2017 PLP 443 (YLRN)

MUHAMMAD IQBAL KALHORO, J.

Appellant has preferred this jail appeal against the impugned judgment dated 30.06.2014, passed by learned Special Judge, Anti-Terrorism Court Kashmore @ Kandhkot, in special case No. 54/2009 (Old), 50/2013 (New), whereby he has been convicted under section 302(b) read with section 149, P.P.C., and sentenced to undergo imprisonment for life and to pay an amount of Rs.200,000/- as compensation to be paid to the legal heirs of deceased and in default of which to undergo S.I. for two years. He was also convicted for the offence under sections 324 read with section 149, P.P.C. and sentenced to undergo R.I. for eight years and to pay Arsh of Rs.50,000/- to injured PC Bashir Ahmed and pay Daman of Rs.10,000/- to injured PC Gullan Khan and until Arsh and Daman amount are not paid the convict shall be kept in jail and dealt with in the same manner as if sentenced to undergo simple imprisonment. He has been convicted for offence under section 7(a) of Anti-Terrorism Act, 1997 read with section 149, P.P.C., and sentenced undergo imprisonment for life and to pay fine of Rs.200,000/- and in default of which to undergo S.I. for two years more. The appellant has also been convicted for offence under sections 7(b) of Anti-Terrorism Act, 1997 read with section 149, P.P.C, and sentenced to undergo R.I. for ten years and to pay fine of Rs.50,000/- and default of which to undergo SI for one year more. He was also convicted for offence under sections 7(c) of Anti-Terrorism Act, 1997 read with section 149, P.P.C., and sentenced to undergo RI for ten years and to pay fine of Rs.50,000/- and default thereof to undergo S.I. for one year more.

2. Allegedly on 30.10.2001 at 1: 15 a.m. appellant along with other 24 co-accused; seven (7) of whom including the appellant are nominated, and the others are shown as unknown in the FIR, duly armed with deadly weapons, attacked upon Police Station Bugti Colony, killing P.C. Mukhtiar Ali and injuring PC Gullan and PC Bashir Ahmed. And additionally, they looted arms, ammunitions, wireless sets and walky-talky sets lying in the "Malkhana" of the said Police Station and while leaving, they also took some of the police constables including complainant namely, Abdul Razzak (head constable) with them but after some time released them at the distance of about 3/4 kilometers.

3. During investigation, some of the co-accused namely, Ghulam Sarwar, Abdul Rehman, Abdul Wahid, Ahmed Nawaz, Gul Hassan and Kakal got arrested and were tried by the-Anti-Terrorist Court-III Sukkur and Larkana on the above charge, out of them, however, only four accused namely, Abdul Wahid, Ahmed Nawaz, Gul Hassan and Kakal were convicted vide judgment dated 18.09.2013. In the said judgment, the appellant was also awarded conviction and sentence, among others, of life imprisonment in absentia. Subsequently on 21.01.2010, the supplementary report showing the appellant arrested was submitted before the Anti-Terrorism Court Jacobabad but meanwhile the appellant preferred the appeal from jail against his conviction before this Court bearing Cr. Jail Appeal No. D- 47/2010. This Court vide order dated 12.10.2010 set aside the conviction and sentence of the appellant and remanded the case back to the trial Court for a fresh trial against him.

4. The prosecution in order to prove its case against the appellant has examined PW-1 Dr. Bashir Ahmed at Ex.3. PW-2 Dr. Shahnawaz at Ex 4, PW-3 Mashir/ ASI Abdul Razzak at Ex.5. PW-4 injured/PC Bashir Ahmed at Ex.6. PW-5 Mashir/PC Muhammad Shahban at Ex.7. PW-6 Mashir/PC Hamidullah Mazari at Ex.9. PW-7 SIP Manzoor Ahmed at Ex.10.PW-8 SIP Juma Khan at Ex.11. PW-9 Tapedar Abu-Bakkar at Ex.I2 and PW-10 injured/PC Gullan at Ex.13. In their evidence these witnesses have produced all the necessary documents of the prosecution case, from FIR to all the memos, postmortem report, inquest report, medical certificates etcetera. After prosecution evidence was closed, the statement of the appellant under section 342, Cr.P.C. was recorded in which he has denied the charge. However, neither he has examined himself on oath nor led any evidence in his defense. Learned trial Court at the conclusion of the trial convicted the appellant vide impugned judgment in the terms as stated above. Appellant being aggrieved by the said judgment has preferred this jail appeal.

5. We have heard the learned counsel for parties and have perused the material available on record. It is relevant to mention that co-accused namely Abdul Wahid, Ahmed Nawaz, Gul Hassan and Kaka Khan preferred appeal (Cr. Jail Appeal No. D-98/2003) against their conviction and were acquitted by this Court vide judgment dated 17.01.2007 and against which no acquittal appeal has been preferred by the State.

6. During the course of arguments, learned D.P.G. had contended that case of the present appellant was different than that of acquitted co-accused, for neither their name was mentioned in the FIR nor after arrest their identification test was held, but in appellant's case not only his name was mentioned in the FlR but against him the witnesses had deposed in unequivocal manner that he was armed with Kalashnikov and hand grenade, and in order to commit murder of the police officials and to rob arms and ammunitions from the Police Station, he had made direct firing. He also contended that there was no material showing any enmity of the police officials against the appellant to falsely implicate him. According to him, the case being of murder, robbery and injury the witnesses were not expected to substitute the real culprits with the appellant. We considered the entire material of the case brought against the appellant in the perspective of above submissions of learned D.P.G. Although the name of appellant Taj Muhammad aka Tajo is mentioned in the FIR but the entire prosecution case is silent as to how the appellant was known to the complainant and other witnesses. No material showing appellant's involvement in any other criminal case registered at any Police Station has been brought on record by the prosecution. PW Gullan (Ex.13), who is eye-witness and was injured in the alleged incident has admitted in his cross-examination that prior to the present case the appellant was not arrested in any case of their police station. He has also admitted that he does not know where appellant Tajo is residing. His evidence also shows that he is not resident of the locality but hails from village Garhi Khairo District, Jacobabad. It is therefore not clear as to how this witness or for that matter any of the witnesses was able to identify appellant Tajo on the day of incident. In his evidence, he has further stated that in the light of bulbs installed in the police station they identified the appellant and others. But SIP Manzoor Ahmed (Ex.10), the Investigating Officer, in his cross-examination has revealed that there was no electricity bulb in the said police station or in its surroundings but there were gas-lamps providing light to the police station. And if it is the case, the identity of the appellant or others would become more doubtful because on the one hand it is contrary to the prosecution version respecting source of the light and on the other identifying a person with no criminal record in the dim-light of gas-lamp by the witnesses not knowing him previously is simply unbelievable. It is also important to mention that Tapedar, Ex.12, neither in his evidence nor in the sketch prepared by him has shown the points where either electric bulbs or the gas-lamps providing light to the subject police station were installed. Record also shows that the witnesses have deposed that it was a dark night when the incident took place, therefore, the prosecution was under heavy duly to prove beyond reasonable doubt the source of light through which the witnesses were able to identify the appellant and others at the relevant time. It is equally significant to note that PW-4 PC Bashir Ahmed (Ex.3) while describing the incident in his deposition has stated that at the relevant time the culprits started firing; which was retaliated by them, but then he went unconscious and after 20 minutes regained his senses and identified the appellant along-with other nominated accused. If we keep in view the evidence of medico-legal officer (Ex-3), who has examined this witness, the above assertion does not appear to be trustworthy. The medico-legal officer while describing his injury in deposition has stated that this witness had "One LTP wound measuring 6 cm x 4 cm bone deep present on vertex of skull from back side slightly brain was protruded out."; in such condition when his brain was protruding out slightly, his regaining the senses after about 20 minutes of receiving the head-injury and identifying the culprits exactly by names would appear to be highly improbable and doubtful. PW.5 Muhammad Shahban (Ex.7), who is not only mashir of place of incident but is eye-witness also, has although given the details of the incident but has not taken the name of any of the accused in his deposition, PW-3 complainant PC Abdul Razzak (Ex.5) has also not disclosed in his deposition, as to how the appellant was known to him prior to this incident. So a reasonable doubt viz-a-viz source of light and consequent identity of the appellant appears to have been created.

7. We have also noted that although the appellant and others are alleged to have looted the arms and ammunitions from the police station, but the same are shown to have been recovered subsequently either from some ditches or from some abandoned places and not from any of the accused. The spent bullet casings, allegedly recovered from the Police Station after the encounter, were never sent for the report of Forensic Expert. During the course of arguments, we asked learned D.P.G. as to what was the reason for registering the FIR after the delay of almost eight hours when it had to be registered at the same police station he could not reply satisfactorily. Such delay, in absence of any reasonable explanation, is bound to give rise to a presumption that the FIR was registered after due deliberation. And if we keep in view all the above points plus evidence of the eye-witnesses, investigating officer, medico-legal officer and Tapedar in juxtaposition, it would lead to an irresistible inference of innocence of the appellant.

8. Consequent to above discussion, while extending benefit of doubt to the appellant Taj Muhammad aka Tajo, we acquit him of the charge he is booked in and order his release forthwith if not required in any other case. These are the reasons of our short order dated 06.12.2016 allowing the appeal. WA/T-1/Sindh Appeal accepted.