2021 PCrLJ 272 | ARSHAD Versus State

Go back

2021 P Cr

2021 P Cr. L J 272

[Sindh]

Before Nazar Akbar and Zulfiqar Ahmad Khan, JJ

ARSHAD through Central Prison---Appellant

Versus

The STATE---Respondent

Special Criminal A.T.J. Appeal No. 184 of 2019, decided on 7th December, 2020.

(a) Penal Code (XLV of 1860)---

----Ss. 324, 353 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Sindh Arms Act (V of 2013), S. 23(i)(a)---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, common intention, possession of unlicensed weapon, act of terrorism---Appreciation of evidence---Benefit of doubt---Prosecution case was that during patrolling duty, police party tried to intercept two suspicious persons on a motorcycle, they opened straight firing upon police, with intent to commit their murder and deter them from discharging their lawful duties and official functions---In retaliation, police party also made fire shots upon the culprits in their self defence, consequently, one culprit sustained bullet injury, fell down on the ground and died lateron, while police managed to apprehend the other culprit/present accused---Record showed that co-accused was killed by police firing, which were only two shots---One shot was fired by the complainant and other shot was fired by Police Constable from their SMGs allegedly in retaliation to the firing by the accused party---Circumstances suggested that it was, if at all, a one sided encounter in which neither the police party nor any other person sustained any firearm injury---Even no bullet mark was found on police, motorcycles or any wall of the vicinity or a passerby---Accused persons were apprehended by the police along with weapons on the spot and alleged encounter lasted for few minutes but none from the police party or anybody else from public sustained any scratch on their body was unbelievable---Culprits, who were having pistols and dared to open straight fire on police, suddenly stopped firing after two shots by each though they had more live bullets with them---Stark failure to bring evidence of cause of death of co-accused by police firing in retaliation led to irresistible believe that neither the accused was killed by the police firing in that incident nor he was on the motorcycle with the accused who had not sustained any injury in the encounter with police party---Record further transpired that it was not the case of police that they had reached at the place of incident on spy information as there was no allegation of any robbery committed by the accused---No criminal record of the accused as well as the deceased was found---In fact, it was not a case of doubt in the prosecution story, rather it was a case of no evidence and no incident, a complete back out---Appeal against conviction was allowed, in circumstances.

(b) Penal Code (XLV of 1860)---

(c) Penal Code (XLV of 1860)---

----Ss. 324, 353 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Sindh Arms Act (V of 2013), S. 23(i)(a)---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, common intention, possession of unlicensed weapon, act of terrorism---Appreciation of evidence---Withholding material evidence---Scope---Prosecution case was that during patrolling duty, police party tried to intercept two suspicious persons on a motorcycle, they opened straight firing upon them with intent to commit their murder and deter them from discharging their lawful duties and official functions---Police party, in retaliation, also made fire shots upon the culprits in their self defence, consequently, one culprit sustained bullet injury, fell down on the ground and died lateron, while police managed to apprehend the other culprit/present accused---Prosecution gave up three policemen as witnesses, though at least two of them were very material eyewitnesses of the incident of encounter---Evidence of one witness was material as he had allegedly used his official SMG in encounter by firing one shot in retaliation---Evidence of other witness was also material as according to the FIR, he had taken the injured to the hospital in ambulance from the crime scene and the injured had died in the hospital---By dropping said witness, the prosecution failed to bring on record proof of firearm injury as cause of death of deceased---Role of that witness shown in the FIR was that he took away the injured to hospital but his evidence was withheld---Investigating Officer had not even named Medico-Legal Officer in the column of witnesses in challan nor he had produced medical certificate, if any, even if that was obtained by him---Alarmingly, the post-mortem report of deceased was not produced by the Investigating Officer in his evidence---Prosecution, out of four eye-witnesses of police encounter, gave up three of them though all were police personnel, which would only mean that there was no evidence of police encounter---Appeal against conviction was allowed, in circumstances.

Appellant in person (Produced in custody).

Syed Meeral Shah Bukhari, Additional P.G. for the State.

Date of hearing: 26th November, 2020.

JUDGMENT

NAZAR AKBAR, J.---Appellant Arshad son of Abdul Sattar has preferred the instant Criminal Anti-Terrorism Jail Appeal against Judgment dated 29.05.2019, whereby Anti-Terrorism Court No.X, Karachi in Special Case Nos.150/2019 and 150-A/2018, arising out of FIRs Nos.164/2018 and 166/2018 registered at P.S North Nazimabad, Karachi, under sections 353, 324 and 34, P.P.C. read with section 7 of Anti-Terrorism, Act, 1997 and section 23(1)(a) of Sindh Arms Act, 2013 has convicted the appellant and sentenced him as under:-

1. The accused Arshad son of Abdul Sattar is hereby, "Convicted" for the offence under section 7(h) of A.T.A., 1997 read with section 6(2)(m), (n) of A.T.A., 1997 and 353/324, P.P.C. and sentenced to undergo R.I for "10" years with fine of Rs.100,000/-. In default in payment of such fine, he shall suffer further R.I for "06" months.

2. I, also "Convict" the accused Arshad son of Abdul Sattar for the offence under section 25 of Sindh Arms Act, 2013 and sentence him to undergo R.I for "07" years with fine of Rs.50,000/-. In default in payment of such fine, he shall suffer further R.I for "06" months.

All the above sentences shall run concurrently. The benefit of section 382-B, Cr.P.C., is also extended to the accused from the date of his arrest.

2. Precisely, the facts of prosecution case are that on 22.8.2018 at about 2200 hours, H.C Rana Tariq recorded his statement under section 154, Cr.P.C, wherein he stated that on that day, he along with PC Faizullah, PC Muneem Rahim and PC Ifran Shafiq were on patrolling duty of the area on motorbikes from office of Board of Secondary Education, Karachi to Five Star Chowrangi, Karachi. During Patrolling duty, at about 2145 hours, when they reached near U.fone Franchise and Faysal Bank, they saw two suspicious persons on a motorcycle bearing No.KJP-8269, maker Super Power, as such, Police party tried to intercept them, as soon as they reached near to suspected persons, they opened straight firing upon them, with intent to commit their intentional murder and deterred them from discharging their lawful duties and official functions. In retaliation, Police party also made fire shots upon the culprits in their self-defence, consequently, one culprit sustained bullet injury and fell down on the ground who on inquiry disclosed his name is Syed Owais Hussain Jaffery son of Zaki Hussain Jaffery, while Police also managed to apprehend the other culprit, who on query disclosed his name is Arshad son of Mukhtiar (appellant herein). Thereafter H.C Rana Tariq conducted personal search of injured accused namely Syed Owais Jaffery, which led to the recovery of one 30 bore pistol from his right hand along with 02 rounds loaded in the magazine and 01 round loaded in the chamber, whereas, the personal search of accused Arshad also led to the recovery of one .30 bore pistol from his right hand along with loaded magazine having 01 round, whereas, 01 round loaded in the chamber. Upon further personal search of the accused Arshad, Police also secured 02 Samsung mobile phones, one Q-mobile and cash Rs.42,250/- from his possession. H.C Rana Tariq further stated in his statement that by that time Police party headed by ASI Najaf Ali also reached there and inquired from him about the entire situation. On such, H.C Rana Tariq narrated to him the entire incident. H.C Rana Tariq also produced all the articles recovered from the accused persons, including Motorbike before ASI Najaf Ali and he sealed the articles on the spot separately. ASI Najaf Ali also secured 04 empty shells of .30 bore pistol and 02 empty shells of SMG from the place of waardat and sealed in the cloth parcel. ASI Najaf Ali then prepared memo of arrest, recovery and seizure. The injured accused Syed Owais Hussain Jafffery was shifted to Abbasi Shaheed Hospital in Edhi Ambulance through P.C Faizullah for his medical treatment (who subsequently succumbed to his injuries). ASI Najaf Ali also recorded statement of H.C Rana Tariq under section 154, Cr.P.C. on the spot and obtained his signature, so also he put his signature on such statement. Thereafter, Police party came back at Police Station, where, ASI Najaf Ali incorporated statement under section 154, Cr.P.C. of H.C Rana Tariq into FIR bearing Crime No.164/2018 under sections 353/324/34, P.P.C.. Moreover, ASI Najaf Ali also registered another FIR bearing No.166/2018 under section 23(1)(a) of Sindh Arms Act, 2013 against the arrested accused/appellant Arshad on behalf of the State.

3. The I.O on 12.9.2018 after conclusion of investigation, submitted challan in the Court of Sessions Judge, Central Karachi and on his direction it was assigned to VIst Additional Sessions Judge, Central Karachi. The learned Additional Sessions Judge by order dated 19.01.2019 observed that the case is triable by Anti-Terrorism Court. The prosecution then filed challan in the Anti-Terrorism Court and also filed application under section 21-M of the Anti-Terrorism Act, 1997 regarding amalgamation of the cases at Ex:03 which was allowed.

4. Then on 11.04.2019 the trial Court framed charge against the accused/appellant at Ex:4. Accused pleaded not guilty and claimed to be tried vide plea at Ex:04/A. In order to prove its case, prosecution on 24.4.2019 examined PW-1, ASI Najaf Ali at Ex:05, PW-2, SIP Bagh Ali at Ex:06. On the same day learned APG filed statement to give up three prosecution witnesses, namely, PC Faizullah, PC Irfan Shafiq and PC Muneem Raheem at Ex:07. On 16.5.2019 PW-3, H.C Rana Tariq and PW-04, SIP Muhammad Laeque Ghanghro and PW-05, PI Shabbir Hussain Gopang were examined at Ex:08, Ex:10 and Ex:11 and gave up three more PWs, namely, ASI Johar ur Rehman, H.C Fazal Kareem and P.C Shahbaz at Ex:09. Thereafter, the learned APG closed the prosecution side vide statement at Ex:12.

5. On 20.5.2019 Statements of accused/appellant Arshad was recorded under section 342, Cr.P.C. vide Ex:13. He denied the allegations levelled against him. He further stated that while going to Bakra Piri for purchasing of sacrificial animal, as it was Chaand Raat, police had snatched cash Rs.42,250/- from him and he resisted, due to which, some hot words were also exchanged between him and the police party, therefore, he was falsely implicated in this case by the Police. He neither examined himself on oath under section 340(2), Cr.P.C. nor produced any witness in his defense.

6. Learned trial Court by judgment dated 29.05.2019, after hearing the learned counsel for the parties and examination of evidence, convicted and sentenced the accused/appellant as stated above.

7. The appellant has preferred this appeal through Superintendent, Central Prison, Karachi vide letter dated 01.07.2019. This appeal was presented to the Superintendent Jail on 27.6.2019 and in admission order 26.07.2019, it was observed by this Court that the delay in filing of the appeal shall be considered at the time of regular hearing. The perusal of impugned judgment shows that the appellant was convicted by judgment delivered on 29.5.2019 and the instant appeal has been filed/presented by him on 27.6.2019 before the Superintendent, Central Prison. The covering letter from the Central Prison is dated 01.7.2019 and, therefore, delay, if any, is not on account of the appellant. It was filed within 30 days from the date of impugned judgment, therefore, it is not time barred and gone through each and every page of R&Ps as well as paper book. The application (C.M.A. No.6206/2019) is allowed.

8. The appellant is present in Court. He has been produced by jail authorities on production order issued by this Court because he was not represented by any counsel. Therefore, with the help of learned Additional P.G, we have scanned the entire evidence and gone through each and every page of R&Ps as well as paper book.

9. According to prosecution story there were two sets of police personnel on patrolling duty from North Nazimabad Police Station. First set of police personnel patrolling on motorcycles were comprising of PW Rana Tariq, P.C Faizullah, P.C Muneem Rahim and P.C Irfan. They were allegedly target of straight firing from the appellant and deceased Syed Owais Hussain Jaffery and the place, date and time of incident is Service Road near U.fone Franchise and Faysal Bank, Block-D, North Nazimabad, Karachi dated 22.08.2018 at 2200 hours a night before Eid-ul-Adha. Accused Syed Owais Hussain Jaffery was killed by police firing which were only two shots. One shot was fired by the complainant H.C Rana Tariq (FIR 164/2018) and another shot was fired by P.C Nuneem Rehan from their SMGs in retaliation to the firing by the accused party. The appellant and deceased Ovais Jaffery allegedly fired two shots each from their 30 bore pistol. Ex:10-C and 10-D. are respectively letters to the incharge FSL dated 28.8.2018 whereby only two 30 bore pistols with four empties of 30 bore pistol and two empties of SMG were sent for examination, however, SMGs were not sent for examination. The injured accused was sent in Edhi Ambulance through P.C Faizullah for medical treatment before the arrival of second police patrolling party headed by ASI Najaf Ali along with P.C Naveed, P.C Jansar, P.C Samar and P.C Shahryar on patrolling duty in police mobile No.474 vide entry No.15 which he has produced as Ex:5-A. Admittedly the alleged encounter was not between the accused and second police party on patrolling in police mobile No.474. Departure entry of police patrolling team on motorcycles who were subjected to encounter with the appellant and deceased Ovais Jaffery has not been produced by the prosecution through PW-2 I.O. Bagh Ali or PW-3 Complainant H.C Rana Tariq himself to prove lawful presence of the first patrolling party at the place of wardat and the encounter. The prosecution gave up three policemen as witnesses from the first patrolling party on motorbikes, though at least two of them were very material eye-witnesses of the incident of encounter. Three eye-witnesses of encounter were (1) PWs, P.C Faizulah, (2) P.C Muneem and (3) P.C Irfan. The evidence of PW, P.C Muneem was material as he has allegedly used his official SMG in encounter by firing one shot in retaliation. The evidence of P.C Faizullah was also material as according to the FIR, he has taken the injured to the hospital in Edhi Ambulance from the crime scene and the injured had died in the hospital. By dropping PW, P.C Faizullah, the prosecution failed to bring on record proof of firearm injury as cause of death of deceased Syed Owais Hussain Jaffery. The only role of P.C. Faizullah shown in the FIR was that he took away the injured to hospital but his evidence was withheld and I.O has not even named Medico-legal officer in the column of witnesses in challan nor he has produced medical certificate, if any, even if that was obtained by him. Alarmingly the postmortem report of deceased was not produced by the I.O in his evidence. The Investigating Officer has only produced permission of handing over dead body of deceased Owais Jaffery to his relatives as Ex:6-E who have already brought receipt No.204883 from Incharge Edhi Centre, Sohrab Goth Cold Storage. When the prosecution out of four eye-witnesses of police encounter, gave up three of them though all were police personnel, it would only mean there was no evidence of police encounter. It was, if at all, a one sided encounter in which neither the police party nor any other person sustained any firearm injury. Even no bullet mark was found on police motorcycles or any wall of the vicinity or a passerby. In this context, evidence of PWs is worth reproduction. PW-03 H.C Rana Tariq, who was also complainant, in his cross-examination has admitted that:-

"I made 01 fire shot, while P.C Muneem Baig also made 01 fire shot during encounter, whereas, the accused persons made 04 fire shots. The accused sitting on rear seat of the motorcycle made fire shots upon us. Two fire shots were made by each accused during encounter. It is correct to suggest that no any police official sustained any bullet injury during encounter. I cannot say exactly from whose firing, the deceased accused sustained bullet injuries and expired later on. Except two police officials, no any other police officials made fire shots upon the culprits during encounter. This incident took place near Imam Bargah Bab ul Ilm, beside Faysal Bank and Ufone franchise. There is no Tandoor, Restaurant near place of wardaat, while Pizza Hut and Kaybees are situated near place of wardaat. It is correct to suggest that no any wall of the vicinity sustained any bullet injury mark during encounter. Four or five person might have been available near the place of wardaat at the time of encounter but due to firing they scattered. It is correct to suggest that we did not see the present accused including deceased accused looting anybody but they were standing near to ATM.

10. PW-1 ASI Najaf Ali in his evidence has admitted that:

"It is correct to suggest that neither any police officer nor police mobile or any wall of the vicinity sustained bullet injury during exchange of firing. It is correct to suggest that I.O did not secure any blood stained earth from the place of waardat in my presence. It is correct to suggest that except deceased accused, no anybody sustained bullet injury during encounter. It is correct to suggest that Motorcycle on which police officials were patrolling on that day, did not sustain any bullet injury during exchange of firing."

11. PW-02 SIP Bagh Ali in his cross-examination has admitted that:

"I did not find any blood stained earth at the place of wardaat at the time of its inspection. During investigation, I interrogated the present accused. I did not produce the custody of accused before any Judicial Magistrate for seeking his P.C remand, as I was suspended by my superiors on the very same day. There was no mark of bullet injury on official Motorcycle used by police officials in patrolling duty on that day. It is correct to suggest that I did not prepare visual sketch of place of wardaat at the time of its inspection."

12. From bare reading of above evidence, it is unbelievable that accused person were apprehended by the police along with weapons on the spot and alleged encounter lasted for few minutes but none from the police party or anybody else from public sustained any scratch on their body and the culprits who were having pistols and dared to open straight fire on police suddenly stopped firing after two shots by each though they had more live bullets with them. The stark failure to bring evidence of cause of death of accused Syed Owais Hussain Jaffery by police firing in retaliation leads to irresistible believe that neither the accused was killed by the police firing in this incident nor he was on the motorcycle with the appellant who has not sustained any injury in the encounter with police party. The record also shows that the prosecution has twice given up their witnesses by filing statement during trial including those who were said to have been part of the encounter, meaning thereby either the said witnesses were not present at the time of incident at all, therefore, they refused to give evidence, or the prosecution has realized that may be the truth could come out from their mouths during their evidence, therefore, the prosecution decided to give up the said witnesses. It also was not the case of police that they had reached at the place of incident on spy information as there was no allegation of any robbery committed by the accused. There is no criminal record of the appellant as well as the deceased. It was not the case of doubt in the prosecution story, rather it was a case of no evidence and no incident a complete back out. In fact the prosecution evidence by default has proved the defense of appellant in his statement under section 342 of the Cr.P.C. that on the night before Eid-ul-Adha when he was on his way to Bakra Piri to purchase sacrificial animal, police stopped him and snatched cash and other belongings mentioned in the memo of personal search.

13. In view of above facts and evidence discussed above, we have decided to allow this appeal by short order dated 26.11.2020 and acquitted the appellant for the above reasons. While acquitting the appellant we have realized that it is the worst case of false implication of an innocent person and also a case of defective investigation in breach of all norms of proper inquiry and investigation according to the Police Rules, 1934 and Criminal Procedure Code. Therefore, on the same day we have called all Investigating Officers concerned and other policemen involved at different stages of case in hand along with SSP Investigation of District Central, Karachi through Additional P.G. In an hour or so (1) ASI Bagh Ali, (2) SIP Shabbir Hussian Gopang and (3) ASI Najaf Ali as well as SSP Murtaza appeared in the Court. Learned SSP was called as he is supposed to have the responsibility to supervise inquiry and investigation according to Rule 25.17 of the Police Rules 1934 reproduced below:-

25.17. (1) In all important cases gazetted officers are required personally to supervise the investigation so far as in possible and when necessary to visit the scene of the offence.

(2) A record of investigation by gazetted officers shall be kept in the prescribed column of the registrar of cognizable offences and an abstract thereof shall be shown in the quarterly Inspection Statement and in the Annual Provincial Statement.

(3) .. ..

.. ..

(4) . . ..

.. ..

(5) Every gazetted officer in headquarters should see daily the English register (27.36) of cognizable offences, with special reference to columns 14 to 17 in regard to cases in his charge and he should bring to the notice of the District Magistrate, through the proper channel, any unnecessary delays that occur in dealing with cases in courts, instances in which witnesses come up with challans and are sent back unheard, and delays in framing charges, hearing arguments or pronouncing judgments.

(6) Gazetted officers should follow closely the progress of cases in their charge through the courts and they should ascertain, as soon as possible, the grounds for all discharges and acquittals. If the grounds for all discharges and acquittals, appear to be unreasonable, they should at once bring the cases prominently to the notice of the District Magistrate through the Superintendent of police.

In the presence of learned SSP, ASI Bagh Ali, who was one of the Investigation Officers, conceded that even till date the case property is in his possession despite the orders of the Court that "entire personal search articles of accused Arshad (appellant) are ordered to be returned to him". The trial Court's order regarding disposal of the case property of the accused party is reproduced as follows:-

" , while Motorbike bearing registration No.KJP-8269, maker Super Power, black colored is ordered to be returned to its real owner/possessor, subject to due and proper verification. The entire personal search articles of the accused Arshad are ordered to be returned to him. As far as the personal search articles relating to the deceased accused are concerned, they are ordered to be returned to his relatives, if claimed, subject to due and proper verification, otherwise the same are ordered to be disposed of by I.O as per rules, after the expiry of appeal period."

14. The above quoted order about case property clearly shows that the case property including the motorbike were in the custody of police and court has not passed any order for its disposal during the trial. PW-3 H.C Bagh Ali in his examination-in-chief in Court on 24.04.2019 has identified the following items as the property of accused:-

"I also see 02 Samsung Mobile phone sets, one Q-Mobile and cash Rs.42,250 and say these are same, which were recovered from the accused Arshad, at the time of his arrest.

I also see 02 Mobie phone sets, and cash Rs.25,550/- and say these are same, which were recovered from the deceased accused Syed Owais Hussain Jaffery, at the time of his arrest."

He has not produced motorcycle bearing registration No.KJP-8269 in Court. The I.O in the presence of SSP, District Central, Mr. Murtaza tried to give an explanation that may be the Head Moharar has handed over Motorbike to the mother of the deceased. The question is why two mobile phones and cash of Rs.25,500/- was not handed over to her and why such fact was not brought to the notice of the trial Court? The case property is not supposed to be handed over to the parties concerned without specific orders of the trial Court on the application of claimant, till the conclusion of trial and in accordance with terms of the judgment passed. We have gone through the order sheet and we did not find any order of the trial Court to hand over motorbike or any other property to anyone. The very fact that the Court has passed the order regarding disposal of the case property including Motorbike to be handed over to its real owner/possessor leaves no room for any speculation or excuse to defy the order after one year and six months. Therefore, it is ordered that the I.O should hand over motorcycle No.KJP-8269, cash Rs.67,800/- and five mobile phone sets identified by him in his evidence to the Nazir of this Court within three days (72 hours). SSP concerned is directed to ensure handing over of the case property to the Nazir of this Court from the date of receiving of this order. The Nazir shall issue notice to the appellant and the legal heirs of deceased and hand over the properties to them on proper identification and verification.

15. In view of the above facts and circumstances, we intend to invoke the power conferred on High Court under section 27 of A.T. Act, 1997, which is reproduced below:-

27. Punishment for defective investigation. If an Anti Terrorism Court or an High Court comes to the conclusion during the curse of or at the conclusion of the trial that the investigating officer, or other concerned officers have failed to carry out the investigation properly or diligently or have failed to pursue the case properly and in breach of their duties, it shall be lawful for such court or, as the case may be, and High Court to punish the delinquent officers with imprisonment which may extend to two years, or with fine or with both by resort to summary proceedings.

16. Now since the appeal has been concluded with reasons given hereinabove and scrutiny of police record from Court file we found that in addition to the police officials present in Court on 26.11.2020, the complainant of FIRs Nos.164, 165 and 166 of 2018 and one more I.O was part of the inquiry and investigation. They are PW-03, H.C Rana Tariq, Complainant and PW-04, SIP Muhammad Laeque Ghanghro need to be proceeded in terms of above law. Therefore, the following police officials are issued notices under section 27 of A.T. Act, 1997 to submit their written explanation within seven days from today that why they should not be punished for their failure to carry out their respective duties carefully and for the breach of their duty a responsible official during the course of inquiry and investigation of Crimes Nos.164/2018 and 166/2018 and conducting defective investigation:

1. H.C Rana Tariq has to explain that as to the following:-

That the story you narrated to ASI Najaf Ali about police encounter resulting in death of alleged accused Syed Owais Hussain Jaffery and arrest of appellant was false since neither P.C Muneem Raheem nor P.C Faizullah supported your story. The injured was allegedly sent by you to hospital through P.C Faizullah and according to you P.C Muneem Raheem has also fired one shot from his official SMG. Both P.C Faizullah and P.C Muneem Raheem did not appear in the witness box to support your statement, incorporated by ASI Najaf Ali in the FIR No.164/2018. Admittedly there was no mark of bullet fired by the appellant or deceased upon the wall of Faysal Bank or U-fone franchise or any other wall or vehicle in the vicinity of the scene of incident. I.O ASI Bagh Ali stated on oath that he did not find any blood stained earth at the place of wardat at the time of inspection. You have not handed over your official SMG and SMG of Muneem Raheem to ASI Najaf Ali to be sealed as case property with empty shells of SMG to be sent to FSL for confirmation of firing by official SMG that caused injury to the deceased. The injured, according to you, was taken to hospital by P.C Faizullah but dead body of accused was found in the Edhi Home Mortuary at Sohrab Goth by his mother and brother to whom the dead body was handed over. All this shows that you cooked a false story against the appellant after snatching three mobile phones and Rs.42,250/- from his possession on the eve of Eid-ul-Adha of 2018 which was on 23.8.2018 and the incident took place in the night of 22.8.2018 as stated by the appellant in his statement under section 342 of the Cr.P.C. before the trial Court.

2. ASI Najaf Ali, has to submit his separate explanation as to the following:-

That you on 23.8.2018 at about 2145 hours recorded a false statement of H.C Rana Tariq and incorporated the same in FIR No.164/2018 under sections 353/324/34, P.P.C. read with section 7, A.T.A., 1997, whereas no such offence had taken place on the said date and time. Then on the basis of said false statement at 2300 hours you on the same day registered two more FIRs bearing crime Nos.165 and 166 of 2018 both under section 23(1)(a) of Sind Arms Act, 2013 against the appellant and the deceased Owais Hussain Jaffery. In the memo of arrest you have shown Complainant, H.C Rana Tariq and P.C Muneem Raheem. P.C Muneem Raheem has refused to given evidence. H.C Rana Tariq was making false statement of police encounter after allegedly killing the accused Syed Owaais Hussain Jaffery as neither encounter was proved nor the death of accused was proved to be a result of police encounter at the place of the incident. Even police firing in which one shot was fired by H.C Rana Tariq and one shot by P.C Muneem Raheem from their official weapons could not be proved as you in the memo of arrest, seizure and personal search failed to mention identity of official weapons used in the encounter and the same were not sent to the FSL to match with empty shells of SMGs.

3. ASI Bagh Ali, Inspector Shabbir Hussain Gopang and ASI Muhammad Laeque Ghanghro have to submit their explanations as to the following:-

That you as investigating officers, failed to perform your duties as an honest, diligent and sincere police officer to verify contents of the FIR. It was clearly stated in the FIR that the injured was sent to hospital from the crime scene through P.C Faizullah, whereas on the same day dead body of accused Owais Hussain Jaffery was handed over to the legal heirs of the deceased from Eidhi Cold Storage, Sohrab Goth instead of Hospital. None of you have recorded statement of any Medico-legal officer under section 161, Cr.P.C. Neither anyone of you prepared inquest report in terms of section 174 of the Cr.P.C. nor obtained any postmortem report of the deceased who was injured and subsequently died by police fire in alleged encounter. You also have not even mentioned the name of the hospital or Medico-legal officer in your evidence. It is strange that the dead body of the deceased was not handed over to the legal heirs from the hospital whilst it ended up in Edhi Centre, which is an utter violation of law and procedures. As investigating officers it was your duty to send official SMG for Forensic Examination to match with the official SMG used in the encounter. None of you checked from the record of police station that which weapon was given to whom and also at what time and date. You failed to inquire that whether H.C Rana Tariq and P.C Muneem Raheem during the alleged encounter were on patrolling duty on official motorcycles under any official entry. The record shows that for identification/inspection of place of incident, you have not taken the accused/appellant for identification of the place of occurrence and you relied upon and have identified the place of occurrence on the pointation of complainant H.C Rana Tariq and ASI Najaf Ali, who were both police officials.

17. In view of above defects in investigation, you H.S Rana Tariq, ASI Najaf Ali, ASI Bagh Ali, Inspector Shabbir Hussain Gopang and ASI Muhammad Laeque Ghanghro should submit your explanation in writing on 15.12.2020 to this Court.

18. Copy of this order should be served on the police officials through SSPs Investigation and Operation, Central Karachi through the office of Prosecutor General, Sindh within 24 hours so that the reply of above named policemen should reach in time. No request for time to submit reply shall be entertained by us.

JK/A-196/Sindh Order accordingly.