ALLAH DENO G.MEMON, J.- The appellants were charged under Section 307/34 PPC and tried before the learned Judge, Special Court (Suppression of terrorist Activities), Hyderabad, who has convicted and sentenced them to suffer R.I. For seven years and to pay fine of Rs.1000/- each, in default of payment of fine they were to suffer further R.1 for one year vide judgment dated 10th April 1991.
2. The brief facts giving rise to the present appeals are that one Chaudhry Mohammad Ashraf was kidnapped from Taluka Digri and FIR under Section 365-A PPC was lodged being Crime No.01/1990 at P.S. Digri. On 10-1- 1990 SHO Moula Bux, SIP Khuda Bux of Police Station Digri left P.S. Alongwith their staff in connection with investigation of the above case. SHO Ghulam Rasool of P.S. Jhudo alongwith the subordinate staff and Inspector Khuda Dino of CIA alongwith his subordinate staff also joined them. On the way the SHO received spy information that some accused persons alongwith the victim of kidnapping were sitting in Devi Jungle in Deh 141 and as such SHO Moula Bux formed 4 parties and surrounded the jungle. It was 6 P.M. In the evening when they saw two persons, one armed with kalashnikov and other with a Pistol, who on seeing the police party started firing at them. The police party also fired in self- defence. The encounter continued for about 10 minutes and ultimately the police party caught one of the dacoits who was aimed with Kalashinkov, while the co- accused who was armed with a Pistol made his escape good. They also rescued victim Mohammad Ashraf. The person who was arrested disclosed his name as Chakar and the co-accused as Sahib Khan Khokhar. Accused Chakar was arrested and a Kalashinkov, two empty magazines, and a Regazine Thella containing 30 Bullets were recovered from him. The accused had no licence and therefore, he was arrested. The SHO also recovered 26 empty bullets of Kalashinkov and 5 empty cartridges of 12 bore Pistol from the wardat and prepared such mashirnama. Thereafter accused Chakar, Kalashinkov and the ammunition were brought to the P.S. Where SHO Moula Bux lodged two separate FIRs one under Section 307/34 PPC and the other under Section 13-D of the Arms Ordinance.. That during the investigation appellant/accused Sahib Khan was arrested on 22- 11-1990 and his identification test was held through PWs Chaudhry Mohammad Ashraf and his son Javed Iqbal on 29-11-1990. After necessary investigation the case was sent up before the Court.
A formal charge was framed against the appellants to which they pleaded not guilty.
At the trial prosecution examined SHO Moula Bux PW 1, he has produced mashirnama of arrest recovery as Ex.10 and FIR as Ex. 11 H.C. Mohammad Yousuf PW.2, H.C. Allah Jurio PW3, SIP Sher Mohammad PWA, Inspector Sher Khan PW3, victim Mohammed Ashraf PW.6, mashir Ghulam Dastagir PW.7, Mr. Abdul Razzak Assistant Mukhtiarkar and TCM, Digri PW.8, who has produced mashirnama of identification test as Ex.22, SHO Karimdino PW.9, who had arrested co-accused Shahib Khan and has produced mashirnama of arrest as Ex.24, Mashir Ali Asghar ASI PW.10, who had acted as mashir of arrest of accused Sahib Khan, Javed Iqbal son of Chaudhry Mohammad Ashraf PW. LI.
3. After close of the prosecution case the statements of the appellants were recorded in which they have denied the allegations. Appellant Chakar has further stated that he was arrested from his village as stated by S.P. Tharparkar in his Press Conference which was published in daily Ibrat. At that time of Mitho Pitafi and Mohammad Maschhi were with him. He produced the newspaper as Ex.29 and has also examined Mitho as DW.1. Accused Sahib Khan has further stated that he was arrested by police from his house and involved in this case. He has examined one Imam Bux DW-2 in his defence.
The learned Judge, Special Court, after taking into consideration the evidence produced by the prosecution has convicted the accused/appellants as described above, and the present appeal is directed against the above judgment of conviction.
4. We have heard Mr Ahmed Khan Barakzai learned counsel appearing for the appellant Sahib Khan, Mr. Mohammad Ashraf Leghari learned counsel appearing for the appellant Chakar, Mr. Zaheer Qureshi learned counsel appearing for the State, and have gone through the R & P of the case very carefully.
Complainant Moula Bux PW.1 has reiterated the facts mentioned by him in the FIR. He has further stated that accused Chakar had disclosed the name of other culprit as Sahib Khan Pitafi. In cross- examination he has deposed that they had met mashirs Ghulam Dastagir and Abdul Sattar at Dumbalo. He could not say whether they had seen the incident. Both the mashirs were with them.
He had not recorded the statements of the mashirs. He has denied a suggestion that mashirs were not present on the spot and that he had prepared mashirnama at the police station. He had seen the faces of both the accused but has not mentioned the description/physical features of the accused who escaped. No body was injured. He has denied that there was no encounter and he had shown false wardat.
H.C. Mohammad Yousaf PW.2, H.C. Allah Dino PW3, SIP Sher Mohammad PWA, Inspector Sher Khan PW.5, Mohammad Ashraf victim of the main case PW.6, and Mashir Ghulam Dastagir have supported the prosecution case with regard to encounter and arrest of appellant Chakar.
5. Appellant Sahib Khan was put to identification test on 29-11-1990 and victim Mohammad Ashraf and his son Javed Iqbal were able to identify him in the test which was held through Mr Abdul Razzak Memon Assistant Mukhtiarkar and TCM Digri.
It was contended by Mr Ahmed Khan, Barakzai learned counsel appearing for appellant Sahib Khan, that no identification test of the appellant was held through the witnesses who belonged to police department as well as through Mashir Ghulam Dastigar PW.7. It was further contended that none of the above witnesses had given description of the accused who is said to have escaped from the wardat and therefore, their evidence with regard to identity of appellant Sahib Khan was doubtful. He has further contended that admittedly Javed Iqbal PW. Ll is son of victim Mohammed Ashraf and was not present at the place of incident and therefore, his evidence regarding identity of appellant Sahib Khan was of no value, even he does not say that appellant Sahib Khan was one of the culprits who had fired at the police. It was further contended that according to Mohammed Ashraf PW.6 as stated in cross-examination that his eyes were tied when there was encounter $nd therefore, his evidence that appellant Sahib Khan had fired at the police was unreliable.
6. Mohammed Ashraf Leghari learned counsel appearing for appellant Chakar has contended that the case against Chakar was false and he was involved due to enmity. It was further contended that the allegation that appellant Chakar was arrested alongwith victim Mohammad Ashraf is belied by the press Conference held by S.P. Tharparkar immediately after the recovery of victim Chaudhry Mohammad Ashraf. In this connection he has relied upon Newspaper Ibrat produced as Ex. Ll.
Mr. Zaheer Qureshi learned counsel appearing for the State has contended that the prosecution had proved its case against the appellants beyond reasonable doubt and they have been rightly convicted.
We have considered the contentions, looking to the nature of evidence produced by the prosecution it will be appropriate if the cases of two appellants and the evidence produced against them is considered separately. As far as case of appellant Sahib Khan was concerned, the evidence of members of police party and mashir Ghulam Dastagir is of little value against him as no identification test was held through the said witnesses nor they had given any descriptions of the appellants in their police statements. In this connection reliance is placed on Kak alias Abdul Razzak V. The State P.L.D. 1965 (W.P.) Karachi 31, wherein Division Bench of this Court was pleased to observe that: 'When the appellant was not put up for identification through a particular witness, his evidence is not of much value with regard to the identity of the appellant'.
As far as PW Javed Iqbal was concerned, even according to the prosecute he was not present at the time of incident nor he has stated in the Court that he was present at the time of alleged encounter and therefore, his evidence is of no value against the appellant.
Adverting to the evidence of PW Ashraf it will suffice to say that on (me hand his eyes were tied down and therefore, he could not see whether appellant Sahib Khan had also fired at the police and on the other hand his evidence is not corroborated from any other quarter. Moreover he had also not given the description of appellant Sahib Khan before the police and the identification test was held after long delay of about 10 months and 10 days and therefore, no reliance can be placed cm the same. In the case of Ramzan and Others V. Emperor A.I.R. 1929 Sind 149, it was observed by a Division Bench of Sind Chief Court that: 'Identification tests are a form of evidence which is always to be taken with a considerable amount of caution and they are as a rule, not quite sufficient to form &e basis of a conviction, though they may perhaps add some weight to other evidence against an accused person".
Even according to prosecution the appellant was arrested on 22-11-1990 and the identification test was held on 29-11-1990, and there was no explanation for delay in holding the identification test. In view of the above factual as well as legal position, we are of the considered view that the prosecution had failed to prove its case against appellant Sahib Khan beyond reasonable doubt, and therefore, his appeal is allowed, conviction and sentence are set aside and he is acquitted of the charge. He shall be released forthwith if not required in any other case.
7. As far as appellant Chakar was concerned, the allegation against him was that he was caught by the police alongwith Kalashinkov, two empty magazines and a regazine Thella containing 30 bullets. The prosecution evidence further shows that there was encounter between the appellant and the police and appellant Chakar was arrested immediately thereafter alongwith the Kalashinkov. Number of witnesses have supported the prosecution case, and unfortunately the witnesses were not properly cross-examined on the point of defence taken by the appellant. The newspaper cutting from daily Ibrat dated 12th January 1990 does show that a press conference was held by S.P. Tharparkar that three persons were arrested from their village including appellant Chakar. However, no newspaper reporter was examined nor any person present in the news conference was examined to prove the contents of the newspaper, and therefore, we are of the considered view that the prosecution had proved its case against the appellant and he was rightly convicted.
However, we have given our anxious consideration to the question of sentence, it is an admitted position that no one was injured in the encounter and it was a case of ineffective firing. We, therefore, maintain the conviction of appellant Chakar but reduce the substantive sentence from seven years to three years R.I, while the sentence of fine Rs.1000/- is maintained, in default of payment of fine the appellant shall suffer further R.I. For two months. Appellant Chakar is further allowed benefit of provisions of Section 382-B Cr.P.C, for the period he has remained in custody as under trial prisoner and after conviction.
The appeal of appellant Sahib Khan is allowed and he is acquitted of the charges, while appeal of Chakar is dismissed with modification in sentence as well as in fine.
We had decided the above appeal on 14-7-1991 by a short order and these are the reasons for the same.