FARANGEZA Versus STATE
1. ABDUL MAJID KHANZADA, J: --The present two Criminal Appeals call in question the legality and propriety of the judgment, dated 24-8 1991, passed by Special Court Suppression of Terrorist Activities, Hyderabad, whereby convicted the appellants under section 307 read with section 34, P.P.C. and sentenced them to suffer life imprisonment and under section 13-D of Arms Ordinance convicting accused Aijaz Hussain to suffer R.I. for four years which should run concurrently with the main case and has also given benefit of section 382, Cr.P.C. -
2. The prosecution. case, in brief, as stated in F.I.R. bearing Crime No.146/88 and Crime No.147/88 lodged at Police Station, Tando Muhammad Khan by S.H.O. S.I.P. Muhammad Afzal Bhatti on 19-12-1988 at about 9-30 a.m. According to F.I.R. he received a spy information that four dacoits have concealed themselves near Gaja Mori, adjacent. to the house of Khair Muhammad Jalbani. On receipt of this information police party was formed consisting of H.C. No.1892 Muhammad Saleem, P.C. 1638 Nadir Ali Shah, P.C. 788 Ghazanfar Hussain P.C. 2032. Ahmed Hussain and P.C. 1070 Meer Muhammad and driver P.C, Meer Muhammad duly armed in Government vehicle No.GS-8190 left the police station after making entry No-7 in the Roznamcha at 9-30 a.m. The police party then went to the house of Gahano Rind, but none was there and the house was lying vacant. They then took foot prints from the house of Gahano Rind. The foot prints went towards East. A Pari was called therefrom and foot prints were followed. The S.H.O. Tando Muhammad Khan also informed the S.H.O. Husri, S.H.O. Bulri Shah Karim, S.H.O. S.I.T.E. and the superior officers on wireless. The foot prints were followed and the police party came at Sono Almani Chowk on Pacca Road. The S.H.O. Husri with his police party, S.H.O. Bulri Shah Karim with his police party, D.S.P. Tando Muhammad Khan with police party, A.S.I, Hakim Ali, A.S.I. Ahmed Nawaz and Sub-Inspector of Sindh Reserves Police, consisting of S.I. Muhammad Ashraf with his Sepoys also reached there in Government vehicles. All the concerned Police Officers Went together and foot prints were trapped. When the police party reached the southern side of the Village Rajo Nizamani, they found the foot prints which went inside the Banana Garden; where A.S.I. Ghulam Rasool of Police Post, Sheikh Bhirkio with his staff was present and the police force of Rajo Nizamani also arrived there. The entire police parties encircled the Banana Garden. It was 11-00 a.m. when some police constables were ordered to go inside the Banana Garden for search of the dacoits. Firing was started from the side of dacoits, P.C. Riaz of Police Station, Husri received fire-arm injury. Thereafter, the dacoits fired indiscriminately, the police party also fired in their defence. The dacoits seeing that they have been encircled by the police party started running away from the Banana Garden and continued firing. The police party also continued following the dacoits. Ghulam Muhammad Rind and Vikio Unar and other villagers were also with the police party. The dacoits continued firing at the police and private persons. Ghulam Muhammad Rind and 'Vikio. Unar also received injuries and the bullets also hit on the bonnet of Government Vehicle No.GS 8190. The injured persons were removed to hospital for their treatment. ,The S.S.P., Hyderabad was also informed for further Sepoys on wireless about the firing of the dacoits. The dacoits entered into the house of Jamalies and climbed the roof of the house of Nawab Jamali and took the position and continued firing from the roof on the police party.'The police party encircled the house and advanced further. At about 3-00 p.m. the officials of law enforcing agency also arrived to help the police party. D.S.P. Tando Muhammad Khan was on casual leave. Additional S.P., Hyderabad and S.I. Karamat Hussain also arrived there alongwith police force. D.S.P. Tando Muhammad Khan came and took over the command of police party. In the meantime, S.H.O. S.I.T.E. Inspector Muhammad Khan Ranjho alongwith his party arrived there. Army Jawans were in advance position and they continued crawling and advanced further, while the police party was behind them. In the meantime, the bullet proof vehicle (Buctar Band) also came to the place. Police party surrounded the house and the dacoits continued firing. Two Army Jawans were injured so also P.C. Muhammad Lal, P.C. Ahmed Khan of Police Station Tando Muhammad Khan and P.C. Tagial Khan of Police Station Husri were also injured. The injured were sent to hospital for treatment. At about 6-00 p.m. the law enforcing agency and the police party ordered the accused to surrender and throw their weapons, but despite the warning the accused continued firing. The accused seeing that they' were encircled from all sides set fire to the hedge of the house in order to prevent the police party not to come near them. After firing at about 6-30 p.m. the dacoits came under control and they were caught and on enquiries they disclosed their names. to be (1) Aijaz Hussain alias Arbab son of Wahid Bux.alias Muhammad Siddique Brohi (2) Ali Nawaz son of Lal Bux Brohi (3) Ghulam Abbas son of Muhammad. The accused Ali Nawaz was found injured due to the 'firing, he -had a bullet injury on the chest and on the right arm. The. police party secured the weapons alongwith rounds. The police party also secured 6ne bundle, of clothes and empty cartridges. There was one Bullock, which was also hit by the firing of the dacoits. Such Mashirnama was prepared and the Mashirs were Inspector Muhammad Khan Ranjha and A.S.I. Barkat. Ali. The accused were arrested and brought to the Police Station, Tando Muhammad Khan. The accused were armed with unlicensed weapons. The accused have caused injuries to two persons of Army and have also given fire-arm .injuries to private peoples with intention to commit murder. The police party of Tando Muhammad Khan had also fired sixty rounds.. The property secured from the accused Aijaz Hussain is one klashnikov bearing No.19062713; made in U.S.S.R., in a working condition and 210 bullets of KK in one Thela and four magazines of KK. From the accused Ali Nawaz, one rifle .303.bearing No.757 with one magazine containing (sic). From 6hulam Abbas, one .12 bore gun single barrel bearing No.18878 alongwith 56, .12 bore live cartridges in workipg condition in one Thela. From Abdul Aziz one :7 mm rifle. bearing No.40350 alongwith 9 live cartridges of .7 mm rifle' in working condition, 35 empty cartridges and 25 empty bullets of .7 mm rifle were also secured. The description of the clothes secured is as follows:-- , .
(1) Two green and yellow flowers Kurchiefs big. in size.
(2) One Towel yellow in colour.
(3) Three leather Thellas.
(4) Three bandoliers of cartridges. of .12 bore.
(5) Two Sindhi Caps.
(6) One woollen cap.
(7) One torch red in colour
(8) Two police caps alongwith bags.
(9) One bottle of plastic for cleaning of rifle.
(10) One Thellee of Beams.
(11) One fultro for cleaning of rifles"
3. The accused were challaned on 16-5-1989. The charge was framed on 12-12-1990 as Exh.2. The accused pleaded not guilty.
4. In support of their case, prosecution examined P.W.1 Muhammad Afzal, S.H.O. Tando Muhammad Khan Police Station, Exh.7, who has prepared the Mashirnama of Sarzameen (Exh.8), which contained the entire description of the raid, injured P.Ws. and the arrest of injured accused All Nawaz and other three accused, recovery of weapons from the accused alongwith the cartridges and bullets and also raid on Jamali's house and also the first firing in Banana Garden and from the roof of Nawab Jamali's house, He also produced the Mashirnama of recovery as (Exh.9), the Mashirnama of injuries on P.C. Riaz (Exh.10), Mashirnama of injuries of P.C. Tagial Khan, P.C. Muhammad Lai and P.C. Ahmed Khan as (Exh.11). He has also produced the F.I.R. as (Exh.12.). P.W.2 A.S.I. Barkat Ali was examined as (Exh.14).
5. Exh.13 is an application of Special Public Prosecutor for examining P.W. Barkat Ali instead of S.I.P. Ranjho Khan, who has been given up.
6. Exh.15, is an application by the Special Public Prosecutor giving up P.Ws. H.C. Nadir Ali, H.C. Muhammad Salim, A.S.I. Hakim and A.S.I. Ahmed Nawaz.
7. Exh.17 is a statement of A.P.P. giving up P.Ws. Ahmed Hussain and Mir Muhammad. P.W.4 Muhammad Lai %vas examined as (Exh.18).
8. P.W.3 Ghulam Abbas (Exh.16), P.W.4 Muhammad Lai (Exh.18), P.W.5 Tagial Khan (Exh.19), P.W.6 Ghulam Muhammad (Exh.20), P.W.6 Ghulam Muhammad (Exh.20), who has stated that he had not seen the dacoits. He has further stated that it was 12-00 noon when he received injured. Exh.21 is a statement of A.P.P. giving up P.W. Vikio as he is dead.
9. P.W.7 Dr. Nek Muhammad (Exh.22), stated that the distance between the injured and attackers can be 6 or less than 6 feet. He has produced the medical certificate in respect of the injured Tagial Khan as (Exh.23), who has received the following injuries:--
10. "Injuries:
11. Fire-arm wound of entry 2 c.m. x 1 c.m. x bone deep on the left shoulder joint.
12. Fire-arm wound of exit 5 c.m. x 6 c.m. x bone deep on upper part of right side of chest.
13. Nature of injury Reserved.
14. Kind of weapon used Fire-arm
15. Duration of injury 1 to 2 hours"
16. Final certificate of P.W. Tagial as (Exh.4).
17. P.W.8 Riaz Ali examined as (Exh.25). P.W.9 Dr. Muhammad Ilyas (Exh.26), who has examined injured Ahmed Khan son of Noor Muhammad, Ghulam Muhammad son of Jam, Vikio son of Imam Bux and Muhammad Lai son of Moula Bux. He has also produced the provisional medical certificate of injured Ahmed Khan (Exh:27), and has stated that there was no blackening or burning on the mid of flexor aspect of left forearm with margins inverted (wound of entry). Details of injuries as under:--
18. "Details of injuries.
(1) A perforating type of lacerated wound size 2.5 mm in diameter circular in shape with no blackening or burning on the mid of flexor aspect of Lt. forearm with margins inverted (wound of entry)."
(2) A perforating type of lacerated wound size 2.5 c.m. in diameter on extensor aspect of (Lt.) forearm with margins everted (wound of exit).
19. Nature of injury Kept reserved.
20. Probable duration of injury 1/2-3 hours
21. Kind of weapon used Fire-arm."
22. He has also produced the provisional medical certificate of Ghulam son of Jam (Exh.28), and has stated that no blackening or burning on flexor aspect on right arm with margins inverted (wound of entry). Details of injuries as follows:--
23. "Details of injuries.
(1) A perforating type of lacerated wound 1 c.m. in diameter, circular in shape with no blackening or burning on flexor aspect of Rt. forearm with margins inverted (wound of entry).
(2) A perforating type of lacerated wound 5 c.m. in diameter with margins everted on extensor aspect of Rt. forearm (wound of exit).
24. Nature of injury Kept reserved.
25. Probable duration of injury 1/2-3 hours.
26. Kind of weapon used Fire-arm."
27. He has also produced the provisional medical certificate of Vikio (Exh.29), and has said that there was no blackening, burning or tattooing around the wound with margins inverted on the left renal area (wound of entry). Details of injuries as below:-
28. "Details of injuries:
(1) Perforating type of lacerated wound size 1.5 c.m. in diameter, circular in shape with no blackening, burning or tattooing around the wound with margins inverted on left X renal area (wound of entry).
29. Sating type of lacerated wound size 3 c.m. x 2 c.m. in diameter above the umbilicus with omentum out and margins everted (wound of exit).
30. Nature of injury Kept reserved.
31. Probable duration of time 1/2-3 hours.
32. Kind of weapon used Fire-arm."
33. He has also, produced the medical certificate of Muhammad Lai (Exh.30),,and has stated that injury No.l was blackening around the wound. Details of injuries as under:
34. "Details of injuries
(1) Perforating type 'of lacerated wound size 3 c.m. x 2 c.m. in diameter, circular in shape with blackening around the wound with omentum out on Rt. Hypochordiom of abdomen with margins inverted (wound of entry).
(2) Perforating type of lacerated wound size 1.5 c.m. in diameter, circular in shape on Rt. renal area of Rt. lumber region with margins everted (wound of exit).
35. Nature of injury Kept reserved.
36. Probable duration of time 1/2-3 hours.
37. Kind of weapon used Fir-arm."
38. He has also produced the final medical certificate as Exh.31, but it is surprising to note that the final medical certificate bears that it was issued from Sindh Government Dispensary, Chakiwara, Karachi-South id respect.of injured Vikio son of Imam Bux. Also the medical certificate from Sindh Government Dispensary, Chakiwara, ,Karachi in respect of injured Muhammad Lai son of Moula Bux produced (Exh.32).
39. The statement of A.P.P. for closing the side of the prosecution is (Exh.33). Then the accused Aijaz Hussain was examined under section 342 (Exh.34). fie has produced the lease agreement (Exh.35). Statement of accused Ali Nawaz.(Exh.36).
40. Statement 'of accused Ghulam Abbas (Exh.37), and the statement of accused Abdul Aziz (Exh.38). Accused Aijaz Hussain was also examined under section 340(2) (Exh.39).
41. Accused Ali Nawaz was examined under section 342, as (Exh.40).
42. Ghulam Abbas was examined under section 340(2) (Exh.41). Abdul Aziz was examined under section 340(2) (Exh.42), and were cross-examined by the A.P.P.
43. We have heard Mr. Abdul Qadir-Halepota, learned counsel for the appellants, and Mr. Ashiq Raza, learned counsel for the State and have also perused the record.
44. P.W. Barkat Ali, in his statement, has stated that he cannot say where the Mashirnamas of injuries of P.Ws. were prepared. It is also very strange that none from the law enforcing agency though their names are disclosed have been examined. The medical certificate of Tagial Khan and Muhammad Lai showed having blackening and the rest, of the injuries had no mark of blackening. It is admitted and is also a case of the prosecution that accused All Nawaz had received serious injuries of bullets and he was, at the time of arrest, found in an injured condition, but no medical certificate has been produced in the Court nor it is known whether the accused Ali Nawaz was sent to the hospital and treated. It is also very strange and we failed to understand that almost four police stations' force including the law enforcing agency and S.R.P. force have surrounded, but admittedly the accused left the Banana Garden and went to the house of Jamali and from there climbed on the roof, but none was injured in between and the only accused, who was said to be injured by bullet, is Ali Nawaz, but his medical certificate has not been produced. Admittedly, the firing took place for more than five hours, but not a single Mashirnama has been prepared to show that due to the police firing there was any hole in the house of Jamali where the accused took the shelter and fired from. We also failed to understand that as alleged that accused Aijaz Hussain had a klashnikov and no empty was secured from the scene of offence nor there is any allegation regarding the firing from kk. Even the memo. of recovery of kk is silent on this aspect. It is an admitted fact that the accused persons had an enmity with Khair Muhammad Jalbani, Chairman of (he area, and have also produced the lease deed (Exh.35).
45. We failed to understand and yet to reconcile when we read the statement of the accused Aijaz Hussain under section 342 in which he has stated that there was no encounter with the police on 19-12-1988, but the learned Judge has translated that about 2 or 2-1/2 years ago there was an encounter of police with us, but (Exh.39), which is a Sindhi version is very clear on this point and had said that there was no encounter with the police so also in the statement of accused Ali Nawaz, Ghulam Abbas and Abdul Aziz. We also failed to understand as to how the learned trial Judge has translated it. We find that there are material contradictions in the evidence of the police officials though admittedly there were private persons and the place of incident, as alleged, is surrounded by the villagers, but none of the private persons has been examined in the lower Court. The accused persons had an old enmity with Khair Muhammad Jalbani, Chairman. Statements under section 342, Cr.P.C. of accused reveal that the translation of Sindhi is altogether different with English, which was written by the learned trial Judge that shows that the learned trial Judge was bent upon to convict the accused and has manipulated with the record.
46. We have already, by our short order, allowed the appeal on 13-9-1994, and have acquitted the appellants, and the above are the reasons for our said I short order.
47. N.H.Q./A-1539/K Appeal allowed.