IF ACCUSED IS ACQUITTED IN THE MAIN CASE, OFF-SHOOT CASE SHELL ALSO BE

IF ACCUSED IS ACQUITTED IN THE MAIN CASE, OFF-SHOOT CASE SHELL ALSO BE ACQUITTED
Balochistan High Court
Muhammad Hashim Khan Kakar, J
Fida Hussain VS The State
Criminal Appeal No. 38 of 2011
16th November, 2011
Reported As [2012 P Cr. L J 226
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J. -Appellant, Fida Hussain son of Muhammad Umar, has assailed the judgment dated 30th June, 2011, passed by the Sessions Judge, Kalat at Mastung, whereby he was convicted and sentenced under section 13(e) of the Pakistan Arms Ordinance, 1965 to suffer three (3) years' R.I. With a fine of Rs.20,000 (rupees twenty thousand only) in default whereof to further undergo SI for six (6) months, with the benefit of section 382-B of the Cr.P.C.
2. On 1st January, 2011, complainant, Naib Tehsildar, Ghulam Haider, lodged an F.I.R. No.3 of 2011, under section 13(e) of the Pakistan Arms Ordinance, 1965 against the appellant at Levies Thana, Khad Koocha, with the allegations that in pursuance of F.I.R. No.1 of 2011, under section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, he. Along with the other police officials reached the area of Guro, on the pointation of foot-tracker, when they reached near a house, suddenly; armed persons opened fires upon levies party, which was retaliated. When the firing was stopped, the appellant was arrested and during the course of his personal search, an unlicensed Kalashnikov along with a magazine and three live cartridges, was recovered from his possession.
3. The prosecution, to establish its case against accused Fida Hussain, examined three witnesses. P.W. I Abdullah, Hawaldar Levies, produced recovery memos Exh.P/1-A, Exh.P/1-B and Articles/P-2 and 3, P.W.2 Taj Muhammad, Levies Sepoy, produced seizure memo Exh.P/2-A and P.W.3 Ghulam Haider, Naib Tehsildar is Investigating Officer of the case, who produced the challan Exh.P/3-C. Then the prosecution closed its side.
4. The accused was examined under section 342 of the Cr.P.C., wherein he once again denied the allegations however, he neither recorded his statement on oath, nor produced any evidence in defence. After finding the case against the appellant to have been proved beyond reasonable doubt, the trial Court convicted and sentenced him, as mentioned and detailed above, hence the present appeal before this Court.
5. I have heard Mr. Abdul Ghani Mushwani, learned counsel for the appellant and Mr. Abdul Kareem Malghani, Assistant Prosecutor-General.
6. The main contention of Mr. Abdul Ghani Mushwani, Advocate, is that initially the accused was arrested in Crime No.1 of 2011, under section 17(3) of the Offences Against. Property (Enforcement of Hudood) Ordinance, 1979 and Crime No.2 of 2011, under sections 324 and 353 of the P.P.C., registered at Levies Thana Khad Koocha, in which he was acquitted of the charge. He further argued that, admittedly, the village is a thickly-populated area, but none of the private persons was associated to act as mushir. He next contended that the complainant Ghulam Haider is not only the complainant in the instant case, but has also conducted the investigation, which has caused serious prejudice to the appellant, especially when there was an allegation of encounter. He argued that the accused has already been acquitted in the main cases and this is an offshoot of Crime Nos.1 and 2 of 2011.
7. On the contrary, learned Assistant Prosecutor-General, supported the prosecution case and contended that the trial Court, after proper appraisal of evidence, rightly found the appellant, guilty of the offence.
8. After having gone through the prosecution case, I have arrived at a confident conclusion that the prosecution, indeed, had failed to prove its case against the appellant beyond reasonable doubts. In this context, I noticed that the appellant has been acquitted in Crimes No.1 of 2011 and 2 of 2011 and this is an off-shoot of the above cited crimes, as such, the appellant is entitled to be acquitted in the instant case, which is an off-shoot of the said cases. I have also noticed that Ghulam Haider was not only complainant, but was also Investigating Officer in the said cases and the trial Court had disbelieved his evidence in both the cases, but, surprisingly, convicted and sentenced the appellant in the instant case on the basis of same evidence.
9. Mr. Abdul Ghani Mushwani, Advocate, submitted that the F.I.R. Figured the allegations of encounter with police party and all the matters were investigated by Naib Tehsildar, Ghulam Haider, who lodged the F.I.Rs., prepared the recovery memos, site plan and recorded the statements of witnesses, which is not warranted under the law. There is force in the said contention of learned counsel, as in the case of allegation of police encounter, the case should not be investigated by an official, who took part in the encounter, and in such state of affairs, investigation of the case should be carried out by an independent agency in order to save the citizens from unfairness/injustice of police. By holding this view, I am fortified from the case of "Ch. Muhammad Yaqoob v. The State" reported in 1992 SCMR 1983, relevant portion whereof is as under:
"14. It is in the evidence that immediately after the incident, police officials who took part in the encounter, as is alleged by defence. Were rewarded and promoted even before the final order was passed under section 173, Cr. P. C. By the Magistrate. This state of affairs shows that if police claims encounter then the matter is not subjected to scrutiny by any Court of law but is investigated in a formal manner by the police themselves and order is obtained under section 173, Cr.P.C. For cancellation of the case. There is no warrant of law or legal justification for police encounter. It is apparent that undue advantage is taken of the situation for the reason that no F.I.Rs. Are filed or allowed to be filed by the relatives of the deceased against police officers. Under such circumstances, police feels absolutely secure that of their action which is proclaimed as police encounter, no judicial scrutiny can be made by a Court of law, hence immediately after the incident, such police officials who took part in the killing are rewarded and promoted, which provides as a seal of approval and legal sanctity on the killing even if it is calculated, pre-planned and intentionally done. This gives the police a free licence to kill any person they want and then manipulate a story of encounter and no further questions can be asked by any Court. It is a sorry state of law and it is high time that Legislature should amend the law in such a way as to make police answerable before a Court of law to satisfy the Court that encounter was genuine and attack was opened on police party by aggressors first, who have been killed.
15. Under the law, after registration, if plea of private defence is taken, then such plea is to be considered by the Sessions Court or its equivalent in juxtaposition with prosecution case and then it is left open to the trial Court to accept that plea or not. As against that if plea is taken of encounter with police, then the Court does not get an opportunity to consider the plea in the same manner and at par with case between private persons in which F.I.R. Is registered, for reasons already stated above. Of course, remedy of filing direct complaint in the Court is available but that is not pressed into service for the reasons that relatives of deceased in such circumstances feel afraid of reprisal or revenge of police and their pressure tactics. In such circumstances, it would be better to amend the law in such a way that such cases of police encounters be allowed to be investigated by independent agencies and presented in the Court of law at the level of Sessions Court for examination and consideration of such plea strictly according to law."
10. Moreover, the mandatory provisions of section 103 of the Cr.P.C. Have also been violated, particularly when according to the own showing of the prosecution witnesses, many people gathered at the site, but the Investigating Officer did not bother to or make efforts to cite anyone of them as witness in order to testify the recovery of arms and ammunitions from the possession of the appellant. On the other hand, the perusal of the record reveals that the complainant and mushirs have given stereotype evidence in all the cases. Even the F.I.Rs. In all three cases being Crime No.1 of 2011, Crime No.2 of 2011 and Crime No.3 of 2011 and mushir names of recovery in all three cases are stereotype and identical. The requirements of section 103 of the Cr.P.C, which is not a decoration piece, could only be ignored in such a situation, if the prosecution furnished a satisfactory explanation for non-association of the private witnesses from the public with the alleged recovery. In the case in hand, no such explanation is available on the record as to why the witnesses from the public were not associated with the alleged recovery. Therefore, in the absence of above evidence, including the report of Forensic Science Laboratory, the conviction and sentence awarded to the appellant by the trial Court is not justifiable.
The cumulative effect of all above factors resulted into recording of acquittal of the appellant, which I had done by setting aside the impugned judgment and the conviction vide short order dated 13th November, 2011 and these are the reasons thereof.
(2)
Sindh High Court
Irfan Saadat Khan, J
Muhammad Azeem Alias Dodo VS The State
Criminal Jail Appeal No. S-83 of 2009
12th August, 2011
Reported As [2012 P Cr. L J 1
JUDGMENT
IRFAN SAADAT KHAN, J. The appellant was tried and convicted vide judgment dated 31-8-2009, passed by the learned Sessions Judge, Jacobabad, in Sessions Case No.838 of 2008, in F.I.R bearing Crime No.77 of 2008 of Police Station Mouladad under section 13(e) of Pakistan Arms Ordinance, 1965 and sentenced to suffer rigorous imprisonment of three years. Benefit of section 382-B, Cr.P.C. Was extended in his favour.
2. In the nutshell, it is the case of the prosecution that the appellant/accused while in custody of Mouladad Police led SIP Aijaz A.I Farooqui to the recovery of an unlicensed Kalashnikov allegedly used by him in the commission of crime viz., murder from dense bushes at the path of Jattak Wah (minor canal), situated at Naudhan diversion, with magazine in presence of private mashirs, namely, Khadim Hussain and Hamza A.I, both by case Katohar.
3. From the perusal of the record it appears that the Kalashnikov allegedly recovered on the pointation of the appellant/accused was not sealed on the spot. The appellant was arrested on 7-10-2008 and he led to the recovery of the said Kalashnikov after seven days of his arrest i.e., on 14-10-2008. The Kalashnikov allegedly recovered on the pointation of the appellant was dispatched for the Ballistic Expert opinion on 22-10-2008, but was received in the said Division on 16-3-2009 i.e., after about five months of the said dispatch, for which there is no explanation on the record. Copy of daily diary, under which the police along with the appellant allegedly went to the place of recovery has also not been produced. Mashir Hamz A.I is related to the complainant of main murder case. In the case of Arif Khan v. The State 1998 PCr.LJ 1287, it was observed by a Division Bench of this Court that if the recovery memo did not show that the weapons were sealed at the spot, the case becomes doubtful. Furthermore, the appellant has been acquitted in the main murder case while extending him benefit of doubt. In such circumstances, I am of the considered view that the prosecution has failed to prove the present charge against the appellant. The appeal is, therefore, allowed, the impugned judgment passed by the learned trial Court is set aside and the appellant is acquitted of the charge. He is directed to be released forthwith if not required in any other case