' HAZIQUL KHAIRI, C.J.--- In this jail appeal the appellants have impugned the judgment dated 16-3- 2007 of 3rd Additional Sessions Judge, Shikarpur whereby the appellants were convicted and sentenced under section 396, P.P.C. For life imprisonment each and fine of Rs,50,000 each or in default thereof to further undergo two years' R.I. Each with benefit of section 382-B, Cr.P.C.
2. The appellants were, however, charged and tried for the offence punishable under section 17(4) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as "the said Ordinance") for having committed murder of P.C. Rabnawaz during commission of Haraabah on 9-5-1997 at 2045 hours and the F.I.R. Was lodged on the same date at 2200 hours by the complainant S-I. P. Khadim Hussain Malik, A.S.H.O., Police Station Bagerji.
3. It was stated by the complainant Khadim Hussain Malik, S-I.P. A.S.H.O., in his F.I.R. That on the day of incident he along with P.C. Rabnawaz left police station on motorcycle in private dress towards Jahan Khan for taking tea. At about 2045 hours they reached near brick kiln when they saw that the passengers of Suzuki Wagon were being robbed by the dacoits. One of the appellants on seeing them fired at P.C. Rabnawaz which hit him, as a result whereof he fell down on the ground and succumbed to his injuries. The appellants then decamped along with their weapons and robbed amount from the passengers of Suzuki. The complainant then left the dead body with the P.Ws.
Ghulam Nabi, Shabir and Rehmatullah for police station and lodged the report. According to the learned trial Court police after registration of F.I.R. Visited the place, inspected the Wardat, prepared Mashirnama, inquest report, recorded the statements of P.Ws. Arrested four appellants Eissan alias Ansar Duroo alias Dur Muhammad, Mumtaz Shar and Abdul Jabbar Kandhar and during identification parade all the P.Ws. Identified them before learned Magistrate. On 27-6-1997 during interrogation appellants volunteered to produce weapons used in the commission of crime hence all the culprits led the police party to an abandoned village Abdullah Qasmani and secured one rifle from appellant Abdul Jabbar and three pistols from remaining three appellants, the Investigating Officer sealed the pistols of appellant Eissan alias Ansar only and prepared Mashirnama of recovery of weapon and on return to police station lodged four separate F.I.Rs, against all the appellants under section 13(d), Arms Ordinance. On completion of investigation police submitted challan in the Court of law showing appellant Baghan Sher as absconder. He was subsequently arrested on 28-9-1998 and joined the trial. Therefore, amended charge against all the appellants was framed to which the appellants pleaded not guilty and claimed to be tried.
4. Prosecution examined Mashir S-I.P. Bux Domki who produced Mashirnama of place of incident, inquest report and receipt of dead body. He afterwards handed over the dead body to his heirs.
Mashir A.S-I. Ghulam Sarwar who produced the Mashirnama of arrest of four accused. Medical Officer Dr. Sajjad Ahmed, who produced post-mortem notes. P.W.4 Investigating Officer Inspector Zulfiqar Abbass Langah stated that complainant Khadim Hussain Malik, the then S-I.P, A.S.H.O., had retired from service and his whereabouts were not known. The said Investigating Officer produced F.I.R., Mashirnama of recovery of weapons from accused, executed warrants issued against P.Ws., statements of Nekmards Muhammad Ali and Khudadad, P.W. Mr. Agha Niaz Ahmed Pathan, Magistrate produced Mashirnama of identification parade of four accused and P.W. Ghulam Nabi, Ghulam Shabir, Mashir A.S-I. Muhammad Nawaz are Mashirs of recovery of arms and ammunition and witnesses of identification parade.
5. The appellants in their statements under section 342, Cr.P.C. Claimed to be innocent and stated that the case is made up and the entire evidence has been managed by the police. They were shown by the police to the P.Ws. Prior to the identification parade and for private P.Ws. They claimed enmity and stated that the witnesses were hostile hence were interested, however, they did not lead evidence in their defence and also declined to give statements on oath in disproof of prosecution's allegations.
6. As stated above, the prosecution had failed to produce the complainant S-I.P. Khadim Hussain Malik who was an eye-witness. However, there is no denying the fact that dacoity was committed on a A road where people were living nearby, at about 8-45 p.m. When it was quite dark in the night. According to the prosecution witnesses Ghulam Nabi and Ghulam Shabir saw the appellants in the head light of Suzuki. One of the appellants was armed with KK, another with rifle and the remaining three TT pistols. They lined them up in sitting position and robbed him of Rs,250, P.W.
Ghulam Nabi of Rs,200 and Rehmatullah of Rs,40. The said culprits tried to rob the said motorcycle from deceased Rabnawaz and on his resistance appellant Mumtaz, Eissan and Dur Muhammad armed with TT pistols fired at him which resulted into death. The other eye-witness produced by the prosecution namely Ghulam Nabi who was also a passenger of the Suzuki also corroborated the version of P.W. Ghulam Shabir to a certain extent except that when the robbers tried to rob the motorcycle of Rabnawaz, he resisted whereupon appellant Eissan alias Ansa! 'straightly fired' at him which hit him on the left side of chest below the nipple. According to him the deceased Rabnawaz was his nephew and he was going to meet him, whereas P.W. Ghulam Shabbir belonged to his caste but he is not a blood relation. The entire incident took 15 to 16 minutes. The complainant (not produced) in his F.I.R. Mentioned that only one of the appellants tried to snatch the motorcycle and on being resisted he fired at P.C. Rabnawaz deceased.
7. Learned counsel for the appellants conceded that only one person must have fired at the deceased Rabnawaz appeared to be more credible who would be appellant Eissan alias Ansar.
According to the medical report there were three LTP wounds on his person from a firearm.
8. The incident took place in the year 1997 and the P.Ws. Were examined after 8/9 long years. The dacoity and murder took 15 to 16 minutes at sight and the dacoits were visible to the passengers of Suzuki in its head light meaning thereby that they might have had a glimpse of them for a moment where after they robbed the passengers inside the Suzuki in darkness. There was nothing on record that street lights were on. It is also not the case of the prosecution that there was moon light when this incident took place. It is inconceivable that the said two eyewitnesses would identify all the five accused persons one by one after a laps of 8/9 years of the occurrence. They also did not furnish the description of all the appellants in their police statements. P. W, Agha Niaz Ahmed, Judicial Magistrate in his deposition states that he neither endorsed certificate of correctness of identification parade nor identification marks of the accused persons nor he had taken down the signature and HTI of P. Ws. In their presence. The most important witness of the occurrence, however, was complainant Khadim Hussain Malik, S.-I.P. As per F.I.R. He has driving the motorcycle with deceased Rabnawaz when they were fired at and the deceased fell down and succumbed to the injures. He saw the person who had fired at them. The complainant is stated to have retired from police service but no explanation was given as to why the prosecution has not produced him.
The prosecution did not care to take independent witness from the locality to act as Mashir. The motorcycle was also not produced.
9. In view of the foregoing, the, prosecution has failed to establish its case beyond reasonable doubt against the appellants. Resultantly, the appeal is accepted, the impugned judgment of the learned Additional Sessions Judge, Shikarpur is set aside with direction to the jail authorities to release the appellants forthwith, if not required in any other case.