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Petitioner: Ali Sher Bangulani and another VS Respondent: The State
Court Name: Sindh High Court Judge(s): Muhammad Saleem Jessar Title: Ali Sher Bangulani and another vs The State Case No.: Criminal Appeals Nos. S-76, S-77 and S-78 of 2019 Date of Judgment:2022-04-30 Reported As: 2023 YLR 1655 Result: Appeals dismissed
JUDGMENT
JUDGMENT MUHAMMAD SALEEM JESSAR, J.---The above three criminal appeals are being disposed of by this common Judgment in view of the fact that all these appeals relate to one and the same incident. 2. Appellants Ali Sher Bangulani and Khathoor Bangulani, have been tried by the trial Court for offences punishable under sections 302, 324, 353, 148, 149, P.P.C. arising out of FIR Crime No.94/2016, P.S. B-Section Thul, District Jacobabad and convicted them under section 265-H(2), Cr.P.C. and sentenced them under section 302(b), P.P.C. to suffer life imprisonment as Tazir and also to pay fine / compensation of Rs.500,000/- (Rupees Five Lac) each, to be paid to the legal heirs of the deceased, as required by section 544-A, Cr.P.C. and in case of default of payment of fine/compensation, they shall suffer S.I. for one year more. They were also sentenced under section 324, P.P.C. to suffer R.I. for seven years each and to pay fine of Rs.50,000/- (Rupees Fifty thousand only) each, to be paid to the injured- persons and in case of default, they are to suffer S.I. for one year. The appellants were also sentenced under section 353, P.P.C. to suffer R.I. for two years, with fine of Rs.10,000/- (Rupees Ten thousand only) each, and in case of default to suffer S.I. for two months more. It was directed that all the sentences shall run concurrently and benefit of section 382-B, Cr.P.C. was also extended to them. 3. Appellant Ali Sher Bangulani (Cr: Appeal No. 77 of 2019) was also convicted under section 265- H(ii), Cr.P.C. for offence punishable under section 23(1)(a) of Sindh Arms Act, 2013 and was sentenced to suffer R.I. for seven years, with fine of Rs.50,000/- and in case of default to suffer further S.I. for six months, while Appellant Khathoor Bangulani (Cr. Appeal No. 78 of 2019) was also convicted and sentenced under same section, as above, but was awarded R.I. for four years and a
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fine of Rs.30,000/- and in default to suffer further S.I. for two months. Benefit of section 382-B, Cr.P.C. was also extended to the appellants in these cases. 4. Briefly stated, facts of the prosecution case are that on 17.11.2016, complainant SIP Fida Hussain Shaikh, being posted as SHO PS B-Section Thul, lodged FIR, alleging that on the same date he along with his subordinate staff, namely, PC Altaf Hussain, PC Muhammad Yakoob, PC Rafique Ahmed, PC Sher Muhammad, PC Haji Addan, PC Khadim Hussain, PC Zubair Ahmed, PC Manzoor Ahmed and PC Abdul Hadi, in government mobile No.SPG-603 with driver PC Amanullah, and in another police Mobile No.SPC-082 HC Ali Gul along with PC Munir Ahmed, PC Zubair Ahmed, PC Khadim Hussain, PC Ghulam Yaseen and driver PC Liaqat Ali, duly armed with arms and ammunition, as per entry No.8, at 1230 hours, under the directions of high-ups, left P.S for arresting proclaimed offenders. It is further alleged by the Complainant that during course of such process/patrolling they crossed villages Joungal and Bakhshan Pahore and when, at about 1400 hours, they reached near village Rajab Ali Pahroe, they received spy information that notorious criminal of Sindh-Baluchistan, namely, Soomar alias Kali Bangulani, along with his companions, was available at Dera near his house, hence he conveyed such information to his subordinates and then proceeded towards the pointed place. As there was no path of vehicles for going to the pointed place, hence they parked government vehicles at village Ghulam Hussain Jafferi and proceeded by foot towards the pointed place. It is further alleged by the complainant that when at about 1430 hours they arrived at pointed place where HC Ali Gul, PC Haji Addan, PC Sher Muhammad and PC Rafique Ahmed saw and identified the accused Soomar Kali, Mahesar, Hazooro, Ali Sher, armed with Kalashnikovs, Khathoor armed with gun, Washo alias Sooreh, Seth, armed with Kalashnikovs, Neko alias Nek Muhammad, Shandost, armed with G-3, Abdul Latif and Anwar, armed with Kalashnikovs, all by caste Bangulani, were standing there and on seeing the police uniform all accused took position and fired upon complainant party indiscriminately with intention to commit their murder. In the meantime, accused Soomar alias Kali straightly fired from his Kalashnikov upon PC Yakoob, which hit him, who raised cries and fell down. Thereafter, PC Rafique Ahmed fired from his government SMG upon accused Soomar alias Kali, which hit him, who raised cries and fell down. Thereafter, accused Ali Sher fired burst from his Kalashnikov upon PC Rafique Ahmed, which hit him, who raising cries fell down. Thereafter, accused Hazooro Bangulani fired upon PC Khadim Hussain, which hit him, who raised cries and fell down. Thereafter, accused Khathoor fired from his gun upon PC Altaf Hussain, which hit him on his right hand. It is further alleged by the Complainant that during encounter after taking shelter of wahi(drain), he called more police force for their help. In the meantime, DSP Arbab Ali Soomro along with his staff and police personnel of PS A-Section and C-Section, Thul also came there. Thereafter, accused Washo alias Sooreh took the Kalashnikov of his companion Soomar alias Kali Bangulani and all accused persons by making firing started running towards northern side, hence the complainant encircled the accused. It is further alleged by the complainant that during chasing process the bullets of Kalashnikov of accused Ali Sher and cartridges of gun of accused Khathoor were consumed, hence they raised their hands up and surrendered before the police, therefore, both accused Ali Sher and Khathoor were arrested with their respective weapons, while other accused fled away. Thereafter, complainant cited HC Ali Gul and PC Ghulam Yaseen as mashirs and unloaded the Kalashnikov No.2535456 of 7.62 bore of accused Ali Sher and found its magazine was empty and smell of ammunition was coming from its barrel and magazine. On enquiry, he disclosed his name as Ali Sher and further disclosed that Kalashnikov is without permit. Thereafter, complainant unloaded the SBBL gun of .12-bore of accused Khathoor and also found it was empty and smell of ammunition was coming from its barrel. The encounter remained continued for about one and half hours. Then, complainant sealed the Kalashnikov and gun recovered from the possession of accused separately at spot and on personal search of accused nothing was secured from their possession. Thereafter, complainant
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noticed that PC Muhammad Yakoob has sustained firearm injury below right side of navel (DUN) through and through and blood was oozing from his wound; PC Khadim Hussain Bangulani also sustained firearm injury on backside of his shoulder through and through and blood was oozing from his wound and PC Altaf Hussain sustained firearm injury on his right hand through and through and blood was oozing from his wound, hence with the help of police force referred all the injured to Taluka Hospital, Thul for treatment. Thereafter, complainant party found PC Rafique Ahmed was lying dead having two firearm injuries on his right side abdomen through and through, one fire on back of buttock through and through one fire on right thigh through and through and one fire below the right knee through and through and blood was oozing from his injuries. They also found that accused Soomar alias Kali was lying dead having firearm injury on right side nipple through and through and blood was oozing from his injuries. Thereafter, complainant prepared such memo of arrest of accused, recovery of unlicensed weapons, inspection of injuries of injured persons, inspection of dead bodies of deceased PC Rafique Ahmed and accused Soomar alias Kali at spot in presence of above-said mashirs and referred both dead bodies to Taluka Hospital, Thul for postmortem and then they returned back at P.S., where he lodged the FIR under sections 302, 324, 353,148,149, P.P.C. against accused on behalf of the State and also lodged two separate FIRs under section 23(1)(a), SAA against accused Ali Sher and Khathoor. 5. After completing investigation, the I/O. submitted charge-sheet against present accused, namely, Ali Sher and Khatoor Bangulani before the Court of Judicial Magistrate, Thul, showing them in custody, while remaining accused, namely, Mahesar, Hazooro, Washo alias Sooreh, Seth, Neko alias Nek Muhammad, Shandost, Abdul Latif and Anwer, as absconders. Thereafter, the Judicial Magistrate, after completion of codal formalities, declared above-named absconder accused as proclaimed offenders and sent up the case to the Court of Sessions Judge,. Jacobabad, where necessary documents/police papers were supplied to present appellants Ali Sher and Khathoor vide receipt at Ex. 4 and a formal charge against them was framed at Ex. 7, to which they pleaded `not guilty' and claimed for trial vide their pleas recorded at Exs.7-A and 7-B, respectively. 6. The prosecution in order to prove its case examined PW-1 complainant Fida Hussain Shaikh at Ex.8, who produced referral letter of injured persons, inquest report and lash chakas form of deceased PC Rafique Ahmed, inquest report and lash chakas form of deceased accused Soomar alias Kali, memo of arrest of accused, recovery of unlicensed weapons, inspection of injuries of injured persons, inspection of dead bodies of deceased PC Rafique Ahmed and accused Soomar alias Kali, attested copy of roznamcha entries and FIR at Exs.8-A to 8-I; PW-2 PC Ghulam Yaseen at Ex. 9, who produced memo of inspection of wardat and securing last-worn clothes of deceased PC Rafique Ahmed and deceased accused Soomar alias Kali at Exs.9- A and 9-B; PW-3 PC Altaf Hussain at Ex.10; PW-4 PC Khadim Hussain at Ex.11; PW-5 Inspector Amanullah Sadhayo at Ex. 12, who produced receipts of handing over dead bodies, Ballistic Examiner's report at Ex.12-A to Exh. 12-D; PW-6 M.O.. Dr. Abdul Karim Ansari at Ex.13, who produced medico-legal certificates and postmortem report of deceased PC Rafique Ahmed at Exs.13-A to 13-D; PW-7 Tapedar Bakhtullah at Ex. 14, who produced sketch of wardat at Ex.14-A; PW-8 M.O. Dr. Liaqat Ali Pathan at Ex.15, who produced postmortem report of deceased accused Soomar alias Kali at Ex.15-A. Thereafter, the DDPP for the State filed statement thereby giving up the remaining witnesses and closed the side of the prosecution. The DDPP also filed statement thereby producing attested copies of certain FIRs registered against deceased accused Soomar alias Kali and absconding accused Mahesar, Seth, Neko alias Nek Muhammad and Shandost, 7. In the statements of the appellants recorded under section 342, Cr.P.C. at Exs. 17 and 18, the above-named accused pleaded their innocence. They neither led any evidence in their defence nor examined themselves on oath and further stated that all PWs are interested being police officials and they have deposed against them falsely in order to show their efficiency. They further
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stated that police of P.S. B-Section, Thul had involved them in so many cases, in which they were acquitted by the Courts, hence they prayed for Justice. The accused Ali Sher has produced certified true copies of order under section 249-A, Cr.P.C dated 28.3.2018 passed by learned Civil Judge and Judicial Magistrate Thul in Crl. Case No.150/ 2016 State v. Nihaluddin and others under sections 401, 353, P.P.C. of PS B-section Thul, Judgment dated.11.5.2017 passed by learned IInd Assistant Sessions Judge Jacobabad in Sessions No. 258/ 2016 State v. Nihaluddin, under section 23(1)(A), SAA of P.S B-Section Thul, Judgment dated 11.5.2017 passed by learned IInd Assistant Sessions Judge Jacobabad in Sessions No.275/2016 re-State v. Ali Sher,. under section 23(1)(A) SAA of P.S B-Section Thul, judgment dated 20.7.2018 passed by learned IInd Assistant Judge Sessions, in case No.510/2017 re-State v. Ali Hussain and others, under sections 399, 353, 337-H(2), P.P.C. and order under section 265-K, Cr.P.C. passed by IInd Assistant Sessions Judge in Sessions Case No.63/2017 re-State v. Khathoor Bangulani, under sections 324, 353, 380, 511, P.P.C. 8. The Trial Court framed the following points for determination: "Point No. 1. Whether deceased PC Rafique Ahmed died due to un-natural death? Point No.2. Whether on 17.11.2016 at about 1430 hour at the Dero of accused Soomar Kali situated near village Ghulam Hussain Jafferi Deh Bakhtiarpuir Taluka Thul District Jacobabad, above accused along with absconding accused Mahesar, Hazooro, Washo Seth, Neko alias Nek Muhammad, Shah Dost, Abdul Latif, Anwar and accused Soomar alias Kalli, (who expired in encounter) duly armed with lethal weapons formed an unlawful assembly and in prosecution of their common object fired upon police party headed by SIP Fida Hussain Shaikh of PS B-Section Thul with intention to commit their murder and deterred them from discharging their lawful duty as public servant and fired upon PC Muhammad Yakoob, PC Khadim Hussain, PC Altaf and PC Rafique Ahmed, with intention to cause their murder, out of them PC Rafique Ahmed expired at spot and the fires made by PC Rafique Ahmed hit to accused to Soomar alias Kali who also expired at spot? Point No.3 What should the Judgment be? 9. The trial Court, after hearing the learned counsel for the opposing parties and going through the evidence brought on record by the prosecution, convicted and sentenced the appellants as above, vide the impugned judgment, which has been challenged by the appellants by filing the present appeals. 10. Learned counsel for the0 appellants submitted that appellants were arrayed by the police due to enmity and nothing was secured, though alleged; the injured PW as well as deceased are from police and investigation was also conducted by the police themselves, hence bias view cannot be ruled out. He next submitted that in fact the co-accused Soomar alias Kali was the person, who made indiscriminate firing upon the police and none of other accused was available and later-on all the accused were arrayed by the police aiming to show their efficiency. He further submitted that allegation against appellant Kathoor is that he allegedly caused gunshot injury to injured PW PC Alataf Hussain which hit on his right hand; however, per medical evidence, the said injured PW/PC Altaf Hussain has sustained lacerated wound and not firearm injury. Hence, submitted that the prosecution has miserably failed to prove it's charge against the appellant; he, therefore, prays for the acquittal of the appellants. 11. Learned Additional Prosecutor General, appearing on behalf of the State, opposed the appeals, on the grounds that both the appellants are nominated in the FIR with specific role of causing firearm injuries to the deceased as well as injured PWs and no animosity or has been brought on record to believe that the appellants were arrayed falsely. Learned APG, when confronted with page-217 of the paper book, where provisional medico-legal certificate was issued by the Medico- Legal Officer in favour of injured PW/PC Altaf Hussain which reveals that the injured PW Altaf Hussain had sustained lacerated wound and not firearm injury, could not controvert the same.
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12. Learned Additional Prosecutor General very candidly admits that the ocular version to the extent of injured PW/ PC Altaf Hussain was not corroborated by the medical evidence. Such medical certificate is as Ex.13- D, at page-217. 13. I have heard learned counsel for the appellant, the learned APG for the State and have gone through the evidence on record with their help and assistance. 14. Before adverting to the points formulated for determination by the trial Court, it would be just and proper if objections raised by the learned counsel for the appellants that the appellants were arrayed in the instant case due to enmity, is taken up. This, to say the least, is a wild and bald allegation and is not supported by any evidence. Even, none of the appellants, in his statement recorded under section 342, Cr.P.C. took such plea and they only stated that the police arrayed them to show their efficiency. It has come on record that a number of cases were registered against the appellants, but the same could not prove any enmity between police and the appellants and, at the most, it could be said that the prosecution was unable to prove it's case beyond reasonable doubt in those cases. There was also no plausible explanation as to why the police would involve innocent persons in place of the real culprits, as death of PC Rafique Ahmed, as discussed below, has been proved to be unnatural. 15. Learned counsel for the appellants also tried to create a dent in the prosecution case by arguing that the injured PWs as well as the deceased were from police and hence biasness on the part of police cannot be ruled out. Suffice to say that, it is not a rule of law that in such cases police cannot be entrusted with the investigation of the case. However, nothing has been shown or brought on record that the appellants ever raised such plea before the concerned court by moving an application for transfer of the investigation to any other agency. On the contrary, the learned counsel by arguing that co-accused Soomar alias Kali was the person, who made indiscriminate firing upon police party, clearly admits that there was police encounter involving these persons. In police encounters and, particularly those encounters which take place in such remote areas, there is police personnel against the accused and there is no third party involved. Therefore, naturally the witnesses would be police officials only and if their evidence is not believed, particularly when one of their party members was killed in the encounter and others sustained firearm injuries, then the accused could not be convicted at all for their guilt. Therefore, this plea has no force and is rejected. Even otherwise, in the case reported as Muhammad Riaz v. The State (2018 PCr.LJ Note 179), also all the witnesses were police officials. A Division Bench of this Court held as under: 11. Adverting to the contention of learned counsel for the appellant/ accused that the complainant acted as investigating officer of his own FIR and that there is violation of section 103, Cr. P. C. that no private person was joined in recovery proceedings except officials. There appears no force in his contention as it has already been held by honourable Supreme Court in case of Zafar v. The State 12008 SCMR 1254) as under: "Police officer was not prohibited under the law to be a complainant if he was witness of an offence. Such officer could also be an investigating officer so long as it did not prejudice accused person" and that the "Police employees are competent witnesses like any other independent witness and their 13 testimony cannot be discarded merely on the ground that they are police employees." 16. Now, adverting to the impugned Judgment, the trial Court formulated Point No.1 with regard to the mode of death of PC Rafique Ahmed i.e. whether he died un-natural death. This point was discussed in minute detail by the trial Court. 17. After above discussion, the trial Court held that it is proved that deceased PC Rafique Ahmed died due to un-natural death. There was no rebuttal from the learned counsel for the appellants to the above finding in affirmative on point No.1 by the trial court. I find nothing abnormal in the above discussion calling for interference by this court.
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18. While discussing point No.2, the trial Court gave a detailed overview of the evidence of PW-1 / Complainant Fida Hussain Shaikh (Exh.8). The relevant portion of the impugned Judgment reads as under: "They while patrolling Joungal city, Buxan Pahore reached at village Rajab Pahore at 1400 hours where he received spy information that one notorious criminal namely Soomar alias Kall Bangulani with his other criminal companions was standing near the house of said criminal Soomar alias Kali Bangulani at Dera, who was rewarded for Rs.10,00,000/- from Sindh-Baluchistan governments hence he informed about the information to his subordinates and proceeded towards pointed place. When they reached at village Ghulam Hussain Jafferi where they parked their government mobile due to no any path for vehicles and they proceeded by foot and at about 1430 hours they reached at pointed place where HC All Gul, PC Haji Addan, PC Sher Muhammad and PC Rafique Ahmed by identifying the persons disclosed that they are namely accused Soomar alias Kali, Mahesar, Hazooro, Ali Sher, all four armed with K. Ks, Khathoor armed with gun, Washo, Seth with K. Ks. Neko, Shandost armed with G-3 rifles, Abdul Latif and Anwar armed with K.Ks, all by caste Bangulani who by seeing them in police dresses took shelter had started firing upon them intention to with Meanwhile accused Soomar Kali commt their Inurder. K. K. upon PC Muhammad Yakoob with fired from his his murder, who receiving injuries intention to cause fell down. PC Rafique Ahmed fired from his SMG rifle upon accused Soomar alias Kali which hit him and he fell down. Accused Ali Sher fired burst of K.K. upon PC Rafique Ahmed which hit him and he tell down by crying." 19. The above highlighted and underlined portion of the deposition of PW-1 Complainant Fida Hussain clearly establishes that appellant Ali Sher fired a burst of KK upon PC Rafique Ahmed, which, hit him and he fell down after sustaining injuries from the KK burst fired by appellant Ali Sher. 20. PW PC Ghulam Yaseen Soomro (Exh.9) also deposed that accused Ali Sher fired a burst of KK on deceased PC Rafique Ahmed, who fell down by crying. Similarly, PC Altaf Hussaina and PC Khadim Hussain also deposed on the same line and thus all the PWs, including the Complainant, who are all eye-witnesses of the incident, are unanimous in their deposition that appellant Ali Sher fired KK burst on deceased PC Rafiq Ahmed, who was hit by the burst and he fell down while crying. 21. A minute scrutiny of the deposition of PW-1 Fida Hussain and its companion with the FIR lodged by him about the incident show that there is no significant / major contradiction between the two and that his deposition is consistent with the complaint lodged by him about the incident. Nothing could be extracted from him that could be beneficial to the defense during his lengthy cross- examination. 22. The evidence of the Medico Legal Officer proves that the injuries sustained by the deceased PC Rafique Ahmed due to the burst of KK by Ali Sher caused his death. 23. A perusal of the Forensic Science Laboratory dated 23.11.2016 reveals that the Laboratory received one 7.62 mm bore (SMG) rifle No.2535456, Bolt No.3545, Spring No.35456, Cover No.35456/78502 with magazine which was recovered from appellant ALL Sher and one .12 bore SBBL Shot Gun (number rubbed) recovered from accused Khathoor with some empties. As per the Laboratory report, six 7.62 mm bore crime empties were fired from the above-mentioned rife recovered from appellant Sher Ali. 24. A perusal of the above depositions of the eye-witnesses of the encounter clearly shows that there is no material contradiction therein and all these witnesses are consistent and unshaken, although they were subjected to lengthy cross-examination. 25. From the above evidentiary material, when placed in juxtaposition, it becomes crystal clear that Point No.2 was rightly answered by the trial Court in the affirmative, as there is no doubt left that PC Rafique Ahmed was hit by the burst fired by appellant Ali Sher from his KK, which caused his death. Reliance can be placed upon the case of Muhammad Khan v. The State (2020 YLR Note 70).
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26. In the case of Shafqat Ali and others v. The State (PLD 2005 Supreme Court 288), the Hon'ble Supreme Court of Pakistan, on the question of ocular account getting corroboration from medical evidence, was pleased to held as under: "10. It may be noted that ocular account furnished by P. Ws. Tahir Abbas Muhammad Akhtar Zaman gets corroboration from the medical evidence produced by P. W. Dr. ' Hafiz Muhammad Akram Gondal. Learned counsel contended that there is contradiction in the ocular and medical but he could not point out any major contradiction, sufficient to disbelieve the ocular testimony furnished by PWs Tahir Abbas, Muhammad Asif and Muhammad Akhtar Zaman and consequently holding that they were not present at the place of incident. It may be noted that as far as medical evidence or expert's opinion is concerned, it is always treated to be confirmatory in nature and if there is ocular account fully reliable then the minor contradictions in medial and ocular evidence can be outweighed. In this behalf we are…
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