KAUSAR SULTANA HUSSAIN, J. Through this common judgment, we shall decide two Special Criminal A.T.A Appeals Nos. 62 and 63 of 2021, filed by the Appellants (1) Muhammad Shoaib alias Shahoo and (2) Fahad Bin Shakeel alias Bandoo against the impugned judgment dated 28.04.2021, passed by the learned Anti-Terrorism Court No.X, Karachi in Special Case No. 11 of 2021 (Re- Muhammad Shoaib alias Shahoo and others v. The State) (old Special Case No. 48 of 2018) arising out of FIR No. 199 of 2011, under Sections 302/34, P.P.C. read with Section 7 A.T.A, 1997 registered at Police Station, Al-Falah, Karachi, whereby after completion of trial, the Appellants were convicted under section 7(1)(a) of ATA, 1997 and sentenced to undergo "Life Imprisonment" and they shall also pay a fine of Rs. 300,000/-each and in case of default in payment of such fine, they shall undergo further R.1 for "02" years each. They were granted benefit of section 382(b), Cr.P.C.
2. The concise facts of the prosecution case as setup in the FIR No. 199 of 2011 are that on 14.07.2011, the complainant HC Mushtaq Ali was on Mobile Duty bearing No. SP-3026 (iiird) and on that day, MQM had called Strike, therefore, the Mobile was on Emergency Duty from Millat Road upto Malir-5.
When, the Police party had reached at Jamiya Maliya Rod, opposite Ibrahim Villas Raod, Malir Karachi, at about 1500 hours, they saw that some miscreants were burning Tyres, to which, the Police party tried to save the Tyres from being burnt on road, on which, the furious miscreants suddenly started firing upon the Police party; consequently, one Police. Constable namely Aftab Shah had received bullet injury on his Chest, whereas, one bullet hit at the side door of the official Mobile; following which, the armed miscreants disappeared into Lanes; the complainant retaliated such attack of the miscreants but, the culprits managed to flee away from the crime scene; after that incident, the injured Constable was immediately taken to JPMC, Karachi but, he succumbed to the injuries and expired/martyred. Moreso, at Hospital, ASI Muhammad Yousuf had conducted necessary legal proceedings regarding murder of PC Aftab Shah; Police returned to PS Al-Falah, whereby. HC Mushtaq Ali got registered the FIR being the complainant on behalf of the State.
3. The prosecution in order to prove its case examined 12 witnesses and exhibited various documents and other items. The statement of the accused was recorded under section 342, Cr.P.C., in which they denied all the prosecution allegations and claimed their false implication in this case.
The accused did not examine themselves on Oath under section 340(2), Cr.P.C., however, they produced their Defence Witnesses, namely M.st. Fouzia Shoaib for appellant Muhammad Shoaib alias Shahoo and Mst. Syeda Tabinda for appellant Fahad Bin Shakeel alias Bandoo, who were examined. Thereafter learned counsel for the accused persons had closed their side.
4. After appraisal evidence of the prosecution witnesses, accused and their defence witnesses, and upon hearing arguments of both the sides, the learned trial court convicted the appellants and sentenced them as set out earlier in para 1 of this judgment. The appellants challenged their conviction through filing present appeals against the impugned judgment dated 28.04.2021 passed by the learned Anti-Terrorism Court No'.X, Karachi.
5. We have heard the 'learned counsel for the appellants and the learned Additional Prosecutor General, Sindh and also have perused the entire record including evidence of both the sides with due care and caution.
6. Messrs Khawaj a Muhammad Azeem and Mushtaq Ahmed Jehangiri, Advocates for the appellants have advanced their arguments and contended that the impugned judgment passed by the learned trial Court is bad in law and not maintainable, hence liable to be set aside. It was further contended that implication of the appellants in this case is based upon their alleged confessional statements before police during investigation is having no value in the eye of law, and is clear violation of Articles 38 and 39 of the Qanun-e-Shahadat Order; that the accused persons were not produced before the Judicial Magistrate for recording their confessional statements under section 164, Cr.P.C.; that the learned trial Court has failed to consider that the PW-4 ASI Muhammad Yousuf during his cross-examination has admitted that "he did not produce the record of Ambulance", which shows that he brought injured at JPMC in Edhi Ambulance; that the appellants were already under the custody of Rangers and then, they were fixed in this case by the police with mala fide intention; that the learned trial court failed to consider that the incident took place in the year 2011, whereas the Identification Parade of the accused persons was held by the I.O. in this case in the year 2017 after passing a period of more than six years. They lastly prayed for acquittal of the appellants. In' support of their contentions the learned counsel for the appellants have placed reliance on the cases reported as 2020 PCr.LJ Note 188 (Re-Wazeer v. The State)
2020 PCr.LJ Note 174 (Muhammad Noman and another v. The State), 2021 YLR 244 Sindh. (Re- Shah Faisal v. The State), 2020 YLR 676 Sindh (Afaq Ahmed v. The State) and 2021 YLR 288 Sindh, (Re-Wall Muhammad Rahimoon and another v. The State).
7. On the other hand, the learned Additional Prosecutor General, Sindh on behalf of the State has fully supported the impugned judgment and contended that the evidence of all the PWs is reliable, trust worthy and confidence inspiring and can be relied upon to convict the appellants; that there are no material contradictions in the prosecution evidence and as such the prosecution had proved its case against the appellants beyond a reasonable doubt and as such the appeals may be dismissed.
8. After hearing arguments of both the sides and perusal of record including entire evidence led by the prosecution witnesses as well as the statements of appellants, Defence Witnesses and impugned judgment, we find that the prosecution has not proved its case against the appellants.
We reached this finding due to the reasons discussed here under:--
(a) That the instant FIR No. 199 of 2011 was lodged against unknown persons. The complainant/ PW- 7 Mushtaq Ali (ASI) deposed that during patrolling in the area of Jamia Millia Azeem Pura Road, they on direction of SHO reached at the place of incident, where some miscreants set on fire tyers on the road, they extinguished fire through water suddenly firing was started and PC Aftab Shah sustained fire shot injury on left side of chest and succumbed to his injury. The Complainant neither nominated any person as accused in the FIR by name, nor he stated that he had seen any one while firing upon police party by his own eyes to whom he can identify on his coming before him.
The complainant PW-7 even did not depose such evidence on Oath and during Identification Parade of appellant Shoaib alias Shahoo he although identified him but according to him he was with the persons, who were burning tyres on the road at the time of incident but he did not say that he was involved in firing upon police party.
(b) Investigation Officer PW-6, SI Ahmed Ali visited the place of incident and collected four empties of S.M.G from the place of incident but no empty of crime weapon was collected from the crime scene although as per case of prosecution miscreant made fires upon police party and mobile was hit and PC Aftab / deceased received bullet injury.
Investigation Officer also admittedly did not collect blood drops from place of incident although he noticed that blood drops were lying there. He also did not mention the detail of case property in his arrival entry.
(c) PW-3 Dr. Dileep Khatri of JPMC, who conducted Post Mortem of deceased had confirmed in his report dated 14.07.2011 that PC Aftab had dead due to following cause of death :- Cause of Death Death occurred due to Cardio Respiratory Failure and severe hypovolemic shock and hemorrhage, resulting from Projectile on the Chest.
(d) Investigation Officer after completion of investigation has submitted challan under "A"
Class as no one could be arrested by the I.0 at that time in the year 2011. PW SIP Syed Nazar Hussain Shah of PS. Al-Falah deposed that on 25.03.2017 he was Investigation Officer of instant FIR No. 199 of 2011 and during search of the accused of this crime, on receiving spy information about presence of accused of that FIR they arrested accused Mohammad Shoaib (appellant) in presence of HC Fahad and HC Waseem, who admitted their guilt before police. It is noticed by us that the PW-1/SIP Nazar Shah did not take efforts to get his confessional statement recorded before Judicial Magistrate as provided in law under section 164 Cr.P.C. in order to prove this crime against him on merits by adopting legal process but instead brought unauthentic, inadmissible and unrecognized evidence on record. No private witness from the locality was cited as mashir of arrest although as per prosecution story the Appellant Shoaib was arrested from his house which was located in thickly populated area of Al-Falah Society, Karachi. No crime weapon was recovered from his possession.
(e) PW-2 HC Muhammad Faheem is mashir of memo of arrest of appellant Fahad, who as per his deposition was arrested on 30.03.2017 at about 10.00 p.m. on spy information from his house bearing No. 111/C, Al-Falah Society in his presence by Inspector Abdul. Malik. Record shows that no crime weapon was recovered from the possession/ house of the appellant Fahad.
(f) PW-8 Mr. Imran Ali Malik, J.M. conducted Identification Parade of appellant Fahad and Shoaib through PWs HC Roshan Ali and PC Muhammad Sadiq, who did not identify appellant Fahad, however, they identified appellant Shoaib during Identification Parade. PW-9 Mohammad Sadiq had assigned role to appellant Shoaib, while conducting his Identification Parade that he was present with 10/12 persons, who were burning tyres. We noticed that PW-9 Sadiq did not state about making fires by the appellant Shoaib upon the police party on the day of incident. PW-9 PC Mohammad Sadiq deposed in his examination in chief that in retaliation of firing by miscreants upon police party he also opened three or four fires upon them from. SMG allotted to Head Constable and during cross-examination he admitted that he was not allotted official arm and ammunition because he was performing his duty on that day as driver of police mobile but made fires. He also deposed that four empties of Kalashanikov/SMG were secured and sealed; from the place of incident. Memo of site inspection shows that no empty of bullets fired by the miscreants were secured from the place of scene.
(1) With regard to identification of appellant Shoaib, HC Roshan Ali did not give evidence at trial.
PW-9 Mohammad Sadiq, who picked out appellant Shoaib from an Identification Parade six years later in his section 161, Cr.P.C. statement gave no hulia or D description of Shoaib and did not even say that he could recognize him again and as such we cannot safely rely on PW-9 Mohammad Sadiq's identification of appellant Shoaib six years after the incident.
(h) It is a cardinal principle of criminal jurisprudence that the prosecution must prove its case, beyond a reasonable doubt and it is not for the accused to disprove the case against him, as was held in the case of Mohammad Shah v. The State reported in 2010 SCMR 1009. It is well settled law that "if there is a single circumstance, which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right". In instant matter no prosecution witness deposed that he saw the present appellants to fire upon the police party on the day of incident even no eye-witness has assigned such role to any of the appellants.
9. The evidence of PWs is not confidence inspiring even eye-witnesses seem not trust worthy and reliable, who inspite of passing a long period of more than six years to the incident only identified the appellant Shoaib alias Shahoo (which identification we have already found cannot be safely relied upon) and not appellant Fahad. No crime weapon was recovered from appellants no empty of crime weapon was secured from the place of incident. No role of causing tire upon the police party has been assigned by the eye-witness PC Sadiq to the appellant Shoaib alias Shahoo while identifying him during Identification. Parade before Judicial Magistrate (PW-8), which Identification for the reasons discussed earlier we cannot safely rely on.
10. The upshot of forgoing discussion is that the prosecution has failed to prove its case against appellants for the offences for which they have been charged beyond reasonable doubt, we therefore, set aside the impugned judgment dated 28.04.2021 and as such the appellants Muhammad Shoaib alias Shahoo son of Mohammad Umar and Fahad Bin Shakeel alias Bandoo son of Shakeel Anjum Siddiqui are acquitted of the charge by extending them the benefit of doubt.
Appeals Nos.62 of 2021 and 63 of 2021 are therefore allowed. The appellants shall be released unless wanted in any other custody case(s).