of any avail to the prosecution, because it is not the case of any witness that Imdadullah Unar and Ghulam Shabbir had gone to the scene in a car, or, wagon. It is stated that they had come in a jeep. Nor it is the case of any person that such other persons, who had been mentioned as having come along with Jam Sadiq Ali, are not stated to be present at the time of killing. Moreover, the time, as stated by this witness, also indicates that, if Imdadullah Unar and Ghulam Shabbir had gone to the scene of occurrence, they could not have returned at 2-00 a.m., because the evidence discloses that the Police party had taken the deceased from the Police Station at about 1-00 a.m. The evidence of this witness, therefore, does not, in any manner, advance the prosecution case. It would thus appear that, on this aspect of the case that lmdadullah Unar and Ghulam Shabbir had accompanied the Police party and the deceased from Sanghar Police Station, the evidence, besides being discrepent, is unreliable. It does not corroborate the evidence of the approver. While at this point, we may refer also to another circumstance, which is of significance. The Investigating Officer, Khuda Bux (P.W. 23) had produced the daily diary of accused Ghulam Shabbir, Superintendent of Police, of the week beginning 7-10- 1973 and ending 13-10-1973. It may be recalled that the murders had taken place in the very early hours of 7-10-1973. The daily diary (Exh. 268, p.1012) reads as follows:- "At 0430 hours the A.S.I. Shah Muhammad of P.S. Sanghar, informed me on telephone that he and the other Police force under the command of S.I. Yaqoob Khan S.H.O. P.S. Sanghar, had gone for patrolling and nakabandi at Mithrao canal. At 0200 hours, when they had taken position on the right and left sides of Kanhar bridge on Mithrao canal, they had noticed 6 persons on the bridge.
131. On their challenge, these persons opened fire at them and therefore in reply, and in their defence the Police party also opened fire at the outlaws, and killed all the 6 persons on the spot. Two Policemen also received minor injuries. On receiving this information, I informed the D.I.G.P., Hyderabad, who was encamping at Rest House, Sanghar, about this serious incident. At 0800 hours I alongwith the D.I.G.P., D.C. Sanghar, A.C. Sanghar, Inspector C.I.A. Visited the scene of offence of encounter at 0900 hours which was on both the sides of Kanhar bridge on Mithrao canal and saw the dead bodies of the outlaws and also inspected the scene of offence. This place is about 12 miles away from Sanghar alongwith Mithrao canal. Left scene of offence at 1015 hours and reached Sanghar at 1100 hours."
132. ' This A.S.I. Shah Muhammad, about whom mention is made in the daily diary is none other, but appellant Shah Muhammad. This diary clearly shows that, at 4-30 a.m., viz, within about three hours of the murders, A.S.I. Shah Muhammad had informed accused Ghulam Shabbir over the telephone about the alleged encounter that had taken place. No doubt, the story about encounter has been disbelieved by us, but we find it difficult to believe that A.S.I. Shah Muhammad should inform accused Ghulam Shabbir about the alleged encounter, if the latter was present at the Vardat. The prosecution wishes us to believe that such entry has been purposely made by Ghulam Shabbir in order to create evidence of the alleged encounter, but, on the other hand, the counter argument given by the learned Advocates for the appellants is of no lesser significance, and of good conviction. Such documents are always prepared in routine day to day course of business, and it is difficult to believe that this document has been manufactured for the purpose of providing defence. No doubt, in cross-examination of some prosecution witnesses, suggestions have been made about A.S.I. Shah Muhammad having informed Ghulam Shabbir Kalyar at 4-00 a.m. In regard to this alleged encounter, but such suggestions were repelled. On the other hand, if this entry was fake, or, forged, then, looking to the nature of the case, viz, a case of conspiracy, Ghulam Shabbir should, in all probability, have stated in this entry that Imdadullah Unar and Jam Sadiq Ali had either been informed by him, or, by A.S.I. Shah Muhammad. What we mean to say is that it would have been more profitable as a defence, if, in regard to such information being conveyed, even Imdadullah Unar would have been mentioned as a receiving party. That would appear to be natural, if Ghulam Shabbir had made a fake entry. This entry, for such reasons, appears to us to be reliable.
133. While considering the cases of Imdadullah Unar and Ghulam Shabbir, we would like to mention that the evidence against these two accused is almost at par with the evidence against the two acquitted accused Shah Nawaz and Muhammad Hassan Junejo. It is the consistent case of the prosecution, and it is stated by the approver, that these two acquitted accused were also alongwith Ghulam Shabbir and Imdadullah Unar. What is more that Shah Nawaz was closely related to deceased Ali Bux Junejo, in connection with whose murder, the six deceased persons had been S called to the Police Station. That might even indicate that he had a motive for these murders, which lmdadullah Unar and Ghulam Shabbir do not directly have. It is also stated that these two persons had carried such weapons, which, after the death of the deceased persons, were foisted on them. It is also stated by the approver that these two acquitted accused had also directly instigated the firing. The trial Court has acquitted both of them, and the State, thereafter filed an appeal, which has also been withdrawn as not pressed. It would thus seem that, on the basis of evidence, coming from same sources, the prosecution wishes this Court to rely on that evidence in respect of Ghulam Shabbir and lmdadullah Unar and to discard that evidence in respect of acquitted accused Shah Nawaz and Muhammad Hassan. This would be most unfair treatment of a case on facts.
134. ' In regard to lmdadullah Unar, there is, however, a further circumstance, to which reference has been made in an earlier part of this judgment, and that piece of evidence is that he had got the record in the two Goonda Act cases manipulated and forged in order to show that the six deceased persons were absconders. We have no doubt about them that they were not absconders. We must straightaway state that there is no charge of falsification of the record, or, forgery against lmdadullah Unar. This may be unfortunate, but we can do no more. However, we are of the view that, since custody of six deceased persons was handed over to approver Aslam by, or, under the directions of accused lmdadullah Unar, he might have got frightened after knowledge that these six persons had been murdered. He may even be friendly, or, under the influence of the local Police. For such purpose, he may have tried to oblige them by faking of some records. This may be most dishonourable, but, while considering the charge of murder, this evidence would not be sufficient.
135. On the upshot of the above discussion with respect to the cases against lmdadullah Unar and Ghulam Shabbir, we are of the view that the evidence of the approver required corroboration, and such corroboration is lacking in this case. The evidence of the approver, insofar as these accused persons are concerned, is not such as might be considered unimpeachable, or, of a degree of credence that would absolve the prosecution of the responsibility of corroboration as is contemplated by illustration (b) to section 114 of the Evidence Act. The case against these two accused persons has not been established beyond reasonable doubt. We, therefore, refrain from confirming the sentence of death imposed on them and acquit them by giving them the benefit of doubt.
136. ' In the result, we dismiss the appeals of Ch. Muhammad Yaqoob, Abdul Ghafoor, Muhammad Aslam, Noor Muhammad and Muhammad Muneer. Their sentences of death are confirmed, subject to the setting aside of the sentence of Ch. Muhammad Yaqoob on the charge under section 201, P.P.C. We allow the appeal of Ghulam Qassim and Mir Muhammad and acquit them. If they are in custody, they shall be released forthwith. We decline to confirm the sentence of death imposed on lmdadullah Unar and Ghualm Shabbir. They stand acquitted of the charges on which they were convicted. The appeal of Shah Muhammad has abated, because he has died during the pendency of the appeal.
137. ' We would wish to make it clear that it shall be open to the prosecution to place lmdadullah Unar on trial for any offence arising out of the acts of alleged fabrication of record and falsification of evidence.