1. ' RAHMAT HUSSAIN JAFFERI, I.---This judgment will dispose of Criminal Appeals Nos.6, 11 and 12 of 1998 as they arise out of common judgment.
2. ' Brief facts giving rise to the present appeals are that on 1-10-1986 the complainant S.H.O. Ayaz Ahmed was posted at Police Station Tando Masti. On that date at 4-30 a.m. He along with his subordinate staff including P.W.5 injured P.C. Liaquat, P.C. Karim Bux and other subordinate staff left Police Station in connection with investigation of Crime No,72 of 1986 after making entry in the Rozmancha at S.No,28. At about 5-30 a.m. The police party reached the village Manghan where they went to arrest accused Haboo and Ghulam Hussain but they were not available therefore they took possession of some buffaloes under section 550, Cr.P.C. The said buffaloes were handed over to H.C. Mumtaz, P.C. Muhammad Hassan, P.C. Liaquat and P.C. Abdul Hakeem for taking them to police station. After the departure of the said persons they heard fire-arm reports therefore the complainant party rushed towards the said direction. When they covered some distance and reached near graveyard of Pir Chanu, they found police party who was taking buffaloes to the police station. The firearms shots were fired at them by the culprits from the other side. The complainant also took part in it. After the firing was stopped the complainant found P.C. Mumtaz, H.C. Muhammad Hassan and P.C. Liaquat injuries on their persons. The encounter continued for some time and after stopping firing they found and secured empty cartridges from the place where the culprits fired at the police party. The names of the culprits were disclosed by H.C.
3. Mumtaz to be the appellants and some other persons. The complainant went to police station and lodged the report at 8-30 a.m. The police after usual investigation challaned the appellants in the Court showing the remaining accused absconders.
4. ' The learned 1st Additional Sessions Judge Khairpur tried, convicted the appellants for offence punishable under sections 332, 148 and 149, P.P.C. And sentenced each of them to various terms of imprisonment with benefit of section 382-B, Cr.P.C. Under the impugned judgment dated 7-1-1998.
5. ' I have heard the Advocate for the appellants, A.A.-G. For the State and perused the record very carefully. The learned A.A.-G. Has not supported the impugned judgment.
6. ' I have gone through the evidence with the assistance of the learned Advocate for the appellants and found that the case rests upon ocular testimony only that consists of four witnesses viz. P.W.2 Ayaz Ahmed, P.W.4 injured Mumtaz Ali, P.W.5 injured Liaquat Ali and P.W.6 eye-witness Karim Bux.
7. They gave the same details of the incident as mentioned in the earlier part of the judgment therefore need not to be repeated. It is the case of the prosecution that first they seized the buffaloes from the house of accused Haboo and the complainant prepared such Mashirnama. The prosecution did not produce the said Mashirnama to support the oral version. Secondly the prosecution alleged that there was encounter between the culprits and police party but it is surprising to note that no empties were found at the place where police party had fired at the culprits. The witnesses deposed that in their self-defence they also fired from their weapons therefore natural course would have been that some empties of bullets of official weapons should have been present at the said place. Further more when the police officer reached the police station after encounter from the place of the incident they were required to account for ammunition given to them when they left the police station. No evidence whatsoever has been produced to show as to how much ammunition was given to each police personnel and how much returned to the concerned officer. If the ammunition was short then it could have been presumed that the police had used the said ammunition at the time of the incident but no such evidence has been produced by the prosecution to substantiate the allegation through the above piece of evidence to show that there was encounter between the police and the dacoits. Thus this aspect of the case also creates doubt in the prosecution story.
8. ' It is alleged by the prosecution that the incident took place in the early hours of the day viz. 6-00 a.m. The injuries on the persons of the injured witnesses as per medical report shows that they were either skin or muscle deep. All the injuries were caused by pellets which were penetrated in the body of the injured up to the level of skin or muscle. From these injuries, it is clear that fire-arms shots were fired from a considerable distance because the pellets had spread to such an extent that each pellet caused a separate injury on the person of the injured. The pellets after leaving the barrel of the gun had travelled to such a distance where they lost sufficient force and were able to enter up to skin or muscle deep only. Thus it is clear from the medical evidence that the distance between the culprits and the injured witnesses were quite long. Therefore the error in identifying the culprits who were 10 in number cannot be ruled out. It is not out of place to mention here that the P.W.2 Ayaz Ahmed was not able to identify the appellants in the Court after seeing them in the dock. This has further strengthened the finding of the error of identification of the appellants at the scene of the incident. There is no other evidence connecting the appellants with the commission of the crime. The learned A.A.-G. Has also not supported the impugned judgment: ' After considering the material available on record, I am of the considered view that the prosecution has failed to prove the case against the appellants beyond any reasonable doubt therefore they are entitled to the benefit of doubt which was accordingly given to them while passing the short order dated 8-9-2006 by which I had allowed the appeals. These are the reasons of the said short order.