1. ' GHULAM SARWAR KORAI, J.---This appeal is directed against the judgment dated 22-11-2005, passed by the Court of learned Additional District and Sessions Judge-I, Karachi South, whereby the appellant was convicted for offence punishable under section 302, P.P.C. To suffer rigorous imprisonment for life. He was also convicted to suffer rigorous imprisonment for two years under section 353, P.P.C. He was given benefit of section 382-8, Cr.P.C.
2. ' The facts of the case are that SubInspector/S.H.O. Mirza Haque Nawaz of Police Station Garden Karachi sent a letter on 18-5-1995 through PC Muhammad Safdar No.4003, at Police Station Garden, which was incorporated in the F.I.R. According to letter he along with HC Muhammad Ishaq 315, PC Zafar Igbal 6375, PC Muhammad Jehangeer 1236, Driver PC Zafar 4650 were on patrolling of the area and were coming from Garden Chowk. At about 1925 hours. When they reached near the Nishtar Road, Bagh-ulJamait Khana, inside the street suddenly four or five young boys started firing with Kalashnikove at the police party. Police party also fired at the culprits. The culprits leaving the car in the street made their' escape good from the spot. During the said encounter constable Muhammad Ishaq received a bullet fire arm injury on his left side head. He was brought to Civil Hospital but he expired.
3. ' After registration of F.I.R., the appellant was arrested. Challan was filed. During proceedings copies were supplied to him. Charge was framed in which he pleaded not guilty and claimed trial.
4. ' The prosecution in order to prove its case examined P.W.1-PC Muhammad Jehangir, P.W.2 S.I. Mirza Haque Nawaz, P.W.3 HC Shoukat Mehmood, P.W.4 PC Muhammad Jaffer, P.Ws. S.-I. Muhammad Yousaf, P.W.6 S.-I. Farooq Ahmed, P.W.7, A.S.-I. Mir Aslam Khan, P.W.8 SDM Muhammad Ishaq Mehar, and P.W.9 Dr. Muhawar Qureshi. Thereafter the side of the prosecution was closed by the learned State Counsel. The statement of accused under section 342, Cr.P.C. Was recorded in which he denied the allegation. He declined to he examined on oath and also declined to produce any witness in his defence.
5. ' The learned trial Court framed the following points for determination:--
(1) Whether on or about 18-5-1995 at about 1915 house at Nishtar Road, opposite Bargh Halar Jamat Khana, accused Ahmed Din son of Rahimuddin along with absconding accused Shafiq Kalia, Arshad Dhabi and Tahir Lamba duly armed with deadly weapons with their common intention fired at the police patrolling party of P.S. Garden headed by SIP Mirza Haq Nawaz with intention to kill them and deterred them to perform their official duties and in result of their firing the HC Muhammad Ishaq who was sitting/performing his official duty received their bullet injuries who succumbed to his injuries on way of hospital. If, what offence has been committed by the accused?
(2) What should the order be?
6. ' Point No. I was answered in affirmative.
7. ' Point No.2. The appellant was convicted as stated above.
8. ' I have heard Mr. Muhammad Munir Ahmed, learned counsel for the appellant and Mr. Abdullah Pajput, learned Assistant Prosecutor-General Sindh for the State and persuaded the case file.
9. ' Learned counsel for the appellant has urged that the appellant is not responsible for the murder of PC Muhammad Ishaq and the prosecution has failed to prove its case beyond reasonable doubt therefore the appellant may be acquitted on the benefit of doubt.
10. ' Learned Assistant Prosecutor General has submitted that the appellant is responsible for the murder of deceased Muhammad Ishaq and all witnesses had deposed against him therefore the appeal may be dismissed.
11. ' P.W.1 PC Muhammad Jehangir, who was one of the members of the police party was examined as Exh.14. He deposed that on 18-5-1995 he was posted as Police Constable at Police Station Garden and his duty hours were 8 am to 8 pm. On that date he along with A.S.-I. Mirza Haq Nawaz, driver PC Jaffer, PC Zafar Iqbal went for patrolling in the area of Police Station Garden. While they were going from Garden Chowk toward Ramsawami chowk patrol pump, and were passing through Bagh-e- Hallar 4/5 boys who were standing in the street started firing on the police party with TT pistols and Kalashnikov as a result of the said firing, HC Ishaq received fire arms injury on his backside head.
12. He was taken to Civil Hospital but he succumbed injuries and his death was confirmed by the Doctor. Such mashirnama of inspection of dead body was prepared by S.-I. Haq Nawaz. He and Zafar Iqbal acted as mashir. He produced the same as Ex.15. He also produced mashirnama and admitted his signature. He identified the appellant Ahmed-Din/present in Court as same who fired at the police party and produced mashirnama as Exh.16, Memo of inspection of place of occurrence as Exh.17. He had seen the present appellant at the place of wardat. He deposed that the appellant was identified in identification parade but memo of identification parade was not produced'
13. ' P.W. Zafar Iqbal was given up by the prosecution side vide statement dated 28-9-2000.
14. ' P.W.2, S.-I. Mirza Haq Nawaz was examined as Exh.19. He deposed that on 18-5-1995 he was posted at Police Station Garden as Sub-Inspector. His duty time was from 8 a.m. To 8 p.m. On that date he was on patrolling duty along with PC Jaffar, Jehangir, Zafar Iqbal and HC Muhammad Nisar on government mobile. While patrolling and were going from Garden chowk side at about 1915 hours and they reached near Bagh-e-Hallar Dawakhana, 4/5 persons alighted from the front seat duly armed with deadly weapons. They started firing at police mobile. The police party also returned firing in their defence. The fire hit to PC Muhammad Ishaq on his backside of head. Those boys made their escape good in white colour car towards Badshahi Road. They took the injured to Civil Hospital but on the way he succumbed to injury and his death was confirmed by the Doctor.
15. Thereafter F.I.R. Was registered. The present appellant was identified by him. During investigation he prepared mashirnama of incident and inquest report and handed over the body to the relatives of deceased. Under receipt. On his pointation mashirnama was prepared by I.O. Abdul Jabbar. All such documents were produced. Appellant was identified by him in the court as same. The appellant was also identified in identification parade by him as well as Jehangir, PC Muhammad Jaffer and PC Zafar Iqbal, PC Riaz Ahmed and PC Muhammad Hashim. He was cross-examined. He admitted in his cross-examination that no one was named in the F.I.R. He has also admitted in his cross-examination that the distance between Police Station Garden and the place of wardat would be about 2 furlong. He admitted in his deposition that he has not stated the name of any of the accused because they were not known to him and he came to know about he appellant when the appellant was arrested by police. He was called for identification parade before the Magistrate but mashirnama of identification parade was not produced. He produced statement under section 154, Cr.P.C. And sipurdaginama of dead body vide Exh.20 and Exh.21 respectively.
16. ' P.W.3 is HC Shoukat Mehmood. He was examined as Exh.22. He deposed that on 1-1-1999 he was posted at Police Station Nabi Bux. He deposed that on 1-1-1999 he along with his subordinates and S.H.O. Police Station Nabi Bux had gone for patrolling in the area of Police Station. During patrolling when police mobile was present at Cafe Saleem opp:Ranchore line bus stop, S.H.O. Received spy information that one person is standing in suspected condition near Cafe Saleem. The police party proceeded towards pointed place and noticed that one person was standing there, S.H.O. Arrested him, conducted his personal search and recovered one TT pistol .32 bore from him. The pistol was loaded with magazine containing three bullets. There was also serial number on the TT pistol viz 956286 and some other English words were also mentioned. He disclosed his name as Ahmed Din and failed to produce any license of the TT pistol. He was arrested under mashirnama signed by Shoukat Mehmood and Muhammad Iqbal. Such document was produced in evidence as Exh.23.
17. The accused was brought to Police Station where his statement was recorded. This witness admitted in his cross-examination that he was posted at Police Station Nabi Bux two and half months back. He admitted that the place of incident was a thickly-populated area. He had also admitted that the incident took place at 3.25 pm but due to inadvertent mistake he had not deposed the time of incident. The Driver and S.H.O. Was sitting on the front seat. He was unaware of the name of the Driver of the mobile.
18. ' P.W.4 is PC Muhammad Jaffar and he was examined as Exh.23. He deposed that on 18-5-1999 was posted at Police Station Garden and was performing his duty as mobile driver. On that day he was driving the mobile and had gone for patrolling in the area under the supervision of SIP Mirza Haq Nawaz along with Muhammad Ishaq, constable Jehangir and PC Zafar Iqbal. While they were going from Garden to shoe market side all of sudden 4/5 boys alighted from Bagh-eHallar street and started indiscriminate firing at police mobile. Resultantly, one bullet hit to HC Muhammad Ishaq on his backside head, two fires also hit on his backside of the body and in front of driving side of the mobile. HC Muhammad Ishaq was taken to Civil Hospital but he succumbed his injury and his death was confirmed by the Doctor. The appellant was arrested and he was identified by him. He was also identified by SIP Haq Nawaz, PC Jehangir, PC Zafar Iqbal. The appellant present in Court was identified by all the witnesses. He admitted in his cross-examination that he had seen 4/5 persons started firing on the mobile.
19. ' P.W.5 is ASIP Muhammad Yousuf. He was examined as Ex.24. He deposed that on 10-1-1999 he was ASIP and was posted at Police Station Garden. On that day he was on duty on APC from 8 a.m. To 8 p.m. And had gone on patrolling in APC in the area alongwith PC Umer Hayat and PC Muhammad Siddiq. They were called by SIP Farooq at Police Station on wireless. When they reached at Police Station Garden at that time SIP Farooq brought the accused Ahmed Din from Nabi Bux Police Station and boarded in his APC. Thereafter they went towards Nishtar Road. When their mobile along with apprehended accused reached Bagh-e-Hallar accused asked to stop the APC thereafter they de-boarded from APC and the accused pointed out that in the year 1995 he and his companion co-accused had fired at police mobile and they ran way in white car towards Allah Mehar Chowk. Present appellant further disclosed that they had subsequently come to know that one HC was expired due to firing. Such mashirnama was prepared by SIP Farooq in presence of PC Umer Hayat and Muhammad Younus. He produced memo of inspection or place of wardat and map as Exh.25 and Exh.26 respectively. He admitted in his cross-examination that the incident of this case had taken place on 18-5-1995 whereas his statement was recorded on 10-1-1999.
20. ' P.W.6 is Farooq Ahmed. He was examined as Exh.27. He deposed that incident took place on 18-5- 1995 while the present appellant was arrested on 5-1-1999. At that time he was SIP posted at Police Station Garden. He further deposed that case of this crime was disposed of in A-Class as accused involved in the case could not be ascertained and arrested. He further deposed that accused as arrested by the police of Nabi Bux Police Station in Crime No. 2 of 1999 under section 13-D of the Arms Ordinance. During interrogation and investigation of that case, the present appellant was arrested in the present case, Who disclosed that in the year '1995 he along with his companion had fired at police mobile of Police Station Garden in which one head constable was murdered. He further deposed that the appellant was arrested on the direction of S.H.O. And during custody he admitted his guilt of the offence dated 18-5-1995 as there was call of strike from Motehda and in this connection they had gathered at Bhatti compound under the supervision of unit incharge Fareeduddin alias Nawab. Bhatti compound is situated on the main Nishtar Road. He further deposed that the appellant disclosed that in order to make the strike successful they had to do any extraordinary work. He further deposed that the appellant disclosed that one Naeem Charya brought white colour car and he, Shafiq Kalia, Arshad Dhobi, Faheem Bhura and Naeem Charya all boarded in the car and went towards Garden and when they were on the way they saw police mobile of Police Station Garden. They parked their car in shoe market street and started firing at the mobile and thereafter they made their escape goat, subsequently they came to know about the murder of head constable. This witness produced departure entry of Roznamcha vide Exh.28 and mashirnama of recovery and arrest as Exh.29. The appellant present in court was firstly arrested by police of Nabi Bux Police Station.
21. ' P.W. Umer Hayat was given up by the State Counsel vide statement Exh.30.
22. ' P.W. Allah Ditta. He is Process Server. His evidence need not to be discussed.
23. ' P.W.7 is S.I. Mir Aslam Khan. He was examined as Exh.34. He deposed that he was Sub-Inspector at Police Station Garden. He was handed over the file of this case for further investigation. The appellant was already arrested in this case. He submitted the challan.
24. ' P.W.8 is SDM Muhammad Ishaq Mehar. He was examined as Exh.35. He deposed that on 11-1-1999 he was SDM Garden Karachi South. On that date SI Farooq Ahmed of Police Station Garden submitted an application before him for recording 164, Cr.P.C. Statements. On the second day viz 12-8-1999 at 11-00 a.m. S.-I. Produced P.Ws. Muhammad Jehangir, Muhammad Jaffar and Zafar Iqbal for recording their statements. Thereafter there statement under section 164, Cr.P.C. Were individually recorded but their statements were not recorded on oath. The present appellant was present at the time of recording the statement. He produced all statements in evidence as Exh.36 to Exh.40 and admitted as correct. The appellant was not recognized and identified by him as same who was present when he was presented before the Magistrate at the time of recording of statements of the witnesses under section 164, Cr.P.C.
25. ' P.W.9 is Dr. Munawar Qureshi. He was examined as Exh.42. He deposed that he was posted in Laboratory as Chemical Examiner. On 4-10-1995 he received articles from Police Station Garden through PC Muhammad Riaz. It was sealed parcel of deceased Muhammad Ishaque and the seals were perfect. It was admitted by him that the report was in positive and was exhibited as Exh.43.
26. Thereafter the side of the prosecution was closed by SSP for the State through statement vide Exh.44.
27. ' The statement of appellant under section 342, Cr.P.C. Vide Exh.45 was recorded in which he denied the allegations of the prosecution but neither he was examined op oath nor he led any evidence.
28. ' Admittedly the date of incident is 18-5-1995 and the time of incident is 19.15 hours when four/ five boys with deadly weapons fired upon police party resultantly HC Muhammad Ishaq became injured and succumbed and his unnatural death was confirmed by doctor in post mortem. During investigation the case was recommended for its disposal in A-Class as none was arrested as accused. On 5-1-1999 the present appellant was arrested by police of Police Station Nabi Bux and TT pistol and bullets were recovered from his possession, then his custody was given to the Garden Police Station on the basis of extra judicial confession. He was not produced before the Magistrate for recording his confessional statement while after five days he was produced before the Magistrate who recorded statement under section 164 Cr.P.C. Of the witnesses but no identification parade was held.
29. ' Mere recovery of any unlicensed TT pistol from appellant without more cannot through light on the identity of the appellant as accused of the present case. No description was given by the police party. Allegation of firing is against 4/5 persons. No specific role was assigned against the appellant by any witnesses. He was implicated in this case without any material. Extra-judicial confession about commission of offence before police officials has no value in the eyes of law., It is settled principle of law that single circumstance is sufficient to give benefit of doubt to the appellant but in the present case, there are number of circumstances to believe that the implication of the appellant is baseless and without any material. Therefore, I am of the view that the prosecution has failed to establish its case against the appellant beyond reasonable doubt, therefore, the appeal of the appellant was allowed vide short order dated 24-1-2011 and he was acquitted and these, are the reasons for the same.