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Petitioner: HUSNAIN RAZ alias KASHIF and 3 others VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Irfan Saadat Khan, Muhammad Ather Saeed Title: HUSNAIN RAZ alias KASHIF and 3 others vs THE STATE Case No.: Special Criminal A.T. Appeal No,24 of 2003 Date of Judgment:2011-06-04 Reported As: 2011 MLD 1667 Result: Appeal allowed
JUDGMENT
JUDGMENT ' IRFAN SAADAT KHAN, J.---This Special Criminal ATA Appeal has been filed against the judgment dated 30-6-2009 passed by ATC Court No, II Karachi in Special Case No, 74 of 2008 in respect of F.I.R. No, 153 of 2007 lodged under sections 353/302/324 and 186, P.P.C. Read with section 7 of ATA Act, 1997 at Police Station Gulistan-e-Johar, Karachi. 2. Briefly stated the facts of the case are that the police party of Gadap Town was busy in search of an absconder namely Hasnain Raza alias' Kashif. And his other companions. On spy information the police party reached the House No, 42/43 Block-8 Gulistan-e-Johar Karachi at 8:30 hours and encircled the same. When the Police knocked the door of the house one person opened the door and after seeing the .Police party ran inside the house and then the said person along with his other accomplice started firing on the police party from inside and from the roof of the house. The police also fired in its defence. As a result of firing of the miscreants A.S.-I. Imamdin received fatal bullet wounds and died on the spot. However HC Muhammad Mumtaz of ACLC Gulberg Town got injured. After sometime the police was able to apprehend the accused Hasnain Raza alias Kashif along with one .222 Rifle No, 5713 with folding butt with loaded magazine having 3 lives rounds and one bullet in the chamber. One .12 bore Repeater No, 48668 loaded with magazine with 3 live bullets was recovered from Sibtain Raza. One .222 Rifle No, 1339 along with loaded magazine with 6 rounds and one bullet from the chamber was recovered from accused Muhammad Ashraf. One .30 bore Pistol No, 4237 along with loaded magazine having two live rounds and one bullet in the chamber was recovered from Muzammil Hayat. One .222 Rifle No, 66533 with loaded magazine having 4 live rounds with one round in the chamber was recovered from Muhammad Saleem. One .222 Rifle No, 0118 with folding butt and loaded magazine having 6 live rounds and one live round loaded in the
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chamber was recovered from Shoaib Raza. As per the F.I.R. The accused persons could not produce the licence of weapons on demand. 3. The accused Hasnain Raza also disclosed his absconding companions as Raja Shafiq, Chaudhury Zulfiqar aid Ghulam Rasool. 60 empties of .222 Rifle and .30 bore pistol and 12 empties of Government SMGs were also secured from the place of vardat. On the disclosure of Hasnain Raza Kashif some more ammunition was recovered from the house including one shot gun SBBL No, A-5371 and 210 live rounds of .222 Rifle wrapped in plastic bag under the bed, 50 live rounds of 31 bore pistol, 6 live .Rounds of repeater rifle in respect of which no licence was produced by the accused persons. The dead body and the injured persons were sent to Jinnah Hospital for further proceedings and medical treatment. F.I.R. Thereafter was registered against the accused persons under the above mentioned provisions of the law. 4. The police after completing the investigation submitted the challan before the Administrative Judge ATC of the Hon' ble High Court of Sindh, from where the case was marked to ATC Court No, II and the learned Court after finding the accused persons to be guilty of the charges convicted accused Hasnain Raza alias Kashif, Sibtain Raza, Muhammad Ashraf and Shoaib Raza to life imprisonment and fine of Rs,2 lac each and two years imprisonment more in case of default of payment of fine. They were also found guilty of offences falling under section 6(2)(n) and under section 7(h) of the ATC Act. They were also convicted to suffer R.I for five years and fine of Rs,30,000 each and four months in case of default of payment of fine in respect of the offence under section 13-D Arms Ordinance. It is against this order that the present Special Criminal ATA Appeal has been filed. 5. Mr. Abdul Razzak learned counsel appeared on behalf of appellants/accused and submitted that firstly no encounter took place and the whole case made out by the police has been foisted upon the accused persons. The learned counsel further submitted that this whole case against the accused persons was made clue to the enmity between the accused persons and one Fida Leshari, TIO, Gadap Town and as a result of such enmity this false case was foisted upon them. While elaborating this point, the learned counsel submitted that the said Fida Leshari raided the house of Husnain Raza and took away household items and other belongings illegally. The accused Husnain Raza then-made a complaint against such incident to the high officials of police department who after finding that the allegations made by the accused were correct, transferred the said Fida Leshari to some other place. It is also stated that accused Husnain Raza also made complaints against Fida Leshari in respect of which corruption proceedings were also initiated against him. This action of accused Husnain Raza had annoyed Fida Leshari who, though transferred to some other area, was able to involve the accused persons in this false. He in this regard invited our attention to the 342, Cr.P.C. Statement of accused Husnain Raza, which, for the sake of convenience, is produced hereunder:-- "Sir. I am innocent and falsely involved in this case due to enmity with ACLC Gadap Town Police. Sir, before this incident Fida Leshari. TIO, Gadap Town, raided my house on 18-4-2007 and took away household articles and everything report of which was lodged by my wife in the Anti-Corruption. I produce P/copy of the F.I.R. As Exh.D-1. So also copy of my application moved before Chairman, Anti-Corruption Establishment, Sindh, Karachi as Exh.D-2. Sir, prior to this my wife Rashida Begum had also lodged F.I.R. Against Ex-TIO, Fida Leshari about my servant Sajjid. I produce this F.I.R. As Exh.D-3. Copies of this F.I.R. Were sent to Higher Authorities. Due to this enmity ACLC police has falsely involved me in this case." 6. He further submitted that the allegation that the A.S.-L Imamdin had been killed by the accused persons was also not correct as he had died somewhere else and was falsely shown to have died due to the firing made by the accused persons. He submitted that all the arms recovered from the accused persons were licensed weapons and were looted by the police from the office of the Gull
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Estate by breaking the locks, hence the charges levelled in this regard are incorrect and false. He further submitted that the learned ATC Judge was not justified in convicting the appellant whereas under identical circumstances the Court had acquitted the co-accused persons namely Raja Shafaqat. Chaudhury Zulfiqar, Ghulam Rasool and Muhammad Saleem. He further submitted that no prosecution witness has corroborated with other witnesses or the documents including F.I.R., sketch memo, memo of inspection, inquest report and medical evidences. He further submitted that as per the F.I.R. The time of incidence was given at 8-30 hours whereas according to the P.W.1 the dead body of A.S.-I. Was brought to Police Station at 8-00 hours. He further submitted that there is a marked contradiction with regard to the time of death of A.S.-I. Imamdin which had created doubt in the case and in case of doubt, it is a settled proposition of law that, benefit should be given to the accused persons. 7. The learned counsel submitted that the P.Ws. Have improved their version which is evident from their depositions. He stated that it is an admitted position by the police that heavy firing, from both the sides took place, but it is strange to note that not a single bullet mark was either available on the mobile or on the walls of the house. He also stated that if the angle of receiving the bullet by the deceased A.S.-I. Imamdin on his head is examined, it would be seen that it was quite impossible to have received the bullet from that angle if it is assumed for arguments sake that the firing was being 'made by the accused person from the house. He in this regard produced before us some medical sketches to prove that the A.S.-I. Imamdin could not have received any bullet from the firing alleged to have been made from the house. He submitted that there was also a contradiction with regard to the time of the encounter, which also creates doubt. The learned counsel went on to argue that as per the medical report also there was contradiction with regard to time of death which also creates doubt. He also stated that no arms ammunition were produced at Police Station and no arms/ ammunition were sealed at the spot, no empties were recovered from the roof top from where it was alleged that firing was being made, there is also no entry with regard to the fact that A.S.-I. Imamdin was the part of the police party who raided at the house. He also stated that the body of A.S.-I. Imamdin was discovered in civil dress which casts doubt as to how during an official raid a member of the raiding party could be in civil dress and not in proper uniform. He further submitted that no explanation was given by the prosecution that when admittedly heavy firing took place from both the sides no accused person received a single injury. He also stated that no specific role has been assigned to any accused person that bullet which caused the death of A.S.-I. Imamdin had been fired by him. He further submitted that arms/ammunition were sent for expert opinion after 47 days of the alleged recovery. He submitted that the ACLC department, after the alleged incidence was abolished by S.P. Sanaullah Abbasi as the said department was becoming a menace. In support of his above contentions the learned counsel relied upon the following decisions:-- (1) Imran Ashraf v. The State (2001 SCM R 424). (2) Muhammad Arshad v. The State (1995 SCM R 1639). (3) Muhammad Yar v. Sawan Mai (1993 SCM R 251). (4) Aurangzeb v. The State (2008 PSC (Cr.L) 965) (5) Ghulam Qadir v. The State 2008 SCM R 1221. (6) Altaf Hussain v. Fakhar Hussain 2008 SCM R 1103. (7) Ashiq Hussain v. State (1993 SCM R 417). (8) Mir Muhammad v. State (1995 SCM R 610). (9) Murtaza Hussain v. The State (1996 PCr.LJ 510). (10) Abdul Raqeem v. The State (1997 PCr.LJ 690). 8. Mr. All Hyder Saleem A.P.-G. Along with SIP Ghulam Shabbir Jamali appeared on behalf of the State and submitted that no mercy may be shown to the accused persons as they had killed one
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police official and injured another. A.P.-G. Submitted that the ACLC department received spy information that the accused persons were involved in car lifting and when the raid was made on the house instead of surrendering .They started firing due to which one A.S A. Expired and the other police official was injured. 9. The learned A.P..-G. Submitted that the learned ATC Judge through elaborated and exhaustive order had convicted the accused persons after detailed examination of the facts and the law. He, therefore, submitted that minor contradictions in the depositions of P.Ws. Could not be made the basis of acquittal as the accused persons were caught red handed and heavy contingent of arms/ammunition were recovered from their possession and therefore the charges framed by the learned Judge may be affirmed. In reply to a question raised by the Bench that why A.S.-I. Imamdin was in civil dress and whether it is possible by any stretch of imagination that the angle from where the A.S.-I Imamdin received the bullet could have been fired upon by any of the accused persons alleged to have been firing from inside the house and from the roof top, no plausible explanation was given either by the learned A.P.-G. Or by the SIP Ghulam Shabbir Jamali. 10. We have heard both the learned Counsel and even given a chance to SIP Ghulam Shabbir Jamali, who was complainant in the present case, to make his submission. We have also considered the record and the decisions relied upon by the learned counsel for the appellant. 11. P.W.1. Mirza Sarfraz, who was the A.S.-I. Posted at Police Station Gulistan-e-Johar, in his deposition has stated that on the day of the incidence he was working as A.S.-I. And duty officer at Police Station Gulistan-e-Johar. He has stated that his duty timing was from 8-00 a.m. To 8-00 p.m. On the relevant day the moment lie reached the Police Station he came to know that the ACLC police had raided a house and one A.S.-I. Imamdin had expired in the encounter. He thereafter completed the process under section 174, Cr.P.C. And then took the dead body to the Civil Hospital, where post mortem took place and thereafter he handed over the dead body to the heirs of the deceased. He then returned back to Police Station and the duty officer registered the F.I.R. As per his deposition he had prepared inquest report between 11-30 to 12-30 noon. He has also stated that he prepared a memo of dead body at the hospital so also completed the requirements of 174, Cr.P.C. There. He has stated that when he reached the Police Station on his duty the dead body was brought in an ambulance and he was directed to complete the requirements of174, Cr.P.C. However there is a contradiction in his statement that he stated that A.S.-I. Muhammad Iqbal registered the F.I.R. Whereas in the cross stated that he was not available at Thaana when the F.I.R. Was registered. There is also contradiction with regard to mentioning the name of the hospital as in his deposition he stated that the dead body was taken to Civil Hospital whereas in the cross stated that the dead body was taken to Jinnah Hospital. He also admitted that Imamdin was in plain dress when his body was taken to the Hospital. There is also a contradiction in his cross with regard to the pant worn by the deceased as at one place he stated that the deceased was in khaki pant ' whereas subsequently submitted that the deceased was in blue coloured pant. He also admitted that he did not see HC Mumtaz in the hospital. 12. It is quite evident from the inquest report that it was mentioned that the bullet hit the deceased Imamdin on the right Nostril then entered his right eye and after rupturing the skull and making a hole passed through, meaning thereby that the deceased received the fatal shot from some lower angle. The learned counsel in this regard has also produced some medical sketches to prove that the fatal wound must have been received by the deceased from a shot made from some lower angle which hit his right nostril entered his right eye and then passed through the backside of the skull. As per the learned counsel it could easily be inferred that from the angle the bullet hit the deceased it is hardly believable that it could have been fired either from the roof top of house or from face to face firing. Hence, according to the learned counsel the prosecution story that the accused persons were firing from the roof top and inside the house, if for arguments sake is
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accepted, then their firing could not cause this type of fatal wound, as had been received by the deceased. 13. Deposition of P.W.2. Iqbal Muhammad who was also A.S.-I. Posted at Gulistan-e-Johar reveals that he was the duty officer on 3-5-2007 and his duty timing was 8-00 p.m. To 8-00 a.In. On the morning of 4-5-2007 at about 6-30 am in the morning, Incharge ACLC Ghulam Shabbir Jamali and other staff came to Police Station and disclosed that on some information that they had to conduct a raid at the designated place. He enquired about the place of raid but that was not disclosed to him. He then informed the S.H.O. About the raid and made an entry in Roznamcha. He then came to know at about 6-50 a.m. That some firing had taken place. He then sent a mobile to check the firing when someone informed that an encounter had taken place between the ACLC staff and some persons. He then received 154, Cr.P.C. Statement from A.S.-I. Akram and on that basis registered F.I.R. No, 153 of 2007. He then received another 154, Cr.P.C. Statement from Ghulam Shabbir Jamali and again registered a case under section 13(d) Arms Ordinance against the culprits. He stated that in all he received eight 154 statements from Ghulam Shabbir Jamali and he accordingly registered eight F.I.Rs, in this regard. He also stated that he was asked by the S.H.O. To go to Jinnah Hospital to enquire about the injured persons and when he reached the hospital he found the dead body of the deceased Imamdin. In his cross he admitted that there was no Roznamcha entry about the raid. He has also admitted that in his 161, Cr.P.C. Statement he has neither stated that he had registered F.I.R. No 153 of 2007 nor he has stated about his duty hours and about coming of Ghulam Shabbir Jamali at Police Station at 6-30 a.m. Along with other officials. He has also stated that he has not disclosed anything about the firing or sending of A.S.-I. Siddique Abbasi to the place of firing in his 161, Cr.P.C. Statement. He also admitted that he has not stated anything about the alleged encounter between ACLC staff and the accused persons in his 161, Cr.P.C. Statement. He also stated that he had not disclosed anything about the deceased Imamdin or about the injured Mumtaz and one unknown person in his 161, Cr.P.C. Statement. He also admitted that at the time of registering of F.I.R. Neither the accused nor the crime weapons were produced before him. He also admitted that as per his information unknown injured person was alive till 9-30 a.m. He also accepted that the place of incidence was shown as Gull Estate and not a house. He also admitted that neither dead body nor injured persons were brought to Police Station and no empties were produced in his presence. He also stated that it was A.S.-I. Siddique Abbasi who informed him that firing had taken place in front of Gull Estate and he made no enquires about the same. 14. Deposition of P.W.3. Sikandar Ali HC posted at Saudabad Malir reveals that on the day of the incidence he was working as HC at Police Station Gulistan-e-Johar Karachi. He stated that on the day Inspector Malik Mehar Khan took him for inspecting the place of vardat at 9-30 a.m. Then went to the house situated at the backside of the Gull Estate. They also inspected the place where Imamdin was killed. The Inspector prepared the memo of place of vardat and obtained his signatures, no other person except them was taken from the Police Station. However when the P.W.3. Was giving his deposition the learned SPP declared him hostile and sought permission for cross-examination on the ground that in the memo name of co-mushir is appearing, which has not been mentioned by P.W.3, as 5.-I. Ghulam Shabbir Jamali had also visited the place of vardat. P.W.3 stated in his 161, Cr.P.C. Statement that A.S.-I. Muhammad Iqbal was also with them, however this statement was contrary to his deposition as in his deposition he had stated that Inspector Malik Mehar Khan only took him to the place of vardat. He also accepted that there is contradiction with regard to the block number of the place of vardat. He also admitted that in his 161, Cr.P.C. Statement he has not mentioned the place of the vardat. He also admitted that when they reached the place of vardat, SIP Ghulam Shabbir Jamali was already there, which is contrary to his deposition, wherein he had stated that Inspector Malik Mehar Khan and he alone went to the place
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of vardat. He also admitted that he has no idea about the house from where the alleged firing took place, however again submitted that he has seen the house, which has two gates one big and one small. He also stated that there were marks of bullet on the house situated in front of the house from where the accused was firing. He also stated that he don't know about the bullet marks present on the walls of the said house. He also stated that Investigating Officer Malik Mehar Khan had secured 50 to 100 empties from the spot and those empties were collected and then handed over to the Incharge of the Police Station. He also stated that out of the empties collected by him majority were that of SMG. He also stated that blood was scollected from outside the house by Malik Mehar Khan and brought to Police Station. 15. Deposition of P.W.4. Abdul Ghafoor HC posted at Police Station Gulshan-e-Maymar reveals that he was working as HC at ACLC. He stated that on 4-5-2007 at 8-30 a.m. TIO handed over him seven 154, Cr.P.C. Statements and directed him to take them to Police Station Gulistan-e-Johar and get the F.I.Rs, registered. He also stated that he has no concern with the investigation and he did not know anything about the investigation conducted by SIO Shabbir Jamali. 16. Deposition of P.W.S. TIO ACLC, New Town, reveals that on 4-5-2007 he was working as TIO Gulshan Town. He stated that lie along with S.-I. Shabbir Jamali, TIO Landhi Korangi, Javeed Anjum, TIO Gulberg Adil Naqvi on spy information reached at house at 8:30 pm and when they knocked the door of the house people started firing at them and those persons were firing from the roof and inside the house. He gated that the police party fired in self defence. He also stated that due to the firing of culprits A.S.-I. Imamdin died and HC Mumtaz was injured and an unknown person was also seriously injured. He further stated that after the firing the culprits were apprehended who disclosed their names as Kashif, Muzammil, Ghulam Rasool and Sibtain. As per his deposition they apprehended seven persons but was able to name only four of them. The learned Judge has specifically observed that from his demeanor it appears that he did not want to disclose names of other apprehended persons. The learned Judge however noted that P.W.5. Was able to name four persons only and the name of other three persons were shown to him by the SPP, which action was not appreciated by him. However, in his cross P.W.S. Stated that in his 161, Cr.P.C. Statement he had not disclosed whether any Roznamcha entry was kept or not. He also disclosed that spy information was not received by him but was received by his superior officers who passed on the same to him verbally at 6-00 a.m. He admitted that at the time of firing A.S.-I. Imamdin was standing at a place from where it was not possible that the said house could be seen. He also admitted that at the time of raid ACLC people were in uniform however A.S.-I. Imamdin was in civil dress. He also admitted that I.O. Mehar Ali neither collected the empties nor the blood in his presence. 17. Deposition of P.W.6. Muhammad Akram A.S.-I. Posted at Police Station Al-Falah Investigation, reveals that he was working as A.S.-I. On 4-5-2007. He along with TIO Ghulam Shabbir Jamali of ACLC Gadap Tow-II, raided the house at 6-50 hours. He also admitted that no Roznamcha entry was kept in this regard. He also disclosed that at 5-40 a.m. In the morning Ghulam Shabbir Jamali informed him that they had to conduct a raid at a house. He also admitted that the time of recording of his statement was mistakenly mentioned in his deposition. He also stated that only he and the driver were outside the house whereas the other police party was inside the house. He also stated that the mobile was parked in front of the house at some distance and total four mobiles took part in the raid. He admitted that neither he nor driver fired upon the accused party as he was not, possessing any weapon at that time. He also stated that lie has no idea what had happened inside the house as he remained outside. He also admitted that he cannot say anything that whether Adil Naqvi, Hassan Raza and other police officials were present at the time of raid or not? As he didn't know them. He also admitted that though firing took place from both the sides but no person from the adjoining area came out. He also admitted that S.-I. Muhammad Iqbal, Duty
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officer, and I.O. Malik Mehar Ali had not come at the spot in his presence. He also admitted that the dead body of A.S.-I. Imamdin was lying on the street situated at the backside of the house. He also stated that he had not seen A.S.-I. Imamdin at the backside of the house. He also stated that he only heard the sound of firing and had no idea from which direction the firing was being made whether in the air or upon the police party. He also admitted that he had not seen bullet marks on the wall of the house or on the mobile. 18. Deposition of P.W.7. Ghulam Shabbir SIP posted at RPO office Hyderabad, reveals that on the day of incidence he was working,as ITO Gadap. He stated that he left his Thana at 6-30 along with staff on the information that absconding accused were available in the House No,42/43 situated at Sector-9 Gulistan-e-Johar Karachi. He further stated that upon reaching the house the police encircled the same and the door was…
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