1. JUDGMENT IMAM BUX BALOCH, J. Through this appeal, the appellants Ghulamullah alias Kariri and Pir Bux alias Piroo assailed judgment passed by learned Special Judge Anti-Terrorism Court-III, Sukkur, dated 1-3-2005, in cases arisen out of Crime No. 38 of 2003, 39 of 2003 and 2 of 2004 of Police Station Madeji, District Shikarpur, whereby both the appellants were convicted under section 302/34, P.P.C. To suffer R.I. For life and to pay compensation of Rs.200,000 each to be paid to legal heirs of deceased H.C. Abdul Nabi and in case of non-payment of compensation, they will suffer S.I.
2. For six months more. They were further convicted and sentenced under section 324/34, P.P.C. To imprisonment for ten years R.I. And to pay fine of Rs.50,000 each and in case of default in payment of fine, they shall suffer R.I. For one year more. The appellants were also convicted and sentenced under section 353/34, P.P.C. To imprisonment for two years' R.I. And to pay fine of Rs.5000 each and in case of default in payment of fine, they shall suffer R.I. For six months more. The appellants were also convicted and sentenced under section 7(1) of Anti-Terrorism Act, 1997 to imprisonment for life and to pay fine of Rs.200,000 each; in case of default in payment of fine both of them were ordered to suffer R.I. For five years more. The appellant Ghulamullah alias Kariri was also convicted and sentenced under section 13(d) of Arms Ordinance to imprisonment for five years R.I. And to pay fine of Rs.50,000 and in case of default in payment of fine he was ordered to suffer R. I for one year more. Appellant Pir Bux alias Piroo was also convicted and sentenced under section 13(e) of Arms Ordinance to imprisonment for five years' R.I. And to pay fine of Rs.50,000 and in case of default in payment of fine, he will suffer R.I. For one year more. All these sentences were ordered to run concurrently. The appellants were however extended benefit of section 382, Cr.P.C.
3. The case of prosecution is that Inspector Imtiaz Ahmed Soomro of Police Station Madeji lodged report with Madeji Police Station on behalf of the State alleging therein that on 6-8-2003, he received spy information that absconding accused Ghulamullah alias Kariri and his brother Pir Bux alias Piroo wanted by Madeji police in various cases are present at government Tubewell at the lands of Ghazi Kalhoto. On receipt of such information S.H.O. Conveyed such inforniation to TOP Garhi Yasin, who directed other police to join complainant for arrest of absconding accused. Then police parties of various Police Stations left for pointed place and reached there at about 1600 hours, where H.C. Nazar Muhammad identified accused to be Ghulamullah alias Kariri and Pir Bux alias Piroo who were standing there duly armed with DBBL gun. The police party encircled the culprits, to which they fired upon the police party. In the meantime complainant conveyed such information to DPO Shikarpur, who directed other police parties to reach scene of offence. During encounter it is stated that H.C. Aabdul Nabi of Police Station Gaheja received fire-arm injuries at hands of accused, who was immediately removed to Madeji hospital. However police succeeded to apprehend accused Ghulamullah alias Kariri and from his possession a DBBL gun of .12 bore was also secured, which was without license. The accused was arrested under mashirnama. While another accused Pir Bux alias Piroo made his escape good. The police party came back to Police Station where a case under sections 324, 353, P.P.C. And 13 DAO was ,registered. However injured H.C. Aabdul Nabi succumbed to injuries and therefore section. 302, P.P.C. Was added. However, separate case under Arms Ordinance was also registered against accuse Ghulamullah.
4. The charge-sheet was filed against accused Ghulamullah, while accused Pir Bux alias Piroo was shown absconding. Ultimately he was also arrested and sent with supplementary challan. A case under Arms Ordinance was also registered against him.
5. The charge was framed against the appellants. At trial the prosecution examined P.W.1.
6. Complainant S.H.O. Imtiaz Ali Soomro at Exh.13. Te has produced mashirnama of arrest, personal search and recovery of accused Ghulamullah. F.I.R. No.38 of 2003, F.I.R. Bearing Crime No.39 of 2003, roznamcha entries Nos.19, 20 and 25, Chemical and Ballistic Expert reports at Exh.13-A to 13-F, P.W. 2 SIP Mehboob Ali at Exh.16, P.W.3 shah Jehan Shah at Exh.17, P.W..4 Dr. Khadim Ali at Exh.18; he produced postmortem report of deceased H.C. Abdul Nabi of Exh.18-A, P.W.5. H.C. Nazar Muhammad at Exh.19. He has produced his 164, Cr.P.C. Statement at Exh.19-A, P.W.6, A.S.-I. Ishtiaque Ahmed at Exh.20 He has produced mashirnama of injuries, mashirnama of inspection of injuries of deceased, inquest report, mashirnama of inspection of place of wardat, recovery of blood-stained earth and empties of Exh.20-A to 20-D, P.W.7 Tapedar Muhammad Siddique at Exh.21. He has produced sketch at Exh.21-A. P.W.8 Anwar of Exh.23 P.W.9 SIP Amanullah at Exh.33, lie has produced mashrinama of arrest, recovery of gun and empties, F.I.R. Bearing Crime No.2 'of 2004, mashirnama of imaginary arrest, roznamcha entries Nos.4 and 18 at Exh.33-A to 33-D, P.W.10 A.S.-I. Loung Khan at Exh.34 and P.W.11, P.C..Mumtaz Ali at Exh.35..
7. After close of side by the prosecution, statements of appellants were recorded under section 342, Cr.P.C. At Exh.27 and 28 and after hearing the parties learned trial Court has passed the impugned judgment.
8. We have heard learned counsel for appellants and learned State counsel. Learned counsel for appellants contended that the alleged encounter according to F.I.R. Continued for three and half hours between the police and the appellants but during investigation not a single cartridge was recovered from place of wardat, only this circumstance has created doubt in a prudent mind that the incident has not taken place as alleged by the prosecution. He further contended that according to case of prosecution due to darkness appellant Pir Bux was decamped from the place of wardat and appellant Ghulamullah alias Kariri was arrested. This aspect of the case also does not appeal to a prudent mind. He further argued that the police has managed a false case against the appellants on the instigation of their enemy Zamindar Manzoor Kalhoro. He further contended that prosecution case is full of doubt. The prosecution witnesses have made improvements and exaggeration in their evidence during trial and all the witnesses are police officials and in case involving capital punishment corroboration from an independent source is necessary. He further contended that the gun was foisted upon the appellant by the police in order to strengthen the case. Learned counsel further contended that appellant Pir Bux was not arrested on the spot as Went from the evidence of prosecution witnesses. He further argued that 3/4 police parties had joined the alleged ecounter, whereas on the other side there was only two accused. This aspect of the case also does not appeal to a prudent mind. The learned counsel lastly argued that prosecution has miserably failed to prove its case against the appellants beyond any shadow of doubt and the benefit of doubt may be extended in favour of appellants.
9. On the other hand learned State counsel argued that there was an encounter between the appellants and police and one Head Constable Abdul Nabi lost his precious life during encounter with the police. Appellant Ghulamullah alias Kariri was arrested at the spot by the police along with DBBL gun and bag containing 12 cartridges. He further argued that prosecution ' evidence is trustworthy, confidence inspiring and no material contradictions and discrepancies are available in their evidence. Learned State counsel supported the impugned judgment and contended that prosecution has succeeded to establish guilt of the appellants beyond any reasonable doubt and impugned judgment may be maintained being well reasoned judgment.
10. With the assistance of learned counsel for the parties we have scanned the entire evidence.
11. Complainant SIP Imtiaz Ali stated in his evidence that on 6-8-2003 he was posted as S.H.O. Police Station Madeji. He received spy information that accused Ghulamullah alias Kariri and his brother Pir Bux alias Piroo wanted in Crime No.822000, 78 of 2002, and 30 of 2003, are present in lands of Ghazi Kalhoro at government Tubewell. He conveyed such information to. TPO Abdul Ghaffar Dahar.
12. Consequently, TPO directed S.H.O: New Amrote, S.H.O. Police Station Gaheja to reach at Police Station Madeji along with other staff for' the purpose of arresting absconding accused. All the police parties reached pointed place i.e. Government Tubewell at 1600 hours, and one H.C. Nazar Muhammad identified both the accused/appellants: Seeing the police parties the culprits started firing upon them, the police party in their defence also started firing upon accused. The accused during encounter ran towards Palejo and concealed them under some small cultivation.During encounter H.C. Abdul Nabi sustained firearm injuries who was shifted to Madejo Hospital. He further stated that they: succeeded to capture appellant Ghulamullah and from his possession one DBBL gun was secured along with bag containing 12-live cartridges. Such mashirnama of recovery of DBBL gun and cartridges was prepared. He furtherstated in his evidence that encounter took place for about three and half hours, but appellant Pir Bux taking advantage of darkness escaped away.
13. The injured H.C. Abdul Nabi succumbed to the injures. He has further stated that he sent the gun and cartridges to Ballistic Expert and lodged F.I.R. Against appellant on behalf. Of the State. In, his cross-examination he has admitted that S.H.O. Gaheja and .Police Station Amrote reached within ten minutes of Police Station Madeji, but he has not made any entry of their arrival. He admitted that there are houses around lands of Ghazi Kalhoro. He admitted that they seen accused for first time at distance of 200-paces. He further stated that he cannot give distance in between deceased and accused. He admitted that encounter was at distance of about two kilometers. He denied that accused Ghulamullah was already in police custody before this incident.
14. P.W.2. SIP Mehboob Ali in his deposition that on 6-8-2003 he was posted as Additional S.H.O. Police Station Madeji. On that day S.H.O. Police Station Madeji received spy information that some criminals involved in number of cases are available at government Tubewell near Faizai Kalhora village. S.H.O. Imtiaz Ali Soomro informed TPO Abdul Ghaffar on telephone. Then S.H.O. Left Police Station along with police parties for pointed place and reached there at 1600 hours. He further stated that H.S. Nazar Muhammad identified two accused persons, who were standing there, as Ghulamullah alias Kariri and Pir Bux alias Piroo having DBBL guns. He further stated that in the meantime TPO. Abdul Ghaffar reached at the spot and there was an encounter between police and accused. He further stated that TPO and S.H.O. Of various police stations reached at sunset time and darkeness was spreading he further stated that during encounter H.C. Abdul Nabi sustained injuries, who was consequently succumbed to the injuries in the hospital. One accused namely Ghulamullah was arrested on the spot along with DBBL gun and 12 live cartridges were also recovered from his possession. He further stated that his 161, Cr.P.C. Statement was recovered by S.H.O. Imtiaz Ali Soomro and case under section 13(d) Arms. Ordinance was also registered against appellant Ghulamullah but appellant Pir Bux alias Piroo taking advantage of night and darkness succeeded to escape away from scene of offence. In his cross-examination he has stated that he has admitted that he had seen the accused for first time at distance of 200-paces. He further stated that H.C. Abdul Nabi was at distance of 100-yards from accused.
15. P.W. Shah Jehan Shah has deposed that on 6-8-2003, he was posted as S.H.O. Garhi Yasin. He received message from TPO Madeji that accused Ghulamullah and Pir Bux alias Piroo are availlbe at government Tubetwell and after making such entry in roznamcha he proceeded to Police Station Madeji. He further stated that at 4-00 p.m. They reached at pointed place, where both the accused were identified by H.C. Nazar Muhammad to be Ghulamaullah alias Kariri and his brother Pir Bux alias Piroo having DBBL guns and on the direction of TPO Madeji they encircled accused and firing was started by the accused upon police party. During encounter DPO Investigation and other S.H.Os. Along with police personnel reached at place of wardat and joined encounter. During encounter H.C. Abdul Nabi sustained injuries and consequently he succumbed to injuries at hospital. In his cross-examination he admitted that he doesn't know accused previously and he has seen the accused person for the first time from distance of about 100-paces. He admitted that they chased accused upto 150-kilometers. He admitted that there was village of Brohi's around place of wardat, but none from the village attracted to scene of offence.
16. P.W. Dr. Khadim Ali, who conducted autopsy on dead body of deceased H.C. Abdul Nabi found following injuries on his person.
(1) a laperatomy incision at mid umbilical line measuring about 25 x 2 cm stitched.
(2) Two LTP wounds of entry each measuring about 0.75 c.m. In diameter, x probe upto cavily deep, circular in shape with inverted margins at right hypcondrial region of abdomen (entry).
(3) One LTP wound of entry measuring 0.75 c.m. In diarneter, x probe upto cavily deep circular in shape with inverted margins on left side of epigastric region on abdomen cavity (entry).
(4) A LTP wound of entry measuring about 075 c.m. In diameter x probe deep circular shape with inverted margins involving right testicular area in scrotum.
(5) Seven LTP wound of entry each measuring about 0.75 c.m. In diameter with inverted margins circular in shape scattered in the area of right anteriorly.
17. In his cross-examination medical officer admitted that he did not find any blackening and charring marks on the injuries of deceased. He further stated that deceased would have received fire-arm injuries from the distance of seven to eight yards. He further stated that deceased would have received four shots. He further stated that he cannot say that seven LTP wounds were result of one fire or more than one shot.
18. P.W. H.C. Nazar' Muhammad in his evidence stated that on 6-8-2003, he was posted at Police Station Madeji. He along with S.H.O. Police Station Madeji Imtiaz Ali reached at scene of offence where other police, S.H.Os., TPO and S.P. Investigation also reached, and he identified accused to be Ghulamullah alias Kariri and Pir Bux alias Piroo. This witness has narrated the same facts as stated by other witnesses. In his cross-examination he has admitted that distance between Tubewell and place of incident where accused were concealing themselves would be about one kilometer. He has further stated that there are villages at furlong distance from place of wardat and 2/3 houses are available in scattered position at place of wardat. He admitted that they had seen the accused for first time at distance of about half kilometer.. He admitted that from 3-30 p.m. Upto 8-30 p.m.
19. The encounter was going on. He admitted that S.H.O. Has not collected lives shells from place of wardat. He also admitted that H.C. Abdul Nabi was at distance of two paces away from him when he sustained injuries. He admitted that accused had not received any injury during encounter.
20. P.W. A.S.-I. Ishtiaque Ahmed stated that on 6-8-2003, he was posted as A.S.-I. At Police Station Madeji. On the same day S.H.O. Imtiaz Ali received spy information that appellants were available at government Tubewell situated in lands of Manzoor Kalhoro. He acted as mashir, and in his presence injuries of H.C. Abdul Nabi deceased were noted down. He also acted as mashir of inspection of dead body of deceased H.C. Abdul Nabi and so also inquest report of dead body of deceased. He also acted as mashir of collection of empties of .12 bore of red color. He also acted as mashir of collection of empties of kalashnikov, G-3 and rifle. In his cross-examination he admitted that all mashirnamas were written by WHC of Police Station Madeji but on his dictation. He admitted that he has not mentioned in the record that WHC was accompanied with him during investigation. Empty cartridges were scattered in the area of 20-paces. He admitted that he has not obtained signatures of mashirs on the seals of empty cartridges.
21. P.W. Muhammad Siddique Tapedar, who inspected place of wardat on 3-1-2005, and he prepared such sketch of place of wardat with the help of police. He further stated that point-A was the place, where H.C. Abdul Nabi received fire-arm shot and such place is at the border of deb lindodero and deb Palejo. Point-B is the place where it is said that accused were available and fired upon deceased H.C. Abdul Nabi and the distance between point-A and B was 51-feet. In his cross- examination lie has stated that he has not mentioned in the sketch specifically that the same was prepared at the place of wardat and he also admitted that at the pointation of WPC he has prepared this sketch after two years of the incident.
22. P.W. Anwar Ali Brohi, who acted as mashir of inspection of injuries of deceased. He also acted as mashir of inquest report of dead body of deceased. He denied that he acted as mashir of inspection of place of wardat. He admitted that his signatures were obtained in Larkana hospital, He stated that he doesn't know the accused present in Court he has denied that Madeji Police had made him mashir of place of wardat, recovery of empties. He denied that due to influence of accused he has not given evidence against them. He admitted that the contents of mashirnamas were not read over to him by police.
23. SIP Amanullah has produced the postmortem report of SIP Umed Ali; as lie died in an accident. He also stated that he is well 'conversant with the signature and handwriting of SIP Umed Ali, and he has worked with him. He has produced F.I.R. Of Crime No.2 of 2004, under section 13(e) against appellant/accused Pir Bux alias Piroo and mashirnama of arrest and recovery. He admitted in his cross- examination that lie is not Handwriting Expert but he has served under the subordination of late SIP Umed Ali. He has confirmed that all documents are in handwriting of late SIP Umed Ali. He admitted that 161, Cr.P.C. Statements of prosecution witnesses recorded in Crime No.2 of 2004 of Police Station Madeji are not in handwriting of SIP Umed Ali.
24. P.W. A.S.-I. Loung Khan stated in his deposition that on 6-2-2004, lie was posted as Head Constable at Police Station Madeji and on that day Inspector Umed Ali took accused Pir Bux alias Piroo and on his pointation a gun was recovered which was buried in bushes. In his cross-examination he admitted that accused Pir Bux alias Piroo was under arrest of Police Station Madeji and he was under arrest since four days before recovery of gun. He admitted that S.H.O. Umed Ali did not call any private person of the locality to act as Mashir.
25. P.C. Mumtaz Ali is also mashir of recovery of gun from appellant Pir Bux alias Piroo. He also stated the same facts as stated: by A.S.-I. Loung Khan in his cross-examination this witness has admitted that around the place of recovery there are 30 houses are situated and the S.H.O. Had not called any private person of the village to. Witness recovery. He also admitted that the gun allegedly recovered from appellant Pir Bux alias Piroo was not singed by him and the descriptions of gun were not mentioned in the mashirnama.
26. We have scanned the evidence with assistance of learned counsel fin the appellants and learned State Counsel. It is admitted fact that encounter was going on for three and half hours, but none from the accused received any scratch, though a large number of police personnel in company of S.P. Investigation Shikarpur were participating in the encounter. According to medical evidence, deceased Abdul. Nabi has received injuries from distance of 7/8 paces, whereas complainant Imtiaz Ali has stated in his cross-examination that they have seen the accused at the place of wardat at distance of 200-paces. He admitted that 100-police officials have participated in encounter. He also admitted that deceased H.C. Abdul Nabi received injuries at distance of two kilometers from Ghazi Kalhoro. So also SIP Mehboob Ali stated that they have seen the accused at distance of about 200-Paces. He also admitted that deceased H.C. Abdul Nabi was at distance of 100-yards from accused persons. So also P.W. Shah Jehan Shah stated that he had seen the accused at the place of wardat from distance of 100-paces and accused were concealing themselves. He admitted that deceased Abdul Nabi was ahead of him at distance of 10/15 paces.
27. Mashir A.S.-I. Ishitaque Ahmed, he was also an eye-witness of the alleged incident has stated that empty cartridges were in scattered position in an area of 20-paces.
28. From the evidence of eye-witnesses it appears that medical evidence is conflicting with the ocular evidence. Medical evidence shows that deceased H.C. Abdul Nabi received injuries at distance of 7/8 paces, whereas eye-witnesses who are police officials stated that accused were at distance of 200-paces, 100-paces, and two kilometers, respectively, away from the police party. It is also admitted fact that there was paddy crop in the lands, where the alleged encounter took place between the accused and the police party and police party also had taken shelter of crop so also accused according to evidence produced by prosecution it is also admitted fact that the accused were not known previously to the witnesses. In the above circumstances, the identification of appellants is doubtful. The arrest of accused Ghulamullah alias Kariri is also doubtful; if the encounter had taken place as alleged b9 the prosecution -then it might be possible that on one hand accused have to receive any injury at the hands of police; who were more than hundred in number and on the other side there were only to accused. It is also admitted fact that around the place of wardat there are villages of Kalhor and Brohi communities and the alleged encounter has taken place for more than three hours, but none person from the surrounding villages attracted to the scene of offence and the prosecution has failed to cite independent evidence for proving its case beyond any shadow of doubt. This fact also creates so in any doubts in .Prosecution case. It is settled proposition of law that it is the prosecution to prove its case beyond any shadow of doubt and if a slight doubt is created in a prudent mind, then the benefit of that doubt is to be extended in favour- of accused not as a matter of grace but as a right, as held in case of Traiq Parvez v. The State (1995 SCM R 135). We have appraised and evaluated the evidence the evidence and observe that the evidence produced by the prosecution is not free from doubt. Evidence produced by the prosecution does not attract to prudent mind to believe the same.
29. Following the dictum laid, down in case of Tariq Parvez (supra), we are of the opinion that there are so many dents in the prosecution case and defence has succeeded to create doubt in the prosecution case, hence while allowing this appeal, was set aside the impugned judgment and acquit appellants from the charge and direct that they shall be released forthwith if they are not required in any other case.