ABID HUSSAIN Versus THE STATE
1. SHOUKAT HUSSAIN ZUBEDI, J .--- Appellants Abid Hussain s of Muhammad Siddique and Hassan son of Haji Mallah alongwith others we tried by the learned Judge, Special Court, Suppression of Terrorist Activities Hyderabad who by his judgment, dated 4-5-1992 convicted the appellants for offence under section 392, P.P.C. and sentenced each of them to suffer R.I. for 8 years and fine of Rs.5,000 or in default to undergo further R.I. for one year more. The appellants have challenged their said conviction and sentence under this appeal.
2. The case of the prosecution is that on 16-5-1991 A.S.I. Rajab Ali Incharge of Police Post Seerani, lodged report at Police Station, Badin wherein stated that on the said date he was Incharge of Police Post, Seerani where two head constables and two constables were posted with him and official weapons were assigned to this police post which was kept at the said police post. On 15-5-1991 while he was patrolling, he had seen one white coloured Suzuki Jeep in which there were three persons. The said jeep was stopped and after questioning, the inmates of the jeep were allowed to go. The said person so had disclosed that they were guests of one Haji Mandhro, therefore, the said A.S.I. enquire from Haji Mandhro who stated that he did not know any of the said persons. On 16-~5-1991 the complainant alongwith Head Constable Azizullah and Constable Mithal searched for the said jeep and came to know that the same has gone towards Qaziwah. As such they pursued that jeep and finally found it near Qaziwah in which there were four persons at that time who disclosed their names as Nazeer Ahmed, Jawed, Hassan and Abid Hussain. The said four persons and the jeep were brought to the police post where the said persons disclosed, that they are men of Malik Iqbal. Leaving the four persons at the police post, the A.S.I. went to verify the identification of the said persons. When he returned back at about one p.m., Head Constable, Azizullah informed him that out of the 4 accused persons, accused Nazeer took his permission to go outside the police post for attending to the call of nature and when he returned back, there was pistol in his hand. Thereafter, he asked his friends to collect the official weapons from the said police post and detained the staff members in a room. Then all the accused persons went away alongwith the official weapons. After hearing this, the said A.S.I. lodged the report and himself took up the investigation of the case after sending the report to police Station Badin for incorporating the same in the 154, Cr.P.C. book.
3. The A.S.I. prepared Mashirnama of Wardat Exh.18. He also recorded statements of the witnesses. He then proceeded to Badin, but on the way he met S.H.O. Phulle Shah and D.S.P. Ali Nawaz to whom he also narrated the facts. All of them went to Village Mir Muhammad Puryar where accused Abid Hussain was arrested anti after interrogation, he led the police party to a jungle from where he produced one rifle and 50 bullets. While they were coming back to the police station on the way A.S.I. Muhammad Ibrahim and Muhammad Iqbal were standing on the road. Muhammad Iqbal was produced before the S.H.O, who arrested him and then interrogated him at the spot. The said Muhammad Iqbal led the police party to his village and; from his house he produced weapons which were secured by the police. On 17-5-1991 accused Ashiq Hussain was arrested from Badin bus stop, and from his personal search a .32 bore revolver was recovered. Thereafter, further investigation was conducted by the. S.H.O.
4. S.H.O. Phulle Shah after incorporating the F.I.R. Exh.17 started the investigation of this case. He had arrested accused Abid under memo. Exh.35 in presence of witnesses A.S.I. Abdul Sattar and A.S.I. Muhammad Aslam. He had also prepared Mashtrnama of recovery of rifle Exh. .36 produced by accused Abid, He had arrested accused Muhammad Iqbal who was produced by A.S.I. Muhammad Ibrahim. He then arrested accused Ashiq Ali on 17-5-1991 and also recovered one revolver from his possession under memo. Exh.38. On 27-5-1991 S.I. Nawab Khan arrested accused Hassan under memo. Exh.24. On 30-5-1991 both the appellants were produced before the Civil Judge and F.C.M. Badin who recorded their judicial confessions; Exh.29 is that of appellant Abid Hussain and Exh.30 is that of appellant Hassan. Thereafter, challan was submitted.
5. At the trial, the charge against the appellants was framed wherein alongwith the appellants accused Ashiq Ali, Manzoor Ahmed, Muhammad Rafi and Malik Muhammad Iqbal were shown as accused, it was alleged that they had committed offences under section 392/109, P.P.C. to which they did not plead guilty and claimed to be tried. Thereafter, on behalf of State an application under, section 494, Cr.P.C. was moved Exh.12 praying for withdrawal of the case to the extent of accused Malik Muhammad Iqbal as per the order of the Government dated 10-9-1991 Exh.13. The said application was allowed vide order, dated 23-9-1991 Exh.14. In this way the case proceeded against remaining five accused.
6. The prosecution examined P.W. A.S.I. Rajab Ali complainant, P.W. Fida Hussain, P.W. Rasool Bux and P.W. Azizullah are the three eye-?witnesses. P.W. S.I. Nawab Khan who arrested accused Hassan and P.W. Ahmad Mashir of arrest. P.W. Gul Hasan. P.W. Imam Dino, Magistrate who recorded the judicial confession. P.W. S.H.O. Dhani Parto of Police Station Golarchi. P.W. A.S.I. Muhammad Aslam who arrested appellant Abid Hussain and P.W. S.H.O. Phulley Shah of Police Station Badin. Thereafter, the statements of the appellants were recorded under section 342, Cr.P.C The statement of appellant Abid Hussain is Exh.41. He has denied the prosecution allegation and also denied having made the judicial confession voluntarily. He stated that his women-folk and family members were detained by the police and as such he was forced to make a statement. He further stated that appellant Hassan Mallah was his cousin and he had filed a complaint against the police, therefore, he has been implicated. However, he wanted to be examined on oath but he did not wish to examine any defence witness. His statement on oath was recorded as Exh.46 in which he has given the same version which he had given earlier in his statement under section 342, Cr.P.C. The statement of appellant Hassan under section 342, Cr.P.C. was recorded as Exh.44. He denied the prosecution allegation and stated that he never made any judicial confession but as his women-folk and cousin Abid Hussain were detained, therefore, he was compelled to make a statement. The police involved him as he had filed a criminal case against the police. He also wanted to be examined on oath but did not want to examine any defence witness. His statement on oath was recorded as Exh.47 in which he has given the same version as the one under section 342, Cr.P.C. Thereafter, the trial Court after recording the statements of the other accused, convicted the appellants as already aforesaid but the co-accused Ashiq Ali, Manzoor Ahmed and Muhammad Rafiq were acquitted.
7. We have heard Mr. A.Q. Halepota learned counsel for the appellants and Mr. Ashiq Raza learned counsel for the State.
8. Learned counsel for the appellants submitted that the trial Court convicted the appellants on ocular evidence, their judicial confessions and the recovery of rifle from appellant Abid Hussain. He further submitted that in respect of appellant Abid Hussain, his judicial confession was recorded after 14 days of his arrest and that of appellant Hassan was recorded three days after his arrest but in any case the said confessions are exculpatory in nature and therefore, the prosecution cannot take any benefit from it. In respect of. ocular account, it was argued that two of the eye-witnesses, namely P.W.2 Fida Hussain and P.W.3 Rasool Bux, did not support the prosecution case and as such they were declared hostile, while the 3rd witness P.W.4 Constable Azizullah has only made a general statement without assigning any specific part to the appellants. In respect of recovery of rifle at the instance of appellant Abid Hussain, the learned counsel submitted that P.W.1 S.H.O. Phulley Shah had arrested him and the recovery was made in presence of P.W:10 A.S.I. Muhammad Aslam under memo. Exh.35, but the said weapon was, never produced in the Court when the said witnesses were examined.
9. On the other, hand the learned counsel appearing, for the State Mr. Ashiq Raza has supported the impugned judgment and stated that both the appellants have made their judicial confessions while an official rifle has also been secured on the pointation of appellant. Abid Hussain, therefore, the appellant's have been rightly convicted by the trial Court.
10. We have carefully scrutinized the evidence on record and it is our considered view that the impugned judgment is not sustainable for the reasons to be discussed presently. The appellants have been convicted on ocular evidence, coupled with judicial confessions and the recovery of rifle from appellant Abid Hussain. The perusal of the judicial, confessions of the two appellants clearly indicate that the same are exculpatory in nature. Confession of appellant Abid Hussain is Exh.29: It indicates that the appellant Abid Hussain has not shown the presence of appellant Hassan, but he has mentioned that he, alongwith accused Nazeer, Jawed and Ashiq Ali were taken to Police Post Seerani and it was accused Nazeer who took out a pistol and locked the police staff. Thereafter, he snatched various weapons, the appellant escaped in the same jeep and on the way he got down forcibly. This clearly indicates that appellant Abid Hussain has made an exculpatory confession. The other judicial confession was made by appellant Hassan and it is Exh.30. Appellant Hassan stated in his confession that it was 16-5-1991 that he alongwith accused Nazeer, Jawed and Abid were taken by the police to Seerani Police Post and it was accused Nazeer who locked the police personnel as he was armed with a pistol and he had snatched the various weapons. He further states that the tyre of their jeep later on got punctured and in the meanwhile Police Officer of Police Station Golarchi reached there but they managed to escape. This appellant had also not implicated himself, and therefore, the confession of appellant Hassan is also exculpatory. It may be mentioned that the two eye-witnesses namely P.W.2 Fida Hussain and P.W.3 Rasool Bux who were independent witnesses and had come to Police Post Seerani, though they have been declared hostile by the prosecution, they have also stated that the appellants did not take any part either in the act of accused Nazeer when he confined the staff of police post, nor did they take any part in the snatching of the weapons from the said police post. This aspect of the matter indicates that the factum of snatching of weapons was an individual act of accused Nazeer. In any case the appellants alongwith other co-accused were charged for having committed robbery of the various arms and ammunitions from the Police Post Seerani, but surprisingly the said weapons were never produced in Court with the result neither the witnesses had the opportunity to see the said weapons nor the trial Court thought it necessary to call for the same at any stage. This being the position, a lurking doubt arises as to whether these weapons were at all assigned to the said police post. It will not be out of place to mention here that no evidence was brought on record to show what was the nature and kind of weapons assigned to Police Post Seerani and it appears, this aspect of the matter has been presumed that the alleged arms and ammunitions, details of which are mentioned in the F.I.R. Exh.17, were assigned to Police Post Seerani and the same were robbed by the accused which were subsequently recovered by the police. In these circumstances, we are of the view that the very factum of robbery appears to be doubtful.
11. In the light of our above discussion, we allow this appeal and set aside the conviction and sentence awarded to both the appellants.
12. By a short order, dated 14-12-1993 this appeal was allowed and the appellants were ordered to be released forthwith if not required in any other case, these are the reasons for the same.
13. N.H.Q./A-1529/K ??????
14. Appeal allowed.