1. ' MRS. YASMIN ABBASEY, J.---This appeal has been directed against the judgment dated 31-3-2003 passed in Special cases Nos.77, 80 and 81 of 1999, whereby appellants were convicted for -life imprisonment and to pay fine of Rs,75,000 each to be paid to the legal heirs of deceased, A.S.-I.; Sikandar Ali and in case of default in payment of compensation to suffer six months S.I. Along with different convictions awarded in each separate offence charged on 8-2-2001.
2. ' Case of prosecution as incorporated in F.I.R. Is that on 29-9-1999 complainant PC having No,62.
3. Dilijan son of Muhammad Shahban reported that on the said day when he along with patrolling party duly armed with ammunition reached in the area of Salehpat link road at about 2250 hours they heard fire shots from village Karam Khan Magsi near Salehpat. They immediately proceeded to Salehpat bus stand where PC Muhammad Saifal having No, 14191 was on patrolling along with his Government SMG, also came to help police party. At about 2300 hours they all reached at village Bhambho Magsi and Karam Khan Magsi where in moonlight they identified Anwar son of Bhambho armed with Kalashnikov, Hussain Bux son of Bhambho Magsi armed with hatchet, Faiz Muhammad alias Faizoo son of Bhambho armed with lathi, Nabi Bux alias Naboo son of Bhambho Magsi armed with gun, Bhambho son of Ali Murad Magsi, Wall Muhammad son of Behram, Imam Bux son of Kirir Magsi armed with lathi along with four unidentified persons, who can be identified if produced before them. A.S.-I. Sikandar Ali enquired from them as to why they are standing with weapons and making firing, on which those persons replied that they have enmity with Karam Khan Magsi, therefore, they are making firing in air. On warning of A.S.-I. Sikandar All Abro to accused persons that by making aerial firing they are creating harassment in public and are also violating the law therefore, they should surrender themselves before police. Whereon accused Wail Muhammad Magsi instigated other accused persons for murdering police personnel because they had restrained them from firing. On instigation accused Hussain Bux Magsi caused hatchet blow to complainant PC Dilijan. Complainant in defence put his hand forward and received injuries on his finger of right hand. Other accused persons caused lathi blow to A.S.-1. Sikandar Ali and PC Muhammad Saifal. Accused Anwar Magsi fired with kalashnikov on A.S.-I. Sikandar Ali ,which hit on his face. After this attack, all police personnel took positions. Police also fired in defence. Fire shot by accused Nabi Bux with his gun hit to PC Muhammad Saifal. Government SMG, which was fell down, because of injuries sustained by A.S.-I. Sikandar Ali, was taken by accused Anwar Magsi along with bag of bullets of PC Muhammad Saifal. After causing injuries to police personnel, accused persons by making firing in air escaped from the place of incident. A.S.-I. Sikandar Ali because of injuries sustained by him died at the spot. Complainant and PC Muhammad Saifal received injuries on different parts of their persons.
4. ' After leaving PC Malik at the place of incident complainant went to Police Station and lodged report. On the basis of this report case was registered, charge was framed on 27-1-2001. After arrest of Faiz Muhammad, it was amended on 8-2-2001.
5. ' Prosecution examined in all 13 witnesses, consisting of ocular evidence of PC Muhammad Saifal, S.H.O. Muhammad Iqbal, medical evidence of Dr. Gul Hassan, Dr. Ghulam Nai and Dr. Rafique Ahmed, mashirs of arrest Inspector Abdul Sattar, A,S.-I, Nazar Ahmed, PC Ghulam Muhammad, recovery of crime weapons through A.S.-I. Rahim Bux and Investigating Officers PC Muhammad Saifal and Inspector Yahya Khan. Accused examined themselves under section 342, Cr.P.C. And have not produced any evidence in their defence.
6. ' Challenging the impugned judgment, it is argued by learned counsel for the appellants that the learned trial court has misread the evidence produced by prosecution. Ocular testimony of witnesses does not corroborate with the medical reports and experts reports placed on record.
7. Contradictory versions of prosecution witnesses are sufficient to discard the evidence produced.
8. Weapons and empties said to have been recovered from the place of incident does not match to each other. Not a single witness of the locality was examined by prosecution. Whole case of prosecution is based on the statement of police officials.
9. ' For proper adjudication of case, it will be beneficial to discuss statement of each witness.
10. ' Star witness of this case is PC Dilijan who in company of A.S.-I. Sikandar Ali, PC Malik Dino was on patrolling duty on 28-9-1999. According to him during patrolling when they were at curve of Shaheen Wah they heard fire shots from village Karim Khan Magsi near Salehpat. After hearing those fire-arm shots they proceeded to city Salehpat. In the way PC Muhammad Saifal who was also on patrolling duty in the city accompanied him. After reaching at the place of incident they found seven persons viz. Anwar, Hussain Bux, Faiz Muhammad, Nabi Bux, all sons of Bhambho, Bhambho son of Ali Murad, Wali Muhammad son of Behram, Imam Bux son of Kirir Magsi duly armed with different weapons viz. Hatchet, lathi and guns. According to P.W.1, on enquiry of deceased A.S.-I. Sikandar Ali, appellants and their companions disclosed that because of enmity with Karim Khan Magsi, they were firing, A.S.-I. Sikandar Ali told them to surrender which annoyed appellants and his companions and they on the instigation of Wali Muhammad attacked on police party with lathies whereas absconding accused Anwar fired on A.S.-1. Sikandar Ali with kalashnikov who after sustaining injuries died at the spot. Complainant along with PC Muhammad Saifal and PC Malikdino received injuries through hatchet blows caused by Hussain Bux. Statement of complainant No,1 finds support from P.W.2 PC Muhammad Saifal. Detail of incident as stated by P.W.1 do corroborate with statement of P.W.2 with the addition that after receiving lathi blows he fell down and during that accused Hussain Bux snatched his official rifle. Thereafter, he regained his senses in hospital at Karachi. Third injured P.W. Malikdino has not been examined in the matter.
11. Minute scrutiny of statement of P.W.1 and P.W.2 shows contradictory version in between them. As per P.W.1 jeep of A.S.-I. Sikandar Ali, at the time of incident, was parked at a distance of about 4-5 paces from them. He further admits that driver of jeep was sitting in the jeep at the time of occurrence. Whereas according to P.W.2 jeep was standing at about 30 to 40 paces away from the house of accused Bhambho where incident took place. According to P.W.2 A.S.-1. Sikandar Ali himself drove the jeep. Ocular evidence of both does not inpire confidence, and it is doubtful that whether they were present at the place of incident or not as again with reference to presence of jeep at the time of inspection, it is stated by P.W.1 that at the time of inspection jeep was not available at the place of incident whereas according to P. W.3 S. H. O. Muhammad Iqbal who was first Investigating Officer of this case, one private jeep was available at the place of incident and as per his statement he came to know that deceased A.S.-I. Sikandar Ali arrived at the place of incident in the said jeep. It is also an undisputed fact that prosecution case is based on statement of police personnel. Not a single private witness has been examined in the matter. Even if statement of P.W.3 that persons of the village had not gathered at the place of incident at the time of his inspection of place of incident, therefore, he could not examine any private witness. But while making such statement, Investigating Officer has ignored section 160, Cr.P.C. Empowers a police officer to require attendance of witnesses during investigation. Nothing has been placed on record that whether for procuring evidence from the locality where such a big incident of encounter in between police party and culprits had taken place whether he attempted, by issuing a notice in writing to the persons of the locality, to collect information. Even the statement of driver of jeep whereon A.S.-I. Sikandar Ali came at the place of incident was not examined being the only independent and private witness.
12. ' As per learned counsel for appellants, contradictory version is also appearing in prosecution witnesses as to how they received injuries on their person. According to P.W.1 complainant. PC Muhammad Saifal received injury through fire-arm shot by accused Nabi Bux. Whereas according n, PC Muhammad Saifal he is not certain as to how he received injury. According to after regaining his senses in hospital he noticed that he had only one lathi blow.
13. ' It is an undisputed fact that the police party consisting of about four persons was fully armed with fire-arm weapons and police personnel are presumed to be well-trained, in spite of that professional perfection expected from them is missing in the present case. Even their conduct as appearing on record is against normal human behaviour. Both complainant as well as PC Muhammad Saifal were unable to explain that when appellant Nabi Bux instigated the other persons to attack on police party, why prompt action was not taken by them to overpower the culprits particularly of those who had lathies and hatchets in their hands. On the contrary as per statement of complainant the persons having lathies first attacked on A.S.-I. Sikandar All and then accused Anwar fired on him with kalashnikov.
14. ' It is surprising that a police official warning appellants to surrender, all of a sudden in spite of having SMG Rifle himself become so helpless that he could not fire on the assailant attacks on him.
15. So also rest three other members of police party also having weapons with them were so mesmerized that they all left them at the mercy of accused. Although complainant has deposed that he opened 30 rounds from his SMG but it is surprising that not a single person of the opposite party received any injury. Only police personnel were shot down by assailants and they had also taken away their Government ammunition.
16. ' Next as per prosecution at the time of incident A.S.-I. Sikandar Ali was in uniform but while departing his dead body for post-mortem examination, his uniform was removed vide mashirnama dated 29-9-1999 at 0200 hours. Reason of removing uniform with the civilian dress on the body of deceased has not been explained by Investigating Officer Muhammad Iqbal. Though this fact finds support from the statement of Dr. Gul Hassan examined as P.W.5 and the postmortem report but this conduct of Investigating Officer is against normal procedure and particularly when clothes of deceased neither were sent to Chemical Examiner nor were produced in Court for identification to be the same which were worn and removed from the body of deceased. In absence of Chemical Examiner report and non-production of deceased clothes it is hard to prove that blood stains on clothes of deceased match with the blood-stained lathi said to be recovered from accused Bhambho and Wali Muhammad against whom it is alleged that they both caused lathi blows to A.S.-I. Sikandar Ali.
17. ' It is bounden duty of prosecution to prove its case beyond doubt. It is observed in 1993 SCM R 417 that: ...This duty does not change or vary in the case in which any defence plea is taken. Burden of prosecution to prove its case beyond doubt remains the same...
18. ' Defence plea in 342, Cr.P.C. Statement of Bhambho that in fact on the night of incident, one Karam Khan Magsi and his sons had exchange of hot words with Bhambho's son Anwar Magsi. Thereafter Karam Khan Magsi brought police at his home comprising A.S.-I. Sikandar Ali, PC Muhammad Saifal and two sons of Karam Khan substantiate from the non-production of uniform of A.-S.I. Sikandar Ali that he privately had gone along with Karam Khan Magsi to support him.
19. ' As per P.W.3 blood-stained earth was also secured from the place of incident but Chemical Examiner report, dated 21-1-2000 does not disclose that said bloodstained earth was sent to Chemical Examiner. So also, per P.W.12 Yahya Khan and Muhammad Iqbal, 10 empties of kalashnikov and 12 empties of .12 bore along with 20 empties used by police from official weapons were secured from the place of incident in addition to the recovery of Government kalashnikov from Nabi Bux and DBBL gun owned by him but only Kalashnikov along with 10 empties were sent to Ballistic Expert. Explanation of Investigating Officer Muhammad Yahya for not sending other weapons is that Kalashnikov recovered from accused Nabi Bux was not sent by him to Ballistic Expert because it was an official weapon, but there is also an admission that DBBL gun produced by Nabi Bux was not sent to Ballistic Expert for report. In the circumstances when material evidence said to be collected by Investigating Officers from the place of incident if were not sent to experts for matching and having a definite opinion as to the use of those weapons in the commission of offence and that deceased and injured received injuries through those weapons said to be recovered from accused persons, it is not probable to rely on the statement of prosecution witnesses, how much corroborating they may be to each other, because in a case involving capital punishment, conviction cannot be based solely on the testimony of interested witnesses unless such evidence B finds corroboration by some other independent and unimpeachable piece of evidence. It is observed in Rah Nawaz v. Sikandar Zulqarnain 1998 SCM R 251 with reference to 1969 SCM R 777 that in spite of relying on corroborating evidence which has been followed by courts constantly through years and now has become a rule of law the departure from this rule is to be found rarely and in a very exceptional circumstance of a case. ..Therefore, to say that the evidence of an interested witness is to be accepted solely on the ground that it remained unshaken during cross-examination is not a correct proposition. As held by this court in the case of Din Muhammad v. Crown 1969 SCM R 777, to test the testimony of a witness, courts should not only consider whether there is consistency in the narrative but should also consider whether the version is probable or not....
20. ' In the circumstances of the case defence taken by appellant Bhambho in his statement under section 342, Cr.P.C., which was followed by other appellants that they have been falsely implicated in the matter. At the instance of Karam Khan Magsi and his sons. In retaliation, A.S.-I. Sikandar Ali, PC Muhammad Saifal and two more sons of Karam Khan Magsi forcibly entered in his house and abused their womenfolk and tried to drag them out of house on which he and his sons resisted.
21. ' A.S.-I. Sikandar Ali fired from his official rifle on his son Anwar Magsi but it missed and in counter fire shot by Anwar Magsi hit to A.S.-I. Sikandar Ali. Appellant Bhambho has denied the presence of PC Dilijan and PC Malik Dino at the place of incident. According to him police has set up them to depose falsely in order to conceal the unlawful act committed by A.S.-I. Sikandar Ali. To support the previous enmity direct complaint filed by one of the appellants Wali Muhammad against S.H.O., Police Station, Salehpat, has been placed on record at page 271 of paper book.
22. Above discussion reveals that even the ocular evidence produced does not inspire any confidence.
23. Contradictory versions of eye-witnesses on the minor points create doubt that whether they were present at the scene of incident and had seen it or not. No doubt unfortunate incident took place with the loss of life of one person A.S.-I. Sikandar Ali but because of having no corroborating evidence and the discrepancies appearing c during investigation including failure to obtain experts opinion on the recoveries said to have been made from the place of incident and non- production of material evidence i.e, cloth of deceased and jeep used in the incident along with its driver, it is hard to believe that appellants were the actual culprits who created law and order situation and put the persons of the locality under undue harassment. As per prosecution, absconding accused Awar Magsi fired on deceased A.S.-I. Sikandar Ali with his kalashnikov but the circumstances under which that fire was shot can only be examined after arrest of absconding accused Anwar Magsi and recording of his statement.
24. Upshot of above discussion is that prosecution has not been able to prove its case against the present appellants. There D are material contradictions. Benefit of doubt in such circumstances, is bound to be extended to appellants.
25. In view of foregoing reasons appeal of the appellants is accepted They are acquitted from the charge. They be released forthwith if not required in any custody matter.