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Official Citation: 2024 YLR 599
Court / Jurisdiction: Sindh High Court
Year of Decision: 2023
Decision Date: 2023-12-31
Parties: Hubdar alias Huboo Jagrani and others vs The State
Ruling Summary: This decision was rendered by the Sindh High Court on 2023-12-31, officially reported as 2024 YLR 599. In this matter between Hubdar alias Huboo Jagrani and others 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 599
Court Name: Sindh High Court Judge(s): Muhammad Saleem Jessar, Abdul Mobeen Lakho Title: Hubdar alias Huboo Jagrani and others vs The State Case No.:Special Anti-Terrorism Appeal No. D-81 and Special Anti-Terrorism Jail
JUDGMENT
Reported As: 2024 YLR 599 Result: Appeals allowed Judgment JUDGMENT MUHAMMAD SALEEM JESSAR, J. By means of this single judgment, we propose to dispose of above noted two appeals as both the appeals have arisen from the one and the same judgment. By these appeals appellants have assailed the Judgment dated 31.05.2022 passed by learned Special Judge, Anti-Terrorism Court, Khairpur in Special Case No.05 of 2022, being outcome of FIR No. 20 of 2021 under sections 353, 224, 186, 225, 427, 147, 148, 149, 337-F(i) and 337-H(ii), P.P.C. read with Section 7 ATA, 1997 registered at P.S. Wada Machiyun, Khairpur Mir's whereby appellants were convicted under Section 353, P.P.C. read with Section 149, P.P.C. and were sentenced to suffer R.I. for two years. They were also convicted under Section 224, P.P.C. read with Section 149, P.P.C. and were sentenced to suffer R.I. for two years and to pay fine of Rs.5000/- each and in default thereof, to suffer R.I. for one month more. They were also convicted under Section 225, P.P.C. read with Section 149, P.P.C. and were sentenced to suffer R.I. for two years and to pay fine of Rs.5000/- each and in default thereof, to suffer R.I. for one month more. They were also convicted under section 186, P.P.C. read with Section 149, P.P.C. and were sentenced to suffer R.I. for three months and to pay fine or Rs.1000/- each and in default thereof, to suffer R.I. for fifteen months more. They were also convicted under Section 427, P.P.C. read with Section 149, P.P.C. and were sentenced to suffer R.I. for two years and to pay fine of Rs.5000/- each and in default thereof, to suffer R.I. for one month more. They were also convicted under Section 7 ATA, 1997 and were sentenced to suffer R.I. for two years and to pay fine of Rs.5000/- each and in default thereof, to suffer R.I. for one month more. 2. The above sentences were ordered to run concurrently. However the accused were extended benefit under Section 382-B, Cr.P.C.
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3. The brief facts of prosecution case are that on 18.12.2021 at 1530 hours, complainant SIP Bakhtiar Ali Chandio lodged the above said FIR at PS Wada Machiyun against accused persons on behalf of State, alleging therein that he was present at PS, where he received spy information that one notorious dacoit Nazim has entered in the village of Ghaffar Shah. On such information he informed to his high-ups and asked them to provide other police personnel. Thereafter, at about 12:30 pm SIP-Mohammad Ibrahim Chandio along with his subordinate staff on police mobile of PS-Piryaloi and HC-Asghai Narejo along with his subordinate staff in police mobile of PS-Pir Goth reached at PS-Wada Machiyun. Thereafter, they left PS-Wada Machiyun at about 1330 hours in government vehicles vide entry No.14 on 18-12-2021. They proceeded to the Village Ghaffar Shah, where accused Nazim was standing outside the house of accused Hubdar alias Huboo Jagirani. Complainant party alighted from their mobiles and apprehended accused Nazim. On inquiry, he disclosed his name as Nazim Jagirani. Complainant party tried their level best to put him in the police mobile, on which he raised cries. In the meantime; 20/25 men and 15/20 women, who were having lathis, stones and bricks came there, while hearing the cries of the accused Nazim, the accused Hubdar alias Huboo Jagirani with KK, Sajjan Jagirani with KK and Imo Jagirani with repeater started firing upon police party. In such firing; one PC-Mohammad Baqa sustained injuries. Accused Nazim escaped away, while taking benefit of the firing. Police secured 8 empties of SMG, which were fired from the accused side; Whereas 5 empties of SMG and 7 empties of G-3 were also secured from the place of incident, which were fired from the police side. Complainant prepared mashirnama of place of incident and recovery of empties in presence of mashirs HC-Ghulam Asghar and PC- Abdul Karim Khakhrani. Latter, complainant party returned to PS, where complainant Bakhtiar Ali Chandio lodged the FIR on behalf of the State against the above named accused as narrated above. 4. After usual investigation, SIO submitted the challan sheet against the accused for trial. In the challan; the accused Hubdar alias Huboo Jagirani , was shown under arrest, while other accused namely Nazim Jagirani, Sajjan Jagirani, Imoo Jagirani, 20/25 unidentified men and 15/20 unidentified women were shown as absconders and the process viz: NBWs against the absconding accused were issued. The proceedings under sections 87/88, Cr.P.C. were also initiated against the absconding accused. The reports of proclamation under sections 87/88, Cr.P.C. were also received. Thereafter, accused Nazim Ali Jagirani voluntarily appeared and submitted his surrendering application on 18.02.2022. On the completion of legal formalities, the case against accused Sajjan Jagirani, Imo Jagirani, 20/25 unidentified men and 15/20 unidentified women was kept on dormant file till their arrest vide order dated 04-03-2022 by the trial Court. 5. In compliance of the section 265-C, Cr.P.C, the case documents were supplied to the present accused and such receipt was obtained from them, which is kept on record vide Ex.05. 6. The required oath under section 16 of ATA, 1997 was taken by the trial judge on 01-04-2022 vide Ex.06. A formal Charge was framed against the accused vide Ex.07, to which they pleaded not guilty and claimed to be tried vide their pleas Ex. 07/A and 07/B respectively. 7. In order to prove the case against accused Hubdar alias Huboo and Nazim Ali, the prosecution has got examined PW-1, SIP Bakhtiar Ali Chandio (complainant) at Ex.08, he produced roznamcha entry No.14, mashirnama of place of wardat, injuries and recovery of empties and FIR bearing Crime No.20/2021 as Exs.08/A to 08/C respectively. PW-2, PC-Baqa Mohammad (injured) at Ex.09, he produced police letter to MLO for treatment as Ex.09/A. PW-3, HC-Ghulam Asghar (eye- witness/mashir) at Ex. 10, he produced mashirnama of arrest of.accused Nazim, mashirnama of place of incident and mashirnama of inspection of damaged police mobile as Ex. 10/A to Ex. 10/C respectively. PW-4, Abu Talib Baloch SMO at KMC Civil Hospital Khairpur at Ex. 11,he produced referral letter of injured PC Baka Mohammad, provisional medical certificate, X-ray plates and its report and final medico legal certificate as Ex. 11/A to Ex.11/E respectively. PW-5, PC-Asadullah Maitlo
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at Ex.12, he produced the imaginary memo. of arrest of accused Hubdar alias Huboo Jagirani as Ex.12/A.PW-6, SIO/Inspector Ghulam Hyder Mangi at Ex.13, he produced the roznamcha entries, letter duly addressed to SSP Khairpur for seeking permission to send the empties to ballistic expert and its permission letter issued by SSP Khairpur Mir's for the same purpose, criminal record of accused Hubdar alias Huboo Jagirani and ballistic expert report as Ex. 13/A to Ex. 13/G respectively. Thereafter, learned APG for the State closed the side vide statement Ex. 14. 8. Statements of accused Hubdar alias Huboo Jagirani and Nazim Ali Jagirani under section 342, Cr.P.C. were recorded at Ex. 14 and Ex. 15 respectively. Both the accused denied all the prosecution allegations. They stated that they are innocent and have been falsely implicated in this case by police only to show their efficiency. They also stated that PWs have deposed against them as they are subordinates of complainant. The accused further stated that the witnesses are police officials thus are interested witnesses. However, neither they opted to be examined on oath as provided under section 340(2), Cr.P.C. nor they produced any witness in their defense. 9. After formulating the points for determination, recording evidence of the prosecution witnesses and hearing counsel for the appellant as well as learned APG for the State, trial Court vide impugned judgment convicted and sentenced the appellants, as stated above. Against said judgment the appellants have preferred instant appeals. 10. We have heard the arguments advanced by learned counsel for appellant Hubdar alias Huboo Jgirani as well as learned Additional Prosecutor General Sindh, and have perused the material available on the record. 11. Learned counsel for appellant submitted that at the time of alleged incident the injured PW/PC Baqa Muhammad had allegedly sustained fire arm injury on his person; however, no specific role was assigned to any of the accused including present appellants. In his evidence recorded before trial Court the injured PW/PC Baqa Muhammad (Ex-9 page-79) deposed that he had received injury on his right thumb with stone. According to the evidence of the Medico-legal Officer available at page 101 (Ex-11), the injury allegedly caused to the PW PC Baqa Muhammad could happen, due to falling from the moving car on road. The police vehicle through which police had raided upon the house of accused did not sustain even single scratch on its body. No offensive weapons or any incriminating article is shown to have been recovered - from possession of appellants. Learned counsel for the appellant Hubdar alias Huboo Jagirani further submitted that in such eventuality it could be presumed that no offence as alleged had occurred. As far as application of Sections' 224, 186, 225 is concerned, neither the accused allegedly captured by the police was under lawful custody nor was produced before any Court where he was shown under arrest, therefore, application of Sections 224, 186, 225 is not of much consequence. As far as application of Sections 427 and 324, P.P.C. are concerned, no loss or damage was caused to vehicle or any Govt. property or anyone else therefore, it was wrongly applied though the appellants have not been convicted for the, offence under section 324, P.P.C. yet it was also not proved. Learned counsel for appellant submitted that prosecution has failed to establish its charge against the appellant(s) and the evidence adduced before trial Court shows that the prosecution had not come with clean hands; hence, he submitted that by allowing appeal(s) the impugned judgment may be set-aside and appellants may be acquitted of the charges. As far as application of section 7 of ATA, 1997 is concerned, the prosecution has not established that the crime was a result of any design or intention on the part of accused to create panic in the area or among the society which may warrant application of Section 7 of the Act; hence, as per dictum laid down by the Honorable Supreme Court of Pakistan in the case of Ghulam Hussain and others v. The State and others (PLD 2020 Supreme Court 61); no case for attracting ATA provisions was made out. Even the prosecution witnesses had not deposed a single word through which it could be deduced
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that appellants had any intention with design to create panic and terror in the society; therefore, Section 7 ATA, 1997 is also not attracted. 12. Learned Additional Prosecutor General appearing for the State, when confronted with above legal position, very candidly recorded his no objection to the grant of appeal(s). 13. It seems that there are material contradictions in the statements of complainant and other prosecution witnesses which are fatal to the prosecution case. Complainant Bakhtiyar Ali Chandio in his evidence deposed, "............. accused Hubdar Jagerani with KK, Sajjan Jagerani with KK and Imo Jagerani with repeater started firing upon us........." whereas, PW Baka Muhammad has belied such statement by deposing, "....... .accused Hubdar Jagerani with KK, Sajjan Jagerani with KK and another, whose name I do not remember at this time armed with epeater started aerial firing....... " Likewise, PW HC Ghulam Asghar who also acted as mashir in the case also contradicted the statement of the complainant by saying, "....... in the meantime accused Hubdar, Sajjan and Imo started aerial firing...."Both these witnesses have also made another contradictory statement, inasmuch as, the complainant deposed, "In such firing one PC-Mohammad Baka got injured" whereas, PW Baka Muhammad, who is himself' injured, deposed, "In the said encounter I also become injured by the stones and bricks on my hand". The statement of the complainant is also belied by Senior Medical Officer viz. PW Doctor Abu Talib, who deposed, "it is correct to suggest that the injury opined in final medico legal certificate can be falling on the earth. It is correct to suggest that the injury can be occurred by putting the hand on the vehicle in hurry manner". There is yet another contradiction between the aforesaid two witnesses i.e. according to PW Muhammad Baka, "In the said encounter the glass of the police mobile was also damaged". On the other hand, the complainant has not said a single word about the damaging of the glass of the police mobile. 14. There also seems to be violation of section 103, Cr.P.C. as no private person of the locality was associated as mashir and in all the mashirnamas the witnesses are police officials. It has come in the evidence of PW Ghulam Hyder Mangi, IO of the case, who deposed that there were hundreds of houses; however, he did not take pain to associate any of the inmates of the said houses as mashir in the case. In his cross-examination, he categorically admitted, "I did not take any private person as witness of place of incident......It is correct to suggest that I did not knock the door of houses. There are 200/300 houses at Village Ghaffar Shah". Likewise PW mashir HC Ghulam Asghar also admitted in his cross-examination, "It is correct to suggest that no private person was associated as mashir by IO". It is also to be noted that while effecting imaginary arrest of accused Hubdar at PS B-Section, Khairpur, the IO associated as mashir of arrest the two police officials namely PC Asadullah and PC Abdul Karim, who had accompanied him from PS Wada Machiyun. Very strangely the, I.O. did not make any official of PS B-Section as mashir of arrest of accused. From such admissions, it is apparent that the prosecution has not made any efforts to procure any private person of the locality to act as mashir/witness. 15. 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 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. 16. In the case reported as The State v. Bashir and others (PLD 1997 SC 408) Honourable Supreme Court has held as under:
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"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." 17. In the case of Sarmad Ali v. The State reported in 2019 MLD 670, relied upon by learned counsel for the appellant, it was observed that the place of incident was thickly populated area but no independent person from the said area was called to act as mashir of recovery and, therefore, it was held that the prosecution case suffered from lack of independent evidence regarding recovery of the pistol. 18. Yet in another case reported as Yameen Kumhar v. The State (PLD 1990 Karachi 275) this Court after discussing various case-laws on this point has held as under: "A perusal of the afore stated authorities and a catena of judgments of various High Courts which we have not quoted here clearly lay down that Section 103, Cr.P.C. is to be applied to recovery, search and arrest made during investigation of a crime. It has been termed as mandatory but not absolute and its non- Compliance in certain circumstances will not render search and recovery illegal. However, where during investigation of a crime recovery is made from any inhabited locality compliance with section 103 must be made. It cannot be ignored or brushed aside on the whims and caprices of the Investigating Officer except on well-founded grounds and in exceptional cases. If recovery has been made in contravention of section 103, it is the duty of the prosecution to explain it and give valid and reasonable explanation for such digression. Recovery is an important piece of evidence which is to be proved by disinterested, independent and respectable witnesses. Such witnesses should be of the locality if the circumstances of the case permit. Section 103 embodies rule of prudence and justice. It is intended to eliminate and guard against 'chicanery' and 'concoction, to minimize manipulation and false implication. It is for these reasons that there is a consensus in the Superior Courts that compliance with section 103 should not be bypassed nor that its applicability be restricted to proceedings under Chapter VII only. The principles of section 103 have been applied and practised during investigation in crimes for so long and with such regularity and force that any attempt to restrict it to proceedings under Chapter VII only will unsettle the settled law. The provisions of Chapter VII make it clear that they relate to the search of any place but it cannot be restricted only to house or a closed place, it can be an open place, open area, a playground, field or garden from where recovery can be nude for which search is conducted. Although in strict sense the provisions of section 103 are restricted to searches under Chapter VII, of Cr.P.C. it has become a practice to apply it to all recoveries made by the Police Officers while investigating any crime. The rules of justice enunciated by section 103 are so embedded in our criminal, jurisprudence and so universally accepted that in all criminal cases two mashirs are always cited for recovery and reliance is placed on these witnesses in the ordinary course provided they are independent, respectable and inhabitants of the locality. The residence of the mashirs becomes relevant depending on the facts of the case. The emphasis should be on respectability." 19. The complainant also admitted in his cross-examination, "I had kept the arrival entry at PS but at this time I do not remember its number. It is correct to suggest I have also not produced the same today". He also admitted, "It is correct to suggest that neither I have produced any entry regarding arrival of SIP Muhammad Ibrahim of PS Piryaloi nor of HC Asghar Ali of Peer Goth at PS Wadd Machyon. "Likewise PW HC Ghulam Asghar in his examination in chief deposed, "I kept entry number 8 for leaving PS Peer Goth to PS Wada Machyon"; however, in his cross-examination he admitted, "It is correct to suggest that I have not produced entry No.8 with my deposition".
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Similarly, while narrating the facts regarding their departure from PS Wada Machiyun to PS B- Section Khairpur in connection with arrest of accused Hubdar alias Huboo, although the I.O. has stated that he kept entry No.40 at PS B-section; however, he has not deposed about making any departure entry, nor has produced the same during the course of his evidence. In the like manner, mashir PW Asadullah is absolutely silent about making any departure entry nor has he produced the same before the trial Court. In this context, it may be observed that the Superior Court have not appreciated such conduct of non-production of roznamcha entry/daily diary by the police, which also puts dent in the prosecution case. In the case of Muhammad Akram v. State reported in YLR 2020 Note 94 (Sindh) it was held that in absence of any roznamcha entry, it becomes suspicious as to whether, Investigating Officer or police party, as the case may be, had in fact left the police station to the place of arrest, incident and/or recovery or not. Such facts were fatal to the prosecution case. 20. Besides above major discrepancies, there are also certain other lacunas, which make the prosecution case doubtful. For instance: (i) although the I0 has prepared mashirnama in respect of damages caused to police vehicles; however, there is no mention of securing any glasses as allegedly the wind screen and side glasses of one vehicle were broken; (ii) although the complainant has made statement that PW Baka Muhammad sustained injury due to firing made by the accused and, if his statement is presumed to be true, then surely blood must have oozed from the thumb of PW Baka Muhammad, but the entire prosecution evidence is silent about securing any bloodstained earth from the spot and even the medical officer also deposed that no blood was oozing from the alleged injury; (iii) the statement of complainant that PW Muhammad Baka sustained injury as a result of firing from the side of accused is also belied by the fact that had PW Muhammad Baka sustained fire arm injury, he must have been sent immediately to the hospital for medical treatment and certificate but the record shows that he was referred to the hospital on the next date which is evident from the deposition of medical officer, who categorically stated that the said injured had come to him on 19.12.2021, whereas, the incident had taken place on 18.12.2021; (iv) it is also of significance that PW PC Asadullah could not recognize properly the accused present in the Court which is evident from the note of the trial Court to the effect, "The witness has wrongly identified accused Nazim as accused Hubdar, present in the Court"; (v) there is also delay of about 19 F days in sending the allegedly recovered empties to ballistic expert as the incident took place on 18.12.2021 whereas, according to ballistic expert report the empires were received in their office on 06.01.2022. If the period is counted from the date of receiving the permission from SSP Khairpur for sending the empties to ballistic expert, as deposed by the I.O., even then there is delay of 08 days in sending the empties to ballistic expert. Needless to emphasize that superior Courts have not appreciated such conduct on the part of investigating agency. 22. So far as the offence allegedly committed by the accused under section 7 of Anti-Terrorism Act is concerned, the submission of the learned counsel for appellant was that the prosecution has not established that the crime was a result of any design or intention on the part of accused to create panic or spread terrorism in the area or among the society which may warrant application of Section 7 of the Act. We; therefore, find weight in this submission. This point has elaborately been dealt with by Honorable Supreme Court in the case of Ghulam Hussain and others v. The State and others reported in PLD 2020 Supreme Court 61. In the said case, Honorable Supreme Court after discussing and taking into consideration a bulk of cases relating to definition of 'terrorism', has held as under: "The new definition of 'terrorism' introduced through the amended section 6 of the Anti-Terrorism Act, 1997 as it stands today appears to be closer to the universally understood concept of terrorism besides being easier to understand and apply. The earlier emphasis on the speculative
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effect of the act has now given way to a clearly defined mens rea and actus reus. The amended clause (b) of subsection (1) of section 6 now specifies the 'design' and clause (c) of subsection (1) of section 6 earmarks the 'purpose' which should be the motivation for the act and the actus reus has been clearly mentioned in sub-section (2) of section 6 and now it is only when the actus reus specified in subsection (2) of section 6 is accompanied by the requisite mens rea provided for in clause (b) or clause (c) of subsection (1) of section 6 that an action can be termed as 'terrorism'. Thus, it is no longer the fear or insecurity actually created or intended to be created or likely to be created which would determine whether the action qualifies to be termed as terrorism or not but it is now the intent and motivation behind the action which would be determinative of the issue irrespective of the fact whether any fear and insecurity was…
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