1. Qazi Muhammad Amin Ahmed, J.-.-Imran alias Mani, Aamir alias Aslam, Shamrez Akhtar, Mst.
2. Anwar Sultana, hereinafter referred to as the appellants alongside Din Muhammad since dead, were indicted by the learned Special Judge Anti-Terrorism Court-F Rawalpindi (Division) & Islamabad Territory for constitution of an unlawful assembly and committing murder of Kamran Ali, Constable. 25, hereinafter referred to as the deceased, in prosecution of common object thereof; they were tried on four counts. Din Muhammad died during the trial. Vide impugned judgment dated 4-9-2013, the appellant as well as the co-accused stand convicted and sentenced as under:-- Imran alias Mani, appellant.
3. Under Section 302(b), PPGDeath Under Section 7(a)ATA, 1997Death alongwith compensation of Rs, 100,000/- as well as fine of Rs, 100,000/-, to be recovered as arrears of land revenue or six months SI in the event of default, Under Section 353, PPCone year RI Under Section 186, PPCthree months RI Aamir alias Aslam, co-accused.
4. Under Section 353, PPC one year RI Under section 186, PPC three, months RI Under Section 337 L(ii), PPCtwo years RI Under Section 7(h) ATA, 1997ten years RI with fine of Rs. 20,000/- or six months SI in the event of default.
5. Sentences were ordered to run concurrently with benefit of Section 382-B, Cr.P.C. extended to Aamir alias Aslam, co-accused; he was, however, acquitted from the charges of homicide and terrorism.
6. Mst. Anwar Sultana and Shamraiz Akhtar, co-accused were acquitted vide the same judgment.
7. Imran alias Mani, appellant contests his conviction and sentences through Crl. Appeal No, 389-T of 2013 whereas Crl. Appeals Nos.417 of 2013 and 450 of 2013 seek reversal of acquittal of co-accused from principal charge. Writ Petition No, 155 of 2015 by Qamar Zaman, father of the deceased is instituted for enhancement of sentence; Capital Sentence Reference No, 8-T of 2013 by the State aims confirmation of death penalty; these are being decided through this single judgment.
2. The prosecution case is structured upon statement (Ex.PC) of Muhammad Arif SI (PW-17) recorded 5:40 p.m. at the spot; formal FIR Ex.PC/1 was chalked out by Asif, SI (PW-4) 4:55 p.m. at Police Station Civil Line Rawalpindi situating at a distance of half kilometer from the venue.
8. According to the complainant on the fateful day at about 4:30 p.m. he along with Muhammad Khalil/C, Ajmal Hussain/C, Muhammad Kashif/C clad in uniform whereas the deceased and Waqas Ijaz/C(PW-12) in plain clothes were interrogating one Imran Ahmad, allegedly found in possession of narcotics, in the course whereof, the said accused *disclosed that he had purchased the contraband from Imran alias Mani appellant, pursuant whereto, a raiding party was constituted and both the deceased as well as Waqas Ijaz (PW-12), both in plain clothes, were dispatched to track down the culprit; they were followed by the police party. As the plain clothe police officials apprehended an unknown person while selling cannabis, the appellant alongwith Aamir alias Aslam on motorbike followed by Anwar Sultana and Shamrez on foot attempted to rescue the accused; upon resistance, Aamir accused fired upon Waqas Ijaz (PW-12) who escaped the fire shot miraculously as he immediately sat on the ground; it was at this point of time that Waqas Ijaz grappled Aamir accused when Anwar Sultana exhorted her co-accused whereupon Aamir accused dealt multiple butt blows to Waqas Ijaz in his head, as the deceased headed to rescue Waqas constable, Imran alias Mani appellant dealt a straight fire shot hitting him on his neck; Shamrez Ali co-accused fired upon the police party, who survived the assault unscathed; the accused decamped from the scene and the deceased succumbed to his injury at the venue.
9. During spot inspection, Muhammad Arif, SI (PW-17) secured blood as well as 12 casings of 30- caliber (P-7/1-12) and a motorbike (P-8) secured vide inventory Ex.PT.
10. ' Dr. Muhammad Ryas, CMO (since dead) conducted autopsy on 21-12-2010 at 7:30 p.m. Dr. Manzoor Ahmad Sahi (PW-15) appeared to furnish secondary evidence in order to prove autopsy report Ex.PL and medico legal certificate (Ex.PN) of Waqas Ijaz (PW-12). According to the secondary evidence, the deceased was noted to have a lacerated fire-arm wound on the posterior part of left side of neck with blackening around the margins accompanied by an exit behind right left lobe and an abrasion on the left cheek. Waqas Ijaz (PW-12) had multiple lacerated wounds on the skull, three in number, ranging 1 cm x .5 cm in measurement with an abrasion 1 cm x .5 cm on left eyebrow; it was skin deep.
11. ' Muhammad Ashraf SI (PW-16) arrested Khaista Rehman on 10-3-2011 on dismissal of his pre- arrest bail; he turned out as Din Muhammad (since dead); Imran appellant was arrested on 22-3- 2011; it is prosecution case that at the time of his arrest in the province of Khyber Pakhtunkhaw, he resisted the raiding party, . as a result whereof, sustained fire-arm injuries; pursuant to a disclosure, he led to the recovery of pistol (P-3) on 31-3-2011; Anwar Sultana, co-accused was also arrested alongside Imran alias Mani, appellant; Aamir alias .Aslam, co-accused was arrested on 17-4-2011; he was holding 30- caliber pistol (P-9) at the time of his arrest; Shamrez appellant was taken into custody on 18-8-2010 and led to the recovery of 30-caliber pistol (P-5) on 23-8-2011 secured vide memo. Ex.PF. According to Forensic Science Laboratory Report (Ex.PV) casings dispatched on 27.1.2011 through Muhammad Khalil (PW-14) were found wedded with pistols allegedly recovered from Imran and Aamir, accused. Indicted on 14-3-2012, the appellant claimed trial, pursuant whereto, besides relying upon forensic evidence, the prosecution produced as many as seventeen witnesses to drive home the charge. The accused confronted prosecution evidence with a denial; position taken by Imran alias Mani, appellant is as under:- "I am innocent, in fact the deceased Kamran and Waqas Ijaz injured mistakenly trespassed into the house of someone considering the same to be house of mine and there the inmates of the house combated with these two individuals. The purpose of these two deceased and Waqas Ijaz was to fetch money from many people under one pretext or the other. The people of Mohallah and the inmates of house took them as dacoits when stone pelting and firing took place at the hands of inmates of house and Mohallah when there was darkness due to electric break down."
12. ' The learned trial Judge, however, proceeded to convict and sentence the appellant as referred to above, vires whereof, are being challenged on the ground that there was no occasion for the learned Special Judge to return a guilty verdict inasmuch as the prosecution story on face of it was extremely unnatural, improbable and false; it is argued that there was no occasion for the deceased and the injured PW to carry out a raid in plain clothes im a thickly populated area in most busy hours. According to the learned counsel, First Information Reports No, 1220 & 1221, the very basis of present Case, are not on the record nor the police were able to apprehend the unknown person selling narcotics to an unknown customer, who too managed to escape from the scene; the bottom line of the argument is that there was no point in allowing two plain clothe officials followed by a police contingent in uniform to carry out a raid in a crowded lane and this according to the learned counsel spells out a scenario altogether different and incompatible .with the narrative given in complaint Ex.PC and as such it would be unsafe to maintain the conviction.
13. Contrarily, the learned Law Officer assisted by Syed Mumtaz Hussain Shirazi, Advocate counsel engaged by deceased's father not only defended the impugned judgment to the extent of Imran alias Mani appellant they also prayed for confirmation of death penalty and in addition thereto argued for the reversal of acquittal of co-accused from the charges of homicide and terrorism; they also argued that there was no occasion for the learned Special Judge to give a clean chit to Anwar Sultan and Shamrez, co-accused.
3. Heard. Record perused.
4. The very genesis of the prosecution case is based upon two First Information Reports i,e, 1220 & 1221 dated 21-12-2010 registered at Police Station Civil Line wherein one Imran Ahmad was arrested under Section 9(b) of the Control of Narcotic Substances Act, 1997 for being in possession of an unspecified quantity of cannabis; as according to the prosecution itself it was investigation in these two criminal cases that brought the deceased and the injured accompanied by the police contingent face to face with the appellant and his co-accused at the crime scene; while it is quite understandable that Imran Ahmad accused could not have been trusted as a witness to establish deceased's departure from the Police Station for the stated purpose, nonetheless, this could well be accomplished by bringing copies of those First Information Reports and other allied material on the record, in absence whereof, this aspect of the case is solely resting upon an unverifiable verbal assertion. It is also mind boggling. as to how the deceased and his injured companion could possibly track 'down or identify a single person in the thick of populace previously unknown to them and as to why the Investigating Officer preferred to keep Imran. Ahmad accused in custody instead of taking him along to point out the appellant; no less is intriguing that the said person remained busy in his nasty business despite being within the view of a police contingent in broad daylight; we are clueless about the vendor as well as the customer till date. Even if this aspect of the case is ignored which is certainly not possible without difficulty, yet another question is as to why a duly armed police party comprising of no less than four officials mutely witnessed the episode without attempting to rescue their colleagues or, using official weapons, when the accused came down heavily upon them, well within their view as well as reach, seemingly there was no apparent reason for the deceased as well as the injured for being in plain clothes, if at all the purpose were to conceal their identity, as the presence of a police party in uniform alongside them would be antithetical to the hypothesis. Unless anonymity is warranted in a particular situation, the requirement of official uniform cannot be dispensed with by the officials of a law enforcement agency; it is not an ordinary piece of fabric, as it epitomizes the sovereign authority of the Republic; presence of the deceased and the injured in plain clothes alongside police party in uniform is beyond comprehension. Involvement of entire family at the crime scene including an elderly lady in a chance encounter is no less surprising either. Site plans without scale Ex.PT as well as with scale Ex.PB do not depict any abode/residence wherefrom the accused could possibly emerge to confront the police party; in this backdrop, hypothesis of presence of entire family at the venue is far from being confidence inspiring. These circumstances taken together spell out a scenario diametrically incompatible with the case set up in complaint Ex.PC and the position taken by the appellant in this backdrop sounds more plausible and as such the argument that occurrence did not take place in the manner as alleged in the crime report cannot be brushed aside. Prosecution narrative is fraught with doubts and a conviction cannot be maintained on moral satisfaction alone; it requires evidentiary certainty in order to exclude the hypothesis of innocence and thus it would be unsafe to maintain the conviction, therefore, by extending benefit of the doubt to the appellant, Crl. Appeal No, 389-T of 2013 is allowed; impugned judgment dated 04-9-2013 is set aside; the appellant is acquitted from the charge; he shall be released forthwith if not required in any other case. Capital Sentence Reference No, 8-T of 2013 is answered in the <u>NEGATIVE</u> and death sentence is NOT CONFIRMED As a natural corollary, Crl. Appeals Nos.450 of 2013 & 417 of 2013.as well as W.P. No, 155 of 2015 stand dismissed.