MOHAMMAD HAYAT Versus State

NAIMATULLAH PHULPOTO, J.--- Appellants Muhammad Hayat son of Sono Pahore, Deedar alias Gero son of Qurban Shaikh, Piaro alias Khair Muhammad son of Ghanwar Pahore and Muhib son of Piaro Pahore were tried by learned Judge, Anti-Terrorism Court-Khairpur in Special Cases Nos.27/2012, 28/2012; 33/2012, 34/2012 and 35/2012 vide judgment dated 30.10.2014, appellants were convicted under section 365-A read with section 149, P.P.C. of Crime No.18/2012 of Police Station Sarah and sentenced to imprisonment for life. All the moveable and immoveable properties of accused were forfeited to State. Appellants were further convicted under section 324 read with section 149, P.P.C. and sentenced to 5 years' RI and to pay fine of Rs.10,000/-each, in case of default to suffer RI for 06-months more. They were also convicted under section 353 read with section 149, P.P.C. and sentenced to 2 years' R.I. In Crime No. 19/2012 appellant Muhammad Hayat was convicted under section 13(d), Arms Ordinance, 1965 and sentenced to four years R.I and to pay fine of Rs. 5,000/-. In case of default of payment of fine he was ordered to suffer R.I. for 2 months. Appellants/accused Piyaro, Muhib and Deedar alias Gero were convicted for offences under section 324 read with section 149, P.P.C. and sentenced to 5 years' R.I. and to pay fine of Rs. 10,000/- each, in case of default in payment of fine they were ordered to suffer R.I. for six months. They were also convicted under section 353 read with section 149, P.P.C. and sentenced to suffer R.I. for two years. In Crime No.37/2012 accused Piyaro alias Khair Muhammad was convicted under section 13(d), Arms Ordinance, 1965 and sentenced to four years' R.I. and to pay fine of Rs. 5000/-, in case of default to pay fine he was ordered to suffer R.I for two months. In Crime No. 38/2012 accused Muhib was convicted under section 13(d), Arms Ordinance, 1965 and sentenced to four years and to pay fine of Rs. 5,000/-, in case of default in payment of fine he was ordered to suffer R.I for two months. Appellants. Muhammad Hayat, Deedar alias Gero, Piaro alias Khair Muhammad and Muhib were also convicted for offence under section 7(e) of A.T.A., 1997 and sentenced to imprisonment for life. Moveable and immoveable property of all the said four accused persons were also forfeited to the State. All the sentences were also directed to run concurrently. Appellants challenged the conviction and sentence awarded to them. By this single judgment we intend to dispose of aforesaid appeals.

2. Brief facts of the prosecution case as disclosed in the FIR are that on 23.03.2012 Inspector Rab Nawaz Rajper SHO of Police Station Sorah left Police Station along with subordinate staff ASI Ghulam Abbass Jiskani, ASI Manzoor Hussain Rind, HC Mushtaq Ali Shar, P.Cs Syed Asadullah Shah, Muhammad Saleh Mojai, Vakeel Ahmed Bhanbhro, Muhammad Khan Shar in Government vehicle for patrolling duty vide roznamcha entry No.8 at 1215 hours. While patrolling at different places, when police party reached at Sikandar Abad where it is alleged that SHO received spy information that two persons namely: Ladik Mal Hindu and Zaheer Hussain Rind have been kidnapped on 10.3.2012 for ransom within the territorial jurisdiction of Police Station Sorah and criminals were shifting them to Ghotki or Pano Akil. On such information, SHO informed the S.S.P Khairpur and on his directions further staff was sent by him of various Police Stations. Thereafter, police party proceeded to the pointed place and reached at deserted area, it was 1600 hours Police party saw that 12 persons were standing there. Out of them, two persons had folded eyes and their hands were tied with ropes from back side and 10 culprits were carrying klashanikovs in their hands and their faces were opened. Police party identified them, they were accused Muhammad Hayat, Piaro, Muhib residents of Thull, District Jacobabad, Hafiz Mirbahar, Wahid Shaikh, Bashir Lashari, Nazir Bangulani and three unidentified persons, police challenged them to surrender but they started straight firing upon police party with intention to kill them and police also fired in their self defense for 20 minutes. Police succeeded to catch hold appellant Muhammad Hayat Pahore along with Kalashanikov and two persons whose eyes were folded were also recovered by the police. Other accused persons made their escape good. Police recovered Kalashnikov from the possession of accused Muhammad Hayat, it was without license. Police enquired about the names of persons who were recovered by the police from the custody of accused, they disclosed their names as Ladik Mal son of Golo Mal Hindu resident of Salehpat District Sukkur and another person disclosed his name Zaheer Hussain son of Ghulam Hyder Rind resident of village Chibher Khan Rind taluka Mirwah, District Khairpur. They told to the police that on 10.3.2012 they were going in a Car from village Bozodar Wada to Choondiko, when at about 11.30 a.m. they reached at Thari Mirwah link road where they saw five accused persons there. They got stopped their Car and kidnapped them on gun point. Both persons further told to Police that accused persons were shifting them to some other place, after encounter police recovered them. Mashirnama of arrest and recovery of accused was prepared in presence of mashirs. Thereafter, accused Muhammad Hayat and both abdcctees (Ladik Mal Hindu and Zaheer Hussain Rind) were brought to Police Station where Inspector lodged FIR against accused on behalf of State bearing Crime Nos.18/2012 under sections 365-A, 324, 353, 148, 149, P.P.C. and 13(d), Arms Ordinance. In the end of FIR details of recovered Kalashnikovs and empties have been mentioned.

3. During investigation SIP Mashooque Ali Keerio SHO of Police Station Sorah left Police Station on 6.5.2012 for patrolling duty along with his subordinate staff while patrolling at various places when police party reached at Choondiko Nara, SHO received spy information that absconding accused in Crime No.18/2012 under sections 365-A, 324, 353, 148, 149, P.P.C. and 13(d), Arms Ordinance of Police Station Sorah were standing at road near Sabeel of Baqar Shah with intention to commit crime. On such information, police party proceeded to the pointed place and reached there at 1900 hours. Police saw eight accused persons standing there having Kalashnikovs while seeing the police in uniform accused started firing upon police with intention to kill police, police-party also fired in their self-defense, firing continued for about 20 minutes. Police issued warning to the accused to surrender but without any response. Thereafter, police succeeded to catch hold two accused. From accused Piaro alias Khair Muhammad a Kalashnikov along with magazine and from Muhib Pahore Kalashnikov without licenses were recovered. Numbers of both weapons were rubbed. SHO arrested both accused and prepared mashirnama of arrest and recovery in presence of mashirs. Both accused were brought to Police Station where SHO lodged FIR against accused vide Crime No.36/2012 under sections 324, 353, P.P.C. and 13(d), Arms Ordinance, 1965. Separate cases against both accused under sections 13(d), Arms Ordinance, 1965 were also registered vide Crime Nos. 37/2012 and 38/2012 at Police Station Sorah. Investigating Officer recorded 161, Cr.P.C. statements of P.Ws, completed investigation and on the conclusion of the investigation submitted challan against accused persons under sections 365-A, 324, 353, 148, 149, P.P.C., 7, A.T.A., 1997.

4. Case proceeded against absconding accused Hafiz Mirbahar, Basheer Lashari, Nazeer Banglani, Wahid Bakhsh and Shah Baig in their absence and they were declared as proclaimed offenders. Proceedings under section 87/88, Cr.P.C. were concluded against them. Crime Nos.36/2012 under sections 324, 353, P.P.C., 7, A.T.A., Crime No.37/2012, 38/2012 and 19/2012 under section 13(d), Arms Ordinance were amalgamated with main case by learned Judge of Anti-terrorism Court Khairpur in terms of section 21(m) of ATA, 1997.

Charge was framed against the above named accused by learned Judge of Anti-Terrorism Court at Exh.9. Accused pleaded not guilty and claimed to be tried.

5. At the trial, prosecution examined the following witnesses:-

1. PW-1/abductee Ladik Mal at Ex-12

2. PW-2 ASI Ghulam Abbass Jiskani (mashir) at Ex-13

3. PW-3/abductee Zaheer Hussain Rind at Ex-14

4. PW-4/Complainant Inspector Rabnawaz Rajper at Ex.15.

5. PW-5 ASI Zulifqar Ali Bhanbhro (mashir) at Ex-16.

6. PW-6 PC Mushtaq Ahmed at Ex.17.

7. PW-7 Inspector Mashooque Ali Keerio at Ex-19

8. PW-8/Investigating Officer Inspector Altaf Hussain Burdi at Ex-20.

Thereafter, prosecution side was closed at Ex.21.

6. The statements of accused were recorded under section 342, Cr.P.C. at Ex.22 to 25, in which they have denied the prosecution allegations. All the accused claimed false implication in this case. Accused Muhammad Hayat has claimed false implication in the case, at the instance of one Ali Gul Mahar. Remaining accused have also claimed innocence. Accused Muhib Ali has stated that he is son of co-accused Khan Muhammad and police has involved him falsely in this case. All other incriminating pieces of the evidence have been denied. As regards to the recoveries it is stated that Kalashnikovs have been foisted upon them.

7. On the conclusion of prosecution evidence, learned Judge of Anti-Terrorism Court Khairpur after hearing the learned counsel for parties and assessment of evidence convicted and sentenced the appellants as stated above.

8. We have carefully heard the learned counsel for the appellant, learned A.P.G. for the State and perused the entire evidence minutely.

9. The facts of this case as well as evidence produced before the trial Court find an elaborate mention in the impugned judgment passed by learned Judge, Anti-Terrorism Court Khairpur and, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

10. Mr. Qurban Ali Malano learned advocate for appellants has mainly argued that abductees of first episode have not implicated the accused at trial. He next argued that despite encounter with sophisticated weapons, no one received injury/scratch from either side. He has argued that it is very strange that even no damage was caused to the police mobile. Mr. Malano further argued that Kalashnikov recovered from accused Muhammad Hayat and empties were not sent to ballistic expert for report. Regarding the arrest of the remaining accused it is argued that it was fake encounter, no body from both sides has sustained any injury during police encounter. He has argued that though these were cases of spy information, police failed to associate two independent and respectable persons of the locality to witness the recovery. He next argued that omission on the part of the police was intentional and mala fide. He has also argued that accused persons have raised plea that they have been falsely involved in the case at the instance of one Ali Gul Mahar, despite that no independent witness has been produced. It is submitted that evidence of police officials in the circumstances requires independent corroboration which was lacking in this case. Lastly he has argued that arrival and departure entries of Police Station have not been produced at trial, it has cut the roots of the prosecution case.

11. Mr. Saleem Akhter Buriro Addl. P.G argued that accused Muhammad Hayat was arrested at spot by the police and two abductees were recovered who were kidnapped for ransom. He has argued that both abductees did not support the prosecution case due to fear of the accused. Learned Addl. P.G argued that evidence of police officials was reliable and police had no motive to falsely implicate the accused in the commission of offence. Regarding 2nd episode of recoveries of Kalashnikovs from accused, he did not support the prosecution case.

12. We have carefully heard the learned counsel for the parties and scanned the prosecution evidence available on record.

13. It is the case of prosecution that SHO Rab Nawaz received spy information on 23.3.2012, that accused persons were shifting abductees, namely, Ladik Mal Hindu and Zaheer Hussain Rind. On such information, police party reached at the pointed place and recovered two abductees. At the time of encounter, appellants were identified by police party and recovered abductees namely, Ladik Mal Hindu and Zaheer Hussain Rind. At the trial, both abductees had not supported the case of prosecution and had narrated a different story. Both the abductees did not identify the accused persons before the trial court. Nothing has come on surface to hold that the prosecution had proved charge against the accused persons. From perusal of judgment of trial Court, it appears that accused persons have been convicted while relying upon evidence of police officials only. Findings of trial Court are perverse and speculative. In our considered view, if first episode/occurrence had occurred in presence of abductees besides police officials but said private witnesses have denied occurrence to have taken place at all. Evidence of police officials in such circumstances could not be relied upon without independent corroboration which is lacking in this case. According to prosecution evidence, there was exchange of fires for about 20 minutes between the police personnel and dacoits, but no one from either side had sustained fire-arm injury, and no damage was caused to police mobile, which had created doubt in the alleged encounter. Case of prosecution was that appellants were identified by police party at the time of first encounter but there is no evidence, on record to show criminal record of the accused. When neither criminal background nor involvement of appellants has been proved on record, how could police party identify the accused is a question which also went un-answered. Other piece of evidence connecting the appellants with the crime was the recovery of K.Ks and empties from the place of wardhat, but strange enough. K.Ks and empties were not sent to the Expert for Ballistic report. Escape of remaining accused at the time of first episode when police party was in large number also raises serious doubt in the prosecution case. In such circumstances the standard of proof in the case should have been for higher as compared to any other criminal case when according to prosecution it was a case of police encounter. It was, thus, desirable that it should have been investigated by some other independent police officer. Reliance is placed upon the case of Zeeshan alias Shani v. The State (2012 SCMR 428). Relevant portion is reproduced as under:-

"11. The standard of proof in this case should have been far higher as compared to any other criminal case when according to the prosecution it was a case of police encounter. It was, thus, desirable and even imperative that it should have been investigated by some other agency. Police, in this case, could not have been investigators of their own cause. Such investigation which is woefully lacking independent character cannot be made basis for conviction in a charge involving capital sentence, that too when it is riddled with many lacunas and loopholes listed above, quite apart from the afterthoughts and improvements. It would not be in accord of safe administration of justice to maintain the conviction and sentence of the appellant in the circumstances of the case. We, therefore, by extending the benefit of doubt allow this appeal, set aside the conviction and sentence awarded and acquit the appellant of the charges. He be set free forthwith if not required in airy other case."

14. It is unbelievable that despite encounter for about 20 minutes, not a single injury was caused to the police party or to the accused as such prosecution case was highly doubtful. Reliance is placed upon the cases of Sadaruddin alias Sadoro and others v. The State (2015 MLD 1259 [Sindh]), in relevant portion as follows:-

"11. Perusal of the record reveals that from the evidence brought on record, the prosecution had not been able to prove its case against the appellant so also learned trial Judge has not appraised the same while drawing the impugned conclusion. The charge against the appellant is of attempt of Qatl-i-amd by firing at the police party, deterring the raiding party (police) from the discharge of their official obligations and the constitution of unlawful assembly for the purpose of rioting. The record depicts that admittedly alleged encounter between the appellants and police party remained continued for half an hour, but none of the policemen or accused/appellants was hurt in the encounter, thus making it a mystery and even police mobile parked there was also not hit by any bullet. Likewise, no recovery of crime weapon was effected from the possession of the appellants except Sadaruddin alias Sadoro, but said recovery of the crime weapon was not established, as no independent witness was associated to witness the recovery. Furthermore, according to testimony of prosecution witnesses, they saw the accused/ appellants on the headlight of police mobile, but certainly the identification on the headlight of the police mobile was weak type of evidence requiring strong corroboration but the same was badly lacking. Moreover, the alleged recovered weapon from the possession of appellant Sadaruddin alias Sadoro was never sent to the Ballistic Expert, therefore, the alleged recovery in such situation was of no consequence."

15. Admittedly, in the cases in hand arrival and departure entries were not produced before the trial Court in order to prove that police party, in fact proceeded to the place of occurrence and recovered two abductees and arrested accused Muhammad Hayat with Kalashnikov. Roznamcha entries of second episode of arrest of co-accused and recovery of weapons have also not been produced. This lapse on the part of prosecution has cut the roots of the prosecution case, thus, rendered entire episode shrouded by doubt. This omission by itself was enough to disbelieve the evidence of police officials. It is also admitted fact borne out from the record that Kalashnikovs allegedly recovered from the appellants were neither sealed at spot nor the same were sent to Ballistic Expert for report. Conviction under section 13(d), Arms Ordinance, 1965 could not be maintained unless weapons allegedly recovered were sealed at spot and opinion of Ballistic Expert was produced in order to prove that weapons so recovered were infact functional. Appellants were not confronted with every incriminating piece of evidence brought on record against them in their statements under section 342, Cr.P.C. unless accused are confronted with material available in evidence against them, legally conviction cannot be sustained. Private witnesses abductees Ladik Mal Hindu and Zaheer Hussain Rind have also not supported the case of prosecution as such, cases in hand were not proved beyond any shadow of doubt. Reliance is placed upon the case of Abdul Sattar and others v. The State (2002 PCr.LJ 51).

16. Prosecution had miserably failed to prove its case beyond any shadow of doubt in the cases in hand for the reasons that absolutely there was no evidence of kidnapping for ransom against the accused. Police encounter was highly doubtful. Prosecution has also failed to establish recoveries of weapons from the accused as discussed above. There are several circumstances which created doubt in the prosecution case. It is well settled law that benefit of all favorable instances in prosecution evidence must go to accused regardless of whether he has taken any such plea or not. Reliance is placed upon the case of Muhammad Nawaz and another v. The State and others (PLD 2005 Supreme Court 40).

17. Consequently, appeal is allowed and conviction and sentence recorded by the trial Court vide Judgment dated 30.10.2014 are set aside. Appellants Muhammad Hayat, Deedar alias Gero, Piaro alias Khair Muhammad, Pahore and Muhib Pahore are in custody; they shall be released forthwith, if they are not required in some other case/crime.

JK/M-161/Sindh Appeal allowed.