' MUHAMMAD MOOSA K. LEGHARI, J.---This' appeal is directed against the judgment dated 28-1- 2005, passed by the Judge Anti-Terrorism Court, Hyderabad and Mirpurkhas Division at Hyderabad, whereby the appellant All Muhammad was convicted under sections 302, 324, 353, P.P.C. Read with sections 6/7 of the Anti-Terrorism Act, 1997, and was sentenced to imprisonment for life and fine rupees one lac or in default whereof to undergo rigorous imprisonment for one year more. The line, if, realized was to be paid to he legal heirs of deceased Nisar Ahmed. Appellants Ramzan and Ali Ahmed were convicted under section 7, of the Anti-Terrorism Act, and sentenced to undergo rigorous imprisonment for seven years and fine rupees fifty thousand each or in default, thereof, the defaulting accused was directed to suffer rigorous imprisonment for one year more.
2. The case of the prosecution precisely stated is that the tractor trolley belonging to P.W.
Muhammad Saleem was robbed of from his driver P.W. Roopsi Kolhi. Appellants All Ahmed and All Muhammad disclosed that the tractor was with them and they demanded rupees fifty thousand for its return. The matter was reported to Police Tando Muhammad Khan. The police party headed by S.I.P., Muhammad Akram, along with his subordinate staff, P.W. Muhammad Saleem and Roopsi, left for village Khair Muhammad Khokhar, when they reached there, the appellants resorted to firing and as a result of that police constable Nisar Ahmed sustained injuries and died at spot. Appellants were captured by the police party and unlicensed fire-arm weapons were recovered from their possession. The report' in respect of the incident was lodged by complainant S.I.P., Muhammad Akram at Police Station Chamber which was recorded by A.S.-I. Wahid Bux.
3. The investigation was conducted by S.I.P., Khuda Bux who had inspected the place of occurrence; secured blood-stained earth and recorded statements of witnesses. P.W. Dr. Saleem Medical Officer, Taluka Hospital Tando Allahyar, conducted autopsy on dead body of the deceased. On completion of the investigation in the manner described above, the charge-sheet against the appellants was presented before the trial Court.
4. The prosecution in Order to prove its case had produced nine witnesses in all Appellants in their statement recorded under section 342, of the Criminal Procedure Code, denied the allegations and professed their innocence. They did not appear as their own witnesses on oath as required under.
Section 340(2), Cr.P.C., but appellant All Muhammad produced one witness namely Irfan Pathan in defence.
5. We have heard Mr. Muhammad Iqbal Kalhoro learned counsel for the appellants, Mr. Rasheed Ahmed Assistant Advocate-General, appearing on behalf of the State and have thoroughly appreciated the submissions made by learned counsel for the parties. It transpired from the material placed on the record that the trial Court while relying on the evidence led by the prosecution through the police officials concluded that the allegations levelled against the appellants were established beyond doubt and as such they were convicted and sentenced as mentioned in the opening paragraph of this judgment.
6. At the very outset, learned counsel for the appellants pointed out that out of two star witnesses produced by the prosecution, namely P.W. Muhammad Saleem and Roopsi Kolhi, none has supported the case of the prosecution on its material particulars and both of them have given altogether a different story than the one given by the complainant and his subordinates. The main contention of learned counsel for the appellants was that no independent witness was produced by the prosecution before the trial Court to have supported the case of the prosecution on the factum of the incident; that there appear glaring contradictions in the statements of the prosecution witnesses; and learned trial Judge without examining and appreciating the evidence placed before him, recorded erroneous finding of convicting the appellants for the offence charged with.
7. Learned. State Counsel has, though, supported the conviction but has not been able to controvert the above contentions. He argued that the ocular testimony of the witnesses, corroborated by medical evidence and recovery of the weapons used in commission of the offence from possession of appellants, was sufficient to prove the charge and the same was rightly relied upon by the trial Court for recording conviction of the appellant.
8. It would be appropriate to point out that the ocular testimony consists of five witnesses namely; S.I.P. Muhammad Akram complainant, Muhammad Saleem, A.S.-I. Ghulam. Nabi, Roopsi and H.C.
Allanddin. Of them, complainant Muhammad Akram has given detailed account of the incident and the manner in which deceased P.C. Nisar Ahmed sustained fire-arm injury which resulted in his death. He has deposed that when they had reached at the scene of occurrence, one person was seen by them at the gate of the Kot, who was identified by the witnesses Saleem and Roopsi Kolhi, to be accused/appellant Ali Muhammad, and he on seeing them had gone inside the Kot and came out armed with 7 MM rifle, along with two other persons. P.W. Roopsi Kolhi and Saleem identified those said persons to be Ali Ahmed armed with DBBL gun and Ramzan carrying weapon like KK. All the appellants fired at the police party and the shot fired, by appellant Ali Muhammad hit Nisar Ahmed who died at spot. They apprehended the appellants and recovered unlicensed .7 MM rifle, DBBL gun and KK from their possession. On personal search of the appellant Ali Muhammad two cartridges were also recovered and the event was covered in presence of Mashirs, A.S.-I.
Ghulam Nabi Rajpar and A.S.-I. Ghulam Nabi Thaheem. The dead body of the deceased was dispatched to the medical officer Tando Allahyar for post-mortem examination. The appellants had not disputed the medical evidence, as such the same need not to be discussed.
9. As is obvious, from the evidence of the complainant that the appellants were not known to him prior to the day of the incident, their names were disclosed at vardat by the witnesses Saleem and Roopsi. A Surprisingly, P.W. Roopsi has neither supported the version given by the complainant on factum of the incident nor the case of the prosecution as set 'up in the F.I.R. He had deposed that two years back, the tractor was snatched away by four persons and such, report was lodged by him with Tando Muhammad Khan Police. He had in clear terms stated before the trial Court that the money was not demanded from him by any person for return of the tractor. It was also denied by him, if, he had gone with the police in search of the tractor and had identified the appellants at the vardat. He was declared hostile by learned Special Prosecutor in charge of the case but it does not mean that the evidence of witnesses produced by the prosecution, in absence of any corroboration from an independent quarter should have been relied upon by the trial Court, for recording conviction of the accused for an offence carrying capital punishment, when the same inspired no confidence. It is the case of the prosecution that the raid was conducted by the police on the pointing of P.W. Roopsi and Saleem for the recovery of the stolen tractor, thus, the evidence given by P.W. Roopsi has not only damaged the very foundation of the prosecution case On factum of the incident but also rendered the ocular account of the incident furnished by the witnesses as doubtful.
10. P.W. Salem had stated that the police knocked the door of gate of the Kot and appellant Ramzan had gone outside. Subsequently, accused Ali Ahmed also came out and the police tried to go inside the Kot. Accused resisted and one of them had fired shot which hit deceased PC Nisar Ahmed who sustained fire-arm injury and died at spot. During the course of cross-examination, it was admitted by him that the appellants were not previously known to him. He had, however, neither named nor pointed out the accused appellant who had fired at the deceased. Similarly, P.W. A.S.-I. Ghulam Nabi and HC Allauddin had stated that the appellants were identified by P.W.
Saleem and Roopsi. Apart from this, complainant as well as prosecution witnesses A.S.-I. Ghulam Nabi and H.C. Allauddin had stated that the person present at the gate on seeing them went inside the Kot and came out duly armed with ,7 MM rifle, and he was identified by P.W. Roopsi Kolhi to be appellant Ali Muhammad. Whereas P.W. Saleem had deposed that the police knocked the door and accused Ramzan had come outside. He did not endorse, if, anyone was present outside the gate when they had reached there. Thus there appear material discrepancies in the statement of the prosecution witnesses as they have contradicted each other on material particulars of the case. It is the requirement of the criminal law that the prosecution is duty bound to prove its case beyond any reasonable doubt and if any single and slightest doubt is created it must go to the accused and is sufficient to discredit the prosecution story. The presence of independent persons of the vicinity at vardat at the relevant time stands admitted by the complainant but despite that no one was examined as witness in the case to support the case of the prosecution on factum of the incident. All these circumstances have rendered the case of prosecution as doubtful. Eye- witness account of the incident furnished by the prosecution witnesses being interested, discrepant, unreliable, inconsistent, untrustworthy inspired no confidence as argued and so rightly by learned counsel for the appellants. The evidence adduced by the prosecution was never subjected to legal scrutiny and without appreciating the same in accordance with law, learned trial Judge concluded that the prosecution had succeeded to establish the charge against the appellants beyond shadow of doubt.
11. As regards the complicity of the appellants in commission of the offence is concerned, it would appear that the prosecution had relied upon the recovery of fire-arm weapons from possession of the accused/appellants. Learned counsel for the appellants contended that the fire-arm weapons were foisted upon appellants by the complainant in order to strengthen the case of the prosecution. The Investigating Officer of the case P.W. S.I.P., Khuda Bux had produced the report of Ballistic Expert Exh.20-B, on record of the trial Court which reveals that one .7 MM bore empty marked as (C) was fired from the Rifle No,18327. As per Mashirnama of arrest of appellants and recovery of weapons Exh.11-B, the Rifle in question was shown to have been recovered from possession of appellant All Muhammad. P.W. S.I.P. Khuda Bux has admitted that according to the Mashirnanma of the site inspection Exh.
1.4-A, no empty was secured from vardat. Under such circumstances, mere recovery of fire-arm weapons from accused in the manner, if any, loses its legal significance on that score alone and in no way connects the appellants with commission of the crime.
12. In view of the aforementioned analysis of evidence, we are of the considered opinion that the prosecution had failed to bring home the guilt of the appellants beyond reasonable shadow of doubt and the impugned judgment being based on non-reading and misreading of the evidence is not sustainable in law and is thus, set aside. Resultantly, the appeal is allowed and appellants Ali Muhammad (2) Ramzan and (3) Ali Muhammad by caste Mirbahar are acquitted. They shall be released, forthwith, if not required in any other case.
13. We had allowed the appeal, set aside the impugned judgment and sentence awarded to the appellants by the short order dated 20-12-2005, and above are the reasons for the same.