SYED ABDUR REHMAN, J.---Appellants were convicted by Special Court for Suppression of Terrorist Activities, Larkana on 19-1201990 under section 393 read with section 398, P.P.C. And sentenced to R.I. For seven years and fine of Rs.500 (Rupees five hundred) each or in default to suffer R.I. For three months more. They were, however, extended benefit of section 382-B Cr.P.C. Both of them have come in appeal to this Court against the same conviction and sentence.
2. Briefly stated the prosecution story, according to the F.I.R., is that complainant Roohullah Shah, who is resident of Rellan, is practising Hikmat in the town of Larkana. He returns to his village every night after closing his clinic. On 7-5-1990 he was returning to his village as usual by his motor- cycle. When he reached the bridge over Mehar canal at about 10-00 p.m., he saw two persons each armed with Klashnikov. He identified one of them as Barkat Ali, while other person was not known to him. They pointed Klashnikovs at him and signalled him to stop. He did not stop the motorcycle and drove away at a high speed. The culprits fired the Klashnikovs at him, but the same missed. His village was at a distance of about 200 paces from the said bridge. On his cries and fire- arm reports his brother Noorullah Shah, his relative Javed Ali Shah and several other persons came and met him at the road side. He informed them about the incident, handed over the motorcycle and returned back to the bridge alongwith them and showed them the place of incident. It is further stated in the F.I.R. That a Police party of Taluka Police Station headed by ASIP Iqbal Ahmed, who were on patrol duty, arrived there and on being informed by the complainant, they succeeded in capturing both the culprits at a short distance from the place of incident. Another Police party which comprised of S.I.P. Liaquat Ali also reached there. The culprits were arrested and disarmed.
One of them disclosed his name as Barkat Ali and the other as Nazir Ali. Both of them were Police Constables. The police challaned the case after usual investigation. .
3. A charge was framed against the appellants under section 392 read with section 397 P.P.C. To which they have pleaded not guilty. They have denied to have committed the offence. Both of them have alleged that they were returning to Larkana from Village Rellan after taking meals. They heard fire--arm reports at the bridge and realising that some offence had been committed, they proceeded towards the bridge. They came across a police party as well as complainant party.
When S.I.P. Liaquat Ali saw them there, he objected to their presence. There was some altercation between them and the police party. The police party particularly S.I.P. Liaquat Ali has falsely implicated them in this case. Accused Nazir Ali has further alleged that he has got enmity with police as his maternal-uncle Hussain Bux had filed a number' of cases against the Police Officers before various Courts including the Sukkur Bench of this Court.
4. At the trial the prosecution examined complainant Roohullah Shah Exh.3, P.Ws. Noorullah Shah Exh.4, Safdar Ali Shah Exh.6, Liaquat Ali S.I.P. Exh.7, Sartaj Ahmed Exh.8. Din Muhammad S.I.P. Line Officer Larkana has been examined as Court-witness.
5. We have heard Mr. Muhammad Ibrahim Memon learned counsel for the appellants and Mr. Zubair Qureshi Advocate for respondent.
6. The only eye-witness of the incident is complainant Roohullah Shah. No doubt in his F.I.R. He has stated that one of the culprits, who was there at the bridge, was identified by him as Barkat Ali, while the other could not be P` identified by him. But in his deposition in Court he has changed his version and has stated that when he reached the bridge, two culprits emerged suddenly. They had their faces muffled and each of them was carrying Klashnikov. They directed him to stop the motorycle, but due to fear he did not stop the motor--cycle and continued driving. He has not named any one of these culprits, nor he has claimed to have identified them or seen their faces at the time of incident. In his examination-in-chief he has further stated that while they were tracking the footprints of the culprits they also came across a police party, which was also searching the culprits. They went near the Police party and saw that they had held 2 culprits, who were armed with Klashnikoves. The police enquired the names from the culprits and they disclosed their names as Barkat All and Nazir Ali. Barkat Ali was stated by the complainant to be his co--villager, while the other was not known to him. The complainant has further stated in his examination-in-chief that the "accused present in Court are the same, who were caught by the police". He has not stated that the appellants or any one of them was one of those culprits, who had signalled him to stop and had fired with Klshnikoves at him. 1n his cross-examination to the defence counsel he has clearly stated that he could not identify the culprits on the spot as their faces were muffled. He further says that while narrating the incident to E his relatives, he informed them that the faces of the culprits were muffled and therefore, he could not identify them at the spot. He also admits that theappellants had stated immediately on being arrested by the police that they were innocent and that they had gone to take their meals and were returning to their duty place. This shows that not only the complainant has not named the appellants, but the appellants from the very beginning had been taking defence which they have taken before the trial Court and therefore, the bona fides of the defence cannot be doubted.
7. Mr. Zubair Qureshi, learned counsel for the State has tried to explain this by saying that the complainant had been tampered with and therefore his earlier statement made by him in the F.I.R.
Should be believed. We are afraid that this argument cannot prevail specially because the learned A.P.P., who had conducted the examination-in-chief did not declare the complainant hostile, nor did he confront film with his statement made by him in the F.I.R. Nor was this statement in F.I.R.
Proved by the officer who had taken down the F.I.R. The next witness Noorullah Shah Exh.4. Who is brother of the complainant, has also stated the same thing. He also does,not claim that the complainant had claimed to have identified Barkat Ali or to have seen the faces of the culprits.
P.Ws. Javed Ali Shah and Iqbal Ahmad A.S.I. Have been given up. Hence it would appear that there is no ocular evidence to connect the appellants with this crime. Then there is evidence of Mashir Safdar Ali Shah and SIP Liaquat Ali which is to the effect that the two appellants were found by them near the bridge coming towards them carrying Klashnikoves in their, hands. It is admitted by the prosecution itself and is also proved by the evidence of A.S.I. Din Muhammad, Line Officer that the appellants were employed in the Police. Barkat Ali is driver of escort of S.S.P. Larkana, while Nazir Ali is Constable and his duty is to escort prisoners. Both of them were issued these Klashnikoves and 200 bullets respectively. Hence the possession of the Klashnikoves or the bullets cannot incriminate them in the least. They have given satisfactory explanation for their presence at the scene of offence which was given by them right from the time when they were arrested.
8. The appellants have alleged enmity with the police and have produced documentary evidence to establish the same which cannot be overlooked. Apart from that there are a number of contradictions. The complainant has E' stated that when the appellants were arrested they were in police uniform, while his brother has stated that they were in plain clothes. The contradiction goes to the root of the case and cannot. Be overlooked. We are, therefore, of the clear view that the prosecution has hopelessly failed to make out the case against the appellants. We, therefore, accept both the appeals, set aside the E conviction and sentence of the appellants and acquit both of them. Call for the explanation of concerned A.P.P. Through S.1. Judge alongwith his remarks, as to why he did not confront the complainant with his F.I.R.