SARMAD J. OSMANY, J.-- The brief facts of the matter as per FJ.R. No. 8/1992 lodged with Police Station Umer Sand District Hyderabad on 22.4.1992-are that on 21,4.1992 the complainant/SHO along with other police staff were patrolling within the area of their jurisdiction in their Mobile. When they reached the TV Booster they received spy information that two Camel Carts were parked in the land of Ashfaq Memon and two thieves were available there. The police party apprehended these two persons who upon questioning did not give a satisfactory reply as to their presence at the scene and hence they were taken into custody along with the Camel Carts. The SHO directed HC Muhammad Yaqoob, HC Karim Bux and PC Achar to take the suspects as well as Camel Carts to the Police Station for further proceedings, lt is alleged that when the party was at some distance from village Tando Soomro/Munno Khan Link Road some culprits opened fire at the Camel Carts as a result of which the Police personnel returned the fire. The personnel in the Mobile reached the place of incident and saw the open faces of these culprits who were 5/6 in number and all of them were armed with KKs. This encounter continued for about ten minute whereafter the culprits made good their escape, lt is alleged that HC Muhammad Yaqoob was injured and died on the spot. The police party tried to track the culprits but could not succeed whereafter the SHO returned to the scene an took the dead-body of HC Muhammad Yaqoob to the Police Station along with the Camel Carts and two suspects and registered the case against unknown culprits (Ex-12), lt is alleged that the SHO revisited the scene, where he prepared a memo of inspection Ex. 13 and secured four empties of KK (SMG) lying near the dead-body of HC Muhammad Yaqoob. So also he secured blood-stained earth as prepared inquest report Ex.11. Lt is alleged that he returned to the Police Station despatched the dead-body to hospital for postmortem and recorded 161 Cr.P.C, statements of the witnesses, so also secured blood-stained clothes of deceased vide memo. Ex. 14 delivered to him by the doctor. Accused Ashraf was arrested on 14.6.1992 from the lock-up of Police Station. Tando Allah Yar where he was detained in some other case and an identification test was held before Assistant Mukhtiarkar on 26.6.1992 through three P.Ws namely PC Ashique, Karim Bux and Muhammad Archer vide memo. Ex. 18 and after completion of usual investigation he was challaned in the case on 10.2.1993, while other accused were shown as absconders and placed in Column No. 2 of the. Charge-sheet with red ink. Process for absconding accused were issued from time to time and Process Server Muhammad Ibrahim (HC) was examined on 18.3.1993 vide Ex. 2 and an order was passed under Section 512 Cr.P.C, to proceed with the case in the absence of, other accused persons, so also proclamation under Section 87/88,-Cr.P.C also ordered to be initiated against absconding accused persons. Meanwhile accused Taj Muhammad was arrested on 26.4.1993 from near the TV Booster, Tando Allah Yar and was challaned vide supplementary charge-sheet filed on 11.5.1993. An identification test of the accused was held on 18.5.1993 through four PWs namely PC. Ashique Ali, Karim Bux, Muhammad Achar and Wahid Dino before Mukhtiarkar & FCM, Tando Allah Yar.
2. The charge was framed against the accused persons on 23.1.1994 vide Ex. 6, to which they pleaded not guilty and claimed to be tried.
3. The prosecution examined 13 witnesses in all and learned SPP closed the prosecution side vide his statement Ex. 35.
4. The accused in their respective statements under Section 342, Cr.P.C, vide Exs. 36 and 37 denied the incident and causing the death of (HC) Muhammad Yaqoob so. They also denied their arrest as alleged by the prosecution. They also, denied holding of identification parade as well as preparation of the site plan etc. Accused Ashraf alleged that he was involved by Police due to enmity and was also implicated in a robbery case, in which he was acquitted by 5th Additional District & Sessions Judge, Hyderabad. He produced a copy 'of said judgment as Ex. 36/A. Accused Taj Muhammad also denied his arrest and alleged that he was the co-accused facing trial along with Ashraf and was acquitted by the Court. Accused Ashraf did not examine himself on oath but he examined two witnesses namely Sawan and Pir Bux vide Exs. 39 and 40 in his defence, while accused Taj Muhammad neither examined himself on oath nor any witness in his defence.
5. The learned Trial Court after having heard the respective counsel for the appellants as well as the State, came to the conclusion that the prosecution had been able to prove the charge against the appellants Ashraf and Taj Muhammad beyond any shadow of doubt and hence sentenced them to suffer life imprisonment under Section 302/34, PPC and also to pay a fine of Rs.1,00,000/- each failing which they were to undergo R.I. For further period of three more years. They were also ordered to pay compensation of Rs.2,00, 000/- to the legal heirs of the deceased. The benefit of Section 382-B, Cr.P.C was extended to the appellant.
6. Mr. Hidayatullah Abbasi, learned counsel for the. Appellants has firstly submitted that identification of the accused in moonlight on the day of incident viz. 22.4.1992 at 1.00 a.m. Which corresponded to the 18th of Shawwal would be quite difficult since then the Moon would be only upto the Shoulder level above the eastern horizon. He has further submitted in this regard that such difficulty would be compounded by the distance of the police party from the assailants viz. At least 50 feet and that too when an encounter was going on. Again it has come on the record through the prosecution witnesses that they were firing from behind the bushes.' ln support of this submission learned counsel has relied upon Amanullah 1's. The State (PLD 1978 Karachi 792). Similarly per learned counsel in the circumstances of the case identification on the lights of the notice mobile would also be very difficult for which he relied upon Lai Pasand Vs. The State (PLD 1981 SC 142) and Malhi Vs. The State (1968 SCMR 1077)
7. Next learned counsel has submitted that according to SHO Sultan Ali Shah six culprits emerged from the sugarcane cultivation and fired at the police party whereas according to the rest of the prosecution witnesses only three culprits were involved. This material contradiction, in the prosecution case has not been explained at all.
8. Next, per learned counsel there is a delay of one week in the identification parade as the same was held on 22.6.1992 whereas the accused was arrested on 14.6.1992. Finally regarding identification per learned counsel all the eye-witnesses we have picked up the accused were posted at the Police Station where the latter were confined and hence there was every possibility that such eye-witnesses had a good look at the accused before the test. Consequently, the same was not reliable, ln this connection he has further submitted according to S.I. Ashique Ali on the day of the test the SHO took him, HC Karim Bux, PC Wahid Bux and PC. Muhammad Achar as well as both the accused to the Chamber of the Magistrate, which would establish beyond any doubt that these witnesses had seen the accused before the test, ln support of this submission. Learned counsel relied upon Kirir Vs. The State (PLD 1996 Karachi 246). Finally, as regards the test learned counsel has submitted that each of the prosecution witnesses has given a different account of the same. PW SHO Sultan Ali Shah has stated that on 26.6.1993 he had only identified accused Ashraf before the Magistrate. PW Wahid Dino has stated that he identified both the accused before Mukhtiarkar and FCM on 8.5.1993, Assistant Mukhtiarkar Naraindas also stated that he had conducted identification of accused Ashraf on 8.5.1993 and P.W Ghulam Muhammad, Mukhtiarkar and FCM has also stated that before him, only accused Taj Muhammad was identified by AS1 Ashiq Ali, PC Karim Bux, PC Wahid Din and PC Muhammad Achar on 8.5.1993.
9 Next, leamed counsel has submitted that no positive role has been ascribed to the accused and strangely enough not a single empty has been recovered from the area where the accused were located although per the prosecution the encounter continued for about 10 to 15 minutes.
10. Finally, per learned counsel the learned Trial Court has totally ignored the defence version according to which the deceased died due to a mistaken encounter between two police parties.
11. For all the foregoing reason learned counsel has prayed that the impugned judgment be set aside and the appellants be acquitted.
12. The learned State counsel has not opposed the contentions of Mr. Hidayatullah Abbasi, mainly on the ground that the eye-witnesses account on which the entire prosecution case rests coupled with the identification test is not free from doubt primarily as per the prosecution witnesses themselves they had opportunity to have a good look at the accused before the identification test was conducted.
13. We have heard both the learned counsel and our conclusions are as follows.
14. Lt would be seen that the prosecution case against the appellants-accused consists of the eyewitnesses account, the medical record and the identification test.
15. As far as the ocular account is concerned, the prosecution has examined AS1, Ashique AN S.I.
Syed Sultan Shah. PC Wahid Dino, PC Muhammad Achar, and PC Karim Bux per AS1 Ahiq Ali, HC Muhammad Yaqoob, HC Karim Bux and HC Muhammad Achar were taking the Camel Carts to Police Station Umer Sand along with the two suspects and the along with the test of the Police party viz S.I. Sultan Ali Shah and PC Wahid Dino were following them in the police mobile. The distance between them would be about 3/4 furlongs, however, he was able to identify the three culprits clearly under the moonlight when they started firing at the police party from the sugarcane fields with K.Ks. Under cross-examination this witnesses has stated that he and the others had taken up position at a distance of about 35 paces away from the place of incident. So also he has admitted that the village of Manno Khan is situated nearby but nobody had arrived at the time of encounter. S.I. Sultan Ali Shah has supported AS1 Ashique Ali in material particulars however, he has deposed that six culprits had opened fire upon the police party whom had been seen at the light of the police mobile. So also he has denied that these persons were firing from the sugarcane cultivation. Next PC Wahid Dino has also supported S.I. Sultan Ali Shah and AS1 Ashique Ali as regards the incident and according to him too the Camel Carts were handed over to H/C Muhammad Yaqoob, H/C Karim Bux and PC Muhammad Achar. However, according to him the two suspects were in the police mobile in which he was sitting. Again he has deposed that the incident occurred when the police mobile was half a furlong away from the Camel Carts and three culprits started firing upon the Carts. According to him the encounter lasted about 15 minutes and he was able to fully see the culprits both from the light of the moon as well as the headlight of the police mobile. Under cross-examination he has stated that although he had not seen the Moon yet it was a moonlight night. He could also not say whether the culprits were inside or outside the sugarcane cultivation. Further, according to him HC Karim Bux and HC Muhammad Yaqoob were sitting the Camel Carts whereas in the second Camel Carts only PC Muhammad Achar was available. He has also admitted that he has only recognized one culprits viz. Tajo Bhatti. Next. PC Muhammad Achar has again deposed that three culprits who had come out from the sugarcane fields had started firing upon the Camel Carts in which he and HC Karim Bux were available as a result of which one HC had died. He further deposed that after the encounter had ended the SHO and his party had arrived at the scene. Under cross-examination he had stated that the two suspects who were rounded up earlier were taken by the SHO to the Police Station while he and the HC Karim Bux were following him in the Camel Carts. He has denied that the SHO was behind the Camel Carts. The last eye-witnesses to be examined was PC Karim Bux, who has deposed that when the police party had arrested the two suspects with the Camel Carts they had disclosed their names as Hussain Bux and Manno whereafter he along with HC Muhammad Yaqoob and PC Muhammad Achar took the Camel Carts to the Police Station while the apprehended suspects were made to sit in the police mobile . He has further deposed that he and deceased HC Muhammad Yaqoob were sitting in the first Camel Cart while PC Muhammad Achar was available in the second one. Suddenly the three culprits came out from the sugarcane cultivation at Manno Khan Bus Stand and challenged them and started firing upon them when they disclosed their identity as police personnel. They also fired upon the culprits as did the SHO and his party which continued for about 15 minutes. Then the culprits ran away through the sugarcane, the police party also chased them but could not apprehend them. Four empties of K.K were found from amongst the bushes. HC Muhammad Yaqoob had sustained injuries due to which he died. Under cross- examination this witness has deposed that he had fired seven bullets but could not say how many the others had fired. So also six empties were recovered in front of deceased HC Muhammad Yaqoob and neither the police mobile or the Camel Carts/Camels were hit by the exchange v of fire.
16. On the basis of foregoing evidence, it would be seen that there are two sets of eye-witnesses viz. Those available in the Camel Carts and those in the police mobile. Those available in the police mobile are AS1 Ashique AN, Syed Sultan Shah and PC Wahid Dino. While all these witnesses support each other in so far as the incident is concerned there are some contradictions amongst them viz. Per AS1 Ashique Ali the two suspects were available with the police party which was driving the Camel Carts whereas according to the PC Wahid Dino these two were sitting in the police mobile.
Again whereas AS1 Ashique Ali and PC Wahid Dino have deposed that three culprits had fired at the police party, S.I. Sultan Ali Shah puts this number at six. Insofar as the eye-witnesses were driving the Camel Carts. PC Muhammad Achar has deposed that the police party available in the mobile had arrived at the scene of the incident after the encounter was over and so also that the mobile had left for the Police Station with the two suspects and were ahead of the Camel Carts. The other eye-witness who were driving the Camel Carts was PC Karim Bux and he has supported the deposition of PC Muhammad Achar. Hence it would be seen that there is a major contradiction amongst some of the eye-witnesses regarding the arrival/presence of the police party available in the police mobile at the scene of the incident. Secondly it would also be seen that the encounter lasted for about 10 to 15 minutes and hence would be quite difficult to recognize the culprits in the light of the Moon or the police mobile in the heat of the moment particularly as the culprits were firing from the sugarcane cultivation. Finally it would be seen that although at least six police personnel and three culprits took part in the encounter only a few empties were recovered and no harm came to the Camels and neither the police mobile was damaged, ln our opinion, these contradiction in the prosecution case plus the fact that it was a night time incident raises grave doubts in the matter.
17. The next price of evidence available with the prosecution is the identification parade in which the aforementioned prosecution witnesses have pick-up both the appellants/accused. Under cross-examination AS1 Ashique Ali had admitted that the SHO of Police Station Umer Sand had arrested the appellant and confirmed them in the same Police Station where he was also posted.
Further that on the day of identification test the SHO had taken him, PC Wahid Bux, HC Karim Bux and PC Muhammad Achar as well as these two accused in the identification test was held.
Similarly, PC Muhammad Achar and HC Wahid Dino have admitted under cross-examination that on the day of identification test they were posted at Police Station Umer Sand, however, they have denied that they and AS1 Ashique Ali brought the accused from the Police Station for the purpose of identification. From the foregoing evidence on the record it would be seen that all the witnesses who have picked-up the accused were posted at the same Police Station where the latter were confined and hence had a chance to have a good look them before the identification test.
Consequently, in our opinion the test cannot be accepted as a good piece of evidence in order to convict the accused. Furthermore, it would be seen that appellant Ashraf was arrested on 11.6.1992 and his identification test was held on 26.6.1992 after a delay of one week for which no reason has been offered by the prosecution. Similarly, appellant Taj Muhammad was arrested on 26.4.1993 and his identification test was held on 18.5.93.
18. For all foregoing reasons, we are of the opinion that the prosecution has not been able to fully prove the charges against the appellants beyond any reasonable doubt. Consequently, we had vide a short other passed earlier allowed this appeal.
19. The above are the reasons for the same. Criminal appeal allowed.