' AJMAL MIAN, J.---The above appeals are with the leave of this Court. Criminal Appeal No,76 of 1988 has been filed by the State against the acquittal of Ghulam Shabbir Kalyar, now deceased, and Imdadullah Unar, whereas the other appeals have been filed by the convicts i.e, (i) Ch. Muhammad Yaqoob, (ii) Muhammad Munir, (iii) Abdul Ghafoor, (iv) Muhammad Aslam, and (v) Noor Muhammad. Though, Abdul Ghafoor, Noor Muhammad, and Muhammad Aslam are appellants in the above Criminal Appeal No,75 of 1988, but they have also filed separate appeals, namely, Abdul Ghafoor and Noor Muhammad have filed Criminal Appeal No,77 of 1988 jointly and Muhammad Aslam has filed Criminal Appeal No,78 of 1988 separately.. The above appeals have arisen out of the judgment dated 21-3-1984 passed by a Division Bench of the High Court of Sindh in Confirmation Case No,42 of 1981, Criminal Appeals Nos.224 and 225 of 1981, Criminal Acquittal Appeal No, 63 of 1982, Criminal Appeal No,220 of 1981, Criminal Revision No, 40 of 1982, filed against the judgment dated 18-11-1981 passed by the learned Sessions Judge, Sukkur, as Ex Officio 'Additional Sessions Judge, Hyderabad, in Sessions Case No,252 of 1981, whereby he acquitted accused Shahnawaz Junejo, Muhammad Hassan Junejo of the charge under section 302/109, P.P.C., and Dr. Muhammad Afzal of the charge under section 218, P.P.C. And convicted and awarded sentences as follows to the co-accused: "151. In view of the aforesaid discussion of the evidence and law, I find accused Yakoob, Shah Muhammad, Abdul Ghafoor, Aslam s/o Ismail, Noor Muhammad and Muhammad Muneer guilty for offence under section 302/34, P.P.C., and accused Ghulam Shabbir Kalyar, Imdadullah Unar and Qasim guilty for an offence under section 302/109. P.P.C. And convict them under section 265(h)(2), Cr.P.C. And they are sentenced to death. Each of them will be hanged by neck till they are dead.
However, the said sentences shall be executed after confirmation by the High Court under section 374, Cr.P.C. They are informed that they can file appeal in the High Court within 7 days.
' I further find accused Yaqoob guilty under section 201, P.P.C. And sentence him to suffer 3 years' R.I.
And to pay fine of Rs,1,000 or in default to undergo further R.I. For three months. Accused Mir Muhammad and Yaqoob are also convicted under section 218, Cr.P.C., and are sentenced to suffer R.I. For 2 years each. The offence of conspiracy under section 120-B, P.P.C. And of abduction under section 364/109, P.P.C., are not proved against any accused. I further order, under section 544(A), Cr. P.C. That accused Imdadiillah Unar, Shabbir Kalyar each will pay Rs,10,000 as compensation, or in default to undergo 2 years' R.I. Accused Yakoob and Shah Muhammad shall pay Rs,5,000 each as compensation or in default to suffer one year's R.I. More, while accused Abdul Ghafoor, Aslam s/o Ismail, Noor Muhammad, Muneer and Qasim, shall pay Rs,2,000 each as compensation or in default, to undergo six months' R.I. The amount of compensation, if recovered, shall be paid to the heirs of six deceased persons. The sentences of Yaqoob accused to .Run concurrently."
2. Against the above judgment the State filed the above acquittal appeal and the complainant filed the above Criminal Revision impugning the above acquittal of the two accused, whereas the convicts filed the above appeals. The State did not press the above acquittal appeal before the High Court, whereas the above Criminal Revision filed by the complainant was dismissed for non- prosecution. The appeals filed by the convicts and the Reference made by the learned Sessions Judge, for confirmation of the death sentences, were disposed of by a Division Bench of the High Court of Sindh through the impugned judgment in the following terms: "On the upshot of the above discussions with respect to the cases against Imdadullah 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, in so far 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.
' In the result, we dismiss the appeals of Ch. Muhammad Yaqoob, Abdul Ghafoor, Muhammad Aslam, Noor Mohammad and Muhammad Muneer. The 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 sentences of death imposed on Imdadullah Unar and Ghulam Shabbir. They stand acquitted of the charges on which they were convicted. The appeal of Shah Mohammad has abated, because he has ' We wish to make it clear it shall be open to the prosecution to place Imamuddin Unar on trial for any offence arising out of the acts of alleged fabrication of record and falsification of evidence."
3. The above Sessions case related to the murder of (1) Mehrab Khan Sanjrani, (2) Umed Ali Sanjrani, (3) Jan Muhammad Sanjrani, (4) Ali Sher Shah, (5) Hamzo Bhanejo, and (6) Dadan alias Allandad Wadho, who were killed between the night of 6th and 7th October, 1973 in respect of which, convict Chaudhry Muhammad Yaqoob, S.H.O., Sanghar Police Station, lodged F.I.R.
No,92/1973 (Exh$3) at 7-00 a.m. On 7-10-1973 at the Police Station, Sanghar, District Sanghar, indicating date and time of occurrence as 7-10-1973 at 12-00 a.m., and place of occurrence as "Causeway of Bhan Wah, Deh Pahora, at a distance of about 7 miles to the south-east of the Police Station". The F.I.R. Was recorded by Mir Muhammad, Inspector, C.I.A., which reads as follows: "Complaint of the complainant is that: I am S.H.O. Incharge at Sanghar Police Station. On 6-10-1973 at 23-00 hrs. I alongwith subordinate staff namely, A.S.-I. Shah Muhammad, H.C. Abdul Ghafoor, H.C.
Muhammad Aslam, L.N.C. Ali Nawaz, L.N.C. Sobha Khan, P.C. Muhammad Muneer, P.C. Noor Muhammad, F.C. Lal Khan, P.C. Muhammad Aslam, P.C. Muhammad Yousif, left Sanghar Police Station for patrolling and Nakabandi along Bhan-Canal. While patrolling we reached at Frontier Hotel Sanghar Town. From where we took Malik Sher Muhammad and Ghulam Qadir with us for help. While patrolling we reached at Bakhorho-culvert of Bhan-Canal from Bhan Canal, we went towards south while patrolling and on 7-10-1973 at about 01-00 hrs. We reached at the causeway.
We formed two parties there. One party consisting of A.S.I. Shah Muhammad P.C. Muhammad Aslam, L.N.C. All 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 of 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, A.S.I. Shah Mohd. Flashed the torch, and said while giving `Hakar 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. In the meanwhile (Paper-Torn) persons came towards us while firing the shots and three persons went towards back to Shah Muhammad and others. Their fire shots passed above us and by our sides. The firing continued by both the parties. After a short while.The firing by accused persons stopped. We also stopped firing. We found that three persons who were coming towards us, were lying near the inspection path. We went near and found the three persons to be dead due to receiving fire-shots. One person had .303 rifle, other had 7 mm rifle and one person had .12 bore gun. Thereafter I went towards A.S.I. Shah Muhammad and others and found that three persons were lying dead on the ground towards east of the causeway who had also died during encounter, on receiving fire-shots of the Police. These unknown persons had .12 bore two single-barrelled guns and one .12 bore country-made pistol, which were lying near the dead. The accused have many bullets and cartridges. During the firing of the accused L.N.C. Ali Nawaz has received a minor injury on his right shoulder who has survived.
H.C. Muhammad Aslam from other party has received a minor injury like scratch on the right ear during the firing by the accused. Thereafter, we arranged for the guard and sat there, so that their other party may not come and cause us any harm. In the morning, I after leaving Shah Muhammad and other subordinate staff there, have come here. The accused have caused hindrance of our duty and have used deadly weapons against us. We have killed the accused by opening fire in our self (defence)."
4. That it seems that on 11-10-1973 Muhammad Yaqoob son of Bachal Sanjrani addressed a complaint (Exh. 30/2) to the Inspector-General of Police, Sindh, alleging commission of murder of the above six persons by the Deputy Commissioner. Sanghar Imdadullah Unar and the police personnel named therein. It may be pertinent to reproduce the same, which reads as follows: "To ' The Inspector-General of Police, Sindh, Karachi.
Sub: Complaint under section 3641302134. P.P.C.
' Sir, ' On 8th October, 1973 I read in local newspapers that Sanghar Police had shot dead Mehrab, Umedali, Jan Muhammad all by caste Sanjhrani, Hamzo Bhanejo, Syed Ali Sher and Dadan alias Allandad Wadho. I therefore went to village of Haji Jan Mohammad Sanjhrani to offer my condolences of Mehrab and Umedali. When I went there Sadoro son of Haji Jan Muhammad Sanjhrani brother of deceased Mehrab and Muhammad Hassan s/o Wali Muhammad Sanjhrani met me. On my enquiries they told me that they had accompanied deceased Mehrab, Umedali and Jan Muhammad to Sanghar as the deceased were required to be present before the District Magistrate and Tribunal, Sanghar in a hearing of their case under Goondas Ordinance. They reached the said Court early in the morning where deceased Hamzo, Syed All Sher and Dadan alias Allandad Wadho too had come for the same purpose.
' Mr. Imdadullah Unar the Deputy Commissioner, Sanghar was not present in his office. His clerk informed them that he was busy with Jam Sadikali, Minister Government of Sindh and was expected any time when the cases would be called. Mr. Lmdadullah came to office at about11 a.m.
Soon thereafter M/s. Ghulam Shabbir, S.P. Sanghar, yaqoob, S.H.O. Police Station Sanghar, Shah Muhammad A.S.I.P.
' Police Station Sanghar with about 10 Constables of Police reached there. The S.P., S.H.O. And A.S.I.P.
Went inside the office room of Deputy Commissioner. At about 12 noon the aforesaid deceased were called in and soon thereafter they came out with the said Police Officers party. When the deceased came out they informed them that Mr. Imdadullah Unar had asked the police to take them away. They saw the deceased being taken away to Police Station Sanghar as they followed them. At the Police Station they made enquiries from the S.H.O. Who threatened them to go away as otherwise they too would be arrested. They found Gazi Khan s/o Sono Khan Nazamani and Rakhiyal s/o Shahoo Khan with others already locked up in the Police Lock-up in connection with murder of All Bux Janejo. Due to threats of Police they returned to their village.
' On the next day i.e, 7-10-1973 Mohammad Hassan and Sadhoro went to Police Station Sanghar to see their relatives. There Ghazi Khan and Rakhiyal aforesaid informed them that on the previous evening after sunset all the six prisoners were taken out of lock-up to the Stable behind the Police Station by Yaqoob, Shah Muhammad A.S.I.P. And other constables who started beating them and they went on hearing their cries and entreaties not to kill them. Later on some doctor was also called who declared Mehrab and Umedali dead and other four about to die. Then late at night the said police officers took them in police trucks to unknown destination. As they were not allowed to stay at Police Station and were also asked to leave Sanghar town they returned to their village.
Early morning on next day they learnt that all of them were killed by police.
' I stayed back in that village while Muhammad Hassan Sadhoro and others went to Sanghar to take the dead bodies. They received the dead bodies on 8th October, 1973 at about 4-30 p.m. And brought them to village at about 6-00 p.m. When the bodies were brought there we found marks of violence all over their bodies and fire-arm wounds. The bodies were buried that night.
' I tried to go to Sanghar on 9-10-1973 but was informed that the anyone belonging to Hur Jamat entering Sanghar town was being arrested by the police. Due to that fear I did not go there. On the next day i.e, 10-10-1973, I went straight to the Court of Sub-Divisional Magistrate, Sanghar to lodge my complaint but the Magistrate refused to receive the complaint and asked me to leave forthwith otherwise I shall be met with the same fate.
' All the aforesaid deceased were challaned in Goonda cases due to political rivalry as they were followers of Pir sahib Pagaro. They were in Jail and were released by the orders of High Court earlier. Due to political enmity they have been killed as stated above.
' I will be grateful if you kindly take steps to have the offence registered and enquired into. Murders have been committed by Messrs Imdadullah Unar, Deputy Commissioner, Sanghar, Ghulam Shabbir Kalyar, S.P. Sanghar, Yaqoob, S.I.P.Sanghar, Shah Muhammad A.S.-I. Sanghar and others about 15 police constables whose names are not known but could be found out from official record.
' I further request you to kindly afford security to my life as on account of this complaint I may also meet same end.
' Yours obediently, (Sd.) (Muhammad Yakoob s/o Bachal Sanjhrani) Kirvana Merchant, village Karamullah Dahri, P.O.
Shahpur Chakar, Tal. Shandadpur, District Sanghar, (Sindh).
Shandadpur, 11th October, 1973."
5. It seems that the version contained in the quoted F.I.R. Lodged by Chaudhry Mohammad Yaqoob, SHO, about the alleged police encounter with the deceased was accepted by the Police Department and the then Government in power inasmuch as the police personnel who participated in the alleged police encounter were promoted on 9-10-1973 (Exh. 254), were confirmed on 10-10-1973 (Exh. 255), and were awarded cash amounts on 12-10-1973 (Exh.253). It further seems that on the above private complaint, addressed by Muhammad Yakoob son of Bachal Sanjhrani to the Inspector-General of Police, Sindh, enquiry was conducted by then D.I.-G.
Raisani, who recorded statements of certain police personnel, which have been referred to by the defence counsel in the cross-examination of the prosecution witnesses. It also appears that upon the imposition of Martial Law on 5th July, 1977, aforesaid Muhammd Yakoob son of Bachal Sanjhrani adressed an application dated 1-8-1977 (Exh. 30) to Lt.-Gen. Jehanzeb Arbab, Martial Law Administrator, Zone 'C', Karachi, with reference to his above earlier complaint dated 11-10-1973 (Exh.
30/2). Alongwith the above application a copy of weekly magazine 'Zindagi' for the period from 22nd October to 28th October, 1973, containing details of the incident given by a journalist regarding the above murders, was sent. It may be stated that in his above application he added the names of Jam Sadiq All Khan, the former Minister of Government of Sindh and Muhammad Khan Junejo, the former Home Secretary, Sindh. He requested for taking action against the persons named in his aforesaid earlier complaint and also in the above application. It may be pertinent to reproduce the above application hereinbelow, which reads as follows: "To, ' Lt.-Gen. Jehanzeb Arbab, Martial Law Administrator, Zone 'C', Karachi.
' Sir, ' My three relations namely (1) Mehrab, (2) Umed Ali, (3) Jan Muhammad, (4) Hamzo, (5) Syed All Sher Shah and (6) Dada, were shot dead by the Sanghar Police on . 8-10-1973. I sent a written complaint to the Inspector-General Police, Sindh, Karachi on 11-10-1973, against the accused persons mentioned in the application. Jam Sadiq Ali, the former Minister of the Government of Sindh and Muhammad Khan Junejo, the then Home Secretary of Sindh, were also responsible for these murders. I also enclose herewith a copy of weekly Zindagi which contains the details of the incident given by the journalist regarding these murders.
' I pray that action be taken in the matter and the real culprit be brought to book.
' Thanking you, Yours faithfully, (Sd.)
(Muhammad Yakoob) son of Bachal Sanjrani, Kiryana Merchant, Village Karamullah Dahri P.O.Shahpur C_________________________________________ kar, Taluka Shandadpur, District Sanghar.
Karachi, Dated:1-8-1977."
6. On the basis of above application (Exh30), P.W.1, Ansaruddin Ansari, Deputy Director, F.IA., Hyderabad, registered F.I.R. No,127 (Exh.230) on 10-8-1977 at 17-00 hours, incorporating the complainant's above application dated 1-8-1977.
7. P.W.1, Ansaruddin Asnari investigated the case initially but handed over the investigation to P.W.23, Khuda Bakhsh, Assistant Director, F.I.A., on 15-8-1977, who arrested the accused on 15-8-1977 and 16-8-1977 and recorded their statements. He got confession of accused Muhammad Aslam son of Ahmad Din recorded on 16-8-1977, of accused Shah Muhammad, Abdul Ghafoor and Ghulam Oasim on 17-8-1977 and of accused Muhammad Muneer, Muhammad Aslam son of Muhammad Ismail and Noor Muhammad, on 18-8-1977. He submitted interim rhallan on 30-8-1977, second challan on 30-1-1978, third challan on 12-2-1978 and another supplementary challan on 20- 11-1978. It seems that at the initial stage of the case three of the accused, namely, Sobho, Muhammad Yousif and Ali Nawaz, died before the commencement of the trial and two of the accused, namely, Jam Sadiq All and Constable Lal Khan, were declared absconders and, therefore, they were not tried. The charge was framed on 29-8-1978 (Exh.10) against 13 accused persons, mentioned there. The trial proceeded against 13 of the accused persons. Accused Shahnawaz Junejo, Muhammad Hassan Junejo and Dr. Muhammad Afzal were acquitted by the trial Court.
Whereas, upon appeal, accused Ghulam Shabbir Kalyar, Imdadullah Unar and Ghulam Qasim (who were awarded death sentences) and Mir Muhammad Lashari (who was sentenced to two years' R.I.), were acquitted by the High Court. Convict Shah Muhammad, who was awarded death sentence by the trial Court, died during the pendency of the confirmation case and his appeal before the High Court. It may further be observed that convict Muhammad Aslam, who is one of the appellants in Criminal Appeal No,75 of 1988, and Ghulam Shabbir Kalyar, one of the respondents in the above Acquittal Appeal No,76 of 1988, expired during the pendency of the above appeals before this Court, with the result that Criminal Appeal No,78 of 1988 stands abated, whereas, Criminal Appeal No,75 of 1988 and Criminal Appeal No,77 of 1988 have been prosecuted by convicts Ch. Muhammad Yaqoob and Muhammad Muneer (who are represented by Mr. Abid Hassan Minto, Advocate Supreme Court), and Abdul Ghafoor and Noor Muhammad (who are represented by Mr. Munir A. Piracha, Advocate Supreme Court). The above Acquittal Appeal No, 76 of 1988 has been defended by. Imdadullah Unar, who is represented by Mr. Abdul Hafeez Memon, Advocate Supreme Court. The State is represented by MrAbdul Ghafoor Mangi, learned Additional Advocate-General, Sindh.
7. Before proceeding with the above appeals, we may observe that MrAbdul Ghafoor Mangi, learned Additional Advocate-General, Sindh, requested that the State be allowed to withdraw the above acquittal appeal against Imdadullah Unar. In support of his above request, he submitted a copy of an applicatin dated 15-5-1991, filed by the complainant Muhammad Yakoob son of Bachal Sanjrani before the Home Secretary, Gevemment of Sindh, requesting for withdrawal of the proceedings against Jam Sadiq Ali in respect of Crime No, 24 of 1977 under section 302, P.P.C. Read with section 120-B, P.P.C. Inter alia on the ground that the allegations against Jam Sadiq All Khan and acquitted accused Shahnawaz Junejo, Muhammad Hassan Junejo, Imdadullah Unar and Ghulam Shabbir Kalyar were identical and that the State did not press its acquittal appeal before the High Court against co-accused Shahnawaz Junejo and Muhammad Hassan Junejo. Reliance was also placed in the above application on certain observations made by one of us as the Chief Justice of the High Court of Sindh (Ajmal Mian, J.) in the order dated 26-9-1991, while confirming bail before arrest in Criminal Bail Application No,379 of 1989, which was filed by Jam Sadiq All Khan, after his return to Pakistan and wherein it was ordered that for the purpose of concluding trial against him, the case stands transferred to the Court of learned District and Sessions Judge at Hyderabad, who would proceed with the matter in accordance with law for concluding the trial. A copy of the order dated 26-9-1991 passed by the learned Sessions Judge, Hyderabad, on the above application under section 494, Cr.P.C. Has also been placed on record. Since this Court, at the stage of granting leave against acquittal, was of the view that the acquittal judgment needed further examination by this Court, we declined the above request of Mr. Abdul Ghafoor Mangi, learned Advocate-General, Sindh. We may observe that it is true that under section 494, Cr.P.C. Any public prosecutor, with the consent of the Court, before the judgment is pronounced can withdraw from the prosecution of any person either generally or in respect of anyone or more of the offences for which he is tried and upon such withdrawal:--
(a) if it is made before a charge has been framed, the accused shall be discharged in respect of such offence or offences;
(b) if it is made after a charge has been framed, or when under this Code no charge is required, he shall be acquitted in respect of such offence or offences.
' In our view, the State or the public prosecutor has no absolute power to withdraw a criminal case as it is evident from section 494, Cr.P.C. That the consent of the Court is required. It means that the Court is obliged to apply its mind to the question, whether request for withdrawal is bona fide warranted by the facts of the case and is intended to foster the cause of justice and is not made in bad faith with the object to favour- an accused person at the cost of the victims of the criminal offence involved. Since the case of Jam Sadiq All Khan is not before us, we would not like to express ourselves on the question whether the grant of the above application by the learned Sessions Judge, Hyderabad was warranted in the circumstances of the case.
8. Reverting to the merits of the present appeals, we may observe that the basic question involved in the present case is, as to whether a police encounter had taken place, as was alleged by convict Ch. Muhammad Yaqoob, S.H.O., in his F.I.R. (Exh. 30/2), or whether the deceased were picked up from the Office of the Deputy Commissioner on 6th October, 1973, when they came to attend the cases under the Goonda Act, pending against them and were taken to the Police Station, Sanghar, where, after the sunset, they were given severe beating and then, at mid-night, they were taken to Kanan Mori, where they were killed.
' The trial Court has discarded the version of police encounter for the following reasons: "(i) According to the Mashirnama (Exh. 52) two parties of the police were formed, one was on west side and the other was on east side and the six dacoits were seen on the culvert of Bhanwah, in- between the two parties and were challenged and then three came firing towards West side and three towards East side and and they were then killed in the exchange of firing. It cannot be believed that the said alleged dacoits will reach culvert of Bhanwah after seeing the Police Van and the police on both sides. They could even jump in watercourse to save their lives.
(ii) The six deceased persons were stated by P.W. Ghulam Yasin P.W. 7 (Exh. 36) that they were Murids of Pir Saheb Pagano and Mujahids, trained by Pakistan Army, and had taken part in last two wars against India and hence they could not have kept quiet after firing one shot from the guns although they had sufficient ammunition with them, as it is asserted that arms and ammunition was secured from them. This shows that arms and ammunition was actually foisted on them.
(iii) Notifications produced as per Exhs. 253, 254 dated 9-1-1973 and (Exh.255) dated 10-10-1973 issued by D.I.-G. Under the Orders of I.-G.P. Giving awards to the policemen (accused), who had taken part in the alleged encounter, just next day of giving dead bodies of the deceased persons as per receipt (Exhs. 265, 266 and 267) on 8-10-1973 shows that they were actually awarded not for act of 'gallantry' but for killing them. Name of accused Ghulam Qasim is mentioned in the said Notification which shows his presence at the site, although his name is not mentioned in the F.I.R.
(Exh. 53) or entry (Exh. 42) in the station diary Article (I). Approver Aslam and the accused have admitted to have received said awards, promotions and confirmation of their services which were given in hot haste and might be actually for getting the same 'evil done' through them.
(iv) As per evidence of the doctor Afzal, accused (Exh. 419) who examined himself under section 340, Cr.P.C., approver Aslam and Ali Nawaz had only contusions, which could be caused only by blunt weapon and not by fire-arm and that in the certificates (Exhs. 54 and 55) he had given weapon to be fire-arm because the injured persons had told him that they were given injuries by butt of the gun in hand to hand fight. Thus there was no gunfire injury on the alleged injured persons which disproves the encounter. There was no fire-arm injury received by any accused of police party during alleged encounter.
(v) Shirt of injured All Nawaz is said to have got pellet holes, and the same was not deposited at the Police Station Sanghar by Mir Muhammad as informed by S.H.O. Sanghar vide letter (Exh. 249) dated 1-9-1977 although the same is said to have been secured by Mir Muhammad accused on 7- 10-1973 as per Mashirnama (Exh. 248).
(vi) As per evidence of Doctor Faiz Muhammad P.W. 16 (Exh. 76) most of the deceased persons had received entry bullet injuries on their backs piercing the heart and lungs.
(vii) Press release dated 7-3-1973 was issued by accused Unar as deposed by Rashid P.W.17 (Exh.
85) and the same appears to have been published in newspaper `Ibrat' (Exh. 28) on next day, which shows the extraordinary interest taken by accused Imdadullah Unar in this matter.
(viii) it is alleged in the F.I.R. (Exh. 53) and also in the award notification (Exhs. 253, 254, 255) that six persons killed were dacoits and said outlaws were involved in heinous offences and were also absconding in some criminal cases pending in Courts, there is nothing on record of Shahpur Chakar P.S. To which they belonged and such letter was issued by S.H.O. Shahpur Chakar (Exh.250) dated 9-9-1977. No record is produced to show that they were absconders in any criminal cases.
Admittedly they were accused in the said two Ghunda Act cases, before the DM, Sanghar ' F.I.R. Under section 154, Cr.P.C. Is recorded regarding the commission of the cognizable offence for the purpose of investigation by the police. Under section 4, sub-clause (1), Cr.P.C. Investigation includes all the proceedings in the Cr.P.C. For the collection of the evidence conducted by the police officer or by any person other than Magistrate, who is authorised by the Magistrate in this behalf. "Under section 4(o), Cr.P.C. 'offence' means any act or action made punishable by any law for the time being in force. Thus the F.I.R. Under section 154, Cr.P.C. Could be recorded for the purpose of investigation of offence committed by some persons. In the present case the F.I.R.
(Exh.53) was recorded against six deceased persons, and it is not known as to what investigation or evidence was to be gathered against them and for what purpose. At the most action under section 176, Cr.P.C. Could be taken in such a case. Thus said F.I.R. Appears to have been lodged for ulterior motives."
9. The above finding of the learned trial Court that there was no police encounter, has been concurred with by the learned Judges of the Division Bench inter alia for some of the above reasons referred to by the trial Court.
' We are also inclined to hold that there was no encounter between the police party and the deceased, but, factually they were picked up from the Office of the Deputy Commissioner, Sanghar, were given severe beating after the sunset, at the police station and eventually they were taken out at mid-night and were killed. Besides the reasons which found favour with the learned trial Court and the High Court, we may add that from the perusal of the complaint under section 13 of the Goonda Act, filed by the S.H.O., Shahpur Chakar, against deceased Mehrab, Umed Ali, Hamzo and Ali Sher (being Case No,24/1973 marked as "N"), and similar complaint inter alia against deceased Khan Muhammad and Allah Dad (being Case No,25/1973, marked as "0"), it is evident that the deceased were not involved in any pending criminal case but vague allegations as to their conduct and about alleged incidents, were made. The High Court of Sindh, upon filing of Constitutional Petitions Nos.740/1973 and 742/1973, admitted them to bail on 6-7-1973 and, therefore, there was no reason for the above deceased not to have appeared before the District Magistrate, Sanghar, inter alia, on 6-10-1973, after having put in appearance and after having furnished bail bonds to the Sessions Judge. The diaries of the above case indicating their absence on certain dates including on 6-10-1973, have been found to have been tampered with by Imdadullah Unar, by the two Courts below, which finding seems to be correct. We intend to dilate upon the above aspect at a later stage hereinbelow.
' We may state that the accused belonging to police force, in their 342, Cr.P.C. Statements, admitted the factum of killing the deceased, though, according to them, in the police encounter.
But, once it is held that there was no police encounter, it would follow that the deceased were killed.
The only question, which remains for consideration is as to whether the appellants/convicts have been rightly convicted and sentenced for the above offence.
10. Before touching upon the above point, we may observe that Mr. Abid Hassan Minto, learned ASC appearing for the two of the appellants, in support of the defence plea of encounter has pressed into service the right of private defence, and has referred to the following cases:--
(1) Ali Mea v. King-Emperor (AIR 1926 Cal. 1012),
(2) Ahmad Nawaz v. The State (1970 SCM R 597) and
(3) Mashal Khan v. The State (PLD 1988 SC 25).
' In the above first case, it has been held by a Division Bench of the Calcutta High Court that under section 103, P.P.C., a right of private defence of property to the extent of causing death arises not only when the house is broken into but when an attempt is made to break into the house and this right extends when under a mistake of fact a person kills another person taking him as a burglar, though factually, he is not so.
' In the above -second case, this Court, while accepting a criminal appeal against the judgment of the erstwhile High Court of West Pakistan, held as follows:-- "When one party, makes a deliberate attack on the other in a ' concerted action and the other is defending itself, it would be difficult then for the latter to choose between their assailants for the degree of harm that may be caused to each one of them separately, to ward off the individual harm that each one of the other party was intending or was capable of causing. If shots were fired by the accused party, whether by Ahmad Nawaz or Bakhsha, they were all fired in the thick of the assault in order to save themselves from the onslaught of the other side which had surprised them by a sudden confrontation. The argument advanced by the Courts below that the injury to the deceased which was on the back of the shoulder, affirmatively proved that the deceased at the time was on the retreat, is unsatisfactory and inconclusive. If the deceased was at the time beating Bakhsha with his stick as held by the Courts below, it does not matter what position Ahmad Nawaz thought best to be taken to conveniently fire at the assailants.
The firing of the shot at the deceased, even if it was done from behind him, would not impair the plea of the right of self-defence."
' Whereas, in the above third case, this Court, while allowing an appeal of a convict against the judgment of the Balochistan High Court, held that when in a state of panic right of self-defence is being exercised, action on the part of the person cannot be measured in golden scales.
On the basis of the above authorities, one can urge that once the right to exercise private self- defence is established, the same cannot be defeated lightly, but at the same time, the force used must be in proportion to the injury to be averted and must not be employed for the gratification of vindictiveness or malicious feeling. The right of private self-defence is to be used as a shield to ward off an unwarranted attack to person or property but it cannot be used as a vehicle for provoking an attack. In other words, it is to be exercised as a preventive measure and not for launching an attack for retaliatory purpose. The Court will have to examine the above question with reference to the facts of each case and keeping in view the state of mind of the person placed in the position of the person attacked, who exercises the right of private defence. The Court, while examining the above question, will not measure his action in golden scales but would extend due concession on account of human error of judgment in such a situation. Since, in the present case, we have held that there was no police encounter, the question of exercising right of private self- defence by the convicts did not arise. We may observe that Mr. Minto, learned counsel for the appellants, has not been able to point out any provision of law whereby ,the police personnel can exercise right of private self-defence more than what has been provided for in sections 96 to 106, P.P.C. In this view of the matter, simplicifer, an encounter will not entitle a police party to kill indiscriminately the persons who are allegedly involved in the encounter as the basic requirement provided inter alia in section 99, P.P.C., namely, "the right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence", will be very much applicable. Secondly, the police personnel themselves cannot be the sole arbiter on the question, whether the killing of certain persons in an alleged encounter was warranted by the facts of the case but it is for the competent Court of law to decide the above question. We may further observe that Article 9 given in Chapter I of the Constitution of the Islamic Republic of Pakistan containing the Fundamental Rights guarantees that "no person shall be deprived of life or liberty save in accordance with law" and, therefore, the public functionaries like police force, are to act in aid of the enforcement of the above Constitutional provision rather than to violate the same and expose themselves to criminal prosecution.
11. Then it was contended by Mr. Minto that the burden of proof in a criminal case remains throughout, on the prosecution to prove the commission of the offence beyond reasonable doubt and the fact that in the present case the accused had taken up the plea of private self-defence, which they failed to prove, would not relieve the prosecution from discharging the above burden.
His further submission was that if the accused/convicts, by raising above plea of private self- defence, have been able to succeed in creating a reasonable doubt, then it is sufficient. Reliance has been placed by him on the following cases:--
(i) Safdar Ali v. The Crown (PLD 1953 FC 93), in which the Federal Court of Pakistan, while allowing an appeal filed by a convict, held that burden of proof always remains on prosecution and that accused's burden is not as heavy as on the prosecution. It has been further held that even if accused fails to prove special plea raised by him but succeeded in creating reasonable doubt, he is entitled to acquittal. In the above-reported case the convict had raised the plea of right of private defence. The Federal Court, inter alia, on the basis of medical evidence held that the convict succeeded in creating reasonable doubt warranting acquittal.
(ii) Muhammad Fazlul Karim v. The State and another (PLD 1964 SC 792). In the above case, this Court, while dismissing a petition for leave to appeal against an acquittal judgment, has held that the accused cannot be convicted merely for having told an untruth in relation to offence alleged against him by giving two contradictory explanations in regard to money allegedly received by him as a bribe and that prosecution is to prove their case beyond reasonable doubt.
(iii) Ilahi Bux and another v. The State (1969 SCM R 584), in which this Court, while inter alia dismissing a petition for leave to appeal against an acquittal judgment, has held that accused person in his defence is entitled to take up whatever plea he likes, true or false. The fact that he fails to establish all or any of them should not recoil to his disadvantage in the drawing of any inference regarding his guilt which has to be clearly and satisfactorily established by the prosecution. It has been further held that in criminal cases the onus always remains on the prosecution to prove its case. In the above case the acquitted accused failed to establish the plea of alibi but he succeeded in creating reasonable doubt.
(iv) Wali Muhammad v. The State (1969 PCr. IJ 1185). In this case this Court, while accepting the appeal of the convict, has held that though the version of the accused was unconvincing but since the prosecution failed to prove its case beyond reasonable doubt, the accused was entitled to benefit of acquittal.
(v) Muhammad Naeem alias Gogi v. The State (1990 PCr.LJ 1607), in which a Division Bench of the Lahore High Court, while dismissing an appeal filed by a convict, has held that failure on the part of the accused to prove his innocence or laxities in defence pleaded by him cannot form the basis of proof of his guilt.
(vi) Mumtaz v. The State (1990 PCr.LJ 2055), in which a Division Bench of the Federal Shariat Court, while allowing an appeal by a convict under the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979, has held that burden of proof in all cases lies upon the prosecution to bring home the guilt to the accused, which principle does not admit of any exception even though accused fails to prove his defence plea.
It is well-settled proposition of law that the burden of proof in a criminal case, throughout the trial of the case, remains on the prosecution and this burden is not shifted on the defence. The prosecution is to prove the case against the accused beyond reasonable doubt. The fact that the accused has raised a plea which is found by the Court to be untrue, would not relieve the prosecution from the above burden, nor any adverse inference can be drawn against the accused on account of his failure to prove the plea raised by him. It is also a well settled proposition that the burden on an accused to establish a plea raised by him, is not as heavy as it is on the prosecution inasmuch as an accused discharges his burden if he succeeds in creating a reasonable doubt in the prosecution case.
12. Adverting to the merits of the case, we may observe that the prosecution, in order to prove the factum that the deceased persons were present in the Court .Of District Magistrate, Sanghar, and from there, they were taken to the Police Station, Sanghar, examined P.W.12, Muhammad Aslam, approver, P.W.5 Sadhoro, P.W.8, Muhammad Yaqoob Arain and P.W.17, Abdul Rasheed Serishtadar attached to the Court of the District Magistrate, Sanghar, at the relevant time, whereas, on the factum of their (the deceased) being present at the Police Station, Sanghar, the prosecution relied upon the testimony of P.W.6, Ghazi Khan, P.W.7, Ghulam Yasin, P.W.9, Jamal Din, P.W.10, Zain Din and P.W.11, Khaliluddin, besides the evidence of Muhammad Aslam, approver. On the factum of killing, reliance was placed on the confession and testimony of P.W.12, Muhammad Aslam, approver, and retracted confessions of accused Shah Muhammad, Abdul Ghafoor, Ghulam Qasim, Muhammad Muneer, Muhammad Aslam son of Muhammad Ismail and Noor Muhammad, Exhs. 56, 209, 210, 211 and 213 to 215. Reliance was also placed on accused Ch. Muhammad Yaqoob's statement (Exh.272), made by him before the District Magistrate on 15-2-1978 in connection with his application dated 15-2-1978 (Exh.271) for becoming approver, entries in the police diaries as to the issuance of arms and ammunition to the police party and their departure (Exh.42). Further reliance was placed on the factum of tampering of the Court diaries by Imdadullah Unar in the above Ghunda Act Cases Nos. 24 and 25 of 1973.
13. Messrs Abid Hassan Minto and Munir Paracha have vehemently attacked the finding of the two Courts below on the question that factually the deceased had attended the Court of District Magistrate, Sanghar, on 6-10-1973. To reinforce their above submission, they have pointed out that P.W.12 Muhammad Aslam, approver, has made inconsistent statements as to the time when he was directed by convict Ch. Muhammad Yaqoob, S.H.O., to go to the office of the District Magistrate for picking up the deceased and bringing them to the police station. They also criticised his testimony on the ground that it is full of contradictions/improvements inasmuch as certain facts, not stated by him in his 161 or 164 statements, have been added. Criticism is also directed by them against the testimony of P.W.5 Sadhoro, inasmuch as it has been pointed out that in the cross- examination, he admitted the factum that he had no personal work to attend in Sanghar on 6-10- 1973, and that he never attended the case which was filed by one Haji Hamzo against his brother Mehar or the murder case in which his brother was involved during the last two years. They also challenged the presence of P.W.8, Muhammad Yaqoob Arain, in the Court of District Magistrate, Sanghar, on 6-10-1973, on the ground that factually no case was pending against him in the Court of the District Magistrate, Sanghar, on the above date, which he could attend, in view of the evidence of D.W.2, Allah Bachayo, Reader, with District Magistrate, Sanghar, since April, 1978 (Exh.379). And, because of the factum that in Case No,76 of 1973 (Exh.297/13), he was declared an absconder. The testimony of P.W.17, Abdul Rasheed, Serishtadar, has also been assailed inter alia on the ground that he being an accomplice in the tampering of the Court diaries of the above Cases Nos. 24 and 25 of 1973, cannot be relied upon.
' There is no doubt that there are certain contradictions and improvements made by P.W.12, Muhammad Aslam, approver. It is also true that P.W.5, Sadhoro, in his cross-examination admitted the above facts pointed out by the learned counsel for the appellants. No doubt, that D.W.2, Allah Bachayo, Reader, stated that there was no case pending against Muhammad Yaqoob Arain in the Court of District Magistrate, Sanghar, on 6-10-1973, and, that his name appeared in the charge- sheet of Crime No,76/1973 (Exh.297/13), at Sr. No,8, indicating him as an absconder.
' In our view, the contradictions and improvements on the part of P.W.12, Muhammad Asiam, approver, are to be viewed in conjunction with the other evidence on record and keeping in view the factum that he was subjected to very lengthy cross-examination, running into 50 pages.
Similarly, the above admission on the part of P.W.5, Sadhoro, is to be considered with reference to the situation obtaining in Sanghar after the murder of Ali Bakhsh Junejo on 5-10-1973, followed by imposition of curfew in the city, hectic efforts on the part of Police to pick up and interrogate the Murids of Pir Pagano, and, therefore, it was possible that Sodhoro, P.W.5, might have accompanied the deceased as two of them were related to him. The factum that D.W.2, Allah Bachayo, was unable to lay his hand, in 1980, on any file in which P.W.8, Muhammad Yaqoob Arain was arrayed as an accused, would not itself be sufficient to negate his testimony on the factum that he had come to attend a case in the Court of District Magistrate, Sanghar, on 6-10-1973, nor merely the mentioning of his name, as an absconder, in the above charge-sheet (Exh.297/13), which was dated 6-9-1973, would prove the fact that he remained as such even on 6-10-1973, particularly, when no question was put to him in the cross-examination for seeking his explanation, though he was put several questions about his being an accused person in the above D.P.R. Case.
' It is true that Abdul Rasheed, Serishtadar, in his cross-examination, has stated that when he was changing the diaries at the direction of Imdadullah Unar, he knew that it was intended to cover up the murder of the six deceased and, therefore, one can urge that he was an accomplice to the above act. However, it may be pointed out that there was no charge for tampering with the record or for destroying the evidence, and, therefore, he was not an accomplice in the charges which were the subject-matter of the trial. The trial Court has, therefore, rightly overruled the above objection. It is also correct that first time on 14-11-1979, before the trial Court, he deposed about the above tampering of the diaries, but omission on his part to mention about it earlier is understandable for the above reason. The Court is to sift grain from chaff and, therefore, any contradiction or improvement or any other factor which may adversely reflect on the credibility of a witness, would not be by itself sufficient to reject the testimony as a whole of such a witness. The Court can rely upon a portion of the testimony of such a witness, if it is corroborated by other reliable evidence or circumstances.
14. It was also urged by the learned counsel for the appellants that even one of the deceased, namely, Allah Wadho, was shown as an absconder in the above charge-sheet of Crime No,76 of 1973 (Exh.297/13) and, therefore, he could not have attended the Court of the District Magistrate, Sanghar on 6-10-1973. The trial Court has held that the defence has failed to prove that Allah Wadho, mentioned in the above charge-sheet, was the same, namely, Dadan alias Allah Dad.
15. At this juncture it may be pertinent to mention that the above Crime No,76 of 1973 was registered under section 42(6), 43, 49, D.P.R., 122 and 124-A, P.P.C. Against about 100 persons, ihduding against the then serving District and Sessions Judge at Sanghar, Mr. Owais, who was arrested while serving as a District and Sessions Judge, Sanghar. A perusal of the above complaint makes an interesting reading. It may be pertinent to reproduce the relevant portion containing allegations against Mr. Owais, which reads as follows:-- "The followers of Pir Sahib Pagaro will move Civil Disobedience Movement in this Taluka. In the meantime, Sessions Judge Sangar Mr. Owais and Sher Muhammad, Advocate also attended the meeting. They were welcomed too much. Ashraf Advocate of Shandadpur said that they should not be worried about the arrest, as Sessions Judge Sanghar was with them and he has arrived there. Mir Muhammad Wassan, who was his close friend, will also be got released within a day or two. He said that the people, who came for bail before the Sessions Judge, their bail was granted.
Thereafter the Sessions Judge said that they should not be worried, as he was with them. He pointed at Faiz Muhammad Rajar and said that he has granted his bail before arrest, and that he has to adopt the policy of Pir Saheb Pagaro, and that he will help him in any manner. He said that they should start movement against the Government, as the Government was deadly against them and Pir Saheb Pagaro. He said that they were more happy in India than the present Government. Indra Government is better than Bhutto Government: ' It is ,a matter of common knowledge of the persons belonging to the legal fraternity that late Mr. Owais had enjoyed good reputation as a Judge, but even he was not spared and was falsely implicated for obvious reasons. No reliance can be placed on the contents of such a frivolous complaint.
' Mr. Mangi, learned Additional Advocate-General, for the State in the above appeals, though supported the convictions against the appellants/convicts, but submitted that the allegation aganst Imdadullah Unar that he caused the handing over of the deceased to the police on the above date of hearing, was motivated with the intention to involve him falsely. However, he was unable to submit or point out that from where the above deceased were picked up by the police.
' We are inclined to hold that the two Courts below have rightly recorded concurrent finding on the fact that the deceased had come to attend the above Goonda Act cases on 6-10-1973 in the Court of District Magistrate,Sanghar, and from there, they were picked up by the police and taken to the Police Station, Sanghar.
' There seems to be discrepancy on the question as to how the deceased were taken from the office of the District Magistrate, Sanghar, to the Police Station. The complainant 'in his above complaint dated 11-10-1973, addressed to the Inspector-General, Police, Sindh, quoted hereinabove, had averred that:- "Mr. Imdadullah came to office at about 11 a.m. Soon thereafter M/s. Ghulam Shabbir Kalyar, S.P.
Sanghar, Yakoob, S.H.O. Police Station Sanghar, Shah Muhammad, A.S.I.P. Police Station Sanghar with about 10 Constables of Police reached there. The S.P., S.H.O. And ASIP went inside the office room of Deputy Commissioner. At about 12 noon the aforesaid deceased were called in and soon thereafter they came out with the said Police Officers party. When the deceased came out they informed them that Mr. Imdadullah Unar had asked the Police to take them away."
' Whereas, the prosecution case before the trial Court Was that at the direction of S.H.O., Sanghar, Ch. Mohammad Yaqoob, ASI, Shah Mohammad, went to the office of the Deputy Commissioner for fetching the deceased at the behest of Imdadullah Unar. The above discrepancy does not seem to be material as the basic question is, as to whether the deceased were picked up from the office of the Deputy Commissioner, on which there seems to be unanimity.
15. We may observe that there is other overwhelming evidence on record to indicate that the deceased were at the Police Station, Sanghar, on 6-10-1973, before they were taken to the place where they were killed. The discrepancies in the testimony of P.W.6, Ghazi Khan, P W 7, Ghulam Yasin, P W 9, Jamal Din, P.W.10, Zain Din and P.W.11 Khaliluddin, pointed out by the learned counsel for the appellants, and the criticism as to their credibility urged by them, are not of the nature which would warrant discarding of their evidence on the question that the deceased were at the Police Station, Sanghar, on 6-10-1973. It is true that according to P.W.11, Khaliluddin, Head Writer, the police party left the Police Station at about 11-00 p.m. It is also true that in his cross-examination at one place he has stated that after the police party left the Police Station, he saw the deceased in the lock-up. We may state that, once it is held that the deceased were at the Police Station, Sanghar, up to 11-00 p.m. On 6-10-1973, in the absence of any explanation from the appellants as to how they reached the place of Wardat where they were killed, it is logical to conclude that they were taken by the police party.
' Even if we were not to place implicit reliance on the testimony of P.W.11, Khaliluddin, there still remains sufficient other evidence on record to sustain the above finding.That factually the police party had taken the deceased to the place of Wardat. Besides the evidence of the above witnesses, there seems to be unanimity on this aspect in the retracted confessions made by the six accused persons, and in the statement and confession made by Mohammad Aslam, approver.
' The learned counsel for the appellants have vehemently urged that the presence of P.Ws. Ghazi Khan, Ghulam Yasin and Jamal Din at the Police Station, Sanghar, on 6-10-1973, is doubtful.
However,., in our view, the above contention is not tenable as it is even admitted by appellant/convict Ch. Muhammad Yaqoob, in his 342, Cr.P.C. Statement, read with his Written Statement tendered by him while he was examined under section 342, Cr.P.C., that he had interrogated Ghazi Khan, Ghulam Yasin and Jamal Din and even searched their houses on 6-10- 1973. It is true that there is no entry in the diary of the Police Station, but, we cannot overlook the fact that it is not uncommon that police detains suspects at the Police Station for interrogation without formally arresting them. In this regard reference to the judgment of a Full Bench of the Lahore High Court rendered in the case of Hakam Khuda Yar v. Emperor (AIR 1940 Lah. 129) be made. In the above case a Full Bench of the Lahore High Court was called upon to consider the question, whether the statement of an accused person during the course of investigation to the effect that "I have buried the dead body of Mehr Din near the canal" is admissible in evidence by virtue.Of section 27 of the Evidence Act.
Bhide and Din Mohammad, JJ., while dealing, inter alia with the above question, have held that police custody does not necessarily mean custody after formal arrest and that it also includes some form of police F surveillance and restriction on the movement of the person concerned by police and that it is open to an accused person to prove in every case that arises that he was actually in custody of a police officer although in the police diaries he was not shown to have 'been formally arrested. It was also held that G section 26 of the Evidence Act has always been taken to apply to confessions made to some person other than a police officer.
' It may be pointed out that Mr. Ali Bakhsh Junejo was murdered on 5-10-1973 in broad daylight, which created a serious situation, inasmuch as curfew was imposed in Sanghar town on 6-10-1973 and large number of Murids of Pir Pagaro were brought to the Police Station (according to P.Ws. 6 and 7 the Police Station was full of detenus) without making any entry in the Police Station record.
16. Adverting to the question of actual killing of the deceased, we may observe that we have already held that the defence version that there was a police encounter during Nakabandi with the deceased, is not sustainable and, therefore, it must follow that they were killed. On the question, as to how they were killed, there is evidence of Mohammad Aslam, approver, and the six retracted confessions of the accused, corroborated by medical evidence and also by the circumstantial evidence.
' The learned counsel for the appellants have invited our attention to the discrepancies in the testimony of Mohammad Aslam, approver, on the question, whether he had killed any one of the deceased, and pointed out that at one place he has stated that he had fired six shots in the air, which did not hit any of the deceased, but at another place (at page 473), he has stated that "due to my firing, on the deceased persons, one of them viz. Allah Dad alias Dadan died at the spot while All Sher Shah was injured and fell down", whereas, in his confession, before he became Approver, he stated that none of the deceased died or was hit by his firing.
There is no doubt that Mohammad Aslam, approver, made the above inconsistent statements. His above first statement seems to be in line with his exculpatory confession, which he made prior to the grant of pardon to him for making him an approver. Be that as it may, there cannot be any doubt that his testimony is to be scrutinized with care and caution and cannot be acted upon without corroboration in material particulars by reliable evidence.
17. Mr. Abid Hassan Minto, learned counsel for two appellants has also attacked the retracted confessions inter alia on the following grounds and has urged that no reliance can be placed on the same:
(i) That P.W.1, Ansaruddin Ansari, has admitted in his cross-examination that on 14-8-1977, he took from Sanghar to Hyderabad A.S.-I. Muhammad Aslam son of Ahmad Din, the approver, Constable Muhammad Aslam son of Muhammad Ismail, Constable Muhammad Muneer, Head Constable Abdul Ghafoor, and on his way, he also took driver Ghulam Qasim. According to him the above accused remained in the custody of the police till they made confessions on 16-8-1977, 17-8-1977 and 18-8-1977.
(ii) That on 17-8-1977 accused Shah Mohammad, Abdul Ghafoor, Ghularn Qasim, Mohammad Muneer, Aslam and Noor Muhammad were produced before P.W.19, Mr. Shamsuddin, Magistrate, but the confessions of only three of them, namely, Shah Muhammad, Abdul Ghafoor and Ghulam Qasim, were recorded as the remaining three accused were not willing to make confessions on the above date.
(iii) That according to P.W.23, Khuda Bux, he produced six accused before P.W.19, Shamsuddin, Magistrate, for getting their confessions recorded, whereas, according to the latter, only three accused were produced on 17-8-1977, for the aforesaid purpose and three of them were produced for obtaining remand.
(iv) That on 17-8-1977 as well as on 18-8-1977, three accused were produced together, they were given time for reflection together and, they remained together, which was not proper.
(v) That according to P.W.19, Mr. Shamsuddin (the Magistrate), he recorded Muhammad Aslam, approver's confession in Sindhi, whereas, according to the approver, he made his confession in Urdu, as he did not know Sindhi.
(vi) That the Magistrate, before recording confessions, did not give proper warnings and did not make requisite endorsements about administering proper warnings and putting requisite questions to the accused persons.
(vii) That all the confessions, except that of Abdul Ghafoor, are exculpatory and, therefore, they have no evidentiary value.
(viii)That the confession made by Abdul Ghafoor, though inculpatory, is of the nature which cannot be used against the co-accused for sustaining the conviction against them.
(ix) That since the accused at the earliest opportunity retracted their confessions, the same need corroboration by evidence of unimpeachable character.
18. Mr Abid Hassan Minto, in support of his above submissions, has referred to the following cases:
(i) Bhuboni Sahu v. The King (PLD 1949 PC 90), in this case the Privy Council has held that if an accomplice's evidence is not corroborated in material respects, it cannot be acted upon and that evidence of an accomplice cannot be used to corroborate evidence of another accomplice. It has also been held that a confession of a co-accused cannot be made foundation of conviction but may be, used in support of other evidence and that confession of co-accused is evidence of a weak character.
(ii) Nadir Hussain v. The Crown (1969 SCM R 442), in which this Court, while accepting an appeal filed by a convict against the judgment of the High Court, has inter alia held that a retracted confession should not be acted upon unless corroborated in material particulars. It has been further held that since on a material particular the confession was not corroborated, the conviction could not be sustained.
' Rasool Bux v. The State (1974 PCr. LJ 325). In the above case a Division Bench of the erstwhile High Court of Sindh and Balochistan has held that a retracted confession can be made basis of conviction even though not supported by other circumstances provided that same is voluntary and true. However, as a rule of prudence conviction cannot be based upon a retracted confession unless corroborated by some other evidence. In the above case it was claimed by the accused that he made the confession due to maltreatment of his womenfolk and under fear of police. It was also held that mere recovery of crime weapon and blood-stained clothes from the accused would not be sufficient to uphold conviction on the basis of retracted confessions.
(iv) Wali Muhammad alias Mandhoo v. The State (1986 PCr.LJ 1153), in which a Division Bench of the High Court of Balochistan has held that unexplained delay of more than 24 hours in recording confession warrants exclusion of confession from consideration.
(v) Muhammad Amin v. The State (PLD 1990 SC 484 Shariat Appellate Bench). In the above case, Shariat Appellate Bench of this Court, while dealing with the question of Islamic requirements of a confession, has held that the confession should be made voluntarily, without any duress or coercion or due to violence and that if it is made because of that it is to be excluded from consideration.
' Reference may also be made to the following cases, which were not referred to by the learned counsel for the parties:
(a) Syed Sharifuddin Pirzada v. Sohbat Khan and 3 others (PLD 1972 SC 363), in which the trial Judge and the High Court had discarded the judicial confessions on the ground that the accused had been in the police custody for about 15 days, before they were produced before the Magistrate for getting their confessions recorded and that they were not asked questions as to how long they had been in the police custody and why they had chosen to get their confessions recorded. This Court, while dilating upon the above aspect, has held as follows: "The fact that Sohbat Khan was for some time in the police custody does not lead to the conclusion that he was tortured. Remaining of accused persons for some time in police custody does ,not affect their judicial confessions. Mr. Azizuddin, A.C.M. Who recorded the statements has clearly stated in his statement that full opportunity was given to the accused persons to explain the circumstances in which they were giving their statements and complied with the pro forma which was available for recording the judicial confessions. This shows that the confessions were made voluntarily."
(b) Zulfikar All Bhutto v. The State (PLD 1979 SC 53), wherein inter alia the following two propositions of law as to the evidentiary value of confession have been laid down: "(i) An admission of a gravely incriminating fact, even a conclusive incriminating fact, is not of itself a confession. A statement that contains self-explanatory matter cannot amount to a confession, if the exculpatory statement is of some fact which, if true, would negative the offence alleged to be confessed.
(ii) An admission by an accused person of his own guilt affords some sort of sanction in support of the truth of his confession against others as well as himself. These considerations, however, do not apply when the question is whether statement partly inculpatory and partly exculpatory should be used against the maker thereof. In his case, even if the statement does not amount to a confession in the full sense of the term, it could still be used as an admission against him '
(c) Muhammad Gul and others v. The State (1991 SCM R 942). In the above case, this Court, while dismissing an appeal of the convicts, has held that delay in forwarding the recorded confession by the recording Magistrate to the Deputy Commissioner, would not affect the evidentiary value of the confessions. It has been further held that a retracted confession is sufficient to make the basis of recording conviction but the Court, as a rule of prudence, seeks corroboration of the same on all material particulars.
19. From the above-cited cases, inter alia, the following principles of law are deducible:
(i) That if a statement of fact made by an accused in a confession is of the nature that if it is assumed to be true, it would negate the offence alleged to be confessed, it is called an exculpatory confession.
(ii) That a statement of an accused that contains self-exculpatory matter cannot amount to confession.
(iii) That a retracted confession is sufficient to sustain a conviction for a capital offence, if the Court is of the view that the same is voluntary and is true, but as a rule of prudence, it has been consistently held by the superior Courts that the same should not be acted upon unless corroborated by some other reliable evidence in material particulars.
(iv) That though the confession of a co-accused cannot be made foundation of conviction but it may be used in support of other evidence.
(v) That the confession of a co-accused is an evidence of a weak character.
(vi) That under Islamic Jurisprudence, in order to make a confession reliable, it should be voluntarily made and not on account of any coercion, duress or violence.
(vii) That any delay in recording of a confession may, or may not, be fatal as to the evidentiary value of a retracted confession as in the case of Syed Sharifuddin Pirzada v. Sohbat Khan and 3 others (supra), this Court has held that the factum that the accused were in the police custody for 11 to 15 days, was not fatal as to the credibility of the retracted confessions for the reason that the Court was satisfied that the retracted confessions were not tutored and were, in fact, made voluntarily.
(viii) That any lapse on the administrative side on the part of a Magistrate recording a confession, may not be fatal as to the evidentiary value of such confession provided the Court is satisfied that the lapses on his part have not, in any way, adversely affected the voluntariness or truthfulness of the confession.
(ix) That if an accomplice's evidence is not corroborated in material respects, it cannot be acted upon and that the evidence of an accomplice cannot be used to corroborate evidence of another accomplice.
20. The legal position, which has emerged from the above reports, seems to be that in order to judge the evidentiary value of retracted confession, the Court is to advert to the question, whether the same appears to have been made voluntarily, without any inducement, duress or coercion with the object to state the truth. If the Court is satisfied on the above aspect, the mere fact that there were some irregularities in recording of a confession, would not warrant disregarding of the same.
' The above alleged irregularities in respect of recording of the confessions highlighted by Mr. Abid Hassan Minto, referred to hereinabove, in our view, would not be fatal as to the evidentiary value of the same if we were to be satisfied that the same have not, in any way, adversely affected the voluntariness or truthfulness of the retracted confessions.
' It may be observed that a perusal of the record of the trial Court indicates that the confessions have been recorded on the prescribed pro forma, containing the requisite questions, answers and endorsements, but the same have not been reproduced in the paper-books of the appeals.
' It is true that according to P.W.23, Khuda Bux, six accused were produced on 17-8-1977 for getting their confessions recorded, whereas, according to P.W.19, Shamsuddin, the recording Magistrate, three of them were produced for remand. But, in our view, the above conflict in the above two versions is reconcilable as admittedly the Magistrate had granted remand on 17-8-1977 in respect of the three accused, whose confessions were not recorded. Similarly, the fact that the three accused were produced together before the Magistrate, and they were given time for reflection together and they were brought back together after lapse of reflection time, would not render their confessions defective, if the perusal of the same indicates that the accused/convicts were not tutored or coerced to make the same.
21. We may now revert to the contents of retracted confessions and to the question, whether the same are exculpatory or inculpatory.
' There seems to be unanimity in most of the retracted confessions inter alia on the following facts:- -
(i) That the six deceased were confined in the lock-up at the Sanghar Police Station on 6-10-1973.
(ii) That Jam Sadiq Ali Khan, the then Minister, Government of Sindh, Imdadullah Unar, Deputy Commissioner, Sanghar, and Ghulam Shabbir Kalyar, S.P., were sitting in the office of the S.H.O. Of the Police Station, Sanghar at mid-night, before the deceased were taken to the place of Wardat, at mid-night, except that there are two variations, namely, accused/convict Muhammad Munir has omitted the name of Jam Sadiq Ali Khan, while mentioning the names of the persons sitting in the S.H.O.'s office but has stated that he was sitting in one of the vehicles, whereas, accused/convict Noor Muhammad has added two additional names of the persons who were sitting at midnight in the office of the S.H.O. On the above date, namely, of Shahnawaz Junejo and Muhammad Hussain Junejo.
(iii) That at about 12-00 hours of night convict/accused Ch. Muhammad Yaqoob, S.H.O., told the convicts accused that the six deceased were to be taken to Khipro Jail.
(iv) That the accused were issued arms and ammunition, as stated by P.W. Khaliluddin, Head Writer, before the deceased were taken out from the lock-up.
(v) That the six deceased were taken out from the lock-up and, after handcuffing them, they were put in a police vehicle. The accused/convict Shah Muhammad and S.H.O. Ch. Muhammad Yaqoob sat on the front seat, whereas, Head Constable Muhammad Aslam son of Din Muhammad (approver), Head Constable Abdul Ghafoor, Constable Noot Muhammad, Constable Muhammad Yousif, Constable Lal Khan, Constable Soba Khan, Constable Muhammad Aslam son of Muhammad Ismail and Constable Muhammad Munir, sat with the deceased at the rear portion of the vehicle.
(vi) That besides the above police vbehicle, there were two jeeps which were following the above vehicle. In one of these jeeps, Jam Sadiq Ali Khan, then a Minister, Government of Sindh, Imdadullah Unar, Deputy Commissioner, Shangar and Ghulam Shabbir Kalyar, S.P., were sitting, and in the other jeep Shahnawaz Janejo and Muhammad Hassan Junejo and 2/4 other persons were sitting.
(vii) That upon reaching Canon Mori, the police vehicle and the aforesaid two jeeps were stopped.
(viii)That Imdadullah Unar, Deputy Commissioner, and Ghulam Shabbir Kalyar, S.P., got down from their jeep, whereas, the other persons remained in the jeeps.
' That upon reaching the place of Wardat, at the direction of the Deputy Commissioner, the S.P. And the S.H.O., the police party was divided into two groups and each of the groups was entrusted with three deceased. One police group was made to stand on the Western side of the culvert and the other group was directed to stand on the Eastern side of the culvert and each group of three deceased was made to stand at some distance in front of the police group concerned, facing their back to them.
(x) That when they were directed by the S.P., Sanghar, Ghulam Shabbir Kalyar and Deputy Commissioner, Sanghar, Imdadullah Unar to shoot the deceased, the accused/convicts protested and showed their resentment but they were told that unless they would carry out the order, they would be killed.
(xi) That the accused/convicts opened fire on the deceased, resulting into death of all the six deceased, three on one side of the culvert and three on the other side.
(xii) That, after the deceased were killed, Muhammad Hassan Junejo and Shahnawaz Junejo also got down from the jeep. They took out arms from the jeep in which Imdadullah Unar had come with the above persons and after firing some shots in the air, Muhammad Hassan Junejo and the SHO, planted the arms on each of the deceased.
' We may, however, observe that, there seems to be an attempt on the part of each of the accused/convicts to minimise his role in the actual killing of the deceased, except accused/convict Abdul Ghafoor, who has stated that "upon this all opened the firing as a result of which all the six accused died", and Muhammad Munir, who has stated that "we are victims and the offence has forcibly been got done through us", none of the other accused/convicts admitted the actual killing of the deceased. On the contrary, an attempt was made by them to indicate that they had not killed anyone.
' Approver Muhammad Aslam stated that he fired six shots but none hit any of the deceased.
Accused/convict Shah Muhammad, ASI, has stated that he and the S.H.O. Were standing at some distance and they did not fire. Accused/convict Noor Muhammad has stated that his hands were shivering and that he could not fire the shot, whereas, Muhammad Aslam son of Muhammad Ismail has stated that he was not feeling well, he sat by the side of Khipro Canal.
22. The contention of Mr. Abid Hassan Minto, that the retracted confessions are exculpatory, seems to be correct in respect of the four out of the six accused, but the retrated confessions of accused/convicts Muhammad Munir and Abdul Ghafoor are inculpatory as they admitted of having participated in the commission of the offence. The question, whether there is sufficient evidence on record to sustain the convictions against the appellants, will be considered at a later stage.
23. We may now refer to another submission of Mr. Abid Hassan Minto, that the learned' trial Court had accepted the motive as was pleaded by the prosecution, namely, to avenge the murder of Ali Bux Junejo, who belonged to the then political party in power. And who was murdered one day earlier, but the High Court found another motive, namely, that since the deceased were given severe beating by the police inasmuch as two of the accused became more or less dead, and the condition of the remaining four deceased was also not good, the police had to resort to the killing of the above six deceased in order to cover up the above beating. According to him, the factum that the High Court found that the motive alleged by the prosecution was not proved, would adversely react on the prosecution case as a whole and the Court should scrutinize the evidence of the witnesses with care and caution. In support of his above submission, he has referred to the cases of:-
(i) Hakim Ali and 4 others v. The State and another (1971 SCM R 432),
(ii) Bakhshal and others v. The State (1990 PCr.LJ 1), and
(iii) Amir Bux and another v. The State (1990 PCr. LJ 1765).
' In the above first case, this Court while allowing an appeal of a convict against the judgment of the erstwhile High Court of West Pakistan, Lahore, inter alia, has held that it is not necessary for the prosecution to set up a motive in every case but where the prosecution has set up a motive and failed to establish it, then it is the prosecution which should suffer on that account and not the defence. It has been further held that after the prosecution failed to establish a motive set up by it and also failed to establish that the incident occurred in the manner alleged by it, then it is difficult to see as to what remained of the prosecution case.
' In the above second case, a Division Bench of the High Court of 'Sindh has held that the murder may be committed wantonly or without motive, but if motive is alleged by prosecution and is found to be false, the evidence of witnesses on premises of false motive needs to be scrutinized.
' In the above third case, a Division Bench of the Sindh High Court has held that if the prosecution failed to prove the motive, which was alleged, then it is to suffer and the evidence of prosecution witnesses should be examined cautiously.
We may observe that there is a marked distinction between a case in which a motive alleged by the prosecution is found to be untrue or false and the case in which a different motive has been found by the Court or the alleged motive is not established. In the present case both the Courts below have recorded finding of fact that the six deceased were killed by the police. They also found that the six deceased had come to attend the Goonda Act cases in the office of the Deputy Commissioner, Sanghar, from where they were picked up by the police and were confined in the Police lock-up of the Police Station, Sanghar, where they were given severe beating and in the night, they were taken out and were killed in the manner referred to hereinabove. Since both the Courts below have held that the offence of conspiracy has not been proved, the evidence on motive is not conclusive. The trial Court recorded finding on the question of motive as was alleged by the prosecution but the. High Court, on reappraisal of the evidence, found another motive. In our view, this does not adversely react on the merits of the case, but it may be a relevant factor while considering the question of quantum of sentence.
24. Mr. Munir Piracha, learned counsel for two of the appellants, adopted Mr. Abid Hassan Minto's arguments and, without prejudice to his contentions on merits, in the alternative, has vehemently urged that in the present case, the Courts below erred in pressing into service section 34 of the Pakistan Penal Code, as, on the basis of the evidence on record, common intention to commit the offence in question, cannot be attributed to the appellants/convicts. According to him the appellants/convicts had no knowledge of the factum that they would be forced to commit the offence till the time they were forced to kill the deceased at the place of Wardat, and as they were told at the police station that the deceased were to be shifted to Khipro Jail.
' It is correct that the accused/convicts in their confessions, and the approver in his statement, have stated that they were told at the police station, that the deceased were to be taken to Khipro Jail, but common intention could be formed at the spur of the moment, as had been held by this Court in the case of Muhammad Akbar and two others v. The State (PLD 1991 SC 923), wherein after referring to the relevant case-law on the above question, following conclusion was drawn:-- "From the above-referred cases, it is evident that a joint action by a number of persons" is not necessarily an action performed with a common object, but it may be performed on the spur of the moment as a reaction to some incident and such a case could fall within the ambit of section 34, P.P.C. However, it may be pointed out that section 34, P.P.C. Contemplates an act in furtherance of common intention and not the common intention simpliciter and that there is a marked distinction between similar intention and common intention and between knowledge and common intention. It may also be observed that mere presence of an accused at the place of incident with a co-accused who commits offence may not be sufficient to visit the former with the vicarious liability, but there should be some strong circumstance manifesting a common intention.
Generally intention, inter alia, preceeds by some or all of the following elements namely, common motive, pre-planned preparation and concert pursuant to such plan. However, common intention may develop even at the spur of moment or during the commission of offence as pointed out hereinabove. Conversely common intention may undergo change during the commission of offence."
Even if we were to exclude section 34, P.P.C., section 149, P.P.C. Would be very much attracted to as once the accused were told that the object of bringing the deceased at the place of Wardat was to kill them, they, instead of disassociating themselves, remained at the place of Wardat to carry out above unlawful common object, and, therefore, they had become members of an unlawful assembly having common object and hence, each of them would be vicariously liable for the act of the other members of the assembly.
25. Now, we may deal with the question, whether there is sufficient evidence on record to sustain the convictions against the four appellants/convicts.
' We have already held hereinabove that the retracted confessions of accused/convicts Abdul Ghafoor and Muhammad Munir are inculpatory. There is sufficient reliable evidence on record to corroborate the above- retracted confessions of the two accused/convicts, which has already been referred to hereinabove in paras. 9, 12, 13, 15 and 16. As regards the convict Ch. Muhammad Yaqoob, S.H.O., it may be stated that he had not made any confession. Whereas, accused/convict Noor Muhammad had made an exculpatory confession, which was retracted by him.
' The evidence in the present case includes, the statement of the approver Muhammad Aslam, who has, no doubt, made certain contradictory statements and improvements, but there seems to be no contradiction or improvement on the basic facts of the case, namely, that on 6-10-1973, the deceased were picked up from the office of the Deputy Commissioner, Sanghar, and were taken to the Police Station, Sanghar, where they were confined in the police lock-up, that after the sunset, they were given severe beating, and that at night, the deceased were taken to the place of Wardat and were killed in the manner referred to hereinabove.
It is well-settled proposition of law that the testimony of an approver is to be scrutinized with care and caution and the Court should be doubly sure that his (approver's) evidence is corroborated in material particulars by reliable evidence. In this regard reference may be made to the case of Zulfikar Ali Bhutto v. The State PLD 1979 SC 53.
' In the present case, the testimony of the approver is corroborated in all material particulars by the witnesses already referred to hereinabove in paras. 12, 13, 15 and 16, and, therefore, we are of the view that his evidence can be relied upon and has been rightly relied upon by the two Courts below. We may again observe that the factum of killing has been admitted by the accused/convicts even in their, 342 statements, but their plea was, that the deceased were killed in the police encounter, which version has not been accepted by the two Courts below as well by us for the reasons already discussed. Accused/convicts Ch. Muhammad Yaqoob, S.H.O., in his statement made by him before the Deputy Commissioner on 1-3-1979 (Exh.272), had admitted the fact that the deceased were killed, which statement has been relied upon by the trial Court.
' Mr. Minto has vehemently urged that the above statement could not have been relied upon as Ch. Muhammad Yaqoob was an accused person when he made the same and remained as such as he was not made an approver. Reliance was placed by him on the case of Muhammad Bakhsh v.
The State PLD 1956 SC 420, in which it has been held that the administration of an oath to an accused person in presence of section 5 of the Oaths Act, 1873, which prohibits taking of oath from an accused person, is illegal and the confession recorded under section 164, Cr.P.C. On oath, could not be relied upon.
' The above case is distinguishable as Ch. Muhammad Yaqoob, S.H.O., was examined in support of his application dated 15-12-1978 (Exh.271) addressed by him to the District Magistrate, Sanghar, for becoming an approver, and not for making a statement or a confession. The above statement cannot be made basis for conviction, however, it can be looked into as it is a part of the record, which shows his involvement. Besides the above statement, he also admitted the factum of killing in his F.I.R. No,92/1973 (Exh.53).
' It is true that the burden to prove the case in the present case remained on the prosecution notwithstanding the fact that the accused/convicts failed to substantiate their defence plea. This aspect has already been dealt with by us hereinabove in para.11. We are inclined to concur with the two Courts below that the prosecution has been able to prove the case against the appellants/convicts beyond reasonable doubt.
26. However, the question arises as to whether the death sentences awarded to the appellants/convicts are to be maintained. In this regard it may be pertinent to refer to paras. 960 and 961 of the judgment of this Court in the case of Zulfikar Ali Bhutto (supra), which read as follows:-- "960.1 now proceed to examine whether there is any extenuating circumstances in favour of all or any of these three appellants so as to justify the imposition of the lesser penalty. It has already been stated that, besides narrating the working conditions prevailing in the Federal Security Force under which no subordinate could disobey the orders of his superiors, Mr. Irshad Qureshi has emphasised the fact that the appellant Ghulam Mustafa did not participate in the actual killing, and that the part played by him was confined to obtaining weapons, under the orders of Mian Muhammad Abbas for the use of approver Ghulam Hussain and his men. It is also true that these appellants had no motive of their own to do away with Ahmad Raza Khan Kasuri or his father.
961. After giving my anxious consideration to the submissions made on behalf of these three appellants, I am of the view that although they did not have a motive of their own to take the life of Ahmad Raza Kasuri, or his father, yet the fact remains that they took various steps, over a prolonged period of time, to implement the criminal design or conspiracy into which they had been inducted by appellant Mian Muhammad Abbas and approver Ghulam Hussain. Their assertions at the trial or in their confessional statements that otherwise they would have been physically eliminated are not very convincing. They have deliberately acted in taking human life, and there is no reason why they should not be subjected to normal penalty prescribed for murder and its abetment."
' From the above-quoted paras., it is evident that mere fact that an accused had no motive to kill might not be a mitigating circumstance to impose a lesser sentence than the capital sentence in a murder case. But the facts of the above case are distinguishable from the present case, as in the above case the accused took various steps, over a prolonged period of time to implement the criminal design or conspiracy, which element is missing in the present case as till the time, the deceased were taken to the place of Wardat as per approver's statement and the retracted confessions, the accused were not told that the deceased were to be killed. There is also concurrent finding of the two Courts below that charge of conspiracy under section 120-B, P.P.C.
Has not been proved, whereas in the above-referred case, it was proved.
' We may observe that if the motive which was alleged by the prosecution was to be maintained by the High Court, it could have been urged that the appellants/convicts had no personal motive to kill the deceased, but they were forced to kill them at the behest of their higher-ups. But, if the motive found favour with the High Court is to be sustained, the appellants/convicts, who had given beatings to the deceased, had personal motive to kill and not other appellants/convicts. The motive found by the High Court is discernible from the material on record. In this regard, it may be stated that in the first complaint dated 11-10-1973, addressed by the complainant to the Inspector- General of Police, Sindh (Exh.30/2), he had not alleged that Jam Sadiq Ali Khan, the then Minister, Government of Sindh, Imdadullah Unar, Deputy Commissioner, Sanghar, and Ghulam Shabbir Kalyar, S.P., had come to the police station at mid-night on 6-10-1973, or that these three persons had gone in jeeps when the deceased were taken for killing. P.Ws. Zain Din, Guard at the police lock-up, and Khaliluddin, the Head-Writer of the Police Station Sanghar, had also not stated in their statements that the above persons were present at night of 6-10-1973, at Sanghar Police Station or, that they had gone with the police party when the deceased were taken for the purpose of killing.
On the contrary the complainant in his complaint has stated that:-- "On the next day i.e, 7-10-1973 Muhammad Hassan and Sodhoro went to Police Station Sanghar to see their relatives. There Ghazi Khan and Rakhil aforesaid informed them that on the previous evening after sunset all the six prisoners were taken out of lock-up to the stable behind the police station by Yaqoob, SIP. Shah Muhammad and other constables who started beating them and they went on hearing their cries and entreaties not to kill them. Later on some doctor was also called who declared. Mehrab and Umed Ali dead and other four about to die. Then late at night the said Police Officers took them in Police trucks to unknown destination.... "
' The aforesaid witnesses (who were detained at the police station) have also stated about giving of beating at the police station to the deceased after the sunset, before they were taken to the place of Wardat. The version contained in the above complaint dated 11-10-1973, is also in line with an article, which appeared in the Urdu weekly magazine `Zindagi' for the period from 22 to 28 October, 1973 (Exh.34). But we have found that the above motive was not put to the appellants/convicts while they were examined under section 342, Cr.P.C. Furthermore the motive found by the trial Court is also based on some material on record.
Since the motive which was alleged by the prosecution has not been believed by the High Court and, as the appellants/convicts were not put any question under section 342, Cr.P.C., about the other motive found favour with the High Court, and as both the motives are discernible from the evidence on record, in our view, it would be just and proper to convert death sentences into imprisonment for life.
' We would, therefore, dismiss the above two appeals with the modification that the death sentences awarded to them would substituted by life imprisonment but we would impose a fine of Rs,30,000 on each of the appellants or in default to suffer R.I. For two years. We also direct that each of the appellants shall pay Rs,30,000 as compensation under section 544-A, to the legal heirs of the deceased or in default to suffer R.I. For two years. It is further ordered that if the above amounts of fine and compensation are realized, the same shall be apportioned into six portions and the legal heirs of each of the deceased will be paid, one of the above portions according to Muslim Personal Law.
' The above sentences would run consecutively. However, the appellants shall be entitled to the benefit of section 382-B, Cr.P.C.
' Appeal No,78 of 1988 filed by Muhammad Aslam stands abated upon his death as observed above.
27. We may now take up the acquittal appeal of the State against Imdadullah Unar.
' We have already stated hereinabove that we have declined the request of the State to withdraw the above appeal for the reasons referred to hereinabove in para. 7.
' The High Court has acquitted Imdadullah Unar on the ground that there was no reliable corroborative piece of evidence to corroborate the testimony of the approver against him.
However, it has concurred with the trial Court on the fact that the case diaries of the Goonda Act cases, namely, Cases Nos.24 and 25, both of 1973, which were pending in his Court against the deceased, were tampered with by him. We have also concurred with the above finding. The above finding is founded on the evidence of P.W.17, Abdul Rasheed, which is corroborated by the testimony of P.W.18, Bhoj Raj, the then Additional District Magistrate, Sanghar. We have also gone through the diaries of the above two Ghunda Act cases and we have noticed that though the above two cases were allegedly taken up together on 8-10-1973, but the diaries of the above two dates, in Case No,24 of 1973 are typed, whereas, the diaries for the above two dates in Case No,25 of 1973 are handwritten. We have also noticed that on 6-10-1973, the above cases were adjourned to 17-10-1973 but they were allegedly put up before Imdadullah Unar on 8-10-1973, when he allegedly recorded the following order:-- "Process issued against respondent Khan and Allandad received unserved with the endt. Of SHO, Shahpurchakar that both the respondents have been killed in Police encounter, on the night between 6 and 7-10-1973. Call the SHO and record his statement. Put off to 17-10-1973."
' This appears to be against the normal practice, namely, that a case comes up for hearing before a Court on the date mentioned in the last diary and it is not placed before the Court on an earlier date unless some urgent application is moved. We have also noticed that in the case diary dated 17-10-1973 of Case No,25 of 1973, the factum that deceased Khan and Allah Dad were murdered has been recorded and not the fact that they were killed in the encounter. The above diary reads as under:-- "17-10-1973 ' Respondents Mitho, Dhani Ram and Ismail confined in Central Jail Karachi not produced. Issue fresh production warrants. Statement of S.H.O. Shahpurchakar recorded. Since the respondents Khan and Allandad are murdered, the proceedings against the two respondents are abated. Put off to 30-10-1973."
' However, Mr. Minto was at pains to urge that there was no occasion for Imdadullah Unar to have fabricated the above diaries on 8th October, 1973, , as has been alleged by the prosecution, as this could have been done by him on 6th October, 1973, if he wanted to do so. It has been further urged by him that since P.W.17 Abdul Rasheed has not disputed the correctness of the above diaries dated 8-10-1973 and 17-10-1973, his statement about re-writing of the diaries of 17-7-1973 and 1-8- 1973 and taking dictation from Imdadullah Unar in respect of diaries of 15-8-1973, 18-8-1973, 8-9- 1973 and 6-104973, cannot be relied upon.
' In our view, the fact that Imdadullah Unar could have changed the diaries on 6-10-1973, would not, in any way, negate the factum that the diaries were changed on 8-10-1973. We may also observe that the diaries of 8-10-1973 and 17-10-1973 do not in any way, adversely reflect on the prosecution case as to the substitution of the diaries of the aforesaid dates. On the contrary, as pointed out hereinabove, in Case No,25 of 1973, in the diary of 17-10-1973, quoted hereinabove, the factum that the deceased had been murdered has been admitted, probably inadvertently.
' Mr. Minto has also urged that the prosecution case that P.W. Inayatullah, S.H.O., Shahpur Police Station was given notices under section 514, Cr.P.C. (Exhs.108 to 119 and 162 to 161), on 8-10-1973, in order to corroborate the substituted diaries, is untenable in view of the evidence of above P.Ws.
Inayatullah, S.H.O.
' In our view, it is not necessary to deal with this aspect of the case as it his been adequately dealt with by the trial Court. The testimony of P.W.18, Bhoj Raj, the then Additional District Judge, Sanghar, in support of the prosecution case on the above point seems to be reliable, besides the evidence of P.W.22, Muhammad Ismail, the Writer-Head. Constable at the Shahpur Chakar Police Station.
Additionally, once it is held that the above diaries were substituted and the deceased were shown absent, in place of being present, it would adversely react on the above notices and non-bailable warrants.
28. Mr. Abdul Hafeez Memon, learned counsel appearing for Mr. Unar, has vehemently urged that this Court should visualise the situation which was obtaining after the imposition of the Martial Law on 5-7-1977, namely, that a special team was constituted to investigate the case in question upon the registration of the F.I.R. Under reference. The object was to implicate as many persons as possible. According to him. Imdadullah Unar, while Deputy Commissioner, Sanghar, earned enmity of influential persons of Sanghar, District as he, according to Mr. Memon, acted firmly and dealt with them according to law. He has further submitted that a lot of pressure was put on Imdadullah Unar, while he was in jail, to make a statement that the above murders had taken place at the behest of late Zulfikar Ali Bhutto and. Mumtaz Ali Bhutto, but, since he did not yield to the above pressure, he was falsely implicated in the present case. He has also invited our attention to the various letters written by Imdadullah Unar inter alia addressed to the Chief Secretary, Sindh, Home Secretary, Sindh, etc., while he was in the jail, inviting the attention of the authorities that efforts were being made to obtain judicial confessions from the co-accused with the object to involve him in the case falsely. He has also invited our attention to the factum that Mir Muhammad Wassan, whose Manager (Muhammad Yaqoob) addressed the aforesaid complaint dated 11-10-1973 to the Inspector-General of Police, Sindh, and on 1-8-1977, to Lt.-Gen. Jehanzeb Arbab, Martial Law Administrator, Zone C, Karachi about the alleged murders, had personal motive to implicate Imdadullah Unar as, while he was the Deputy Commissioner, Sanghar, he had taken certain actions against him. He has further invited our attention to the fact that after the imposition of Martial Law, 10 (Exits. 297/3 to 297/12) were lodged by Mir Muhammad Wassan, Qazi Faiz Muhammad Rajar, Gui Hassan and others, falsely implicating Imdadullah Unar in the commission of heinous crimes like dacoity, etc. ' On the basis of the material on record, we cannot conclude whether the above F.I.Rs, were frivolous or they had any basis. However, it seems to be true that Imdadullah Unar, while he was posted as the Deputy Commissioner, Sanghar, had taken actions against Murids of Pk Pagaro, who at the relevant time, was the President of United Democratic Front, and who was not at good terms with the Government in power. He pressed into service Goonda Act indiscreetly against the Murids of Pir Pagaro and, therefore, it was, but natural, that the Murids of Pir Pagarp were not happy with him. Mr. Memon has also urged.That since Imdadullah Unar has been acquitted by the High Court, this Court will not interfere with the acquittal order unless it finds the same to be perverse, ridiculous, shocking. Reliance was placed by him on the case of Siraj Din v. Kala and another (PLD 1964 SC 26), Bashir Ahmad v. Muhammad Azam and another (PLD 1969 SC 469), Muhabbat Khan v.
Fateh Muhammad and others (PLD 1976 SC 593), Mian Saeed Baghdad v. Said Mian and others (1983 SCM R 117), Mst. Zahoor Fatima v. Muhammad Naeem and others (1988 SCM R 343 (at 345), Wali Asghar v. Abdul Qudoos and another (1988 SCM R 1066 (at 1068), and the case of Ghulam Sikandar and another v. Mamaraz Khan and others (PLD 1985 SC 11).
29. It is true that it has been consistently held by this Court that it will be slow/reluctant to interfere with an acquittal judgment unless it finds that the finding recorded by the Court/Courts below is perverse, shocking, ridiculous and cannot be supported by any view of the matter, nor this Court can interfere with an acquittal judgment merely on the ground that it would have taken a different view on the basis of the material available on record. Suffice to quote from the judgment of this Court in the case of Ghulam Sikandar (supra), wherein the present Chief Justice, Muhammad Afzal Zullah, then Acting Chief Justice, After referring to relevant case-law on the above subject, has formulated the following principles on the question in issue:-- "However, notwithstanding the diversity of facts and circumstances of each case, amongst others, some of the important and consistently followed prinicples can be clearly visualised from the cited and other case-law on the question of setting aside an acquittal judgment by this Court. They are as follows:--
(1) In an appeal against acquittal the Supreme Court would not on principle ordinarily interfere and instead would give due weight and consideration to the findings of the Court acquitting the accused. This approach is slightly different than that in an appeal against conviction when leave is granted only for the reappraisement of evidence which then is undertaken so as to see that benefit of every reasonable doubt should be extended to the accused. This difference of approach is mainly conditioned by the fact that the acquittal carries with it the two well-accepted presumptions: One initial, that, till found guilty, the accused is innocent; and Two that again after the trial a Court below confirmed the assumption of innocence.
(2) The acquittal will not carry the second presumption and will also thus lose the first one if on points having conclusive effect on the end result the Court below: (a) disregarded material evidence; (b) mis-read evidence; (3) received such evidence illegally.
(3) In either case well-known principles of reappraisement of evidence will have to be kept in view when examining the strength of the views expressed by the Court below. They will not be brushed aside lightly on mere assumption keeping always in view that a departure from the normal principle must be necessitated by obligatory observances of some higher principles as noted above and for no other reason.
(4) The Court would not interfere with acquittal merely because on reappraisal of the evidence it comes to the conclusion different from that of the Court acquitting the accused provided both the conclusions are reasonably possible. If however, the conclusion reached by that Court was such that no reasonable person would conceivably reach the same and was impossible then this Court would interfere in exceptional cases on overwhelming proof resulting in conclusion and irresistible conclusion; and that too with a view only to avoid grave miscarriage of justice and for no other purpose. The important test visualised in these cases, in this behalf was that the finding sought to be interfered with, after scrutiny under the foregoing searching light, should be found wholly as artificial, shocking and ridiculous."
30. The High Court has discarded the above corroborative piece of evidence against Imdadullah Unar available on record, namely, tampering with the diaries of the above two Goonda Act cases after the commission of the offence by holding that: "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 Imdadullah 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 record. This may be most dishonourable, but while considering charge of murder, this evidence would not be sufficient."
' We may not agree with the above reasonings of the High Court, but the question arises, whether the same would justify our interference with the acquittal judgment. This is dealt with later on hereinbelow.
' We may also deal with the question, whether 6 retracted confessions can be used as a corroborative piece of evidence. We have already held hereinabove that 4 retracted confessions out of above 6, are exculpatory, and, therefore, the same cannot furnish the required corroboration.
But two inculpatory confessions made by appellants/convicts Abdul Ghafoor and Muhammad Muneer could have been pressed into service, but there seems to be discrepancy on certain material facts, namely, on the question, whether Jam Sadiq Ali Khan, Imdadullah Unar and Ghulam Shabbir Kalyar were present at Police Station, Sanghar, at mid-night on 6-10-1973, when the deceased were taken out of the Police Station for the place of Wardat and, whether they also went in a jeep with the Police vehicle to the place of Wardat. In the above two inculpatory confessions the answers to the above questions are in the affirmative. But neither the complainant Yaqoob in his first complaint dated 11-10-1973 stated so, nor the approver in his police-statement, made any such averment nor P.W.9, Jamal Din, P.W.10, Zainuddin, police guard at the Police Station lock-up and P.W.11, Khaliluddin, Police Head-Wtiter, in their testimony before the trial Court stated so.
However, P.Ws. Ghazi Khan and Ghulam Yasin in their statements have made assertions in the affirmative in respect of the above factual aspect. In view of the above state of record, it would not be safe to use the above two inculpatory retracted confessions as a piece of corroborative evidence to the approver's testimony.
' There is yet another piece of evidence on record against Imdadullah Unar, namely, his conduct of absconsion from the stage of arguments before the trial Court and his reappearance after the High Court recorded acquittal in his favour. In this regard, it may be pertinent to observe that it has been consistently held by the superior Courts that if the prosecution wishes to rely upon the act of absconsion on the part of an accused person, the latter should be put a question about it when he is examined under section 342, Cr.P.C. so that he may explain his above conduct. So, unless we order re-examination of Imdadullah Unar under section 342, Cr.P.C., the above conduct cannot be used as a corroborative piece of evidence. Furthermore, a distinction is to be drawn between a case in which an accused person immediately after the commission of the offence absconds and a case in which he absconds at the stage of arguments in the trial Court. The former having close proximity with the commission of the offence would carry more evidentiary value as compared to the latter.
' According to Mr. Abdul Hafeez Memon learned counsel for Imdadullah Unar his client absconded because he apprehended that, he would be killed by the complainant party. It is not necessary for us to go into the merits of above submission.
' The case of Imdadullah Unar seems to be distinguishable from the appellants/convicts as he had not taken part in the actual killing, he was convicted under section 302/109, P.P.C. We may again observe that both the, Courts below have held that the charge of conspiracy under section 120-B, P.P.C. Has not been proved against any of the accused. In view of the above negative concurrent finding on the question of conspiracy, there should be some other reliable evidence on record to link Imdadullah Unar with the factum of killing of the deceased in order to make him vicariously liable, which seems to be missing.
We are, therefore, of the view that even if we were to take a different view from the view found favour with the High Court as to the guilt of Imdadullah Unar on the basis of material on record, it would not be a ground to interfere with the acquittal judgment unless we find that the same is perverse, or ridiculous or shocking or founded on misreading of the evidence and that the same cannot be sustained in any view of the matter, which is not the case. We would, therefore, decline to interfere with the above acquittal judgment keeping in view the above-settled propositions of law. We would, therefore, dismiss the above acquittal appeal.
31. Before parting with the above discussions, we may observe that we have not received proper assistance in the above acquittal appeal as neither the State has prosecuted the above acquittal appeal nor anyone on behalf of the complainant party has appeared before us for assisting the Court. So we had to examine the above acquittal appeal in detail ourselves.
' SALEEM AKTHAR, J.---I agree.
' SAJJAD ALI SHAH, J.---I agree with conclusions arrived at by my learned brother, Ajmal Mian, J., in his elaborate judgment, ably written, covering all points. However, on two legal points, I would like to append my own separate note.
2. On the record are placed papers which show that my learned brother Ajmal Mian, J., as Chief Justice of Sindh High Court, granted bail before arrest to Jam Sadiq Ali Khan, vide order dated 7-6- 1989, in Criminal Bail Application No,379 of 1989. By this order, case was transferred to the Court of learned District and Sessions Judge, Hyderabad, who has been directed to proceed, with the matter in accordance with law for concluding the trial. Registrar of the High Court has been directed to take steps to' ensure that R&P of the concerned Sessions case is transferred to the transferee Court. It appears that case could not proceed for the reason that the record was in the Supreme Court in connection with hearing of appeals arising therefrom.
3. There is on the record, copy of order dated 26-9-1991 of learned Sessions Judge, Hyderabad, whereby in Sessions Case No,252 of 1981, he has permitted withdrawal from prosecution case against Jam Sadiq All Khan under section 494, Cr.P.C. It is mentioned in the said order that Government of Sindh, Home Department, Karachi, vide Letter No, VI(5)SOJ/91, dated 29-6-1991, addressed to District Magistrate, Hyderabad, intimated that Government of Sindh, has been pleased to decide that the subject case be withdrawn. It would be pertinent to mention that at the relevant time, Jam Sadiq Ali was heading that Government as Chief Minister.
4. Legal requirement of section 494, Cr.P.C., as it stands now is that any Public Prosecutor may, with consent of the Court, before judgment is pronounced, withdraw from prosecution of any person. If in that case, charge has been framed, accused shall be discharged and if charge is not framed, then he shall be acquitted. While dealing with this point; my learned brother, Ajmal Mian, J., has observed, and I am in total agreement with him, that State or the Public Prosecutor does not have absolute power to withdraw a criminal case unless there is consent from the Court. On the other hand, Court is obliged to apply its mind to the question, whether request for withdrawal is bona fide, warranted by facts of the case and is intended to foster cause of justice and is not made in bad faith with the object to favour an accused person at the cost of the victims of the criminal offence involved. My learned brother has further observed that since the case of Jam Sadiq Ali Khan is not before us, we would not like ourselves to express on the question whether the grant of the above application by the learned Sessions Judge was warranted in the circumstances of the case.
5. In so far as last observation of my learned brother, is concerned, as stated above, I would like to state that order passed by learned Sessions Judge allowing withdrawal of the case is on the record in which it is stated in paragraph 8, that the case of Jam Sadiq Ali is at par with that of co-accused, Shah Nawaz Junejo and Muhammad Hassan Junejo, who have been acquitted by the trial Court and that of Imdadullah Unar and Ghulam Shabbir Kalyar, who have been acquitted by the High Court. Further, criminal conspiracy was not proved, hence it would be an exercise in futility if the entire evidence is again repeated before the trial Court. Now, so far acquittal of Imdadullah Unar and Ghulam Shabbir Kalyar, is concerned, at the time when' this order was passed by the learned Sessions Judge, appeal against their acquittal was pending in the Supreme Court and requests for withdrawal of that appeal had been declined. Since the appeals were pending in the Supreme Court, which was seized of the matter and the whole evidence was under reappraisement,question arises whether it was proper for the trial Court to allow withdrawal from prosecution.
6. Secondly, even record was not available in the trial Court as it was in Supreme Court in connection with hearing of the appeals and the order has been passed in the absence of the record. Request could have been made to the Supreme Court for sending the record to the trial Court to allow withdrawal from prosecution, which was being sought.
7. Thirdly, it is mentioned in the order of learned Sessions Judge that complainant, Yaqoob Sanjrani did not like to proceed with the case against the accused and as such made an application to the Home Secretary, Government of Sindh, for withdrawal of the case. Question arises whether complainant has locus standi to withdraw from posecution and whether he is related to six deceased persons. In his evidence, he has not claimed any particular and specific relationship with deceased persons.
8. At the time when this order was passed by the learned Sessions Judge on 26th September, 1991, several sections in Pakistan Penal Code from 299 to 338, P.P.C., covering cases of hurt and murder, stood amended acting upon the Islamic principle that in such cases compromise can be made with the consent of victim and in his absence, his heirs. Reference can be made to section 345, Cr.P.C., which is also amended to provide that such offences as mentioned above can now he compounded by the victim or his heirs, as the case may be. On this point, at this stage, I would not like to go in detail for the reason that it was not specifically agitated as such and secondly, assuming for the sake of argument that since section 494, Cr.P.C. Is not amended so far to bring it in line with and make it consistent with the substantive provisions of P.P.C., which have been amended, so benefit under it is still available even then the legal requirement under section 494 is that withdrawal is permitted with consent of W the Court and the Court is expected to give consent only after making objective assessment of facts of law points and for valid and cogent reasons.
This requirement does not appear to be fulfilled. In any case, this point has now assumed the nature of academic interest only for the reason that Jam Sadiq Ali Khan has passed away and in the result, proceedings against him stand abated.
9. Second point on which I would like to make a short comment is the plea of encounter, taken in defence. My learned brother, Ajmal Mian, J., has held in the main judgment and I agree with him that in the present case there was no encounter, hence question of exercise of right of private defence by convicts does not arise. Mr. Abid Hassan Minto, learned ASC for the Appellants Chaudhry Muhammad Yaqoob and Muhammad Munir in Criminal Appeal No,75 of 1988 submitted that convicts have taken the plea of private defence and their version of incident is that deceased persons were armed and first opened fire on Police and the Police while exercising the right of private defence, fired from their guns and ultimately, after cross-fire, six persons died and from Police Party, two were slightly injured. In Pakistan Penal Code, sections 96 to 106 pertain to right of private defence of body and property. Section 99, P.P.C. Provides that there is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done or attempted to be done, by public servant, acting in good faith under colour of his office, though that act may not strictly be justifiable by law. Section 100, P.P.C. Extends right of private defence of body to causing death of aggressor. Since right of private defence is pleaded, it is incumbent upon the defence to produce material to cast doubt in the version of incident given by the prosecution. Of course, it goes without saying that it is the duty of prosecution to prove its case beyond doubt regardless of fact whether defence has been able to prove its case or not.
Burden of prosecution never shifts to the defence but if assertion is made by the defence, then it is to be carried further to create doubt in the credibility of the prosecution case.
10. From the evidence brought on record, defence has not succeeded in showing anything near to encounter as is alleged by them. On the contrary, evidence and circumstances show that story of encounter with Police is factually incorrect. If six deceased persons were outlaws and wanted criminals and were hiding on the night of incident, then on seeing the headlights of Police vehicle, they would have concealed themselves so that they could not be spotted. If it was correct that deceased persons fired first, then victims would have been from the police party for the reason that they had torches and they lighted torches offering themselves as convenient targets. There were no marks of firing on the police vehicle or the other jeep.
11. On behalf of defence of appellants/convicts, reliance is placed on six reported cases which are as under:--
(i) Safdar Ali v. The Crown PLD 1953 FC 93; (ii) Muhammad Fazlul Karim v. The State PLD 1964 SC 792;
(iii) Elahi Bux and another v. The State 1969 SCM R 584; (iv) Wali Muhammad v. The State 1.969 PCr.LJ 1185; (v) Muhammad Naeem alias Gogi v. The State 1990 PCr.LJ 1607 and (vi) Mumtaz v. The State 1990 PCr.LJ 2055.
12. My learned brother, Ajmal Mian, J., has distinguished these cases on facts and I would like to add only one point that in all these reported cases, in the incidents mentioned therein, private parties are involved and in none of these cases, there was encounter with police party as is alleged in the instant case. These cases therefore, do not come to the rescue of the appellants/convicts.
13. Mr. Abdul Ghafoor Mangi, AA.-G. Submitted before us that after the incident which took place on the night between 6/7-10-1973, entry was made in the police diary about encounter with police and matter was investigated by Inspector, Mir Muhammad Lashari of C.I.A., San. Har, who prepared Mashirnama of Wardat, noted injuries of two constables, got dead bodies identified by Saifal and Dhangano and recorded statements of Police Constables and officials and two witnesses from public, namely, Sher Muhammad and Ghulam Oadir, who were picked up by police party for Nakabandi proceedings. After investigation, report was filed under section 173, Cr.P.C. For cancellation of case. It has been pointed out by Mr. Mangi that trial Court in its judgment has incorrectly stated that order was obtained under secti on 169, Cr.P.C. Showing that it was the case of no evidence.
14. It is in the evidence that immediately after the incident, police officials who took part in the encounter, as is alleged by defence were rewarded and promoted even before the final order was passed under section 173, Cr.P.C. By the Magistrate. This state of affairs shows that if police claims encounter then the matter is not subjected to scrutiny by any Court of law but is investigated in a formal manner by the police themselves and order is obtained under section 173, Cr.P.C. For cancellation of the case. There is no warrant of law or legal justification for police encounter. It is apparent that undue advantage is taken of the situation for the reason that no F.I.Rs, are filed or allowed to be filed by the relatives of the deceased against police officers. Under such circumstances, police feels absolutely secure that of their action which is proclaimed as police encounter, no judicial scrutiny can be made by a Court of law, hence immediately after the incident, such police officials who take part in the killing are rewarded and promoted, which provides as a seal of approval and legal sanctity on the killing even if it is calculated, pre-planned and intentionally done. This gives the police a free licence to kill any person they want and then manipulate a story of encounter and no further questions can be asked by any Court. It is a sorry state of law and it is high time that Legislature should amend the law in such a way as to make police answerable before a Court of law to satisfy that Court that encounter was genuine and attack was opened on police party by aggressors first, who have been killed.
15. Under the law, after registration, if plea of private defence is taken, then such plea is to be considered by the Sessions Court or its equivalent in juxtaposition with prosecution case and then it is left open to the trial Court o accept that plea or not. As against that if plea is taken of encounter with police, then the Court does not get an opportunity to consider the plea in the same manner and at par with case between private persons in which F.I.R. Is registered, for reasons already stated above. Of course, remedy of filing direct complaint in the Court is available but that is not pressed into service for the reason that relatives of deceased in such circumstances feel afraid of reprisal or revenge of police and their pressure tactics. In such circumstances, it would be better to amend the law in such a way that such cases of police encounters be allowed to be investigated by independent agencies and presented in the Court of law at the level of Sessions Court for examination and consideration of such plea strictly according to law.