' SHAHID HAMEED DAR, J.---Sheraz Akram alias Sherazi appellant was held guilty under sections 302(b), 353, P.P.C. And under section 7(a) of the Anti-Terrorism Act, 1997, by learned Judge, Anti- Terrorism Court No,II, Lahore, vide judgment dated 24-7-2010 and sentenced as under:--
(I) UNDER SECTION 302(b) P.P.C.
' To death, with direction to pay a sum of Rs,2,00,000 to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. Or in default thereof to undergo simple imprisonment for six months.
(II) UNDER SECTION 7(a) of ATA, 1997: To death.
(III) UNDER SECTION 353 P.P.C.: ' To two years (imprisonment) simple or rigorous, not declared.
2. The convict-appellant by filing Criminal Appeal No,2205 of 2010 has called in question his conviction and sentence under the impugned judgment, whereas, the learned trial Court has submitted reference under section 374 Cr.P.C. (C.S.R.No,50/T of 2010) for confirmation of the sentence of death of the appellant. We propose to dispose of both these matters together through this single judgment.
3. The prosecution story in brief as unfurled by Muhammad Shabbir S.-I./complainant (P.W.5) in complaint (Exh.PA), is that, at 3.00 a.m. On 4-2-2010, he along with 'Muhammad Akram S.-I., Muhammad Asif 17522/C and Muhammad Idrees 3769/C while on patrol duty was present near WASA Morr, Gulshan-e-Ravi, Lahore, where he received a spy information that Sheraz alias Sherazi, a notorious car-lifter and habitual criminal was present near nursery Mian Aamir, across Ganda Nullah Bund Road along with his two companions and if immediate raid was conducted, they could be apprehended; on receipt of this information, he along with his fellow police officials, conducted raid and on seeing them, the accused opened straight firing, which lasted for about four/five minutes; as raiding-police-officials were less in number, they stepped backward and sent for reinforcement; in the light of Raushni' he (complainant) found Muhammad Asif constable dead with injuries on the head; the bricks were scattered besides his dead body; the accused fled the scene taking shelter of darkness; he scribed complaint (Exh.PA) at 3.00 a.m., on 4-2-2010 and despatched it to the Police Station Sanda (Lahore) through Muhammad Idrees 3769/C (P.W.6), on the basis whereof formal F.I.R. (Exh.PA/1) was drawn up by Muhammad Jameel, S.I. (P. W.2), at 3.30 a.m. On the same day.
4. After registration of the case, its investigation was entrusted to Arif Hussain inspector (P.W.8), who immediately reached the place of occurrence, inspected it and prepared visual site plan (Exh.PJ) thereof; he examined the dead body of Muhammad Asif constable (deceased), prepared inquest report (Exh.PK) and despatched it to the mortuary under the escort of Muhammad Naeem 11364/C (P.W.3) and Arif Ali 9786/C P.W. (not produced); he collected blood stained earth vide memo Exh.PF, attested by Muhammad Akram S.-I. P.W. (not produced) and Muhammad Idrees 3769/C (P.W.6); he secured live crime empties of .30-bore (P5/1-5) and empties of semi-automatic (P6/1-3) vide recovery memos Exh.PD and Exh.PE, respectively, attested by the same set of witnesses; on 5-2-2010, he took into possession last worn clothes of the deceased, trouser (P1), sweater (P2) and vest (P3) vide memo Exh.PB, attested by Muhammad Naeem 11364/C (P.W.3) and Arif Ali 9786/C P.W. (not produced). He got prepared the site plan in-scale in duplicate (Exh.PL and Exh.PL/1) by Hameed-ud-Din Chishti, Draftsman (P.W.11). He arrested Sheraz Akram alias Sherazi (appellant) on 2-4-2010, who on his disclosure led to the recovery of blood stained brick (P4) on 4- 4-2010, which was secured vide memo Exh.PC, attested by Muhammad Amin 11776/C P.W. (not produced) and Muhammad Naeem 11364/C (P.W.3); on completion of the investigation, challan against the accused-appellant was submitted before the court for his trial in accordance with law.
5. The appellant on indictment pleaded not guilty and claimed a trial. The prosecution, in order to prove its case, produced eleven witnesses, namely, Muhammad Yasir (P.W.1), Muhammad Jameel S.-I. (P.W . 2), Muhammad Naeem 11364/C (P.W.3), Muhammad Younas 6183/C (P.W.4), Muhammad Shabbir S.-I./complainant (P.W.5), Muhammad Idrees 3769/C (P.W.6), Basharat Ali 7508/C (P.W.7), Arif Hussain, Inspector (P.W.8), Dr.Rafaqat Ali (P.W.9), Imtiaz Ahmad, 11645/HC (P.W.10) and Hameed-ud-Din Chishti (P.W.11). Thereafter, the appellant was examined under section 342, Cr.P.C., whereby he professed his absolute innocence in the matter and denied the allegations levelled against him. He did not opt to depose under section 340(2) Cr.P.C. But adduced defence-evidence by producing Safdar Ali (D.W.1), Khalil Ahmad (D.W.2), Muhammad Ilyas (D.W.3) and Abbas Ali 7077/HC (D.W.4). The contention adopted by him in reply to question as to why this case against him and why the P. Ws. Deposed against him, reads as under:-- "I am innocent. I have falsely been involved in this case. In fact this was a blind murder and prosecution made a frivolous and fictitious case against me and there is no direct evidence against me as according to the prosecution there was darkness at the place of occurrence and no direct or indirect evidence is available on record to connect me with the commission of alleged crime. According to the prosecution own version, I was already stood arrested in another case, which was also a false case against me and since this case involved blind murder of a police official and the concerned police had failed to trace out the real culprits, just to show their efficiency, they made me scapegoat in this case. All the P.Ws. Are police officials and there is no private witness in this case, which strengthens my stance that I have just been made a scapegoat in this case in order to please the highups and release the pressure of higher authorities because a police Official was murdered in this occurrence. The alleged recovery of brick, that too after months of the occurrence from an open place, is planted upon me and cannot be believed in the circumstances. The P.Ws. Being police officials have deposed against me falsely on baseless grounds. I have nothing to do with this alleged occurrence."
' The learned trial 'Judge on conclusion of the trial held him guilty of the offence charged and sentenced him as mentioned hereinabove.
6. Learned counsel for the parties heard and record perused with their able assistance.
' Plainly speaking, the occurrence qua exchange of firing between the police and the accused, as alleged in F.I.R. (Exh.PA/1) took place at about 3.00 a.m. On 4-2-2010 and it incidentally is the time, when police found the dead body of Muhammad Asif, constable placed near some bricks. The accused, Sheraz Akram alias Sherazi (appellant) and his two unknown companions, by that time, had fled the spot under the sheath of darkness. The important feature of the story of F.I.R. Is that it suffers from self-contradiction as Muhammad Shabbir S.I. (P.W.5), who scribed the complaint (Exh.PA), mentioned in the F.I.R. That he found injuries at the head of Muhammad Asif, constable in the light of Raushni' and almost in the same breath, he recorded the fact that the accused made good their escape from the place of occurrence under the cover of darkness. The F.I.R. (Exh.PA/1) further tells that Muhammad Shabbir S.I. (P.W.5) was present at WASA morr Gulshan-e-Ravi along with Muhammad Akram S.I. P.W. (not produced), Muhammad Asif, 17522/C (deceased) and Muhammad Idrees 3769/C (P.W.6), when he received a spy information as to the presence of Sheraz alias Sherazi-accused (appellant) and that of his two cronies at Mian Aamir Nursery, across a sewer-nullah. On receipt of this information, he along with his fellow police-officials raided the said place where they were fired at by the accused; the firing lasted for about four/five minutes; due to inadequate number of the members of the raiding party, they lost their positions, whereon reinforcement was sent for and it was the time when Muhammad Asif constable was found dead with injuries on the head. The story of F.I.R. Looks astounding as well as preposterous. It seems as if many a real facts have either been suppressed or distorted by the scribe police-official (P.W.5). It, however, is learnt from the formal F.I.R. (Exh.PA/1) that it was recorded at the police station by Muhammad Jameel S.I. (P.W.2) at about 3.30 a.m., the same day, within thirty minutes of the occurrence entailed therein. It may be termed a promptly lodged F.I.R. But circumstances hovering over it contradict the said impression as autopsy on the dead body of the deceased was performed by Dr.Rafaqat Ali (P.W.9) at 3.30 a.m. On 5-2-2010, about twenty four (24) hours after its (F.I.R.) registration. The inordinate delay of twenty four hours has not been explained anywhere in their case by the prosecution. The probability that the F.I.R. (Exh.PA/1) has been recorded with the fictitious timings cannot be altogether ruled out. Interestingly, the inquest report (Exh.PK) also casts doubt on the timing of registration of the F.I.R. Its column No,3, which pertains to time and date of receipt of knowledge about the death of the deceased, reveals the said information, as "3.35 a.m.
On 4-2-2010". According to the contents of the complaint (Exh.PA), it was prepared by Muhammad Shabbir S.I. (P.W.5) at 3.00 a.m. On 4-2-2010 with the entailment of the fact that the dead body of Muhammad Asif constable was found placed near the bricks. If, as per contents of the inquest report (Exh.PK), the knowledge as to the death of the deceased-constable was got by the police at 3.35 a.m., how come F.I.R. (Exh.PA/1) stood recorded at 3.30 a.m., the said .Day. A lot appears to have been toyed with by the police while preparing the complaint (Exh.PA) and the F.I.R. (Exh.PA/1). The medical officer (P.W.9) too has mentioned in a column of the necropsy report (Exh.PM), the time of death of the deceased as 3.35 a.m., which is in line with the inquest report (Exh.PK). Another startling fact can be found from the postmortem examination report, which pertains to date and hour of shifting of the dead body to the hospital/mortuary, King Edward Medical University, Lahore, which has been mentioned as 1.00 p.m. On 4-2-2010 i,e, about twelve hours after the occurrence.
This massive delay again remains un-explained. The registration of the F.I.R., as contended by the learned defence counsel, therefore, may not be other than an ante-timed-affair.
7. Insofar as evidence of recovery of blood stained brick (P4) is concerned, Muhammad Naeem 11362/C (P.W.3), Muhammad Shabbir S.I. (P.W.5), Muhammad Idrees 3769/C (P.W.6) and. Arif Hussain, Inspector (P.W.8), have reduced its creditworthiness to a cypher, having tendered divergent and incredible statements in respect thereto. Muhammad Shabbir, S.I. (P.W.5), who headed the police contingent at the time of raid categorically deposed about the fact that, on arrival of the reinforcement, he found Muhammad Asif constable (deceased) having fallen towards the nursery-side and a brick, stained with blood, lay nearby. Muhammad Idrees 3769/C (P.W.6) stated in his testimony that Arif Hussain, Inspector (P.W.8) recovered the blood stained brick (P4) during spot inspection, which he must have done on reaching there immediately after the registration of the F.I.R. On 4-2-2010. Coming to the statement of Arif Hussain (P.W.8), it has been categorically deposed about by him that he arrested Sheraz Akram alias Sherazi accused (appellant) on 2-4-2010 and he got recovered blood stained brick (P4) on 4-4-2010 on his pointedness, vide recovery memo Exh.PC, attested by Muhammad Amin 11776/C P.W. (not produced) and Muhammad Naeem 11364/C (P.W.3) from the area of nursery Mian Aamir. One wonders how a particular piece of evidence can be manoeuvred and fabricated by the police to fortify their case, in oblivion of the divergency of the events, which may nullify all such dishonest efforts. The prosecution appears to have despatched the brick (P4) to the office of the Chemical Examiner, as stated by Muhammad Younas 6183/C (P.W.4), Arif Hussain, Inspector (P.W.8) and Imtiaz Ahmad MHC (P.W.10) in their testimonies but we find no report from the said expert in this regard on the record. This lapse on the prosecution's part is ostensibly fathomable, in view of the contradictory statements of the prosecution witnesses, mentioned in the beginning of this paragraph. The evidence regarding recovery of the "weapon of offence", brick (P4) is nothing but a farce and so is the quality of evidence qua recovery of three crime empties (P5/1-5) & (P6/1-3), tendered by Muhammad Idrees 3769/C (P.W.6), Inspector Arif Hussain (P.W.8) and Imtiaz Ahmad MHC (P.W.10) as connecting firearm had not been recovered at the instance of the appellant during the course of investigation.
8. Insofar as the ocular account tendered by the prosecution is concerned, it includes the testimonies of Muhammad Shabbir S.I. (complainant/P.W.5) and Muhammad Idrees 3769/C (P.W.6). The story of F.I.R. (Exh.PA/1) has been badly distorted and dishonestly improved upon by Muhammad Shabbir S.I. In his testimony as P.W.S. From the contents of the F.I.R., it cannot be ascertained as how and in what manner and by whom Muhammad Asif constable was done to death and nothing could be brought forth by the complainant (P.W.5) in this regard therein. The text of the F.I.R. Divulges that both the sides exchanged firing inter-se, which fact is evident from the testimonies of the eyewitnesses as well as from the visual site plan (Exh.PJ) prepared by Arif Hussain, Inspector (P.W.8) and site plan in-scale (Exh.PL) drawn by Hameed-ud-Din Chishti, Draftsman (P.W.11). Points 'A', 'B' & 'C' in the visual site plan have been shown in a perpendicular manner, both in Exh.PJ and Exh.PL. The position of the police-party has been shown at point 'D' towards south-east of the noted points ('A', 'B' & 'C') at a distance, around forty (40) feet in between. The point 'A' denotes the place where Muhammad Asif constable was done to death by the accused and from this particular point, the police secured the blood stained earth, vide memo Exh.PF. Point 'B' denotes the place wherefrom an unbroken brick and two pieces of bricks were taken into possession by the Investigating Officer. The position of the accused has been shown in the site-plans (Exh:PJ & Exh.PL) at point 'C', which does not expressly indicate its distance from point 'A' but keeping in view the other details, it may be assessed between six to nine feet inter se. The distance shown between points 'C' & 'D' and 'A' & 'D' are crucial, which may help understanding the veracity or otherwise of the depositions of both the eye-witnesses, who have categorically mentioned in their testimonies that all the members except Muhammad Asif constable (deceased) were armed with firearms but Muhammad Asif constable took part in the incident empty handed. It looks incredible that the armed police-officials kept a distance of about forty to forty--three (40-43) feet from the accused during the occurrence but one, who was empty handed, drew himself close to the accused so as to "take a position" against them. Both the eye- witnesses (P.W.5 & P.W.6), in a ridiculous way, have stated that Muhammad Asif constable, when firing was being exchanged by the law-enforcers and the accused, went closed to the accused to take position against them. One wonders what position he meant to have taken against the armed accused, being empty handed. It is an eyebrow-raising factor. If the accused were armed with lethal firearms, by means of which they showered bullets upon the raiding-police-party, why would they inflict an injury on the head of the deceased-constable by means of a brick. A bullet or two into the body of the ill-fated constable would have finished him. It appears that the departed constable had been done to death by some unknown person(s), who must have had no firearm with him and who murdered him with a blunt weapon, a brick or any other tool, no one can assess with exactitude from the record. The complainant (P.W.5), in an unimpressive way, has deposed that being a small raiding-party, the members thereof went misdirected/scattered and Muhammad Asif constable-deceased posted himself at a place, not far-off from the accused, rather in their close proximity. An empty handed person, in presence of his armed companions would have taken their shelter by staying at their back in a situation of confrontation/encounter with the armed accused. It does not appeal to reason that Muhammad Asif constable would have consciously gone close to the accused to "take a position" against them, empty handed. He certainly was not a foolhardy, who could commit such a folly as narrated by the witnesses of the ocular account. Though Muhammad Shabbir S.I. (P.W.5) and Muhammad Idrees 3769/C (P.W.6) have not been cross-examined commendably well by the defence but inherent fallacies and inconsistencies in the prosecution case cannot be overlooked easily. The prime duty of the complainant and his armed companions would have been to keep unarmed Muhammad Asif constable at a safer place rather than letting him perilously draw nearer and nearer the accused to endanger his life. The bullets fired from both the sides signalled at a clear risk that whosoever would enter the arena may perish forthwith. The, contention of the eye-witnesses that sufficient electricity light was available at the place of occurrence, if so, why didn't they gun-down Sheraz Akram alias Sherazi (appellant), when he held a brick in his hand instead of a firearm, just at a distance of about forty (40) feet from them. Muhammad Asif constable was not a disabled or an incapacitated person, hence, to overpower him by one accused would have been a daunting task.
In a tumultuous situation, someone must have wrestled with him so as to render him helpless, for authoring terminal injury by means of a brick, on his head. Should it be believed that the armed policemen silently watched like a spectator, the fight, if any, going on between the said police official and the accused/appellant. The briskness shown by the eye-witnesses in shifting from one stance to another in their testimonies speaks voluminously about the falsity of the story narrated by them. Sometimes it is the electricity light wherein they could see everything happening around and then they switched over to the stance of pitched darkness wherein, all the accused including the appellant took to their heels. The probability cannot be altogether ruled out that Muhammad Asif constable may have been murdered by some unknown assailant at some unknown time and on finding his dead body, the prosecution knit a story around it, without caring for the inherent and ingrained deficiencies thereof, so as to push the appellant to the gallows. The testimonies of the eye-witnesses do not inspire confidence and despite raw-handling of the case by the defence during trial, they look unworthy of reliance and credibility. The witnesses of ocular account have surprisingly admitted in their testimonies that Sheraz Akram alias Sherazi (appellant) stood confined in jail prior to the occurrence. Did they mean that he was behind the bars in some other case(s) before the murder of the unfortunate police-official? This is yet another unresolved riddle in their testimonies.
9. Insofar as the abscondence of the appellant in this case is concerned, the prosecution in order to prove this particular aspect of the case produced Basharat Ali 7508/C (P.W.7) and Inspector Arif Hussain (P.W.8), besides tendering in evidence non-bailable warrant of arrest (Exh.PG), report thereon (Exh.PG/1) and proclamation (Exh.PH) with report (Exh.PH/1) of the process-server, Basharat Ali 7508/C (P.W.7) thereon. The reports (Exh.PG/1 & Exh.PH/1) have not been testified by any inhabitant of the area. Basharat Ali 7508/C (P.W.7) contended in his testimony that he did not meet any local resident when he went to the residential-place of the accused-appellant for execution of warrant (Exh.PG). The process-server did not like to mention the place or places in his report (Exh.PG-/1) where he searched for the accused to cause his arrest. He prepared the above-said reports with an interval of two days. Even otherwise, the arrest of the appellant on 2-4-2010 reduced the significance of the said piece of evidence to a nullity in the eyes of law as thirty days statutory period since issuance of the proclamation had not elapsed by then. The appellant, therefore, cannot be held an absconder or a fugitive from law in this case.
10. As we, in the above paragraphs, have brushed aside and disbelieved the prosecution evidence qua the recovery of "weapon of offence", brick (P4), the evidence of abscondence and the ocular account, hence, to take toll of the medical evidence and the other evidence of formal nature, besides the defence evidence led by the appellant during trial, would serve no useful purpose. It has been held time and again that the medical evidence can furnish all the necessary G details qua the injuries of a person, living or dead, but it cannot identify the author of such injuries.
11. The crux of the discussion (supra) is that the prosecution has badly failed to bring home the guilt of the appellant beyond reasonable shadows of doubt, hence, the conviction recorded and sentence awarded to him by the learned trial court cannot be sustained. The instant appeal is allowed, conviction/sentence of the appellant is set aside and he is acquitted of the charge. He would be released forthwith if not required in any other case.
12. The death sentence awarded to the appellant is NOT confirmed and Capital Sentence Reference is answered in the negative.