' SYED DEEDAR HUSSAIN SHAH, J.--- On 4-9-1997 after hearing learned counsel for the parties, by short order, the appeals were allowed and convictions were set aside. We now proceed to record the reasons for the same.
2. Both these appeals are being disposed of by this common order which are outcome of same crime viz. Crime No,48 of 1993 Police Station, Naudero and a common judgment delivered by Judge, Special Court for Suppression of Terrorist Activities, Larkana, dated 15-2-1995.
3. Appellants were convicted to suffer imprisonment for life for an offence under section 365-A read with section 149, P.P.C. And sections 307, 324 read with section 149, P.P.C. And their entire property was also ordered to be forfeited in fivour of Provincial Government under section 365-A read with section 149, P.P.C. Appellants were further convicted and sentenced to suffer R.I. For seven years each and fine of Rs,10,000 each or in default to undergo further R.I. For one year each under sections 307, 324 read with section 149, P.P.C. Both the appellants were ordered to pay Rs,10,000 each to the four injured witnesses namely Aijaz Ali, Abdul Ghafoor, Mir Gul and Bashir Ahmed as compensation. Being aggrieved and dissatisfied with the above judgment, appellants filed these appeals.
4. The brief prosecution story is that complainant Ghulam Sarwar lodged F.I.R. With Naudero Police on 20-8-1993 stating therein that complainant alongwith his son Aijaz Ali and two co-villagers namely Bashir Ahmed and Muhammad Rafique besides children were watching television in their Otaq at about 8-30 p.m. When five culprits entered their Otaq through main gate of whom four had a Klashnikov each while fifth was armed with rocket launcher. Those dacoits caught hold of Aijaz Ali and dragged him out of Otaq on which complainant party raised hue and cry which attracted villagers. The exchange of firing took place between the villagers and the dacoits at the outskirts of the village resulting injuries to the abovenamed three persons excepting Aijaz Ali. During incident one dacoit also received injuries and fell down while rest of the dacoits was able to abduct Aijaz Ali towards adjoining fields. After covering some distance when the dacoits came to know about the injuries to one of their companions, they also caused injuries to P.W. Aijaz Ali and went away leaving him in injured condition. Complainant Ghulam Sarwar removed injured prosecution witnesses to Police Station Naudero where he lodged the report. After lodging of the F.I.R. The injured were referred to hospital for examination, treatment and certificate.
5. Police inspected the scene of offence and secured empties of klashnikov rounds, cartridges and a fired head of rocket launcher. One dacoit who was lying injured had a photostat copy of National Identity Card in the name of Gul Bahar which was secured from his pocket. A.S.-I. Also inspected the injuries on the persons of abovenamed prosecution witnesses as well as injured dacoit and examined the witnesses.
6. Abductee Aijaz Ali returned to his village having injuries on next day morning who was examined by the police. The injured culprit was referred to hospital who subsequently succumbed to his injuries. P.W. Aijaz Ali was also referred to hospital for examination and treatment. Appellant Hazar Khan was arrested on 17-9-1993 from his Otaq in presence of Mashirs and it is alleged that this appellant Hazar Khan voluntarily produced SBBL shot gun and four live cartridges. On 18-9-1993 identification test was held by Assistant Mukhtiarkar, Ratodero in which Ghulam Sarwar, Muhammad Ibrahim and Mir Gul are alleged to have picked out appellant to be responsible for the commission of offence in the case. On 18-9-1993 Mukhtiarkar and F.C.M., Ratodero recorded 164, Cr.P.C. Statements of abovenamed witnesses in presence of accused Hazar Khan. On 19-9-1993 appellant Hazar Khan is alleged to have given confessional statement before the Mukhtiarkar and F.C.M., Ratodero. After usual investigation, appellant Hazar Khan was challaned in the Court on 3- 10-1993 showing appellant Sikandar and five others as absconding accused against whom N.B.Ws.
Were issued.
7. Appellant Sikandar was arrested on 31-1-1994 and on 13-2-1994 complainant Ghulam Sarwar and P.W. Mir Gul are stated to have identified this appellant in the identification test held by the Assistant Mukhtiarkar/T.C.M., Ratodero. Appellant Sikandar was produced in the Court on 14-2-1994 with supplementary charge-sheet. Court on 21-2-1994 passed an order for amendment of charge and the same was amended. Both appellants pleaded not guilty, Prosecution examined in all 15 witnesses out of 17 shown in the list of witnesses while learned Special Public Prosecutor closed the side of prosecution vide his statement at Exh.26.
8. Both the appellants in their respective statements recorded under section 342, Cr.P.C. At Exh.27 and Exh.28 denied the charges framed against them. They denied to have entered in the Otaq of complainant Ghulam Sarwar or to have abducted P.W. Aijaz Ali in order to extort ransom from his relatives or to have fired upon and caused injuries to P.Ws. Aijaz Ali, Mir Gul, Bashir Ahmed and Abdul Ghafoor with intention to commit "Qatl-i-Amd". They have further denied that accused Gul Bahar (since dead) was their companion. They have also denied their arrest as well as holding of identification test. Appellant Nazar Khan further denied recording of 164, Cr.P.C. Statements of witnesses in his presence as well as to have confessed his guilt voluntarily. He alleged that he was maltreated and forced by the police and his thumb-impression was obtained by the police forcibly. Both the appellants have neither examined themselves on oath nor produced any witness in their defence.
9. Prosecution in support of their case, examined Ghulam Sarwar the complainant P.W.1 Exh.10 who produced F.I.R. As Exh.10-A, Abdul Ghafoor P.W.2 Exh.11, Bashir Ahmed P.W.3 Exh.12, Ali Gohar P.W.4 Exh.13, he acted as Mashir of Vardat and produced the memo. At Exh.13-A and also acted as Mashir of injuries on the person of Amir Bux alias Miral, Bashir Ahmed, Abdul Ghafoor and produced the Mashirnama of injuries at Exh.13-B and also acted as Mashir of recovery of National Identity Card from injured dacoit at Exh.13-C and also produced Mashirnama of Vardat where injured dacoit was lying, as Exh.13-D and also acted as Mashir of injuries on the person of P.W. Aijaz Ali as Exh.13-E, Amjad Ali Shah doctor was examined as P.W.4 Exh.14 '.'ho was posted as Medico-legal Officer, Civil Hospital, Larkana when S.H.O., Police Station Naudero referred Aijaz Ali for treatment and certificate.
He produced the medical certificate as Exh.14-A. Aijaz Ali was examined as P.W.5 Exh.15. Special A.P.P. Incharge of the case submitted statement thereby giving up P.Ws. Gul Muhammad, Muhammad Ibrahim and Muhammad Rafique on the ground that their evidence was similar as those of eye-witnesses already examined by the Court and moreover they were not supporting the prosecution case, as Exh.16, but the learned trial Court allowed the request only for Gul Muhammad.
Dr. Azizur Rahman was examined as P.W.7 Exh.17 who had examined injured Gul Bahar and according to him the patient (dacoit) expired on 25-8-1993 at about 4-45 a.m. He produced his chart of Emergency Surgical Unit No,1 as Exh.17-B. On the same day police was informed about the death of Gul Bahar. Police prepared inquest report of Gul Bahar and requested for conducting post-mortem. He started the post-mortem at 9 a.m. And finished at 10 a.m. S.H.O. Informed him that the name of father of deceased was actually Habibullah and not Abdul Rahman. He produced the letter of Dr. Ghulam Mustafa as Exh.17-A and post-mortem notes Exh.17-D. Mushtaq Ali Solangi was examined as P.W.8 Exh.18 who supervised the identification of accused Hazar Khan in Crime No,48 of 1993 and the identification test was held through P.Ws. Ghulam Sarwar, Muhammad Ibrahim, Muhammad Rafique and Mir Gul. He produced the memo. Of identification test as Exh.P.18- A, Dr. Ghulam Mustafa Khuhro, Medical Officer, Rural Health Centre, Naudero was examined as P.W.9 Exh.19 who stated that S.H.O. Naudero referred three injured persons namely Abdul Ghafoor, Bashir Ahmed and Mir Gul (Mir Muhammad) for treatment and certificate. He examined Abdul Ghafoor and found one lacerated punctured wound. The nature of injury was kept reserved. The injury was caused by fire-arm. He also examined P.Ws. Mir Muhammad and Bashir Ahmed and also found injuries by fire-arm on their person. He produced such certificate as Exhs.19-A, B and C and final opinion about the reserved injury of Abdul Ghafoor injured to be grievous one as Exh.19-D.
Nazir Ahmed was examined as P.W.10 Exh.20 who recorded the F.I.R. Lodged by Ghulam Sarwar for the abduction of his son from his village Panjoo Dero from his Otaq. He referred the injured to hospital after preparing the Mashirnama of injury in presence of Mashirs. He also inspected the place of Vardat situated in the Otaq of complainant. He also inspected the place where encounter was reported between dacoits and villagers and secured six empty cartridges of .12 bore shot gun from where villagers had fired towards dacoits. He also secured 12 empty rounds of klashnikov at some distance from street where dacoits were reported to be present and had fired upon villagers.
He also found one culprit lying unconscious in the fields near girls school of the village. He conducted personal search and recovered N.I.C. In the name of Gul Bahar. The dacoit was having injury on his forehead. He prepared memo. Of inspection of Vardat in presence of Mashirs Ali Gohar and Fida Hussain. He also prepared memo. Of injuries on the person of accused dacoit. He also secured blood-stained earth from the place where the villagers were injured and dacoit Gul Bahar was lying. He also recorded statements of witnesses. According to this witness, on the next day abductee Aijaz Ali arrived at hospital at Larkana in his presence and he examined his injuries and prepared such memo. In presence of Mashirs. Mahtab Ali Shah, Head Constable was examined as P.W.11 Exh.21. He has stated that on 17-9-1993 he was posted as Head Constable and on that day accompanied S.H.O. In police mobile and went towards village Palijo in District Shikarpur where S.H.O. Raided the Otaq of appellant Hazar Khan and arrested him and brought him to police station.
According to him, S.H.O. Interrogated appellant/accused and during interrogation the said Hazar Khan volunteered to produce crime weapon. They left police station in police mobile vide station diary No,9 and police recovered shot gun and four live cartridges from the dry water course near shrine of Pir Abdul Khair at his pointation. Appellant took out one shot gun and four live cartridges from lai bushes but he could not produce valid licence for the same. He also produced Mashirnama of arrest as Exh.21-A and Mashirnama of recovery of shot gun as Exh.21-B. Warial Shah, S.H.O., Police Station Bagirji was examined as P.W.12 Exh.22. According to him, he arrested injured accused dacoit Gul Bahar on the identification of Soomar Mirbahar in the hospital at Larkana in Casualty in presence of Mashir A.S.-I. Nazir Ahmed and P.C. Shahmir. He prepared such memo. On 25-8-1993 he received telephonic message from Dr. Aziz about the death of Gul Bahar and prepared the inquest report and after post-mortem, he handed over dead body to Edhi Welfare Trust for burial. On 17-9-1993 he arrested accused appellant Hazar Khan from his Otaq and prepared memo. Of arrest of appellant and also in presence of Mashirs recovered shot gun at his pointation from dry watercourse Dodo Wah near shrine of Pir Abul Khair and prepared such Mashirnama as Exhs.22-A and 22-B lodged the F.I.R. On behalf of State for an offence under section 13(e), Arms Ordinance and produced the F.I.R. As Exh.22-D. Muhammad Usman P.W.13 Exh.23 stated that on 31-1-1994 he was S.H.O., Police Station Naudero when he received spy information that appellant Sikandar accused wanted in Crime No,48 of 1993 of police station, was present in his house in village Mirwah Taluka Ratodero. He formed a raiding party including P.C. Hakim Ali, P.C.
Mushtaq Ali and P.C. Muhammad Khan and left the police station at about 6-30 a.m. And apprehended Sikandar son of Gul Khokhar. He prepared memo. Of his arrest and produced the same as Exh.23-A. On 13-21994 he produced appellant accused Sikandar before Assistant Mukhtiarkar, Ratodero and made a request in writing for holding identification test through witnesses. Complainant Ghulam Sarwar and P.W. Gul Mir appeared for identification test.
Muhammad Yousuf Abbasi was examined as P.W.14 Exh.24 who as Assistant Mukhtiarkar, Ratodero held the identification test of appellant Sikandar in this crime and held the identification test in the Verandah in front of his office. Mir Muhammad Memon was examined as P.W.15 Exh.25 who deposed that on 18-9-1993 he was posted as F.C.M., Ratodero when on that day S.H.O. Police Station Naudero submitted a request in writing for recording 164, Cr.P.C. Statements of P.Ws. Muhammad Rafique, Gul Mir, Muhammad Ibrahim and Abdul Ghafoor in Crime No,48 of 1993. He recorded statement of witnesses under section 164, Cr.P.C. And obtained their signatures. He produced 164, Cr.P.C. Statements of witnesses as Exhs.25-B, C and D. On 19-3-1993 S.H.O. Produced appellant Hazar Khan for recording his confession. He produced the letter of S.H.O. As Exh.25-E. According to him, he took the custody of appellant, removed his handcuffs and directed police to leave his office. He examined the person of appellant but he found no mark of violence on his person. He disclosed his identity to appellant that he was a F.C.M. And he had been brought before him for recording his confession and after observing formalities, he recorded the confession and obtained L.T.I. Of accused at last page and produced the same as Exh.25-F. According to him, appellant himself volunteered to make the confession when he allowed him one hour for relaxation. After hearing the parties, learned Judge, Special Court for Suppression of Terrorist Activities-Larkana, proceeded to convict the appellants referred hereinabove.
10. We have heard Mr. Ghulam Hyder Baloch learned counsel for appellants who has contended that learned trial Court has erred in awarding conviction to the appellants but practically there is no iota of evidence to connect the appellants with the commission of crime; that there are only two pieces of evidence against the appellant Hazar Khan first identification test through the complainant and the witnesses and the confession of accused Hazar Khan. For appellant Sikandar, there are only two pieces of evidence one identification test through complainant and witnesses and the confession of appellant Hazar Khan in which he has implicated the appellant Sikandar.
Hazar Khan appellant has retracted from his confession. The confession itself is belated one and has not been recorded properly as required under the law. Moreover, learned Magistrate has not recorded the certificate which is required under section 164(3), Cr.P.C. That injured eye-witnesses have not implicated the appellants in their evidence recorded by the learned trial Court; that recovery, if any, is not sufficient to be taken as corroboration against the appellants. Appellant Sikandar was arrested on 31-1-1994 whereas his identification was held on 13-2-1994 with the delay of 13 days from the date of his arrest and after six months after the incident. Under these circumstances identification test carries no legal value; that impugned judgment suffers the proper application of evidence so recorded by the learned trial Court. While recording his plea of not guilty appellant Hazar Khan he has signed the plea before the trial Court and he has also signed Vakalatnama of his learned counsel whereas alleged judicial confession strange enough bears the thumb-impression of Hazar Khan which clearly shows that his thumb-mark was obtained by force by the police and his confession was not voluntarily recorded. Under these circumstances, conviction is nullity in the eyes of law and requires to be set aside.
11. Complainant Ghulam Sarwar father of injured Aijaz Ali has stated in his evidence as follows:-- "I do not remember whether I have given the description and features of the culprits in my F.I.R., or I informed the police who arrived at Vardat about the features of culprits. It is correct that identification of accused Sikandar was held after about six months of the incident."
Abdul Ghafoor P.W.2 has stated in his examination-in-chief as follows:-- "I could not see the culprits and I cannot say whether the present accused were amongst the culprits as I had not seen them."
' Bashir Ahmed P.W.3 has stated as under:-- "I could not identify the culprits at the time of incident and I cannot say whether the present two accused were amongst the culprits who abducted Aijaz Ali and fired upon us because culprits were at a distance from us. Abdul Ghafoor and Miral also received injuries at the hands of culprits. I was never produced for any identification test nor my 164, Cr.P.C. Statement was recorded."
' Aijaz Ali P.W.6 Exh.15 the son of complainant who was abducted and injured, has stated in his examination-in-chief as under:-- "Accused present in the Court are not the culprits who took me to fields."
Mushtaq Ali who had held the identification test of appellant Hazar Khan has deposed in cross- examination as under:-- "It is correct that accused has marks of small pox on his face. 2/3 of the dummies were also having small pox on their faces. I have not noted this fact in memo. Exh.18-B. .. The S.H.O. Was present in my Court premises during identification test proceedings."
12. Mahtab Ali Shah the A.S.-I. And Mashir of arrest and recovery of shot gun from accused Hazar Khan in his cross-examination has admitted as under:- "The nearest village is about 300 yards from the place of recovery. It is correct that we did not associate any private person to act as Mashir."
' Warial Shah, S.H.O. P.W.12 Exh.22 on the fact of recovery of shot gun from accused Hazar Khan has admitted in cross-examination as follows:-- "It is correct that place of recovery is accessible to general public. Voluntarily states that there are thick bushes and people avoid to go there. The place of recovery is at a distance of 50 paces from shrine of Pir Abul Khair."
' Muhammad Usman, S.H.O. P.W.13 Exh.23 has admitted in cross-examination as follows:-- "It is correct that accused was in police custody from 31-1-1994 up to 13-2-1994. The witnesses were not called at police station but they were dittcted through P.C. Hakim Ali to appear before Assistant Mukhtiarkar. ' It is correct that P.C. Hakim Ali also acted as Mashir of arrest."
Muhammad Yousuf, Assistant Mukhtiarkar P.W.14 Exh.24 has deposed as under:-- "I cannot identify the accused due to lapse of time."
' Mir Muhammad P.W.15 Exh.25 has admitted in cross-examination as follows:-- "It is correct that I have obtained L.T.Is. Of accused only on one page ... It is correct that I have not given the requisite certificate at the foot of confessional statement. It is correct that at the time of recording of 164, Cr.P.C. Statements of witnesses on 18-9-1993 no notice was given to accused to engage an Advocate."
13. We have also heard Mr. Isserdas, learned counsel appearing on behalf of State who in view of the evidence referred hereinabove at the very outset of his arguments did not support the impugned judgment and stated at the Bar that learned Trial Court has erred in awarding conviction to the appellants and actually evidence is not forth coming which could be relied upon for awarding the conviction.
14. We have gone through the material placed on the record and have minutely examined and analysed the evidence so recorded and discussed referred hereinabove. The injured eye-witnesses Abdul Ghafoor P.W.2, Bashir Ahmed P.W.3, Ali Gohar P.W.4 and Aijaz Ali P.W.6 have not implicated the appellants in the commission of crime whereas other eye-witnesses were given up by the Special Prosecutor. Presumption is that had they been examined they would have not supported the case of prosecution. The admission of Mushtaq Ali who has held the identification test that he has not given the description/marks of dummies and the admission of Mahtab Ali Shah and Warial Shah about the alleged recovery of shot gun at the pointation of Hazar Khan that place of recovery was accessible to general public and that they had not ass6ciated private persons in the alleged recovery, clearly creates doubt about the recovery itself which in any case cannot be treated as corroborative evidence against the accused/appellants.
15. Admittedly, accused Sikandar was arrested on 31-1-1994 and his identification test was held on 13-2-1994; the witnesses were called at police station through P.C. Hakim Ali and this Hakim Ali also acted as Mashir of arrest of the accused, creates reasonable doubt about the reasonableness of the identification test itself. Moreover, contention of learned counsel for appellants that before identification test accused Sikandar was shown to the P.Ws. Through P.C. Hakim Ali, the Mashir of arrest of accused Sikandar cannot be brushed aside and is not without substance. Muhammad Yousuf Abbasi has also not identified the appellant accused in Court, reason was given that due to lapse of time he was not able to identify them is hardly a ground to be accepted. Mir Muhammad Mukhtiarkar and F.C.M. Has admitted that he has not recorded the certificate at the foot of the confessional statement which otherwise is mandatory one which provides as follows:-'- "I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him."
16. The admission of the Magistrate itself shows that he has not recorded the certificate, however, according to this witness he has obtained the thumb-marks of the appellant Hazar Khan on the confessional statement whereas on the plea recorded by Trial Court and on the receipt furnished by him for having received the statements recorded by the police and his Vakalatnama produced by his counsel, all these documents bear his signatures whereas confessional statement contained the thumb-marks for which appellant Hazar Khan has stated in his statement recorded by trial Court that the same was obtained by police through force. The learned Magistrate had also not put questions to the accused as to why he is making confession and that whether he gives confession or not, he would not be remanded back to police custody. These questions are very essential to show that confession was given voluntarily and without inducement, threat or pressure.
If the evidence of eye-witnesses, Mashirs, Magistrate who has supervised the identification test and the evidence of Mir Muhammad who has recorded judicial confession of appellant/accused Ham Khan is considered in juxtaposition practically there is no evidence forthcoming against the appellants and the learned trial Court has erred in relying on the above evidence and recorded conviction against the appellants.
17. In view of the evidence referred hereinabove even State Counsel has also rightly and frankly not supported the impugned judgment. We have no, thus, option except to allow the appeals and set aside the convictions. Consequently, appeals are allowed and the conviction so awarded is set aside.