1. ' DR. RANA MUHAMMAD SHAMIM, J.-The appellant Khuda Bukhsh assailed impugned judgment dated 15-3-2005 passed by the learned Special Judge Anti-Terrorism Court-II Sukkur and Larkana Division in Special Case No,96 of 2004 whereby:-
(i) The appellant was convicted for an offence punishable under section 302(b) P.P.C. And awarded him death penalty as "Tazir" for two times. He is to be hanged by neck till his death. He has also been ordered to pay Rs, 175000 as compensation to the legal heirs of each deceased. In case of default in payment of compensation amount, he shall .Suffer R.I for six months more.
(ii) The appellant was also convicted under section 324, P.P.C. And awarded the sentence to suffer R.I. For 10 years and also pay fine of Rs, 10000 in case of default in payment of fine, he shall suffer R.I.
2. For one year more.
(iii) The appellant was also convicted under section 337-F(iii) P.P.C. For causing firearm injuries to UTP Shahnawaz and sentence him to suffer further R.I. For three years as "Tazir" and to pay fine of Rs,5000 as daman to the injured UTP Shahnawaz.
(iv) The appellant was convicted for an offence punishable under section 7(a) of the A.T. Act, 1997 and awarded him death penalty for two times and shall be hanged by his neck till he is dead. He was 1 also to pay fine of Rs, 100,000. In case of default in payment of fine he will suffer R.I. For one year more. All the sentences were ordered to run concurrently.
3. ' The Criminal Reference for Confirmation No,02 of 2(305 of death to the appellant was also received from the learned trial court.
4. ' Brief facts of the case are that on 16-12-2004 at 1430 hours, complainant A.S.I. Ghulam Sarwar lodged report of the incident at Police Station Naushero Feroz on behalf of the State, alleging therein that he was working in Qaidi Party and was Incharge of the Prisoners Party. On the day of incident i.e, 16-12-2004, he along with police force viz. A.S.I., Qadir Bux, A.S.I., Muhammad Qasim, HC, Abdul Razzak, HCV, Manzoor Ali, HC, Ghulam Shabir, HC, Ali Murad and other police constable took 80 UTPs from Central Prison-I, Sukkur in three Prison vans bearing Registration No,SP-9069, SP-9115 and SP-7840 and proceeded towards District Naushero Feroz for producing the UTPs before different Courts. Complainant further disclosed that they had left 20 UTPs in Kandiaro Court and 2 UTPs in the Bhiria Court and thereafter they went to District Court Naushero Feroz for producing there the remaining UTPs. He has alleged that PC Khuda Bux Rind was also with the prisoners party and he was having official SMG Rifle. When they reached at the main gate of District Court, Naushero Feroz, they alighted the prisoners from the vans and when the UTPs entered in the Court premises PC Khuda Bux Rind had fired from his official SMG Rifle upon UTPs Ghulam Sarwar Rind and Ali Gohar Nangor. Both UTPs were tied in one handcuff. The fire shots hit to UTPs Ghulam Sarwar Rind, Ali Gohar Nangor and Shahnawaz alias Shanoo Khokhar and they fell down. Thereafter, police party apprehended accused PC. Khuda Bux within the court premises along with official SMG Rifle.
5. It is alleged by the complainant that UTP Ghulam Sarwar had died at the spot due to fire-arm injuries whereas UTPs Ali Gohar Nangor and Shahnawaz alias Shanoo were lying in injured condition. They immediately referred both injured UTPs towards Civil Hospital Naushero Feroz for their treatment, where injured UTP Ali Gohar Nangor had succumbed to the injuries. In the last, it is alleged that accused PC. Khuda Bux had confessed before the complainant party that due to old enmity he has got revenge by committing the murders of UTPs Ghulam Sarwar Rind and Ali Gohar Nangor.
6. ' After usual investigation, the charge was framed against the appellant under sections 302, 324 P.P.C. And 7(a) of AT Act, 1997 to which the appellant did not plead guilty and claimed to be tried.
7. ' Learned counsel for the appellant submitted that the F.I.R. Of the alleged offence was lodged after the delay of 4 and 1/2 hours and no plausible explanation was offered by the complainant thereto.
8. Admittedly, the distance from the place of incident and the Police Station was only two furlongs.
9. The complainant in the FIR, P.W. Shoaib Abbasi, is the author of F.I.R. No,203 of the subject-matter of the instant Criminal Appeal, who had lodged the F.I.R. On 16-12-2004 at 2:30 p.m. Under sections 302, 324 P.P.C. And section 7(a) of the A.T. Act, 1997 on verbal statement of ASI Ghulam Sarwar Lashari, who had read over the same and signed it. He produced the said F.I.R. As Ex.5/A. He being formal witness was not cross- examined.
10. ' Learned counsel submits that the complainant/P.W.2, A.S.I. Ghulam Sarwar Lashari deposed that on 16-12-2004 he was Incharge of "Qaidi party" of Naushero Feroz and on the day of incident he along with A.S.I. Qadirdad, A.S.I. Muhammad Qasim. HC. Abdul Razzak, HC. Manzoor Ali, HC. Ghulam Shabbir, PC. Khuda Bux Rind (Appellant), H.C. Hakim Ali Kalhore, PC. Wazir Ali, PC. Mushtaq Ali and other PCs having been armed with government weapons and ammunitions brought UTPs came to Central Prison-I, Sukkur in two Prisoners Vans for their appearance in various Courts of District Naushero Feroz. One van of Police Escort is also on the back of two prisoners vans. He handed over 20 UTPs in the supervision of A.S.I. Qadirdad.HC. Abdul Razzak and 4 PCS in the Court of Kandiaro. In the Prisoner Van- 1, he had given 80 UTPs for producing them in different Courts of Naushero Feroz including UTPs Ghulam Sarwar and Ali Gohar (both deceased). UTPs Ghulam Sarwar and Ali Gohar (deceased) were handcuffed together. UTP Shah Nawaz and his brother UTP Muhammad Nawaz were also handcuffed together. The appellant Khuda Bukhsh was sitting in the first van with Government SMG Rifle. He deposed that as soon as first van stopped in the main gate and all the UTPs^came out from the van, when they went inside the main gate appellant/convict who was standing inside near main gate on seeing UTP Ghulam Sarwar fired upon him from government official SMG, who died on the spot whereas UTP Ali Gohar and Shahnawaz sustained fire-arm injuries and fell down on the ground. He further submits he with the help of other staff persons apprehended the appellant Khuda Bukhsh along with the government SMG Rifle. He secured the SMG Rifle from his person and found it was containing 7 live bullets in its chamber. He then appointed HC Manzoor Ali and HC Ali Murad as the mashirs and prepared the mashimama in their presence. After sealing the Rifle and 7 alive bullets and obtained their signatures on it. He also signed on the said mashimama. UTPs Ali Gohar and Shahnawaz were sent to the hospital for immediate medical treatment. Subsequently he came to know that UTP Ali Gohar was also died in the hospital. He further submitted that the said complainant leaving his staff at the place of incident went to the Police Station Naushero Feroz along with arrested accused Khuda Bukhsh (appellant) and weapon secured from his person for lodging the F.I.R. He identified the appellant and .The weapon SMG in Court.
11. ' Learned counsel for the appellant further ' submitted that during his cross- examination he admitted that there were three prisoners vans out of them two were used for prisoners and one for police escort. This P.W. Admitted that he was sitting in the front seat of the first vehicle and two were sitting on the rear seats, their names he did not know. He reiterates that two vehicles were for prisoners and one vehicle was for police escort, which was in the last. This P.W. Further deposed that the first vehicle was in the main gate of court premises at the distance of 5 feet from the main gate and the second prisoners van was at the distance of 5 feet from police escort van. In the second prisoners van HC. Mansoor Ali, who was the Incharge and there were two police constables, their names he did not know. The police escort van was at the distance of 8-10 feet from the second prisoners van. He admitted that first of all the prisoners of his first van came out. As soon as the prisoner of his vehicle entered in the gate, the appellant started firing. He admitted that he was standing outside the gate at the time of firing. He also admitted that he did not see the appellant firing upon the prisoners. He admitted that the appellant Khuda Bukhsh was sitting in the escort vehicle. He however, denied that he has falsely implicated the accused in this case. He admitted that the F.I.R. Was lodged at 2-30 p.m. And at that time he was not arrested the appellant Khuda Bukhsh. He admitted that he himself was arrested the appellant on the same day and in the same offence. Learned counsel for the appellant submitted that this P.W. At his own admission stated that he has not seen the appellant firing upon deceased UTP Ghulam Sarwar and UTP Ali Gohar (deceased) and cannot be termed as eyewitness. He has himself contradicted his own statement made in the cross-examination regarding implication of the appellant/convict. No mashirnama, of injured accused Shahnawaz and Muhammad Nawaz, who were handcuffed together, was ever prepared. He has not stated as to whether UTP Muhammad Nawaz, who was handcuffed together with UTP Shahnawaz (injured) was ever referred for medical treatment.
12. ' The complainant was booked in F.I.R. No,204 of 2004, under sections 324, 353, 224, 225, 337-Ai, 147, 148, 149 P.P.C., 17/E, EHO and 7 A.T. Act, 1997, it shows that he was also involved in the alleged offence.
13. According to learned counsel for the appellant, P.W.3, HC Manzoor Ali had not deposed that injured UTP Ali Gohar (deceased) sustained injuries and died in the hospital and about injured UTP Shahnawaz while taking them to the hospital. He has also not stated that UTP Ali Gohar, who sustained injuries was conscious or unconscious condition till taking him to hospital. If deceased Ali Gohar was in conscious condition till his death, whether in his dying declaration was recorded by anyone that the police authorities. The injured P.W. UTP Shahnawaz has not deposed that he and Ali Gohar were in unconscious condition after causing them injuries. He deposed that he was inside the main gate whereas according to him he is an eye-witness. This eyewitness deposed that two prisoners expired on the spot and one was injured. Except one injured there were no other prisoners/UTPs caused injuries. He further deposed that dead body of UTP Ghulam Sarwar was lying inside the gate whereas, dead body of UTP Ali Gohar was lying outside the gate. Injured P.W.
14. UTP Shahnawaz was lying inside the gate of Court premises. The bullet also hit to wall and prisoner van. According to complainant and other P.Ws. Deposed that only one dead body of UTP Ghulam Sarwar was lying inside the gate whereas UTP Ali Gohar and UTP Shahnawaz was injured, who were taken to hospital whereas UTP Ali Gohar later on succumbed to injuries. Regarding the bullets, which hit on the wall and prisoners van, were not disclosed by any other P.Ws. He was also booked for negligence in his duty at 10-30 a.m. And quarter guard at 11-00 a.m. P.W. Shahnawaz deposed that he was injured and handcuffed with his brother Muhammad Nawaz. He was referred to Civil Hospital, Naushero Feroz and he was admitted 12/13 days as indoor patient whereas this fact as well as the fact of injury caused to UTP Muhammad Nawaz has not been disclosed by the complainant. Eye-witnesses P.W.2 Ghulam Sarwar and P.W.3, HC Manzoor Ali (mashir) admitted that mashirnama of injuries caused to said P.Ws. Was not prepared. He admitted that he was not shown case property in Court i.e, SMG Rifle and 7 live bullets recovered from the place of incident.
15. According to him, during the cross-examination he has admitted that he was sitting second prisoners van along with UTP Ghulam Sarwar and Ali Gohar, but as per complainant both deceased UTPs Ghulam Sarwar and Ali Gohar were sitting in the first prisoners van. He further deposed that second van was at the distance of 10-15 feet whereas according to complainant the second prisoners van was at the distance of 5 feet from the first prisoners van. He further admitted that he was handcuffed with his brother Muhammad Nawaz, who was also sustained injuries and this fact was not disclosed by the complainant/P.W.2 and other eyewitness, P.W.3, HC. Manzoor Ali. He further admitted that he cannot say, who had fired upon UTP Ali Gohar and Ghulam Sarwar. He deposed that his statement under section 161 was recorded at about 3-00 a.m.
16. ' According to P.W.6, Dr. Abdul Quddos, he conducted postmortem of deceased Ghulam Sarwar at 11-00 a.m., on 16-12-2000 which continued till 1.30 p.m., whereas postmortem of UTP Ali Gohar was conducted on 16-12-2000 at 1-30 p.m. Which continued till 3-00 p.m. As per P.W.5 S.-I. Wali Muhammad, who is Investigating Officer of the case, the dead body of Ghulam Sarwar was lying at the place of incident till 3-10 p.m. When he prepared the mashirnama of his dead body in presence of mashirs HC Manzoor Ali and PC Abdul Ghaffar whereas admittedly inquest reports of dead body of UTP Ghulam Sarwar and UTP Ali Gohar were prepared at 1600 hours. Admittedly, the first mashirnama of dead body and inquest reports were prepared and thereafter postmortem was conducted, which 4 is a contradictory in nature. He further deposed that clothes worn by UTP Ali Gohar and Ghulam Sarwar were handed over to HC Manzoor Ali at the time of postmortem by the doctors. This fact was not disclosed by any of the P.Ws. Time of death and between injuries caused to UTP Ali Gohar was about 5 minutes, which also contradicts the statement of complainant and other eyewitnesses. He further deposed that 20 empties of 7 bullets lying scattered and were secured under the mashirnama prepared thereto. He had also stated that he noticed that the bullet marks at the Iron Gate of main gate of Sessions Court and also at the wall. He submitted that he recorded the statements under section 161 of HC Manzoor Ali. H.C. Ali Murad, P.C. Wazir Ali, P.C.
17. Imtiaz Ali and P.C. Noor Muhammad after 3 days of incident. He admitted that the distance of place of incident and the police station was only two furlongs. He also stated that he visited the place of incident at 3.10 p.m. And the dead body Ghulam Sarwar was lying at the place of incident at that time in the Sessions Court premises i.e, at the place of incident. Lot of people were present, but no one from them was associated as mashir. He admitted that no live bullets so recovered at the place of incident were produced in court and shown to him. He further admitted that inquest report of UTP Ghulam Sarwar was prepared at 1510 hours. The mashirnama of dead body of UTP Ghuiam Sarwar was prepared at 3-20 p.m. At the spot. He admitted that mashirnama of dead body and inquest report of UTP Ali Gohar was prepared at 1600 hours. He deposed that he secured blood- stained earth at the spot and prepared such mashirnama. He admitted that nowhere mentioned about the blood-stained earth and blood-stained clothes worn by two deceased namely UTPs Ali Gohar and Ghulam Sarwar and recovery of mashirnama so prepared. He admitted that the blood- stained clothes were never produced in Court to show the same to the prosecution witnesses. The blood-stained earth secured for chemical examination, as to whether same was human blood, was dispatched/sent on 9-12-2004,which was received on 29-12-2004 whereas occurrence took place on 16-12-2004. Nobody knows that which blood-stained earth in what case was sent for chemical examination on 9-12-2004. The report is available at page 67. It appears from the record that the bloodstained earth on 9-12-2004 was sent to the chemical examination. Admittedly no such incident took place on 9-12-2004. The weapon and bullets were sent on 29-12-2004 to Ballistic Expert and no explanation was offered why the same was sent after delay of 13 days. The medical evidence contradicted the ocular evidence meaning thereby the ocular evidence has not been corroborated by medical evidence. P.W.7 HC. Manzoor Ali stated that he reached at the place of incident on 16-12-2000 at about 1510 hours. The Investigating Officer consumed 40 (forty) minutes at the place of incident thereafter mashirnama of dead body of UTP Ghulam Sarwar was prepared.
18. The dead body of UTP Ghulam Sarwar was visible from outside the gate whereas other P.Ws./eyewitnesses stated that it was not visible from outside the gate. He has not stated about the bloodstained clothes worn by the deceased UTP Ghulam Sarwar and UTP Ali Gohar so handed over to HC. Manzoor Ali by P.W.6 Dr. Abdul Quddoos at the time of postmortem.
19. ' Learned counsel for the appellant submitted that depositions of all the witnesses are contradictory in nature and create serious doubts in the prosecution case. It is established that eye-witnesses, who deposed were not present at the place of incident and if present have not witnessed the incident. The conviction awarded to the appellant was not warranted. The prosecution has miserably failed to establish its case beyond reasonable doubts and the appellant is entitled for acquittal.
20. ' On the other hand, Mr. Muhammad Mehmood S. Khan Yousfi, learned Assistant Advocate-General supports the impugned judgment and submits that the contents of the F.I.R. Has been fully corroborated by the eyewitnesses and the recovery mashirs. The ocular evidence has been corroborated by medical evidence. The learned trial court has rightly convicted the appellant as the offence committed by him was fully proved. He however, has not given any answer about the material contradictions of P.Ws.
21. ' We have heard the learned counsel for the appellant learned Assistant Advocate General and also perused the entire evidence and other material available on record. In our opinion, the conviction can only be recorded on strong, direct, cogent and unambiguous evidence on record.
22. No legal evidence is available on record as discussed above to record conviction against appellant. There are material contradictions in the depositions of eyewitnesses. The ocular evidence has not been corroborated by medical evidence. The prosecution evidence so produced is not inspiring-confidence. In view of material contradictions of the eye-witnesses it appears that the incident has not taken place in the manner as set up by the prosecution. It is well-settled principle of law that when the prosecution miserably failed to prove its case beyond reasonable doubt, the conviction so recorded could not be sustained. Accordingly, impugned judgment dated 15-3-2005 passed by the learned trial court was set aside. The reference No,2 of 2005 sent by the learned trial court was answered in negative. Criminal Appeal was allowed. The appellant was acquitted. He was ordered to be released forthwith, if not required in any other case vide short order dated 9-4-2008. The above were the reasons for allowing the appeal.