GHULAM NABI SOOMRO, J.---By the impugned judgment, dated 27-1-2001 passed by the learned Judge, Anti-Terrorism Court Sukkur and Larkana Divisions Sukkur, accused Bashir, Achar @ J3hai Khan and Abdul Aziz have been convicted under section 302(a), P.P.C.and sentenced to death.
They have also been sentenced to death under section 7(i)(ii), Anti-Terrorism Act, 1997. The convicts are also convicted under section 7(b) of the Act, to life imprisonment. They have further been sentenced to R.I. for seven years under section 13-D of the Arms Ordinance. They are given benefit of section 382-B, Cr.P.C. whereas the absconding accused Abdul Latif and Hashim Channo were acquitted in the case. The above convicts have appealed against their conviction and sentences. The appeal of convict Bashir Bhutto was also filed from jail being Appeal No.54 of 2000.
2. The prosecution case briefly stated is that upon receipt of spy information, the complainant S.I.P.
M. Imran on 7-10-1999 proceeded to the pointed place and found notorious dacoit Namdho Sajan present alongwith the appellants and two others duly armed with deadly weapons. Upon receipt of such spy information, the complainant had informed D.S.P. Gambat Rajab Ali Lashari who directed to conduct a raid on the Otaq of Nandho Sajan. D.S.P. Gambat Rajab Ali Lashari also came alongwith his subordinate staff, so also S.H.O. Gambat, D.S.P., Kotdiji and several other members of the police force also reached there. Having encircled the Otaq of Nandho Sajan and having informed that he was surrounded by police, the dacoits fired towards the members of the police party as a. result whereof the police also fired at the dacoitS during which period dacoits were being warned to surrender. It is the prosecution case that at 11-30 a.m. due to firing some members of the police party namely H.C. Taj Muhammad, PC Sikandar Ali, PC Rajab Ali Soomro, PC Noor Muhammad and PC Manzoor Ali sustained bullet injuries and fell down. HC Taj Muhammad and PC Noor Muhammad were found dead due to bullet injuries. The injured were sent to hospital. At about 12-30 p.m. dacoit Nandho Sajan also got injured and was seen lying dead in bushes with K.K. Rifle lying near his dead body which was found containing five live bullets in its magazine besides a bag containing 60 bullets and one magazine. The encounter between the parties is stated to have continued till 4-30 p.m. when the police party heard a voice of mercy, mercy. Accordingly, the police party directed them to come out in hands up position. On such direction the three dacoits (the appellants) came out, one of whom namely Bashir., Bhutto in injured state. They were arrested by police-there, who disclosed their names as the appellants. The K.K. Rifles of all the three dacoits so also the bullets and magazines were secured and sealed by police. The arms were declared to be unlicensed by the dacoits. The Mashirnamas of Wardat, arrest and recovery were prepared and the injured and deceased PCs were sent to hospital. Later the dead body of deceased dacoit Nandho was also sent for post-mortem examination, where after the police party returned to Police Station alongwith the appellants and the case property and lodged the report on behalf of State as aforesaid at Police Station Tando Masti Khan. At the conclusion of the investigation challan was submitted against the appellants shown in custody and two others, shown as absconding accused.
3. Charge Exh.14 was framed against the accused-appellants to which they pleaded not guilty and claimed to be tried.
4. The prosecution in support of its case examined ten P.Ws. where after it closed its side. The appellants were examined under section 342, Cr.P.C. wherein they denied all the prosecution allegations and pleaded their innocence. None of the appellants wished to exar nine himself on oath or examine any defence witness in disproof of prosecution allegations. At the conclusion of the trial the appellants were convicted and sentenced as aforesaid.
5. We have heard Mr. Abdul Fattah Malik learned counsel for appellants Achar and Abdul Aziz. Mr. A.
Lateef Memau for appellant Bashir, Mr. Asija? Ali Maitlo for the appellants Achar. and Abdul Aziz against, convictions in arms cases and Mr. Sher Muhammad Sha? learned A.A.,G. for the State. We have also heard the parties the reference for confirmation of the death sentences. And also perused the impugned judgment and the evidence on record.
6. It was argued by Mr. Abdul Fattah Malik that there was no direct evidence against the appellants Abdul Aziz and Achar, that the injured P.W. P.C. Rajab All (Exh.19) has deposed that he fired 80 rounds but he does not specifically name any of the convicts. He further argued that some 38 members of the police force participated in the alleged encounter but only 36 empty bullets were secured from the place of Wardat. He furthel argued that only evidence in the case consists of recovery of weapons, positive Ballistic Expert's Report and their surrender before _police. He urged that it would not be safe to rely upon the evidence of policemen only as the case involves capital sentence. He placed reliance upon 1990 MLD 1116 and 1994 PCr.LJ 555. Further argued that P.C.
Manzoor and P.C. Rajib being injured were sent to hospital immediately so they had no chance to see the appellants. It was urged that the recoveries have not been proved and there is no evidence that the appellants were sharing their common intention of the co-accused and they fired at the police party with intention to kill. Reference was made to 1978 SCMR 49.' It was contended that the weapons were sent with delay which would be fatal to prosecution. Reference in this connection was made to PLD 1975 Pesh. 205, 1985 PCr.LE 2854 and PLD 1968 Lah 437. It was also urged that the duty of defence was to create only a dent in the prosecution case and it is only the prosecution which has to establish its case against the accused beyond any shadow of doubt. It was further argued that the F.I.R. version was contradicted by the P. Ws. and it being an important document its contents cannot be discarded from consideration. Reference, was made to 1985 SCMR 1573 (1576).
Mr. Fattah Malik also argued that weapons were not secured from them but they were foisted upon them after their arrest from their houses or alternatively the weapons were not taken from physical possession of the appellants but they were picked up from the ground. Counsel in this respect referred to the contents of the F.I.R. No.67 of 1999 under section 13-1) of Arms Ordinance. Learned counsel also argued that there were also two views possible and the view favouring the accused has to be adopted. He relied upon 1988 SCMR 857, 2000 SCMR 1582 and 2000 SCMR 1859. Reliance was also placed upon 1995 SCMR 127 and 1993 SCMR 160.
7. Mr. Abdul Lateef Memon learned counsel for the appellant Bashir Bhutto argued that appellant Bashir though alleged to have been injured in the encounter is not shown/proved as injured. As he was neither sent to hospital nor there is a medical certificate of injuries or evidence of a doctor. He further contended that the appellant was arrested from his house and the K.K. Rifle was foisted upon him. Mr. Aijaz Maitlo learned counsel appearing for Abdul Aziz and Achar appellants, in the arms case convictions, argued that his clients were falsely implicated, nothing is brought on record that they were hardened or dangerous criminals. The Mashirs of recovery are police officers. He relied upon 1994 PCr.LJ 938.
8. No other point was pressed in support of the appeals.
9. On the other hand learned N. A . -G. appearing for the State referred to 1983 PCr.LJ 162 and argued that incident was an encounter with police, thus upon information that notorious dacoit of the area namely Nandho Sajan was available in his house alongwith his companions, having prepared themselves for the encounter, police staff of different police stations faced the encounter, as a result of which HC Taj Muhammad and PC Noor Muhammad lost their lives whereas HC Rajib, PC. Manzoor and PC Sikandar got seriously wounded and on, the other hand dacoit Nandho 4ajan got killed. Learned A.A.-G. while giving out a picture of the surroundings of the area and the dacoit rule in the region, submitted that it was hardly possible for any private citizen to offer himself as a witness to the incident as there is always fear and insecurity in the minds of the people of being kidnapped, abducted, killed and even detained for ransom. In such circumstances, he submitted that there were only policemen to face the incident and they were the natural witnesses. He argued that none of the members of the police party, ever, high or low is stated to be hostile against any of the, appellants. Besides, if they wanted to nominate or implicate more criminals as companions of the appellants and the deceased dacoit Nandho Sajan they could have implicated a lot of them. He submitted that the police have done their duty at the cost of their lives. Replying to the arguments of Mr. A. Lateef, the A.A.-G. submitted that no question was even suggested to any of the prosecution witnesses that appellant Bashir Bhutto did not get injured at all. In such circumstances, he emphasized that the prosecution evidence would have to be accepted.
Continuing his arguments, the A.A.-G. further submitted that there was also no suggestion that appellant Bashir was arrested from a place other than the place of Wardat. Learned A.A.-G. argued that the occurrence of encounter is not denied by the defence, it continued from morning till its end at 4-30 p.m. near Otaq of Nandho Sajan in Pun grass/bushes. He also relied upon the positive Ballistic Expert's report and submitted that in a scenario where five policemen got seriously injured, two of them having lost their lives, some minor discrepancies like missing medical examination of Bashir Bhutto, would not take away the weight of entire prosecution evidence. He also relied upon the Chemical Examiner's Report being positive. He placed reliance upon 2001 MLD 477, 2001 SCMR 1328, 2000 SCMR 1758, 2002 SCMR 1568.
10. Out of the 10 P.Ws., the most material witnesses are complainant S.I.P. H .0. M. Imran P.W. 1, P.C.
Manzoor Ali injured P.W.2, HC Rajib Ali injured P.W.4, and the Inspector Liaqat Ali P.W.8. The remaining P.Ws. namely A.S.-1. Ehsan P.W.3, A.S.-I. Gaji Khan P.W.5 are the Mashirs so also the S.I.P. Nazar Hussain P.W.6 and the remaining three P.Ws. 7, 9 and 10 are the medical officers who examined and provided medical treatment to the injured, conducted post-mortem examinations and issued reports.
11. So far the occurrence of encounter is concerned, it has not been seriously denied by defence.
What has been asserted is, that the appellants were arrested from their houses and the rifles were foisted upon them. In answer to that, there is ocular evidence of the complainant M. Imran P. W.1 (Exh. 15), P.C. Manzoor Ahmed P.W.2, (Exh.16), Gaji Khan A.S.-I. P.W.5 (Exh. 20) and S.H.O. Liaqat Ail P.W.8 (Exh. 24).
12. In a fierce gun battle which took place between the police and the dacoits where several bullets were consumed by both the sides, it may be humanly difficult to point out as to whose fire shot hit whom. Ocular evidence to this extent of clarity can hardly be available in the given situation though it may not be impossible in certain cases to have such kind of evidence but that would depend upon the attending facts and circumstances of each case. In absence of evidence, where no injury is specifically attributed to a dacoit by a witness-member of police party engaged simultaneously in offensive and defensive position, such ocular evidence would not be deemed to have diminished in its value for that reason alone, if such evidence is otherwise found reliable and not tainted. Thus the argument of the defence that there is no ocular evidence in the case is without force. The angle of appraisal of evidence in the instant case and a case between two private parties resulting in death or injuries would be different as in the latter case insistence would be given to specific attribution.
13.The Ballistic Expert's Report (Exh.22/B) is positive, nothing has been said on it except that the weapons secured were sent with a delay of about three months. Since it has been challenged that. the Ballistic Expert's evidence was manipulated or fabricated or that the K.K. Rifles were fired before sending them to the Ballistic Expert. Mere fact that there was delay in sending the Arms to Ballistic Expert would not vitiate or destory such evidence.
14. Reference may be made in support of ';thet, above to the case of ,Usman Shah v. The PLD 1910 iltar. 77), it was 4sei;tul at para. 10" of re said judgment as follows:-- "10. Mr. Mahmood Ali Qasuri, learned counsel for the appellant, however, contended that the, testimony of the Ballistic Expert, would hive no evidentiary value, as crime weapon, had been sent to him, after a. dilay of about 2 months. He has sought reliance from Rehman and others v. The State ND 1.966 Lah. 464, in which a delay of two weeks ,A./a-r. not considered to be taiai It I, tric, that inordinate delay in the despatch of crime weapons, would detract from value of evidence, provided by such weapons, but we are also cognizant of the conditions in Baluchistan; the difficulties of communication and transport and the long distances involved. In Wazir and others v.
The State PLD 1960 Kar. 674 there was a delay of about three months and the weapons of crime were not sealed at the spot. In the circumstances of the case we have chosen to accept this piece of evidence."
15. We are also fortified 'in our above view by another judgment of the Honourable Supreme Court in the case of Rab Rakhio v. The State (1992 SCMR 793) wherein it was observed at para. 12 in the judgment as follows:-- "12. From the above-quoted portion of the judgment of "the learned Additional Sessions Judge, it is evident that there was cogent. reason for not having a Mashir of the locality from where the recovery was effected at the pointation of respondent No. 1 . Even if we were to ignore the evidence of P.W. Photo for the above reasons, the testimony of the S.H.O. namely, of P.W. 19 Muhammad Aslam Soomro remains in the field, which can be relied upon as has been held by this Court in the case of Muhammad and others v. The State PLD .1981 SC 635, wherein inter alia it has been held that testimony of a policeman as to witnessing recovery of articles from an accused cannot necessarily be disbelieved merely because of his being policeman.
Taking up the above second limb of the above fifth reason, it may be pointed out that defence has not brought out anything on record through the cross-examination to indicate that the sealed parcel of the empty was tampered with before the recovery of the pistol or after the recovery of the pistol, nor anything has been brought out through the cross-examination to cast doubt as to the recovery of the pistol from respondent No. 1. There is no doubt that there was delay in despatching of the above parcel to the Ballistic Expert, but simpliciter delay cannot nullify the evidentiary value in the absence of attending circumstances casting doubt as to the genuineness of the recovery. In this regard, reference may be made to the following portion of the judgment of this Court in the case of Sikandar and 2 others v. The State PLD 1981 SC 477:-- "Coming to the fourth and the last contention of Mr. Brohi, relating to the delay in sending the bloodstained articles to the Chemical Analyser, the High Court has been pleased to repel the same in these words:-- From the record it appears that the articles are first sent by the S.H.O. to the Deputy Superintendent of Police who forwards them to the Government Chemical Analyst. There is no cross-examination of the Investigating Officer or the S.H.O. and nothing has been brought out to suggest that the police had played foul and had created false evidence in the case. In our view, the delay in sending the articles for analysis has to materially affected the merits of the case.'
Mr. Broohi, however, invited our attention to the case of Wazir v. State PLD 1960 Kar. 676 in support of his contention that delay simpliciter must result in rejection of evidence of the Chemical Analyser.
In this case, however, the evidence of the Ballistic Expert was not accepted, because there was no evidence that the empty cartridges from the crime weapons recovered were made into sealed parcels at the spot coupled with the fact that there was inordinate delay in sending the crime empties and the weapons to the Expert.
In a recent case of Noor Alam v. State PLD 1978 SC 137, the evidence of the Expert was accepted, notwithstanding the delay in forwarding the crime weapon and the empties to the Expert for the reason:-- ...There is also no evidence to show that the empties and the gun were not kept in sealed parcels, as soon as they were secured. The delay in forwarding them has to be considered in this background. There is no evidence that the sealed parcels were tampered with. And, on the other hand, as there might have been an explanation for the delay in forwarding the sealed parcels, the appellant should have cross-examined P.W. Nek Muhammad Khan about the delay in forwarding the gun and the empties. As he did not, the cases cited do not help the appellant's case, and we agree with the view of the High Court that the recoveries have been proved As in the case of Noor Alam, the evidence in the present case is that the articles found stained with blood were secured under a proper Mashirnama and properly sealed and there was not even a suggestion of any tampering. The Investigating Officer was also not cross-examined as to the delay in sending parcels to the Chemical Examiner. The High Court was, therefore, not in error in relying on the recoveries as corroboration of the ocular evidence."
16. The complainant S.H.O. M. Imran P. W.1, was transferred during the pendency of investigation which would have been one of the causes for sending the weapons to Ballistic Expert with delay.
17. The availability of the empties at or near the Wardat at the first place may indicate that there has been use of fire-arms in the incident, yet the very purpose of their secureness, always, is to know its link to the weapon from which it is fired. The evidentiary value of secured empties in absence of the weapon would come to naught. Thus it was not necessary to collect all the fired empties, which was not possible to do, as the place where the encounter took place was cultivation and wild bushes. In any case securing of less number of empties than fired would not have any adverse effect on the prosecution. Obviously, for the purpose of matching with the weapon secured, even one or two empties might be sufficient.
18. Complainant S.H.O. M. Imran (Exh.15) has clearly stated "that there was paddy crop at the Wardat therefore, we only recovered 32 empties of bullets". He has further stated in cross, "that we had not seen any female members in the house except the six persons in the Otaq". He has also stated that, "nobody can accompany us to dacoits".
19. P.W.2, P.C. Manzoor Ahmed has deposed that, "Nandho Sajan was accompanied with five other dacoits, who also fired. Police also fired in their defence. The encounter continued up to 11-30 in which H.C. Taj Muhammad was killed, P.C. Noor Muhammad was killed. I and H.C. Rajib Ali and P.C.
Sikandar Ali were injured. We were referred for treatment through A.S.I. Ehsan Ali Gaho. I fired 80 rounds".
20. P.W.4 H.C. Rajib Ali (Exh.19) injured witness, has also deposed that D.S.P. Gambat directed the accused to throw the arms. We also fired in our self-defence. He has further deposed that, "he fired 85 rounds from his rifle".
21. P.W.8 S.H.O. Liaqat Ali (Exh.24) has deposed on entire occurrence and his evidence is consistent with the other prosecution witnesses. He has clearly stated in his cross-examination that police constables were injured and killed at 11-30 a.m. Nandho Sajan was killed at 12-30 p.m. and the accused were arrested at 4-30 p.m. He has denied the suggestion that the accused were arrested from their houses.
22. The contention that the evidence should not be believed as all the P.Ws. are police officers is just without any force and is hereby repelled.
23. There is no denial of the occurrence nor any objection to the medical evidence by defence. The P.Ws. had no animosity or any motive for false implication of the appellants or they had any special interest in their conviction. The record of cross-examination is silent on this aspect. No plea of substitution was raised at any stage. Nothing has been brought out in cross-examination to discredit the testimony of prosecution. The recoveries too have been made in quite a realistic manner.
24. It was observed in the case of Muhammad v. State (1993 PCr.LJ 1632), while dismissing the appellant's appeal by a learned D.B. of this Court comprising Sayed Haider Ali Pirzada, J. (as he then was) and Nazim Hussain Siddiqui, J. (now Hon'ble Judge. Supreme Court) that "if witness deposes on a fact in examination-in-chief and the correctness of said statement is not challenged in cross-examination, the legal presumption would be that said statement has been admitted by the party against whom the same has been brought on record".
25. The fact that the people are scared of, these days to offer themselves to act as a witness, is now but a well known and a judicially recognized fact. Reference is made to the case of Amrood Khan v.
State (2002 SCMR 1568). It is, if we may say so, a hard fact and a reality of present day life and it is mainly for want of protection to their life, liberty and honour and the compelling circumstances of insecurity in which the rural populace of the province in particular and the city dwellers in general are living.
26. Thus, it would appear from the evidence that many material parts of P.Ws. statements have not been controverted or challenged, and are left unrebutted with the result that they would have the evidentiary value.
27. The case-law referred in support of the appeals is not relevant and is cliskinguishable, hence is not applicable to this case. It need not be discussed.
28. Having considered the evidence on record in its entirety and having applied our mind to the case, we are convinced that the prosecution has been able to prove its case against the appellants and they have been rightly convicted and sentenced.
29. It may however be observed that the appellants were responsible for forming an unlawful assembly _and acting in furtherance of their common intention or community of intention and thus they were liable for sentences under sections 148 and 149, P.P.C. which stand omitted in the impugned judgment. Since this point has not been specifcially raised by any of the parties, and as no prejudice is caused to convicts, we would not go into this point further. A minor correction however seems necessary that is the section under which the conviction has been recorded. It ought to be section 302(b) and not section 302(a), P.P.C.
30. There being no mitigating or extenuating circumstances to award lesser sentence, their sentences are maintained. Resultantly, the appeals of the appellants are dismissed. The Reference/Confirmation Case No.02 of 2001 is accepted and their death sentences are hereby confirmed.
31. We had dismissed the above appeals by our short order, dated 3-9-2002 and these are the reasons for the same.