' AHMAD ALI M. SHAIKH, J.---By this common Order I intend to dispose of above-noted Criminal Appeals as all the three appeals arise out of the same judgment dated 15-6-2006 passed by 1st Additional Sessions Judge, Karachi East whereby the appellants were convicted under sections 310 and 34, P.P.C. And sentenced to suffer R.I. For five years each as Taazir' and to pay jointly Diyar amount not less than the value of 30630 grams of silver declared by the Federal Government during the relevant fiscal year.
2. The facts giving rise to these appeals are that on 6-1-1998 deceased Sikandar Ali died while in police custody in Crime No,5 of 1998 of Police Station Jamshed Quarters, Karachi. On the protest of the legal heirs of the deceased a Judicial Enquiry was ordered by the Sindh Government.
Consequently, Mr. Adnan Qadir, the then S.D.M. Of the area was appointed Enquiry Officer to conduct the judicial enquiry in respect of death/murder of deceased Sikandar Consequently upon the judicial enquiry conducted by the S.D.M., on the orders of D.I.-G. Police Karachi, a case under section 319, P.P.C. Was registered against Inspector Choudhry Nazir Ahmed and others. The contents of the said letter dated 18-1-2000 were incorporated in 154, Cr.P.C. Book which read as under:-- "The Senior Superintendent of Police District East Karachi.
' Subject: Registration of case under section 319, P.P.C. Against Inspector Ch. Nazeer Ahmed and others.
' I am directed to send herewith the papers of judicial inquiry conducted by Adnan Qadir Khan, Assistant Commissioner and S.D.M. Jamshed Quarter for the registration of case under section 319 (Q & D), P.P.C. Read with 34, P.P.C. Against Inspector Ch. Nazeer Ahmed, SI Fazil Khan, HC Tariq Mehmood and HC Shabbir Hussain for causing death of deceased Sikandar Ali through torture or criminal negligence at Police Station Jamshed Quarter. After registration of case thorough investigation should be conducted impartially and a Report under section 168, Cr.P.C. Be submitted for seeking legal opinion and guidance from respective PDS comments and submit a copy of the same to this office for perusal and record. Sd/- Muhammad Ashiq Hussain D.S.P. Legal"
3. After usual investigation the Appellants were sent up to face the charge. On 12-8-2000 a charge under section 319/34, P.P.C. Was framed to which the appellants pleaded not guilty and claimed trial.
4. To substantiate its case, prosecution examined following witnesses:--
(i) P.W.1 Mst. Khurshida Begum,
(ii) P.W. 2 Muhammad Ali,
(iii) P.W.3 Muhammad Aslam,
(iv) P.W.4 Laiq Mian,
(v) P.W.5 Adnan Qadir Khan,
(vi) P.W. 6 Dr. Muhammad Munk,
(vii) P.W. 7 Inspector Shahnawaz. (viii)P.W. 8 S.I. Muhammad Aslam ' Subsequently on the application of legal heirs of the deceased Sikandar, Ghulam Sarwar, Mst.
Mehrunnisa and Abdul Karim were also examined as court witnesses.
5. Statements of the appellants under section 342, Cr.P.C. Were recorded in which they denied the allegations levelled against them and professed their innocence.
6. After hearing the learned counsel for the parties, the trial Court passed the judgment as stated above.
7. Messrs Mahmood A. Qureshi, Muhammad Akbar Khan and Naimat Ali Rindhawa, learned counsel for the appellants contended that the prosecution case is highly doubtful; none amongst the prosecution witnesses has claimed to be eye-witness of the alleged occurrence; the complainant Adnan Qadir also disowned the contents of the F.I.R.; P.Ws. 1 to 4 did not identify the appellants in court; the F.I.R. Was lodged in violation of provisions of section 154, Cr.P.C. As neither the signature of First Informant was obtained nor the contents of the same were read over to him. It is urged with vehemence that on the basis of judicial enquiry no one can be convicted. It is further contended that no sanctity can be attached to the judicial enquiry as neither the appellants were joined in the so-called enquiry nor their statements were recorded; First Enquiry Officer, Farhan Junejo, was not produced and examined in the trial court; during the enquiry or investigation not a single person amongst the members on duty at Police Station at the relevant time was examined. It is further contended that instead of original enquiry report, the Photostat copy of the enquiry report was submitted before the trial court but it was not claimed that the original report was lost or missing.
Per learned counsel, the impugned judgment was passed without taking into consideration the important aspects of the case which emerged out from the cross-examination as the trial court has based the impugned judgment merely on the examination-in-chief of the prosecution .
Witnesses and has totally ignored the glaring contradictions emerging from the cross- examination. It is lastly contended that P. Ws. Have made exaggerations and improvements with regard to the torture in order to fulfil the lacunas in the prosecution story.
8. Conversely, Mr. Muhammad Iqbal Awan, A.P.-G. Appearing for the State very candidly conceded to the contentions advanced by the learned counsel for the appellants and did not support the impugned judgment.
9. Heard learned counsel for the parties and perused the record.
10. Upon a perusal of the prosecution- case it appears that on 8-1-1998 some armed persons allegedly barged in House No,422-E of Patel Para, Jehangir Road, Karachi with intention to commit dacoity, however during the course of dacoity the inmates of the house offered resistance following which the culprits opened fire upon them, resultantly one Fazal Rabbi and Mst. Gul Naba, inmates of the house, received fire arm injuries. On commotion neighbourers came there who apprehended the culprits namely Ghulam Sarwar and Sikandar Ali on the spot. The culprits were beaten by the mohalla people and ultimately they were handed over to the police in injured condition. Thereafter a case bearing Crime No,5 of 1998 under sections 398 and 34, P.P.C. Was registered against them at Police Station Jamshed Quarters. Two separate cases under Arms Ordinance were also registered against Ghulam Sarwar and deceased Sikandar Ali.
11. The case of prosecution is that while -C.W. Ghulam Sarwar and deceased Sikandar Ali were in police custody, Sikandar Ali died as a result of torture at the hands of the appellants.
12. P.W.1 is mother and father of deceased Sikandar Ali. Her deposition reveals that on 8th January, 1998 her son deceased Sikandar Ali had gone to bring Paratha' at about 4-00 to 4-15 a.m. As it was the month of Ramadan but he did not return till the end of Sehri and subsequently her husband came to know that the deceased Sikandar Ali has been arrested by the police. Later on her husband went to P.W. Muhammad Aslam and appraised him about the above facts. Said Muhammad Aslam on the intervention of Mehmood Ali, the then Federal Minister went to police station and met with deceased Sikandar Ali. Thereafter he informed her that Sikandar Ali will come tomorrow and ultimately on the next day they received his dead body at 1-30 p.m.
Her deposition reveals that neither she is an eye-witness of the occurrence nor she had any information with regard to the death of the deceased. In other words, her evidence is mere 'hearsay evidence'. In her cross-examination she admitted, It is correct to suggest that the accused was arrested in a dacoity case by the area Police". It is pertinent to mention here that in her deposition she did not state that her brother Muhammad Aslam informed her that the deceased Sikandar Ali informed him about any torture to him at the hands of the police. It is further evident that neither she narrated the story to any police officer, nor her statement under section 161, Cr.P.C.
Or any other statement was recorded.
13. P.W.2 Muhammad Ali, father of deceased Sikandar Ali, in his evidence has also stated the same facts like P.W. Khursheed Begum. However, he further stated that on next day on receiving a phone call from police station he along with- P.W. Muhammad Aslam went to Civil Hospital and received the dead body of deceased Sikandar Ali. The dead body was not in a good condition, perhaps it was a case of maltreatment by the police.
In his cross-examination while reply to a suggestion with regard to torture he admitted that he did not state to the police about torture on the deceased Sikandar Ali by the police. In reply to another suggestion, he contradicted his statement in chief in following words:- "It is correct to suggest that I did not inform the police that I received a telephone from police station, about collection of dead body of the deceased from Civil Hospital but it was informed to the S.D.M."
' He further admitted that deceased was arrested in a dacoity case by the police. However, he denied the suggestion that it was in his knowledge that deceased Sikandar Ali and Ghulam Sarwar entered in the house of Fazal Rabbi for committing dacoity and on the resistance of the said Fazal Rabbi, the deceased's companion Ghulam Sarwar started firing whereby said Fazal Rabbi and Gul Naba received bullet and dagger injuries at the hands of Ghulam Sarwar and Sikandar Ali. While replying to another suggesting, he stated that he did not know whether both the accused i,e, deceased Sikandar Ali and Ghulam Sarwar were caught by mohalla people and were beaten severely. He also did not deny that at the time of his arrest at the hands of Police, the deceased was in injured condition.
' In his cross-examination, he further admitted that he cannot say whether the deceased Sikandar was beaten by the mohallah people and handed over to the police. However, from the perusal of his deposition it appears that he did not identify the appellants who present in the trial Court. With regard to torture upon the deceased Sikandar Ali at the hands of the police he did not state a single word which prima facie shows that the deceased Sikandar Ali was beaten or tortured by the appellants and he also did not deny that deceased Sikandar Ali was beaten by the mohalla people and handed over to the police but he merely stated that, "I cannot say whether the deceased was beaten by mohalla people and handed over to the police."
14. P.W.3 Muhammad Aslam in his examination-in-chief stated that on 8-1-1998 his sister and brother came to his house and informed that Sikandar Ali had gone to bring Paratha' from the 'bazar' but did not come back and further informed that he was arrested by the police. His deposition further reveals that he along with Muhammad Laiq Mian and Ali Nazim went to the police station to see deceased Sikandar Ali but could not succeed, however on the intervention of the then Federal Minister Mr. Mehmood Ali, they approached the S.H.O. And met deceased Sikandar Ali who was in normal condition, however he showed his apprehension of torture. However, on the next day they received a telephonic call from Police Station with direction to receive the dead body of deceased Sikandar Ali from Civil Hospital. They saw the marks of torture on the deadbody and blood wis oozing from his neck.
' In his cross-examination he admitted that his 161, Cr.P.C. Statement was recorded after about 8/9 months from the incident.. While replying to a suggestion, he admitted that, "It is correct to suggest that I did not inform the police about the complaint of torture made by the police." While replying to another suggestion, he admitted in the following words:-- "It is correct to suggest that I did not state before the police in my statement under section 161, Cr.P.C. That when I reached at the hospital I saw the mark of torturing on the body of Sikandar deceased and survival cot was also broken and blood was oozing from his neck."
' He further admitted that he did not know whether the deceased Sikandar Ali along with Ghulam Sarwar was apprehended by mohallah people who gave them severe beatings. He showed his ignorance to the fact that the deceased Sikandar Ali and Ghulam Sarwar were injured due to beatings of mohallah people and were arrested by the police.
15. Deposition of P.W.4 Lack Mina reveals that on 8-1-1998 Muhammad Aslam came to him at about 7-45 a.m. And informed him that deceased Sikandar Ali has been arrested by the police and requested him to accompany him to police station. Thereafter they went to the police station and enquired about -the S.H.O. Who was present at that time.
' He further stated that later on they approached Muhammad Ilyas who made contact with Mr. Muhammad Ali, the then Federal Minister and on his intervention they went to police and met deceased Sikandar Ali who was in normal condition. However, he apprehended that he might be tortured by the police. Ultimately, on 9-1-1998 he received telephonic message from the house of the deceased with regard to his death.
' In his cross-examination he stated that police recorded his statement under section 161 Cr.P.C.
After one month from the date of the incident. While replying to a suggestion, he gave admission in the following words:-- "It is correct to suggest that when we went to the police station on 8-1-1998 we were informed by the police that the deceased Sikandar Ali is arrested in a case of dacoity and Arms."
However, he also failed to identify the appellants who were present in the trial Court.
16. P.W.5 Adnan Qadir Khan, the then S.D.M., who conducted the judicial enquiry is an important prosecution witness. His deposition reveals that on 27-1-1998 he was posted as Judicial Magistrate, Jamshed Quarters, Karachi East. This incident took place before his posting and the then S.D.M.
Jamshed Quarters Mr.Farhan Junejo conducting the enquiry proceedings under section 176, Cr.P.C.
Which was subsequently entrusted to him. He recorded the statements of some witnesses and some statements were already recorded by earlier Enquiry Officer and after completion of the enquiry, findings were given by him and the enquiry report was sent to Home Department, Government of Sindh. He further deposed that he arrived at the conclusion that the police appeared to be responsible for the death of Sikandar Ali either through torture applied while the deceased was in police custody or through criminal negligence. The police officials namely Inspector Choudhry Nazeer Ahmed, the then S.H.O. Of Police Station Jamshed Quarters, S.I. Fazil Khan, I.O. Case which was registered against the deceased, HC Tariq, HC Shabbir and HC Hameed are responsible for the death of the deceased Sikandar Ali. Moreover, the M.L.O. Dr. Nawaz and Dr. Munir Pitafi who conducted the postmortem of the deceased are also guilty of gross negligence.
' Though during his deposition the learned counsel for the appellants seriously raised objections with regard to the opinion of the learned S.D.M. Given in his judicial enquiry, however the trial Court observed that such objections will be decided at the time of judgment. The above P.W. In his cross- examination has admitted that police did not record his statement under section 154, Cr.P.C. Nor he himself sent his statement to the police station. While replying to a suggestion, he admitted that, "It is a fact that I am not the complainant/first informant of this case." He further admitted that he did not remember that when the enquiry was entrusted to me." He further admitted that no notification or any order was issued by any authority whereby enquiry was entrusted to him. He further admitted that Exh.12-A i,e, the Enquiry Report is a Photostat copy whereas its original would be lying in the Home Department. He also admitted that he did not serve any notice upon public or given any process in the newspaper regarding the said incident. While replying to another suggestion, he admitted in the following words:-- "It is correct to suggest that deceased Sikandar Ali was already arrested in F.I.R. No,5 of 1998, under sections 394, 398, 34, P.P.C. By the Police of Jamshed Quarters. It is correct to suggest that the complainant of F.I.R. No,5 of 1998 was lodged by Idrees. It is a fact that the deceased Sikandar and Ghulam Sarwar were entered into the house of one Fazal Rabbi duly armed with deadly weapons i,e, pistol and dagger and caused injury to Gul Nibah and Fazal-e-Rabbi, in which both the dacoits were beaten by Mohalla people at spot and thereafter they were handed over to police with weapons. Thereafter police brought the deceased to hospital, where he was examined and MLO reported two minor head injuries along with the other, vide MLO No,110 of 1998 dated 8th January, 1998 which is annexed with the judicial enquiry report."
' In his cross-examination he further stated:-- "I have mentioned in my enquiry report vide Exh.12/A on the Page. No,2 that 'The fact that there was a dacoity, committed by anyone, in which Fazal and his mother were injured is not denied by anyone, (ii) No reasonable explanation has been offered by anyone as to who other than the accused had committed the said dacoity; (iii) Both the accused are identified by Fazl and by a large number of residents of the mohalla as the ones who were apprehended while committing the said dacoity, (iv) There is no evidence of any altercation that night between two groups of Pathans, as claimed by the co-accused (v) There is no paratha shop in the vicinity of Fazl's house where the accused could possibly have gone for eating parathas."
' He also admitted that he was informed by the public just after the incident of F.I.R. No,5 of 1998 the police of the area reached there. He also admitted did not enquire about the strength of police but he saw the entries in the Roznamcha of the said Police Station. He further admitted that he did not summon the witnesses/police official of that incident,- for recording their statements in enquiry, therefore the statements could not be recorded. He further admitted that he had recorded the statements of M.L.O. Dr. Capt. Nawaz Ali and Dr. Muhammad Munir Pitafi but the said statements were not produced in the court nor it is mentioned in the enquiry report. While replying to a suggestion he denied that suppressed the facts and reports of M.L.O. Regarding the injuries of the deceased. However, he admitted that he did not mention in the enquiry report that how many police officials were on duty in between the 7th and 8th January, 1998 and their names were also not mentioned in it. He further admitted that he did not record the statements of anyone of the police officials performing their duties during the night of 7/8th January, 1998. He further admitted that he did not record the statement of any of the police officials who performed their duties during the night of 7/8th January, 1998. While replying to another question he said that he did not remember whether the accused persons namely Tariq, Shabbir and Hameed performed their duties at Police Station or at Islamia College and Dawood Engineering College. He further admitted that he did not go through the entries of Roznamcha of P.S. Jamshed Quarters pertaining to 7th, 8th and 9th January, 1998. He also admitted that he did not record statements mohallah people of Crime No,5 of 1998. He also admitted that he recorded statements' of Gul Nibah, Fazal Rabbi and Idrees during the course of the enquiry but did not produce the same in court. He also admitted that F.I.R. Was recorded, after two years from the incident, in his absence. He denied that he has partially conducted the enquiry on public pressure. While re 1 in to another suggestion he stated that during the course of enuiry none re ported about the torture b the accused Fazil to the deceased Sikandar Ali.
' Upon a bare perusal of his deposition, it appears that there are important admissions by this .Witness to the effect that deceased Sikandar Ali and Ghulam Sarwar entered into the house of one Fazal Rabbi duly armed with weapons and caused injuries to Gul Nibah and Fazal Rabbi and that both of them were caught by mohalla people on the spot who after beating handed over them to the police with weapons. It also appears that deceased was brought to Civil Hospital where he was examined and MLO reported two minor head injuries along with others, vide MLO No,110 of 1998 dated 8th January, 1998. Even there is admission that a dacoity committed by someone in which Fazle Rabbi and his mother were injured and that fact has not been denied by anyone and no reasonable explanation was offered that anyone else except accused (deceased Sikandar Ali and Ghulam Sarwar) committed the said. Dacoity. Both the accused were identified by Fazal Rabbi and a large number of residents of mohalla as culprits who were apprehended while committing said dacoity. There is also an important aspect of the case that in his evident he has admitted that there is no Paratha shop in the vicinity of Fazal Rabbi's house where the accused could possibly have gone for eating paratha.
' Apart from these admissions, he also admitted that he did not record statements of the police officials who performed their duties during the night of 7th and 8th January, 1998 and he did not remember that whether the accused Tariq Shabbir and Hameed performed their duties at Police Station or at Islamic College or Dawood Engineering College. It also reflects that S.D.M. Who conducted the enquiry did not verify the daily diaries of the concerned police station pertaining to 7th, 8th and 9th January, 1998. There is also admission that though the statements of Gul Niba, Fazal Rabbi and Idrees during the course of enquiry but the same were not produced.
17. Deposition of P.W.6 Dr. Muhammad Munir reveals that on 9-1-1998 he was posted as MLO at Civil Hospital Karachi. He received dead body of deceased Sikandar Ali son of Muhammad Ali through S.H.O. Police Station Jamshed Quarters Choudhry Nazir Ahmed for postmortem. Since the deceased died while in the custody of police, he called the then S.D.M. Farhan Junajo and in his presence he started the postmortem of the dead body and found following injuries on the body:--
(1) Lacerated sealed wound 3 cm in length on the right side of forehead with defuse swelling around it.
(2) Abraded contusion 2 cm x 1 cm with defuse swelling over the vertex of scull.
(3) Abraded contusion 2 x 1 cm with defuse swelling at, the left Mastoid region, behind left ear.
(4) Abrasion 1 x 1 cm below right clavicle on the chest.
(5) Abrasion dark colour 3 cm x 1 cm on the middle of left leg interiority.
(6) Abrasion 1 cm x1 cm on the lower part of left leg interiorly.
(7) Abrasion 1 cm x 1 cm on the dorsal the aspect of the foot.
After completion of the postmortem samples from the body were obtained for chemical and histopathological examination and handed over to Investigating Officer. However, cause of death was reserved for opined that probable cause of death was cardio-respiratory failure due to acute head injury caused by hard and bluntsubstance ' In his cross-examination he admitted that the incident took place on 9-1-1998 whereas F.I.R. Was lodged after two years. He further admitted that he did not record the statement of S.D.M. Adnan Qadir Khan under section 154, Cr.P.C. He further admitted that there is no signature of Adrian Qadir Khan on the said. While replying to a suggestion, he admitted that he did not record statement of any of the witnesses. He further admitted that it came in evidence that Ghulam Sarwar and deceased Sikandar Ali were dangerous criminals. The legal heirs of deceased Sikandar Ali lodged this case in order to conceal their crime. He further admitted that present case is the outcome of F.I.R. No,5 of 1998 under sections 394/398/34, P.P.C. Registered at Police Station Jamshed, Quarters against Ghulam Sarwar and deceased Sikandar Ali. He also admitted that Ghulam Sarwar and deceased Sikandar Ali entered into the house of Gul Naba and Fazl-e-Rabbi where deceased Sikandar Ali and Ghulam Sarwar caused injury to the witnesses and they were arrested by the mohalla people at the spot. With regard to the injuries to the deceased he admitted that mohalla people gave beatings to them. There is also admission to the effect that accused Shabbir Hussain, Tariq Mehmood and Abdul Majeed were not on duty during the night of 7, 8 and 9th January, 1998 at the Police Station. While replying to an important suggestion, he admitted that, "it is a fact that I had mentioned in the challan sheet that there was no evidence against the accused persons". He further admitted that the case was registered on the orders of higher authorities.
19. Abdul Karim was examined as C.W.1. His deposition reveals that on the day and time of incident he was available at Masjid-e-Karimi when he was requested to perform Ghusl' of dead body of deceased Sikandar Ali and during the course of Ghusl blood was oozing from his head and the hands were twisted and forehead of the deceased was soft.
' In cross-examination he admitted that after Ghusl he was not called by any police officer for recording statement. He further admitted that he knew father of the deceased. He further admitted that due to father of deceased Sikandar All he had come to depose in the court.
20. C.W. Ghulam Sarwar is a very important witness as he was allegedly apprehended at the spot along with deceased Sikandar Ali while committing dacoity. Although in his examination-in-chief he fully implicated the accused persons but in his cross-examination he made various improvements/contradictions which caused severe bent in the prosecution case. In his cross- examination he admitted that F.I.R. No,5 of 1998 was registered on 8-1-1998 against him and deceased Sikandar Ali under sections 394/398/34, P.P.C. He also admitted that when they were apprehended by the people at the spot. During the cross-examination when copy of his statement recorded before the then S.M.D. Jamshed Quarters was supplied to the Defence Counsel, they raised objection that it was not the same and has been changed/manipulated. He admitted that when he was produced before the Magistrate, he did not complain for maltreatment. He further admitted that in his statement dated 19-1-1998 recorded by the S.D.M. He did not mention the name of police officials. He further admitted that in his statement before the. S.D.M. He did not mention about the hotel where he went to take parathas but voluntarily said that it was not a hotel but was only a shop where only parathas are prepared. He deposed in cross-examination that he had stated before the S.D.M. That one of the police officials hit on his head (He was confronted with his statement before S.D.M. Wherein no such fact was recorded). Although he stated in his cross- examination that he stated in his statement before S.D.M. That Ch. Fazil called on phone in their presence to Ch. Hameed that they had arrested the accused and that Ch. Fazil interrogated them and asked whether they knew any culprit of the area, but no such statement was found in his statement recorded before the S.D.M. He was also confronted with his statement before S.D.M.
Where there was no mention of the fact, as stated by him in his cross examination, that deceased Sikandar Ali got no injury when he was arrested. Although he denied the suggestion in his cross- examination that he had stated in his statement before the S.D.M. That mohalla people caught hold of them while they were committing dacoity and tied them with ropes and they were beaten by the people gathered at the spot and then police took them to Civil Hospital, but he was confronted with his statement before S.D.M. Where such fact was mentioned by him. Although he deposed in cross-examination that he had stated before the S.D.M. That they were brought from the hospital to Police Station and on the order of Ch. Hameed they both were hanged up on the gate of lock-up and at that them one handcuffs were also put on their hands and that they remained in trouble then their hands were released and they both fell down on earth till Maghrib Prayer, thereafter Ch: Fazil provided them food and while leaving the Police Station he directed the police officials not to let them out from the Police Station but he was confronted with his statement recorded before S.D.M. Where no such facts were mentioned. He was also confronted with his statement before S.D.M. Where no such facts were mentioned, although deposed by him in his cross-examination, that at about 2-00 a.m. Shabbir, Tariq, Ch. Hameed and Ch. Nazeer entered in the lock-up and on the permission of Ch. Nazeer and others started torturing them by using kicks and fists. Although in his cross-examination he denied the suggestion that he had stated in his statement recorded by the police on 9-1-1998 he on 8-1-1998 while committing dacoity along with deceased Sikandar Ali in which on woman and one man received fire arm injuries they were caught by the mohalla people who after beating handed over them to the police, but he was confronted with his statement before the police where such facts were mentioned by him. Again although he denied the suggestion that he had stated in his statement recorded before the police that he and deceased Sikandar Ali received injury on their heads and blood was oozing from their heads and that they also got internal injuries and they were taken to hospital by the police and police recovered rifle 22 from him and a dagger from deceased Sikandar Ali and after treatment they were taken to Police Station where no police, official maltreated them, but he was confronted with his statement before the police where such facts were mentioned by him. While replying to a question as to whether the accused persons appeared as witnesses in cases against his brothers namely Ghulam Rasool, Ghulam Mustafa and Ghulam Hussain, he did not specifically deny but simply said that he did not know such fact. He admitted that the distance between his house and the place where they (he and deceased Sikandar Ali) were beaten by people was 1/2 K.M. He admitted that police did not record his statement in the case (regarding murder of deceased Sikandar Ali). He again did not specifically deny that accused Shabbir Hussain and Tariq Mehmood were witnesses against his brother in case bearing F.I.R. No,157 of 1997 of Police Station Jamshed Quarters but simply showed his ignorance. He also did not specifically deny that accused Shabir Hussain and Abdul Hameed were witnesses against his brother in F.I.R. Nos.104 of 1997 and 551992 of Police Station Jamshed Quarters. He admitted in clear terms that on the day of incident accused Fazil had left the Police Station after providing him food; that he did not maltreat them and that he is innocent.
21. Mst. Mehrunnisa was examined as C.W.3. Her husband and father of deceased Sikandar Ali were real brothers inter se. Her deposition reveals that deceased Sikandar Ali called her from the police 'station and informed that police officials were demanding Rs,2,00,000 for his release and requested her to come to Park along with the amount. She reached at the park along with her daughter where accused Shabbir and Tariq came and demanded the money, whereupon she told them that she could not arrange such huge amount. On this they threatened her that due to non- payment of money she will receive dead body of Sikandar and on the next day they received the dead body.
' In her cross-examination she admitted that she knew accused Shabbir and Tariq prior to incident as her son namely Ghulam Mustafa was murdered by them. She further deposed that she did not make any complaint before higher authority with regard to illegal demand made by police.
22. P.W.8 S.I. Muhammad Aslam is the second Investigating Officer of the case. His deposition reveals that on 22-3-2000 while he was posted as Additional S.H.O. At Police Station Jamshed Quarters he received the papers regarding enquiry conducted by the S.D.M. Mr. Adnan Qadir. He recorded statement of some witnesses, however statements of several witnesses could not be recorded as they did not appear in compliance with notice issued by him. After completing investigating he submitted challan in the court.
' In his cross-examination he admitted that he did not record statement of C.W. Ghulam Sarwar as he did not turn up despite issuance of notice to him. While reflecting to Roznamcha entries of the relevant dates, he admitted that accused Tariq, Hameed and Shabbir were not present at police station on 7, 8 and 9th January, 1998 and instead some other police officials namely H.C. Rashid, P.C. Aftab Ahmed, P.C. Mohammad Arif, Roznamcha Moharrrir Mohammad Hanif, Duty Officer ASI Riaz Hussain and SIP Abdul Latif Shah were present at the police station. However, he did not record their statements. He further admitted according to the investigation conducted by him, Ghulam Sarwar and deceased Sikandar Ali while committing dacoity caused injuries to the inmates of the house namely Fazle Rabbi and Gul Nabah and were caught by the mohalla people along with weapons. The mohalla people gave beatings to them as a result of which they both received injuries on their heads. He further admitted that on the record there is no evidence against the accused persons involved in this case and that due to pressure of High-ups he had submitted charge sheet against the accused persons. There is also admission that he did not verify the investigation conducted by his predecessor Inspector Shah Nawaz. He also admitted that he did not record the statements of all the staff of police station. He further admitted that Mr. Adnan Qadir Khan, the then S.D.M. Jamshed Quarters, after holding the enquiry about the murder of deceased Sikandar Ali did not recommend registration of F.I.R. Against police officials. He also admitted that the MLO who conducted the examination of deceased Sikandar was not made accused in the case. In cross-examination he further admitted that as per Roznamcha Entry No,59 dated 9-1-1998 accused Mohammad Fazil Khan had left the police station at 12-50 a.m. After his duty. He also admitted that vide said entry Mohammad Fazil had handed the charge to A.S.-I. Riaz before leaving the police station and also two accused were present in the lock-up. He further admitted that on the same day at 9-30 a.m. Accused Mohammad Fazil resumed his duty. He further admitted that F.I.R. Has been lodged after 2-1/2 years of the enquiry he further admitted that Shakil and Nasir murdered deceased Ghulam Mustafa due to old enmity and it was not a police encounter and in this respect a case was registered under Crime No,175 of 1994 at Police Station Jamshed Quarters.
He also admitted that parents of deceased Sikandar Ali did not turn up after receiving the notice under section 160, Cr.P.C.
23. I have given due consideration to the arguments, gone through the evidence available on the record very minutely and found that during the course of investigation both the Investigating Officers could not collect the material connecting the appellants with the commission of the offence and during the trial, prosecution could not produce the evidence which inspire confidence.
On the contrary, both the Investigating Officers have categorically admitted that there was no evidence against the appellants. Not only this but P.W. Adnan Qadir Khan, who conducted the Judicial Enquiry has admitted that both the persons i,e, C.W. Ghulam Sarwar and deceased Sikandar Ali duly armed with weapons entered in the house of Fazl-e-Rabbi with intention to commit dacoity and during the course of dacoity they caused injuries to Fazl-eRabbi and Mst. Gul Niba and both accused were apprehended along with weapons by mohalla people, who gave them beatings and subsequently handed over them to the police. His evidence further reveals that no hotel or paratha shop exists in the vicinity from where deceased Sikandar Ali and C.W. Ghulam Sarwar were arrested which cuts the very root cause of the prosecution version.
24. C.W. Ghulam Sarwar is the most important witness of incident as he was apprehended along with deceased Sikandar Ali by the people of the locality who later on handed over them to the police. During the cross-examination he has made certain improvements with intention to fill up the lacunas of the prosecution case. In his statement dated 9-1-1998 he did not state that he or deceased Sikandar Ali were beaten or tortured by the appellants, but he has stated in clear terms that he and deceased Sikandar Ali were arrested by the people on 8-1-1998 at about 3-00 a.m.
While they entered a house and caused injuries to the inmates of the house. His statement further reveals that he and deceased Sikandar Ali had received head injuries at the hands of people.
Police brought them at hospital for treatment and with the permission of the doctor, from the hospital they were brought at the police station. However in his deposition he stated that at about 2-00 a.m. Accused Shabbir, Tariq, Choudhry Hameed and Choudhry Nazeer entered into lock-up and on the permission of Choudhry Nazeer, others started torture upon them by using kicks and fists, but he was confronted with his statement wherein it was found that he did not state such fact.
As stated above, during his cross-examination he was confronted with various contradictions in his two statements, so also there are certain admissions given by him in his deposition. It is apparent that that C.W. Ghulam Sarwar has suppressed the truth and spoke lie and has no sanctity of oath which render his entire evidence to be of no evidentiary value.
25. In the case Syed Saeed Mohammad Shah and another v. The State (1993 SCM R 550) it is held by the honourable Supreme Court as under:-- "Secondly, statements of the witnesses in the Court in which improvements are made to strengthen the case of the prosecution are not worthy of reliance."
' In the case of Muhammad Rahim and others v. Bakht Muhammad and others (2006 SCM R 1217) it was held by the honourable Supreme Court:-- "It is an admitted fact that prosecution witnesses had made improvements in their statements to strength the prosecution case, therefore, learned High Court was justified to discard their evidence."
26. It also appears that the trial court has convicted the appellants merely on the basis of examination-in-chief of the prosecution witnesses and has ignored the material discrepancies and contradictions in their evidence during the cross-examination which renders the entire evidence not to be of worth-conviction. In the case of Ali Dino Khuhro v. The State (1998 PCr.LJ 464) a Division Bench of this Court held as under:-- "The learned Trial Court has not analysed/examined the evidence adduced by the prosecution but learned trial Court has considered only the examination-in-chief and has not given anxious thought to the cross-examination carried on by the learned counsel for the appellant. In order to do complete justice, the Court is required 'to consider the examination-inchief and cross- examination in juxtaposition so as to reach the correct conclusion."
27. Yet there is another important aspect of the case which has, altogether, been ignored by the trial Court while convicting the appellants. The purpose of enquiry under section 176, Cr.P.C., as held in the present case, is only to ascertain the cause of death. In such enquiry the guilt of innocence of any person cannot be adjudged. In the case of Shera v. The State an 3 others (1972 PCr.LJ 626) it was held as under:--"I am afraid I cannot agree with the learned counsel for the respondents. The portion of section 176, Cr.P.C. Reproduced above only gives the Magistrate the same procedural powers as given to the Magistrates making preliminary inquiries under Chapter XVIII and does not mean that the scope of inquiry under section 159, Cr.P.C. Is the same as in preliminary inquiries under Chapter XVIII and the Magistrate can also give a finding as to guilt or innocence of any person, because that will amount to prejudging the case and holding a person (or persons) concerned to be guilty even before they are tried for the offence in question. This shall also have the affect of prejudging their trial, in case one is held ultimately."
In view of this legal position, the findings given by S.D.M. Adnan Qadir regarding involvement of the appellants in the murder of deceased Sikandar Ali and subsequent registration of the case on the basis of such findings, loose their legal sanctity.
28. From above discussion, it is apparent that the investigation in the case in hand is not upto the mark. During the investigation the Investigating Officers did not bother to record the statement of Dr. Nawaz Ali who examined deceased Sikandar Ali and provided him medical treatment. Not only this but during the investigation very important aspects of the case were ignored i,e, why Dr. Nawaz Ali did not keep deceased Sikandar Ali under observation for 24 hours per rules though it was a case of head injury; why the Doctor did not opt for X-ray and C.T. Scan test of deceased Sikandar Ali; why he discharged deceased Sikandar Ali in a haste in violation of the rules applicable in the case of head injury; whether there was criminal negligence on the part of Dr. Nawaz Ali.
Unfortunately, such aspects of the case were ignored either due to inefficiency of the Investigating Officers or deliberately.
29. It is well-settled that when/are two conflicting versions for consideration before the Court, the one agitated by the prosecution and the other by the defence and both the probable, the one favouring the defence is to be preferred, moreso when it gets corroboration from the circumstantial evidence available in the case. If any authority is needed, reference can be made to the case of Ghulam Hussain alias Hussain Bakhsh reported in PLD 1994 SC 31.
30. So far the evidence of remaining prosecution witnesses is concerned, neither it is of worth- reliance so as to convict the accused on the basis thereof in view of the dictum laid down by the apex Court, nor same could corroborate the evidence C.W. Ghulam Sarwar. Hence it would be unsafe to convict the appellants on the evidence of C.W. Ghulam Sarwar who seems to be dishonest witness.
31. For the foregoing reasons, I am of the considered view that the prosecution has failed to prove the charge against the appellants beyond any show of doubt. Consequently these appeals are allowed and the impugned judgment dated 15-6-2006 passed by Ist Additional Sessions Judge, Karachi East in Sessions Case No,245 of 2000 under sections 319 and 34, P.P.C. Is set aside and the appellants are acquitted from the charges levelled against them. They are on bail; their bail bonds are discharged and sureties are released.
' Above are the reasons for short order passed on 28-7-2010.