' SHAMSUDDIN HISBANI, J.---This Jail Appeal is directed against the judgment dated 16-6-2003, passed by the Judge Anti-Terrorism, Court, Hyderabad and Mirpurkhas Division at Hyderabad, whereby the appellant was convicted under section 302, 324, 353, read with section 149, P.P.C.
Section 17(3) Offence Against Property (Enforcement of Hudood) Ordinance, 1979. Section 7 of the Anti-Terrorism Act, 1997, and sentenced to imprisonment for life with fine of Rupees One Lac or in default whereof to further undergo rigorous imprisonment for one year, with directions to pay the same to legal heirs of deceased, A.S.-I. Muhammad Hayat, H.C. Farman Ali and injured police constables proportionately.-
2. Precisely stating the facts of the case are that on 15-1-2001, as per directions of S.S.P. Sanghar, complainant S.I. Abdullah Chandio, Karamat Hussain SDPO, 11halid Mustafa SDPO. A.S.-I.
Muhammad Hayat, H.C., Farman Ali and other police officials along with their subordinates equipped with arms and ammunition arrived at about 12 noon, at the land of Murad Ali Mari, near Sohni Dhoro, where the gang of dacoits headed by Yousif Mari had concealed themselves. The culprits fired at the police party, H.C. Farman Ali who was in advance police party had sustained injuries and died at spot. The culprits had taken away his repeater gun. Subsequently, the Rocket Launcher was fired by the culprits and as a result thereof, A.S.-I. Muhammad Hayat, P.C. Ghulam Nabi, P.C. Haji Khan, P.C. Anwar Bughio, P.C. Liaquat Ali Driver APC sustained injuries. A.S.-I.
Muhammad Hayat expired at Vardat. The culprits disclosed that they were Yousif Mari, Muhammad Khaskheli, Khadim Rind, Mumtaz Mari, Shoukat, Moula Bux alias Molo, Jam Khoso, Adloo Khoso, Buxan Bhambro, Fida Mirjat. Ali Bux Machi and warned the police to keep away else they would be killed. The dead bodies were dispatched for autopsy and the injured were referred for treatment.
The firing continued till midnight. On next morning, the police noticed that the culprits had disappeared from Vardat during the night-time. The empties were secured from Vardat.
3. SIP Abdullah Chandio, S.H.O. Tando Adam Police Station registered the F.I.R. On 16-1-2001, on behalf of State, mentioning therein that later on he had received spy information that the dacoits were instigated by Attaullah Junejo, Ghulam Qadir Mari, Azam Wariyah, Liaquat Punjabi and Ghulam Rasool Nizamani. He investigated the case, arrested accused Ghulam Rasool and Liaquat on 25-1-2001. The charge-sheet in the case was presented before the trial Court on 27-1-2001, showing the appellant and others as absconders.
4. Appellant Buxan confined in District Jail Sanghar, was arrested in this case on 27-2-2001.
Absconding co-accused Mumtaz Mari, (2) Moula Bux alias Molo, (3) Jam, (4) Mehmood, (5) Ali Bux were reported to have been killed in an encounter with police and the proceedings against them had abated. The remaining absconding accused were tried in absentia.
5. Accused Ghulam Rasool, Liaquat Jat, Attaullah Junejo and Azam Wariyah were acquitted of the charge by the trial Court vide the impugned judgment.
6. At the trial, formal charge was framed against the appellant, to which he pleaded not guilty. The prosecution, examined as many as following fourteen witnesses to establish the charge against him:--
(1) P.W .1 Dr. Muhammad Bac hal M.O. Taluka Hospital Shandadpur (Exh.22).
(2) P.W.2. Dr. Muhammad Aslam Umerani M.O Taluka Hospital Shandadpur (Exh.23).
(3) P.W.3 Dr. Shafi Muhammad M.O. Taluka Hospital, Tando Adam (Exh.24).
(4) P.W.4 Dr. Fayyaz Ali Shah Senior. M.O., Taluka Hospital, Tando Adam (Exh.25).
(5) P.W.5 Ghulam Nabi P.C. (Exh.26).
(6) P.W.6 Allah Rakhio S.H.O. (Exh.27).
(7) P.W.7 Mangomal Bheel Tapedar (Exh.29).
(8) P.W.8 Habibullah Mari A.S.-I. (Exh.30).
(9) P.W.9 Anwar Ali P.C. (Exh.32).
(10) P.W.10 Haji Khan P.C. (Exh.33).
(11) P.W.11 Liaquat Ali P.C. (Exh.34).
(12) P.W.12 Raj Muhammad (Exh.35).
(13) P.W.13 S.H.O. Atta Muhammad Dahri (Exh.36).
(14) P.W.14 S.I.P/I.O. Abdullah (Exh.37).
7. The statement of the accused/appellant was recorded under section 342, Cr.P.C. Wherein he had refuted the allegations, pleaded innocence and denied his presence at the spot. He had declined to examine himself on oath in disproof of the charge against him. Appellant had not produced any witness in defence.
8. We have heard Mr. Nandan A. Kella, learned counsel for the appellant and Mr. Mashooq Ali Samo, Assistant Advocate-General, appearing on behalf of the State. With their assistance we have examined the evidence placed on record and gone through the impugned judgment.
9. The main contention of learned counsel was that there was no evidence either direct or indirect brought on record by the prosecution to establish the charge and learned trial Court without appreciating the same in accordance with law, recorded erroneous finding of convicting the appellant for the offence charged with. According to him, the appellant was involved falsely by the police and none of the injured witness examined by the trial Court had implicated him in commission of the crime.
10. On the other hand, learned Assistant A.-G. Has supported the finding arrived at by learned trial Court and contended that the ocular testimony of injured witnesses corroborated by medical evidence plus recovery of empties from Vardat were sufficient to prove the charge and the same was rightly acted upon, for recording conviction of the appellant.
11. Keeping in view, the arguments advanced by learned counsel for the appellant and learned Assistant A.-G. Appearing for the State, it would be appropriate to point out that the ocular testimony consists of nine witnesses viz: P.C. Ghulam Nabi, (2) P.C. Anwar Ali, (3) PC Haji Khan, (4)
PC Liaquat Ali, (5) Pir Allah Rakhio S.H.O. (6) SIP Habibullah, (7) A.S.-I. Raj Muhammad (8) Atta Muhammad S.H.O. And (9) Complainant SIP Abdullah Chandio. They being the eye-witnesses have narrated the occurrence as contained in F.I.R. Their evidence reveals that the assailants had concealed themselves in sugarcane cultivation and were not visible to the police party. Deceased HC Farman Ali being in advance police party went inside the sugarcane cultivation when the shot fired by the culprits hit him and he died at the spot. The repeater gun in his possession was also taken away by the assailants. Another police party headed by deceased A.S.I.P. Muhammad Hayat in APC had proceeded towards the sugarcane cultivation to capture the culprits, the assailants fired rocket launcher and as a result thereof, A.S.I.P. Muhammad Hayat, PC Ghulam Nabi, PC Anwar Ali, PC Haji Khan and PC Liaquat Ali Driver sustained fire-arm injuries. A.S.-I. Muhammad Hayat succumbed to injuries at the spot. The witnesses having corroborated each other while supporting the story of F.I.R. Stated that on next morning they noticed that the dacoits had escaped away during night time.
12. The evidence led by the prosecution with regard to the factum of the incident, the unnatural death of deceased HC Farman Ali and A.S.-I. Muhammad Hayat due to the injuries caused by fire- arm weapon, the presence of the eye-witnesses at the spot and the fire-arm injuries sustained by the witnesses, was not seriously questioned by the defence. Under such circumstances, the evidence given by the witnesses of the occurrence, on this material particulars, of the case can safely be relied upon in absence of corroboration from any independent quarter. In the case in hand, the prosecution had examined P.Ws. Dr. Muhammad Bachal and Dr. Muhammad Aslam who conducted autopsy on dead body of deceased HC Farman Ali, A.S.I.P. Muhammad Hayat to prove that their death was result of fire-arm injuries. As regards the injuries, sustained by P.Ws. PC Ghulam Nabi, PC Anwar Ali, PC Liaquat Ali and PC Haji Khan are concerned, the prosecution had produced P.Ws. Dr. Shafi Muhammad and Dr. Fayaz Ali who have fully supported the version of the eye-witnesses on this aspect of the case. It was proved beyond doubt that deceased HC farman Ali, A.S.-I. Muhammad Hayat, PC Ghulam Nabi, PC Anwar Ali, PC Haji Khan and PC Liaquat Ali had sustained fire-arm injuries on the relevant day, which ultimately resulted in death of the deceased persons. The appellant had not disputed the medical evidence, as such the same need not be discussed.
13. So far the complicity of the appellant in commission of the offence is concerned, it would appear that the prosecution had relied upon the ocular testimony of the witnesses of the occurrence plus recovery of empties from the vardat. Complainant SIP Abdullah had deposed that the culprits fired at the police party from sugarcane cultivation and disclosed that they were Yousif Mari, Mumtaz Mari, Jam Khoso, Adloo Khoso, Mehmood Khaskheli, Buxan Bhambro, Fida Mirjat, Ali Bux Machi and Molo Khaskheli. The firing continued till midnight and on next morning they found that the culprits had run away. P.W. PC Ghulam Nabi, an injured witness, stated that he heard voices of culprits at a call's distance. The culprits had declared that they were Adloo Khoso, Yousif Mari, Mumtaz Mari, Mehmood Khaskheli, Ali Bux, Jam Rind, Khadim Rind and Buxan Bhambro. In clear terms it was deposaed by him that he had not seen any of the culprits as they were not visible to them. He had specifically stated that appellant Buxan was not seen by him at the place of occurrence, P.W. PC Ghulam Nabi stated that he after sustaining fire-arm injury went unconscious and regained his sense in L.M.C.H. Hyderabad. The culprits at the time of encounter had declared that they were Yousif Mari, Mumtaz Mari, Mehmood Khaskheli, Ali Bux Machi, Buxan Bhambro, Adloo Khoso, Jam Khoso and Khadim Rind. He had stated that the culprits were not seen by him, with his own eye and was not able to identify the accused present before the trial Court. P.W. P.C. Haji Khan had deposed that he was in APC along with A.S.-I. Muhammad Hayat, PC Anwar Ali, PC Ghulam Nabi and PC Liaquat Ali when the assailants namely Adloo Khoso, Murid Khan, Mumtaz Mari, Yousif Mari, Jam Khoso, Shoukat Lail, Mehmood and Molo Khaskheli warned them to leave from there else they would be killed. The culprits opened fire when they had reached inside the sugarcane cultivation, he sustained injury, went unconscious and was removed to hospital. He had clearly stated that the culprits were calling themselves by their names and they were not before the Court P.W. PC Anwar Ali had stated that he was in APC when at about 1530 hours, the gang of decoits of Yousif Mari fired at police party, he received fire-arm injury and was removed to hospital.
14. P.W. Liaquat Ali had stated that he was driver on APC and had sustained fire-arm injury when the culprits fired rocket launcher. The culprits fired from inside the sugarcane cultivation at the police party. Likewise, P.W. A.S.-I. Raj Muhammad had stated that the dacoits were not visible to them and he had not seen the appellant at the place of occurrence, P.W. A.S.-I. Habibullah, witness of the occurrence and mashir of various events, had stated that the culprits had declared that they were Yousif Mari, Adloo Khoso, Moula Bux, Fida Jatt, Buxan, Mumtaz Mari, Shoukat Lail and Ali. Bux Machi. It was, specifically stated 'by him that he had not seen the dacoits and was unable to identify the accused persons.
15. The prosecution witness S.H.O. Pir Allah Rakhio narrated the incident almost in similar words, but added that the appellant was among the decoits, who challenged the police party. It seems that the learned trial Court relying on this version given in his examination-in-chief concluded that the evidence adduced by the prosecution was sufficient to bring home the guilt of the appellant. The conviction of an accused person under section 302, P.P.C., can be recorded on sole statement of any eye-witnesses if the same is found to be consistent, credible and inspires confidence. In the instant case, learned trial Judge seems to have completely ignored the evidence of P.W. S.H.O. Pir Allah Rakhio, recorded during the course of the cross-examination as the same appears to have escaped his notice, which led to the recording of erroneous judgment. It was specifically, stated by the said P.W. In cross-examination that he was not able to see the dacoits due to the continuous firing and had no acquaintance with the accused/appellant. He had not stated that appellant along with the culprits armed with deadly weapons formed an unlawful assembly and in prosecution of common object thereof, committed murder of deceased A.S.-I. Muhammad Hayat, HC Farman Ali and inflicted injuries to the police constables.
16. Examination of a witness means examination-in-chief, cross-examination and re-examination as laid down in Article 132 of Qanun-eShahadat Order, 1984. Cross-examination is a continued integral part of the whole statement rather more important than the examination-inchief. The second and vital part of examination of prosecution witness Pir Allah Rakhio received no attention of learned trial Court.
17. The crux of the above discussion is that none of the eyewitnesses had implicated the accused/appellant in commission of the crime. The identity of the appellant as one of the co- accused was, not established by the prosecution. It is the case of the prosecution that the empties were recovered from Vardat. Mere recovery of empties from Vardat being of no legal significance, in no way connected the appellant with the commission of the offence. Admittedly, the weapon of offence was not recovered from possession of the appellant or on his pointing. As such, it was argued and so rightly by learned counsel for the appellant that the prosecution had failed to bring home the guilt of the appellant beyond shadow of doubt.
18. For the foregoing reasons, benefit of doubt is extended to the appellant. The appeal is allowed, conviction and sentence awarded to the appellant, is set aside. Appellant Buxan Bhambro is acquitted and shall be released forthwith if not required in any other case.
We had allowed the appeal vide short order dated 23-11-2005 and above are the reasons for the same.