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Official Citation: 2024 YLR 726
Court / Jurisdiction: Sindh High Court
Year of Decision: 2023
Decision Date: 2023-12-31
Parties: Niaz Ahmed Mirani vs The State
Ruling Summary: This decision was rendered by the Sindh High Court on 2023-12-31, officially reported as 2024 YLR 726. In this matter between Niaz Ahmed Mirani and The State, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2024 YLR 726
Court Name: Sindh High Court Judge(s): Muhammad Saleem Jessar, Abdul Mobeen Lakho Title: Niaz Ahmed Mirani vs The State Case No.:Special Anti-Terrorism Appeals Nos.D-46 to D-49 and Special Anti-
JUDGMENT
Reported As: 2024 YLR 726 Result: Order accordingly. Judgment JUDGMENT MUHAMMAD SALEEM JESSAR, J. By means of this single judgment, we propose to dispose of above noted five appeals as all appeals have arisen out of one and same common judgment impugned herein. 2. By these appeals, the appellant has assailed the Judgment dated 27.06.2016 passed by learned Special Judge, Anti-Terrorism Court, Naushehro Feroze in Special Case No. 87 of 2012, being outcome of FIR No. 49 of 2012 under sections 353, 220, 506-2, 504, 337-H(ii), P.P.C. read with Section 7, A.T.A., 1997; Special Case No. 88 of 2012, being outcome of FIR No. 47 of 2012 under sections 353, 506-2, 337-A(i), 34, P.P.C.; Special Case No. 89 of 2012, being outcome of FIR No. 48 of 2012 under sections 365, 395, 337-A(i), 337-H-2, 506-2, 452, 504, 427, P.P.C. and Special Case No.97 of 2012, being outcome of FIR No. 58 of 2012 under sections 342 and 220, P.P.C. all registered at P.S. Muhbat Dero, whereby he has been convicted in Spi. Case No. 87 of 2012, under Sections 353 and 504, P.P.C. and awarded sentence for R.I. of two years for each offence and was also convicted for offence under Sections 220 and 506-2, P.P.C. read with Section 7(1(h) of ATA, 1997 and was sentenced to suffer R.I for five years and to pay fine of Rs. 10,000/-and in default thereof, to suffer R.I for six month more. The appellant was also convicted in Spl. Case No. 88 of 2012, under Section 353, P.P.C. and sentenced to suffer R.I for two years and was also convicted for offence under Section 506(2), P.P.C. and was sentenced to suffer R.I for four years for deterring PC Nazar Muhammad Jatoi from his lawful duty and extending him threats. The appellant was also convicted in Spl. Case No. 89 of 2012, under Sections 365, 395 and 452, P.P.C. and sentenced to suffer R.I for four years and also to pay fine of Rs. 10,000/- for each offence and in default thereof, to suffer R.I for six month more. The
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appellant was also convicted in Spl. Case No. 97 of 2012, under Section 342, P.P.C. and sentenced to suffer R.I of one year. 3. All above sentences were ordered to run concurrently. However, the accused/appellant was extended benefit under Section 382-B, Cr.P.C. 4. Brief facts of Spl. Case No. 87 of 2012 are that on 13.04.2012 at 1920 hours, Mr. Ilimuddin Janwari, Civil Judge and Judicial Magistrate, Kandiaro lodged FIR No. 49/2012 at P.S. Muhbat Dero, stating therein that on the day of incident he was deputed by learned Sessions Judge, Naushehro Feroze to conduct raid at P.S. Muhbat Dero and to verify as to whether Arbab and others have been detained therein and if so, get them released. He along with his peon Abdul Sattar, gunman Nazar Muhammad and applicant Mumtaz left for Muhbat Dero in a taxi car. In the way, Mumtaz disclosed that detainee is confined by SHO Niaz Ahmed Mirani in a quarter situated at Muhbat Dero Hospital. The complainant reached Muhbat Dero Hospital at about 3:40 p.m. and found Arbab Ali with handcuff and fitter and was tied with a cot. SHO Niaz Ahmed Mirani seeing the complainant made his escape good by jumping over the wall while his two servants were available there. Complainant inquired about the key from them on which they disclosed that key was not with them. The complainant proceeded to Police Station, leaving Nazar Muhammad there to guard the detenue. The complainant along with others reached Police Station and made such entry in Roznamcha. Thereafter, returned to hospital along with WHC Mehboob Ali, where gunman Nazar Muhammad informed him that SHO Niaz Ahmed Mirani and his servants had maltreated him and on the force of weapon took away the detenue Arbab while maltreating the detenue. They all came at P.S. Muhbat Dero and when complainant was making entry in the Roznamcha, S.H.O. Niaz Ahmed Mirani came at the gate of Police Station and started firing while abusing the complainant and saying that who was he to get the detenue released. He was also extending threats of dire-consequences to the complainant, whereupon several persons of the town gathered there and due to act of the S.H.O., sense of fear, terror and insecurity spread in general public. The S.H.O. continued firing for 10/15 minutes. Thereafter, the complainant along with above named witnesses and with the help of general public left Police Station without completing the report. The S.H.O. followed the car and he was continuously making fire shots. The complainant noticed that the people of locality due to fear were hiding themselves. He came at Kandiaro Court and informed learned Sessions Judge, Naushehro Feroze who directed him to lodge the report at P.S. Muhbat Dero. He came at police station with police force, learned Sessions Judge also reached Police Station and thereafter complainant lodged the FIR. 5. Brief facts of Spl. case No. 88 of 2012, as disclosed by complainant namely PC Nazar Muhammad son of Ghulam Hussain Jatoi in FIR No.47 of 2012 lodged at P.S. Muhbat Dero on 13.04.2012, are that he was serving in Escort Duty at Civil Court Kandiaro. Thereafter, he narrated the same facts as stated above by complainant in FIR No 49 of 2012 till he was directed by learned Judicial Magistrate (Complainant in FIR No. 49 of 2012) to guard the detenue Arbab. He further stated that after some time S.H.O. Niaz Ahmed Mirani came there who along with his two servants, maltreated him and pointed weapon upon him and issued threats of dire consequences. S.H.O. Niaz Ahmed Mirani also forcibly took away the detenue Arbab by maltreating him, when learned Magistrate returned back at quarter, he narrated above facts to him. Thereafter, they all went to police station. The complainant then narrated the same facts about coming of S.H.O. and making firing, etc as stated in FIR No.49 of 2012. 6. The complainant in Spl. Case No.97 of 2012 was the Reader of 1st ivil Judge and Judicial Magistrate Kandiaro. According to him, on the direction of Judicial Magistrate, he produced the order No.4760 passed by Court of learned Sessions Judge, Naushahro Feroze before Incharge S.H.O. of P.S. Muhbat Dero, who incorporated the said order in 154, Cr .P.C .
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7. The complainant in Spl. Case No.89 of 2012 is brother of detenue Arbab. He lodged FIR No. 48 of 2012, stating therein that, on said date i.e. 13.04.2012, he was present at home with his brother Hakim, brother-in-law Wali Muhammad, nephew Shaman and Brother Arbab. At about 5:00 am morning time, S.H.O. Niaz Ahmed Mirani along with 5/6 unidentified persons in private dress duly armed with weapon forcibly entered into their house and started beating them. They asked reason for beating, but no reply was given. Thereafter, they forcibly robbed three buffalos, one cow, one motorcycle, damaged household articles and robbed Rs.50,000/- from Arbab. He then dragged Arbab, Shaman, Wali Muhammad and took away them in the Car. Other persons took away buffaloes and cow by foot. He further stated fiat unidentified persons could be identified if seen again. Thereafter, he moved such application before learned Sessions Judge, Naushahro Feroze through his Advocate, wherefrom letter was given to him addressed to the learned Civil Judge and Judicial Magistrate, Kandiaro for conducting raid, who immediately along with his peon Abdul Sattar and PC Nazar Muhammad accompanied him in a taxi car and went towards Muhbat Dero. Thereafter, he narrated almost same facts as disclosed in FIR No.49 of 2012 as stated above. 8. After conducting usual investi-gation, the I.O. submitted challan before the court of law having jurisdiction against the accused for trial according to law. 9. Copies of case papers were supplied to accused vide receipt at Ex. 1. Learned trial Judge took oath as prescribed under section 16 of Anti-Terrorism Act, 1997 at Ex.2. Learned DDPP for the State submitted an application under section 21(m) ATA, 1997 for joint trial of connected cases arising out of FIR Nos. 47/2012 to 49/2012, which was allowed. Charge was framed against the accused at Ex.3. Accused pleaded not guilty and Claimed to be tried vide plea at Ex.3/A. Thereafter, learned DDPP for the State again submitted an application for joint trial of connected case arising out of FIR No.58/2012, which was also allowed. 10. Thereafter charge was amended at Ex.4. Accused pleaded not guilty and claimed for trial vide plea at Ex.4/A. The trial Judge again took oath as prescribed under section 16, ATA, 1997 at Ex. 10. 11. In order to prove its case, prosecution examined PW-1 Complainant Nazar Muhammad Jatoi of Crime No.47/2012 at Ex.5, who produced copy of FIR as Ex.5/A. PW-2 Complainant Mumtaz Ali of Crime No.48/2012 examined at Ex.6, who produced copy of FIR as Ex.6/A. PW-3 Abdul Sattar examined at Ex.7. PW-4 Arbab examined at Ex. 8, who-produced-Photostat copy of his statement under section 164, Cr.P.C. as Ex. 8/A. PW-5 Mr. Illimuddin Janwari Complainant of Crime No.49/2012 examined at Ex.9, who produced letter of learned District and Sessions Judge, Naushehro Feroze as Ex.9/A, Roznamcha entry No.7 as Ex.9/B, Roznamcha entry No.8 as Ex.9/C, copy of FIR No.49/2012 as Ex.9/D, his letter addressed to learned District and Sessions Judge Naushehro Feroze as Ex.9/E, copy of order dated 18.04.2012 passed by learned District and Sessions Judge Naushehro Feroze as Ex.9/F, his letter addressed to S.H.O. P.S. Muhbat Dero as Ex.9/G. PW-6 I.O. Inspector Abdul Majeed Arain examined at Ex. 11, who produced memo of recovery of motorcycle of abductee Arbab Ali Solangi as Ex. 11/A, memo of securing documents of said motorcycle as Ex. 11/B, documents of said motorcycle as Ex. 11/C, memo of securing CD as Ex. 11/D, such CD as Ex.11/E, memo of securing official SMG as Ex.11/F, Forensic Science Laboratory Report as Ex.11/G and two Roznamcha entries No.2 and 3 as Ex. 11/H and Ex.11/I. PW-7 HC Muhammad Uris examined at Ex. 12. PW-8 WHC Mehboob Ali examined at Ex. 13. PW-9 SIP Muhammad Idrees examined at Ex. 14, who produced memo of inspection of place of incident of Crime No.49/2012 as Ex. 14/A, memo of place of incident of Crime No.48/2012 as Ex. 14/B and memo of inspection of place of incident of Crime No.47/2012 as Ex.14/C. PW-10 Iqbal Hussain Lanjar, Reader Senior Civil Judge Naushehro Feroze examined at Ex. 16, who produced copy of FIR No.58/2012 as Ex. 16/A. PW-11 HC Ghulam Murtaza was examined at Ex. 17, who produced memo of recoveryof-abduetee Arbab Ali as Ex. 17/A. PW-12 PC Inam Ali was examined at Ex. 19, who produced memo of inspection of place of incident of Crime No.58/2012 as Ex. 19/ A, memo of arrest of accused Niaz Ahmed Mirani as Ex. 19/B, memo of formal arrest of accused Niaz
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Ahmed Mirani in Crime No.58/2012 as Ex. 19/C. PW-13 DSP Abdul Hameed was examined at Ex.20. PW-14 SIP Fitrat Hussain Shaikh was examined at Ex.21. 12. Thereafter, learned DDPP for the State closed the side of prosecution vide statement at Ex.22. 13. Statement of accused Niaz Ahmed Mirani was recorded under section 342, Cr.P.C. at Ex. 23, in which he stated that he is innocent, falsely implicated in these cases at the instance of Races Ghazi Khan Dehraj, with whom he has got enmity and also at the instance of Mr. Illimuddin Janwari, with whom he had differences during his posting at Mirpur Mathelo. He further stated that PC Nazar Muhammad is gunman of Mr.Janwari, PW-Iqbal Hussain is Reader of said Magistrate and PW- Abdul Sattar is peon of said Magistrate and PW-Mumtaz is Munshi of Ghazi Khan Dehraj and detenue is farmer of Ghazi Khan Dehraj and son of alleged detenue namely Irshad is a criminal, neither alleged detenue Arbab was arrested by him nor recovered from his custody. However, neither he examined himself on oath under section 340(2), Cr.P.C. nor examined any witness in his defence. 14. After formulating the points for determination, recording evidence of the prosecution witnesses and hearing counsel for the appellant as well as learned DDPP appearing for the State, trial Court vide impugned judgment convicted and sentenced the appellant, as stated above. Against said judgment the appellant has preferred these appeals. 15. We have heard the arguments advanced by learned counsel for appellant Niaz Ahmed as well as learned Additional Prosecutor General, Sindh appearing for the State, and have perused the material made available on the record. 16. Learned counsel for appellant argued that alleged abductee Arbab has not deposed against appellant during the course of recording his evidence. Besides, there are major contradictions in the prosecution evidence; hence, according to the learned counsel, such discrepancies available on record make the case of prosecution doubtful. He further submitted that there are certain discrepancies in the prosecution case which could be considered for extending benefit of doubt to appellant. He also submitted that maximum punishment awarded to appellant is five years. Per Jail Roll dated 02.12.2020, the appellant remained inside the Jail for 04 years, 04 months and 24 days and was granted bail by this Court in C.P No.D-2214/2016 arising out of Criminal Appeal No.D- 46 of 2016 and was released on bail on 20.09.2016. He also submitted that out of sentence awarded to him, the major portion of sentence has been served out by him; however, being government servant he is at the verge of retirement; therefore, stigma of punishment would spoil his future career; hence, mitigating circumstances do exist and by taking lenient view he may be acquitted of the charges. In support of his contention, he referred the unreported order dated 29.08.2022 passed by Hon'ble Supreme Court of Pakistan in Criminal Petition No.1667 of 2021 Re: Adeel Rasheed v. The State and another as well as in the case of Zulifqar Abbas v. Rabdino and another in Criminal Appeal No. S-110 of 1998 vide Judgment dated 11.09.2006 and C.P. No. 2226 of 2016, Niaz Ahmed v. The State vide order dated 20.09.2016 passed by this Court, Criminal Appeal No.D-08 of 2019 Ziyad Ali Noonari v. The State vide Judgment dated 12.11.2019 passed by circuit Court of this Court at Larkana as well as Judgment dated 15.02.2022 in the case of Criminal Appeal No.363 of 2020. 17. Learned Additional P.G. appearing for State opposed the appeal; however, when confronted with the argument advanced by learned counsel for appellant to the extent that the appellant being government servant is at the verge of retirement and stigma of punishment would spoil his future career and entire service record, he could not controvert this fact. Therefore, he raised no objection to the grant of appeals and acquittal of the accused, particularly when the appellant has already suffered agony of trial.
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18. It appears that there are material contradictions -in the evidence of prosecution witnesses which are fatal to the prosecution and create doubts in the prosecution case. PW-3 Abdul Sattar in cross-examination deposed that detenue Arbab was tied in a room of hospital. This fact is belied by the detenue himself in his cross-examination wherein he admitted, "I was confined in the quarter of S.H.O. and sitting on a cot and not tied but door was closed". In their statements the said witnesses also contradicted each other, inasmuch as, according to PW Abdul Sattar, detenue was confined in a room of hospital, whereas detenue Arbab deposed that he was confined in the quarter of S.H.O. According to complainant in FIR No. 48 of 2012 namely Mumtaz, in his presence the accused/appellant along with others took away detenue Arbab by dragging and maltreating him, whereas detenue has belied such statement by admitting in his cross-examination, "Mumtaz was not available at my house when I was apprehended". There is another material contradiction between the evidence of PW-2 Mumtaz and detenue Arbab, i.e. PW Mumtaz in the FIR as well as in his evidence has categorically stated that detenue Arbab was kidnapped by S.H.O. Niaz Meerani which statement is belied by detenue Arbab himself while he made admission in his cross- examination to the effect, "It is a fact that I was arrested by the Incharge police post who was HC".##TE## From such admission, it appears that alleged detenue Arbab has deposed in clear terms that he was not abducted but was arrested and that he was not arrested by accused/appellant but by one Head Constable who was Incharge of the Police Post. 19. The alleged detenue Arbab in his evidence before the trial Court deposed that accused S.H.O. Niaz Mirani on 13.02.2012 arrested him, his son Shaman and brother in law Wali Muhammad from his house. However, in his statement under section 164, Cr.P.C. recorded before Judicial Magistrate-I, Naushahro Feroze, he contradicted himself by saying that accused Niaz Mirani entered the house and took away me. Here he does not say that the accused while arresting him, also arrested his son and his brother in law which fact has been stated by him in his deposition. 20. Besides above, the prosecution witnesses have also made certain admissions in their evidence which are injurious to the prosecution case and makes the case highly doubtful. Detenue Arbab in his cross-examination has admitted, "my relatives used to meet with me at police Post I was confined in the quarter of SHO and sitting on a cot and not tied, but door was closed........ Mumtaz was not available at my house when I was apprehended." From such admissions of the detenue, it is clear that he has not said a single word about his abduction by the accused. It is not understandable that in case he was abducted and was allegedly kept in wrongful confinement by the accused, then what was the fun in allowing his relatives to meet him. Perusal of the contents of Section 365, P.P.C. shows that one of the important ingredients for constituting offence under this section is that alleged abductee or kidnapee is put in wrongful confinement secretly. Needless to emphasize that a place where any other person has access to the alleged abductee, cannot be termed as 'secret' place. In this view of the matter, the ingredients of section 365 are lacking in the instant case because admittedly the relatives of alleged abductee Arbab used to meet him in said quarter. 21. PW No.6 Abdul Majeed, I.O. of the case, in his cross-examination deposed, "It is correct to suggest that I have not recorded the statements of the officials of hospital staff from where detune was recovered from a quarter of same hospital. It is also correct to suggest that I have not recorded the statements of two servants of Niaz Mirani who were found guarding over the alleged detenue, though same fact is mentioned in the FIR lodged by Learned Magistrate,, It is also correct to suggest that I have not recorded statement of taxi driver in which learned Magistrate has conducted the raid---It is correct to suggest that I have not recorded the statement of any duty officer who was day incharge on the day of incident. It is also correct to suggest that I have not recorded the statements of shopkeepers situated near PS Muhbat Dero, though there are shops situated adjacent the C walls of PS."
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22. From above admission, it is clear that the Investigating Officer did not record the statements of the persons whose evidence was very material for deciding the fate of the case particularly that of the two servants of accused Niaz Mirani who were found guarding over alleged detune. 23. This is also injurious to the prosecution case as it is settled principle of law that despite availability of material witnesses, non-examination of such witnesses in the case gives inference that in case such witnesses had been examined, they would have deposed against the prosecution as envisaged under Article 129(g) of Qanun-e-Shahadat Order, 1984. In the case of Bashir Ahmed alias Manu v. The State reported in 1996 SCMR 308 it was held by Honourable Supreme Court that despite presence of natural witnesses on the spot they were not produced in support of the occurrence an adverse inference under Article 129(g) of Qanun-e-Shahadat Order could easily be drawn that had they been examined, they would not have supported the prosecution version. In another case reported as Mohammad Shafi v. Tahirur Rehman (1972 SCMR 144) it was held that large number of persons had gathered at the place of occurrence but prosecution failing to produce single disinterested witness in support of its case, therefore no implicit reliance could be placed on evidence of interested eye-witnesses. 24. This witnesses also admitted, "It is correct to suggest that there is no medical certificate showing any injury sustained by alleged detune." There is no explanation coming from the prosecution side, as to why the alleged detenue was not referred to for medical treatment and issuance of medical certificate although according to complainant Mumtaz, alleged detune was maltreated by the accused/appellant when he was allegedly abducted. Furthermore, P.W. P.C. Nazar also deposed that when he was guarding over the alleged detenue, then accused/appellant came there and took away alleged detenue while maltreating him but no medical certificate has been produced by the prosecution in respect of any injury allegedly sustained by him. This also creates doubts in the prosecution case. 25. This witness also admitted, "It is correct to suggest that though detune was shown tied or chained with cot in a quarter situated in hospital, but I have not secured the same cot during my investigation". Non-securing of the Cot with which the detenue was allegedly tied, belies this very fact, more particularly keeping in view of the admission of alleged detenue himself to the effect, "I was confined in the quarter of SHO and sitting on a cot and not tied but door was closed." 26. In the evidence of PW-5, Iiimuddin, Judicial Magistrate, it has also come that when he came, back to police station after having been apprised of the fact that by P.C. Nazar that the accused/appellant had come in the quarter where alleged abductee Arbab was confined and he along with his two servants forcibly took him away while maltreating them. It has also come in evidence that at the time when the Judicial Magistrate was making entries in the daily diary, accused/appellant had come at Police Station and started firing and the firing continued for 10/15 minutes. Surely, if a person makes continuous firing for 10/15 minutes, then he must have fired hundreds of shots, as such hundreds of empties should have been found and secured from there but the evidence of PW-9 SIP Muhammad Idrees shows that only 25 empties were secured from there. This also creates doubts in the prosecution case. 27. There also appears to be violation of section 103, Cr.P.C. It has come in the evidence that accused/appellant was arrested by PW Abdul Hameed from a place near Bafo Mori Link Road Kamal Dero in presence of mashir PC Inam Ali and PC Faiz Muhammad. Both the mashirs are police officials and no explanation has been offered by the prosecution as to why private persons of the locality were not associated as mashirs of arrest. The evidence of PW SHO Abdul Hameed as well as mashir PW PC Inam Ali is totally silent about the fact as to whether the I0 made any effort to associate any private person of the locality as mashir of arrest or not. 28. In this view of the matter, it is clear that the mandatory requirement as envisaged under Section 103, Cr.P.C. was not fulfilled. The purpose of associating independent mashirs of the locality is to
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ensure the transparency of the recovery process. Needless to emphasize that in view of provisions of section 103, Cr.P.C. the officials making searches, recoveries and arrests, are reasonably required to associate private persons, more particularly in those cases in which presence of private persons is admitted, so as to lend credence to such actions, and to restore public confidence. This aspect of the matter must not be lost sight of indiscriminately and without exception. Only cursory efforts are not enough merely in order to fulfill casual formality, rather serious and genuine attempts should be made to associate private mashirs of the locality. 29. In the case reported as State v. Bashir and others (PLD 1997 SC 408) Honourable Supreme Court held as under: "As regards above second submission of Mr.M.M. Aqil, it may be observed that it has been repeatedly held that the requirements of section 103, Cr.P.C. namely, that two Members of the public of the locality should be Mashirs of the recovery, is mandatory unless it is shown by the prosecution that in the circumstances of a particular case it was not possible to have two Mashirs from the public." 30. In the case of Sarmad Ali v. The State…
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