1. ' MUHAMMAD AFZAL SOOMRO, CJ.---Through this judgment I propose to dispose the above Cr.
2. Appeals filed by the appellants impugning the common judgment dated 19-9-2007 passed in Sessions Case No, 370 of 1997 by the learned Second Additional Sessions Judge (South+West)
3. Karachi whereby the appellants in both the appeals were convicted for offence under section 302(b), P.P.C. And each of them were sentenced to suffer R.I for life imprisonment and to pay compensation of Rs,100,000 to the legal heirs of deceased Aslam, otherwise they shall suffer R.I for two years more. The appellants were also convicted for offence under section 353, P.P.0 and sentenced to suffer R.I for two years. All the sentences were ordered to be run concurrently. Benefit of section 382-B, Cr.P.C. Was also extended by the trial Court to the appellants.
4. ' Brief facts pf the prosecution's case as per. F.I.R. No,151 of 1995 lodged on 25-5-1995 on the basis of statement of complainant/ASIP Mehboob Illahi of Kalakot P.S recorded under section 154, Cr.P.0 are that he reported about the incident which took place on 25-5-1995 at 1000 hours wherein it was stated that on the fateful day he along with his subordinates namely HC Anwar Hussain, PC 'Aslam, PC Gohar Mehmood, PC Muhammad Miskeen, PC Imdad, driver HC. Zaffar Hussain, P.0 Manzoor Ahmed, P.0 Ghulam Hyder, P.0 Riazuddin, P.0 Abdul Majeed while they were busy in area patrolling, spy information was received that accused involved in various cases of Kalakot P.S relating to murder/attempt to the murder and those Muhammad Zaman,. Nephew Muhammad Saleem and others were present near Jumman Shah Plot. On receiving such information, the complainant along with aforesaid subordinates reached at the pointed place and the above accused along with their companions namely Muhammad Afzal, Nazeer Shahi and three/four others were also found present there, whom the complainant and his subordinates tried to cordon to which it is shown that the said culprits who were armed with Kalashnikoves, T.T pistols, revolvers, while showing resistance opened firing upon the police due to which PCs Muhammad Aslam, Riazuddin become injured and fallen down. Police also fired in retaliation and it is shown that one person whose name was disclosed by the Muhalla people to be Naeem after receiving injuries fallen down who was found having Kalashnikov in his right hand which was loaded with a magazine containing five rounds. Further it is stated that due to firing the accused taking the benefits of the narrow lanes fled away and accused Muhammad Anees while escaping had thrown one T.T pistol which along with the Kalashnikov were taken into police custody. Accused Muhammad Naeem is shown to have died due to the injures sustained by him. The S.H.O. Was informed on wireless and the injured PC Muhammad Aslam and Riazuddin were sent to hospital for treatment, thereafter F.I.R. Was lodged.
5. ' During investigation, the accused Muhammad Iqbal alias Baboo dacoit son of Essa Jay, Muhammad Zaman son of Essa Jay and Muhammad Afzal son of Aboo Baker were arrested and after completing the investigation, the challan was submitted in the Court against the said accused showing the accused Muhammad Saleem, Raees and Nazeer Shahi as absconders.
6. ' The above said absconding accused were decided as proclaimed offenders under section 512, Cr.P.0 and proceedings under sections 87 and 88, Cr.P.0 were initiated against them. The requisite documents/ police papers were supplied to the accused Muhammad Iqbal alias Baboo, Muhammad Zaman and Muhammad Afzal. Formal charge was framed against them to which they pleaded not guilty and claimed the trial of the case.
7. ' The trial Court examined the witnesses namely ASIP Riazuddin and HC Gohar Mahmood (who are alleged to be called as eye-witnesses) from the side of prosecution. During trial accused Muhammad Iqbal alias Baboo died and another absconding accused (appellant) Muhammad Saleem was arrested and he joined the trial of the case. The requisite papers were also supplied to the said accused Muhammad Saleem and formal amended charge was also framed against all the accused to which they pleaded not guilty and claimed to be tried.
8. ' Subsequently, the prosecution had examined the following witnesses:--
(1) P.W.1 ASIP/Complainant Mahboob Illahi. He produced his 154, Cr.P.C. Statement, memo. Of dead body, inspection of expired accused Naeem along with inquest report and memo. Of recovery of Kalashnikov. He also produced the site sketch as well as inspection memo.
(2) P.W.2 PC Abdul Majeed. He is alleged to have participated in encounter, as such he is eye- witness of the alleged incident.
(3) P.W.3 ASIP Muhammad Manzoor. He is also alleged to have participated in the encounter, and is said to be eye-witness of the incident.
(4) P.W.4 ASIP Anwar Hussain. He is also shown to be an eyewitness as he had participated in the encounter.
(5) P.W.5 ASIP Riazuddin. He had also participated in the encounter and is shown to be eye-witness of the incident.
(6) P.W.6 Mehboob Ali. He has received the dead body of expired accused Anis and he produced such receipt.
(7) P.W.7/HC Gohar Mehmood. He had also participated in the encounter and is shown to be eye- witness of the incident.
(8) P.W.8/SP Athar Rasheed Butt. He is author of statement under section 154, Cr.P.C, memo. Of dead body, inspection of expired accused and inquest report. He also prepared the memo. Of site inspection along with the sketch. He also produced the cause of depositing the dead body of mortuary. He also produced the cause of death of PC Aslam, memo. Of dead body inspection and inquest report. He also produced F.I.R.
(9) P.W.9/DSP Ali Asghar. He produced the memo. Of arrest of accused Afzal.
9. (10)P.W.10 Dr. Abdul Hague. He is well conversant with the hand writing and signature of Dr. Shahid Shaikh, who issued M.0 of PC Riazuddin and PC Aslam which were produced by him.
10. (11)P.W.11 Dr. S. Doulfani. He produced the post-mortem report of expired accused along with death certificate.
11. ' After examination of the above said witnesses the side of prosecution was closed as per statement of learned D.D.A. Thereafter statements of accused under section 342, Cr.P.0 were recorded in which they denied the allegations levelled against them and claimed themselves to be innocent. All the accused examined themselves on oath under section 340(2), Cr.P.C. And only accused Muhammad Saleem examined two defence witnesses namely Muhammad Iqbal Kamal whereas accused Zaman and Afzal did not examine any defence witness.
12. ' The trial Court after hearing the arguments of learned defence counsel as well as D.D.A. Passed the impugned judgment and convicted and sentenced the appellants as mentioned above. Hence the present appeals have been filed before this Court.
13. ' It has been contended by the learned counsel appearing on behalf of appellant Saleem & Zaman that admittedly incident took place in the well-populated area but no witness from the public of the locality was joined the case. It has further been argued that the witnesses have also stated that the public gathered there and they enquired the name of accused Anees from them but no name of those persons has been shown in the case and also none from the public has been made as witness in this case. It has also been contended that on the first instance the name of deceased was shown as Naseem and thereafter it was changed as Anees son of Iqbal. Learned counsel argued that on the day of alleged incident accused/appellant Saleem was present on his duty in KESC and he has also examined his defence witnesses who have deposed that on the day of alleged incident the accused Saleem was with them on duties. Learned counsel has relied upon the cases reported as Usman Khan and others v. The State (PLD 1969 S.0 293) and Usman and another v. The State 1992 PCr.LJ 1960.
14. ' Learned advocate appearing on behalf of appellate Muhammad Afzal has argued that all the witnesses have not assigned any specific role of injuries to any of the accused. He has further argued that the witnesses have not disclosed that the accused were armed with the firearm weapons at the time of incident. Learned counsel also argued that there is only general allegations against the accused who have been involved falsely by the police. Learned counsel stressed upon his arguments that the police had killed a public person and in order to save their skin from the punishment of that murder have concocted a false story against the accused persons. .He added that the police even did not register the case of deceased Naseem. Learned counsel averted that there are contradictions arid inconsistancy in the evidence of the witnesses, therefore their evidence is not reliable. Learned counsel has relied upon the cases reported as Abdul Aziz and 2 others v. The State (1983 SCM R 247), Muhammad Iqbal v. Abid Hussain alias Mithu and 6 others (1994 SCM R 1928) and Ghulam Abbas v. Zafar Ali and 3 others (1970 SCMR 527) in support of his contentions.
15. ' Conversely learned counsel appearing on behalf of the State has opposed the appeals by adding that the prosecution has brought on record ocular evidence supported by the medical evidence which fully connects the accused with the commission of offence. He has also added that all the witnesses have supported each other on the material facts of the prosecution's case.
16. ' I have heard the learned counsel for the respective parties, perused the record made available before me and considered the case law cited by the learned counsel for the appellants.
17. ' From the perusal of record it appears that the. Police while submitting the challan did not mention the addresses of so-called absconding accused, whereas the trial Court when initiated issued proclaimed proceedings against the appellants Muhammad Saleem and Zaman as well as other accused did not consider the said aspect of the case, which nullify the entire proclamation proceedings initiated under sections 87/88 Cr.P.0 against the appellants. The process server Muhammad Anwar A.S-I. While returning the N.B.Ws. Against the appellants had stated in his evidence in the following manner:-- "On enquiry I came to know that accused Muhammad Iqbal alias Baboo Dacoit has been arrested in a murder case based upon F.I.R. No, 180/1990 and is presently confined in Central Prison, Karachi.
18. Regarding the other accused, I came to know that after the commission of the present crime they, in order to evade arrest, had gone underground. I tried my best to arrest them but failed. There is no prospect of arresting them in near future. I, therefore return herewith the warrants unexecuted along with my report."
19. ' The record reveals that the non-bailable warrants issued against the appellants pertain only name and their father's name but no address whatsoever was mentioned on the said non-bailable warrants, which suggests that said non-bailable warrants were not issued in proper manner, therefore the issuance of said non-bailable warrants was itself illegal. The learned trial Court while declaring the appellants to be proclaimed offenders relied upon the only evidence of process server. Furthermore no publication in this regard was ever published in any Newspaper. The manner, which the trial Court adopted in declaring the appellants to be proclaimed offender do not term them to be proclaimed offenders as from the very beginning the trial Court itself failed to mention the address of the appellants on the said non-bailable warrants, as such the execution of non-bailable warrants upon the appellants without mentioning the address could not be held good. Moreover no publication in this regard was ever issued in any Newspaper, therefore the appellant having no knowledge about the registration of case against them could not be treated as proclaimed offender. Thus their absconsion for some period was neither deliberate nor intentional.
20. ' The contents of the F.I.R. Prima facie show that the complainant party received spy information about the gathering of the accused persons, still the no private person was associated to be the witness and all the police personnels were shown to be the witnesses of the alleged incident, therefore violation of section 103, Cr.P.0 has been committed B by the prosecution. The evidence of police officials in such a situation when the incident took place in thickly populated area and the police had received spy information prior to occurrence of said offence, cannot be reliable.
21. ' The perusal of evidence of the witnesses shows major contradictions which were not considered by the trial Court while passing the impugned judgment. The record further reveals that there are general allegations against all the accused and no specific role has been assigned to anyone. In this regard I am fortified with the judgment reported in 1997 M LD 48 in which it has been held as follows:-- " There are major discrepancies and deliberate improvements in statements of witnesses.
22. Occurrence had taken place surrounded by grown-up trees and bushes. It was a dark night. It does not appeal to reasons that a person who had killed deceased in bushes and remained there till witnesses reached there in dark night. It makes abundant clear that occurrence was not seen by witnesses nor they were present nearby and it seems to be an unseen murder." In such circumstances appeal was accepted.
23. Although the facts of the present case are quite distinguished with the facts of the cited case, but the rule adopted by the Lahore High Court is same, as in the present case, though the offence was taken place in thickly populated area, and the police received spy information about the presence of the accused at the place of alleged incident, still no D private person from the locality was associated as witness of the incident and the police in order to improve the case of prosecution made improvements in the statements of the witness and there are discrepancies in the said statements. P.W./A.S.-I. Riazuddin in his cross-examination has stated in the following manner:-- "It is correct to suggest that I have not stated in my statement under section 161, Cr.P.C. That there was any fire-arm in the hand of accused Muhammad Afzal. It is correct to suggest that I have not disclosed in my statement, the .Number of police mobile. It is correct to suggest that I have not disclosed roznamcha entry number in my said statement. It is correct to suggest that I have not disclosed the members of police party that was present at the scene. It is correct to suggest that I have not disclosed any particular name of Mohalla people regarding the identification of the deceased accused. It is correct to suggest that my statement under section 161, Cr.P.0 do not bear time at which it was recorded. It is correct to suggest that I have not stated in my said statement that on which part of my body I sustained injuries. It is correct to suggest that place of wardat was situated in thickly populated area It is correct to suggest that in my statement under section 161, Cr.P.C, no any specific name of any accused is mentioned who opened fire upon the police party. It is correct to suggest that I was not aware about the faces of accused persons but their names were known to me. It is correct to suggest that no description of any accused have been disclosed in my said statement."
24. ' P.W. H.0 Gohar Mehmood in his cross-examination has stated as follows:-- "It is correct to suggest that in my statement under section 161, Cr.P.C. I did not disclose any fact regarding chamcha hotel. The (sic) of chamcha hotel shall be about 300 sq. Feet. It is correct to suggest that I have not mentioned in my said statement the name of fire-arm which was in possession of accused Muhammad Afzal. It is correct to suggest that match box is not fire arm.
25. Accused Muhammad Afzal was not arrested in my presence on the spot. I had come to across the name of accused Muhammad Afzal s/o Abu-Bakar for about last two years from the date of incident."
26. ' The above said witness in his cross-examination has also stated as under:-- "The distance between hotel and the place of occurrence is about 1-1/2 furlong. My statement under section 161 Cr.P.0 w as recorded by the "Munshi" of police station on the same day at 9/10 p.m. It is correct to suggest that in my statement before police I have not stated that I can identify the accused persons if they come before me. It is correct to suggest that no any description/hulia of any accused persons is given in my police statement. It is correct to suggest that the names of the accused persons were disclosed by A.S.-I. Mehboob Illahi.
27. ' P.W: A.S.-I. Mehboob Illahi in his cross-examination has stated thus:-- "It is correct to suggest that many people were present at JangJan Hotel at the time when I received spy information. I did not associate any private person from JangJan Hotel in the present case. It is correct to suggest that the case property produced today in this Court was not recovered from accused Saleem. It is correct to suggest that regarding making pursue to the accused is not mentioned in my statement under section 154 Cr.P.C. As well as in the F.I.R. It is correct to suggest that in my statement under section 154 Cr.P.C. Nowhere it is mentioned that I had seen any fire-arm in the hands of accused Muhammad Afzal and Muhammad Zaman. It is correct to suggest that case property produced before this Court was not in sealed condition. It is correct to suggest that in my statement under section 154, Cr.P.0 nowhere I have stated the numbers of fire made from official fire-arm nor stated about the numbers of empties recovered from the spot."
28. ' P.W. P.0 Abdul Majeed in his cross-examination has stated as under:-- "It is correct to suggest that A.S.-I. Mehboob Illahi was the head of the police party. It is correct to suggest that I have not disclosed in my said statement, the names of all the police party members.
29. It is correct to suggest that at Jangjan Hotel many people were sitting there. It is correct to suggest that the name of JangJan Hotel is not disclosed in my statement under section 161, Cr.P.C. It is correct to suggest that I have not disclosed in my statement under section 161, Cr.P.0 that I had seen fire-arms in the hands of accused Afzt and Zaman. It is correct to suggest that I have not disclosed in my statement under section 161, Cr.P.0 that empties were recovered from the spot not the same have been produced in this Court today."
30. ' P.W. ASIP Muhammad Manzoor Awan in his cross-examination has narrated as follows:-- "I have not produced the copy of entry of daily diary under which we left police station for patrolling on the day of incident. It is correct to suggest that accused were not known to me prior to the incident. It is correct to say that no empty was secured from the place of incident. It is correct to say that I have not stated in my statement under section 161, Cr.P.0 that on which part of body, P.0 Aslam received bullet injuries. It is also correct to say that I have not stated in my statement under section 161, Cr.P.C. That on which part of body accused Naeem received bullet injuries. It is correct to say that I have not disclosed the number of Autorakshaw in which the injured were removed to Hospital. It is correct to say that I have not stated in my statement that at which place, ASIP Mehboob Illahi received spy information."
31. ' P.W. D.S.P Ali Asghar in his cross-examination has stated as follows:-- "It is correct to say that nothing was recovered from the possession of accused Afzal at the time of occurrence."
32. Bare reading of the evidence of the above said witnesses create serious doubt in the prosecution case. All the above prosecution witnesses in their cross-examination have admitted that no empty was recovered from the place of incident, whereas it is the case of the prosecution that alleged encounter has taken place for about 6/7 minutes between the police and the accused persons in which one person from the side of police had died and one person from the side of accused persons was died, but non-recovery of single empty from the place of incident, create doubts in the very veracity of the alleged encounter. Furthermore the above witnesses had stated before the trial Court that alleged recovered fire-arms from the accused persons were not sealed, therefore foistation of the said fire-arms upon the accused persons cannot be ruled out. The above said prosecution witnesses have also stated that they have not seen any fire-arms in the hands of accused Afzal and Zaman at the time of alleged incident, which suggests false involvement of the above said accused persons in the present case.
33. ' Learned counsel for the appellants further stated that accused/appellant Saleem is an employee of KESC and at the time of alleged incident said appellant was available on his duty and in proof thereof service attendance certificate was produced before the trial Court. Therefore the involvement of appellant Saleem in this case is also not free from doubt. Furthermore very issuance of N.B. Ws against the appellant is not proper as no address has been mentioned in the N.B. Ws which is mandatory requirement under the law. Moreover no publication has been made in any newspaper which is also mandatory requirement of law, thus initiation of proclamation proceedings is defective.
34. ' For the foregoing reasons I allow the present appeals, set-aside the impugned judgment and acquit the appellants. They shall be released forthwith if not required in any other case.
35. ' Cr. Appeals Nos. 247/253/2007 stand disposed of.