' BASHIR A. MUJAHID, J.--- Kamran alias Kami sqn of Mukhtar Ahmad Sheraz alias Sherazi son of Sajjad Hussain and Mazhar Hussain alias Mazhri alias Allah Rakha son of Gulzar Hussain have challenged judgment dated 16-7-1999 passed by Judge, Special Court No,II, ATA, 1997 Gujranwala whereby they were convicted under sections 302/149 for causing death of Hafiz Ullah, A.S.I. And sentenced to death. They were also convicted under section 324, P.P.C. For causing injuries to Muhammad Akram, H.C. And Usman Saleem and sentenced to 10 years' R.I. Each. They were also directed to pay fine of Rs,10,000 each or in default thereof to suffer one years' R.I each. Through the same judgment they were also convicted under section 148, P.P.C. And sentenced to 2 years' R.I.
Each and under sections 337(C) and 337(D) P.P.C. Convicted and sentenced to 5 years' R.I. Each.
Through the same judgment Parveen accused was acquitted.
2. Brief facts of the prosecution case as narrated in F.I.R. No,357 of 1996 got recorded by Muhammad Younas. S.I. With Police Station Sabzi Mandi, Gujranwala at 8-30 p.m. On 11-8-1996 are that at 6-30 p.m. Hafiz Ullah, A.S.I. With Shafqat Ullah, A.S.I. Sami-ul-Saleem, A.S.I. Alongwith Muhammad Arshad, FC, Muhammad Akram, L.H.C., Muhammad Asif, FC and Dildar Iftikhar, FC were on patrol duty near Chowk Kangni Wala when on receipt of secret information that 5 unknown dacoits with heavy ammunition are putting up in a rented house. They can be arrested if raid is conducted upon which the police conducted raid on the said house situated in Chand Park and encircled the house. The accused came out of the house and climbed over the roof and opened fire at police party. The accused were armed with klashnikovs, repeater guns, 222 rifles and pistols.
The police party also opened fire in their self-defence. Hafiz Ullah, A.S.I. Received burst of the accused party hitting on his right shoulder, right leg and front of chest. He fell down and succumbed to the injuries at the spot. The accused decamped from the place of occurrence. The complainant Muhammad Younas, S.I. P.W.5 left Gulzar Ahmad and Iftikhar Ahmad near the dead body of Hafiz Ullah, A.S.I. Deceased and he along with other police officials chased the accused and when they reached at Mian Sansi Road, the accused again opened fire at police party. They also fired at the accused in self-defence. Muhammad Akram, H.C. Was also injured at the hands of the accused who was sent to DHQ Hospital, Gujranwala with Muhammad Asif, FC. The complainant along with others continued to chase the accused and when they reached near Kacha Khiali Road, the accused disappeared due to darkness.
3... Muhammad Younas, S.I. After sending the written complaint ah.P.E. To the police station for registration of formal F.I.R., undertook the investigation and prepared the injury statement of Hafiz Ullah deceased vide memo. Exh.P.F. And inquest report vide memo. ,Exh.P.G and dispatched the dead body for post-mortem examination through Dildar Ahmad, FC and Iftikhar Ahmad and he took into possession blood-stained earth from the place of occurrence where Hafiz Ullah, A.S.I. Was murdered vide memo. Exh.P.J. Recorded the statements of the P.Ws. Under section 161, Cr.P:C. And prepared the site plan of the place of occurrence. Thereafter, the investigation was taken over by Muhammad Saleem Sadiq Inspector, S.H.O. P.W.16.. He proceeded to DHQ Hospital, Gujranwala to record the statement of injured P.W. Where he received information that Usman Saleem P.W.3 who was also injured in the occurrence has been referred to Mayo Hospital, Lahore due to his serious condition. ,Muhammad Akram H.C. Was unable to make the statement as per opinion of the doctor.
On 12-8-1996 Dildar Ahmad, FC produced the last worn clothes of deceased Hafiz Ullah before him which he took into possession vide memo. Exh. P.O. He deputed Muhammad Younas, S.I. To ascertain whether Muhammad Akram, H.C. Was fit to make statement through an application Exh.P.B. On 15-8-1996 he got prepared the site plan Exh.P.A through Masud Ahmad Bhatti Din P.W.1.
On 6-8-1996 he recorded the statement of Muhammad Akram, H.C. In DHQ Hospital, Gujranwala after obtaining report from the doctor. On 18-8-1996 he recorded statement of Usman Saleem injured P.W.3 at Mayo Hospital, Lahore. On 12-9-1996 he arrested Sheraz alias Sherazi accused and recovered pistol .30 bore P.1 and 5 live cartridges P.2/1-5 and from his pocket 10 live bullets P.3/1-10 which were taken into possession vide memo. Exh.P.N. On 15-9-1996 he received secret information that remaining 4 suspects are available near Bridge Kangniwala on which he along with other police officials conducted raid. The accused started firing at the police party. They also fired in their self-defence and after police encounter it was found that Akram alias Nikka was murdered at the spot while Asad accused was injured and was sent to DHQ Hospital, Gujranwala immediately and two of the accused managed to abscond from the place of occurrence and Asad injured accused disclosed that person murdered in police encounter was Muhammad Akram alias Nikka and absconders were Kamran alias Kami and Muhammad Naeem brother of Akram alias Nikka. Asad also expired before any medical assistance in the DHQ Hospital, Gujranwala. On 2-10-1996 he also arrested Mst. Parveen accused in the case. On 22-10-1996 he obtained non-bailable warrants of arrest of Mazhar alias Mazhri. On 30-10-1996 he obtained non-bailable warrants and proclamation under section 87, Cr.P.C. From the Court for arrest of P.Os. On 12-9-1996 he arrested Sheraz alias'
Sherazi. On 26-1-1999 Iftikhar Hussain, S.I. Received information that Mazhar Hussain alias Mazhri who was declared proclaimed offender in this case is lodged in Kot Lakhpat Jail, Lahore in some other case. He moved application Exh.P.M. To the District Magistrate, Lahore for transfer of the said accused and got him shifted to Gujranwala on 27-1-1996. He interrogated him after getting his physical remand and sent to judicial lockup. On 5-2-1999 he submitted the supplementary challan.
On 8-10-1996 Tahir Majid, S.I. P.W. 10 arrested Kamran alias Kami accused who was holding klashnikov P.4 which was taken into possession along with 15 live bullets in the magazine P.5/1-15 vide memo. Exh.P.O. The investigation was completed and challan of the case was submitted against the present appellants and Parveen. Accused Akram alias Nikka and Asad were murdered in police encounter.
4.. The trial Court framed the charge. The accused denied the charge and claimed trial.
5. During the trial prosecution examination as many as 18 witnesses to prove the guilt of the accused.
6. Dr. Abdul Ghaffar, P.W.17 with other members of the Board conducted post-mortem examination 'on the dead body of Hafiz Ullah, A.S.I. And found the following injuries:-
(1) A fire-arm entry wound on right front upper part of chest, scattered in an area of 8 x 8 c.m. And each measuring 1/, x V, c.m. Into going deep 4-V, c.m. Above and medial to right nipple (entry wound).
(2) Three fire-arm lacerated wounds on medial aspect of right thigh scattered in an area 12 x 4 c.m.
Each measuring 1/2 x V, x going deep. Right femur bone was fractured (entry wound).
(3) A fire-arm exit wound 1-7, x 1/, c.m. On front of 'middle of right lower leg 12 c.m. Below right knee joint.
(4) A fire-arm entry wound V, x V, c.m. x going deep on lateral side of lower 1/3 of right lower leg 7 c.m. Above right ankle. Right Tibia and fibula were fractured.
(5) A fire-arm exit 3/, x 3/, c.m. On lateral upper part of right lower leg.
(6) Four fire-arm entry wounds scattered in an area 12 x 8 c.m. On back of right thigh, lower part each measuring 3/4 x 3/4 c.m. Going deep.
(7) A fire-arm entry wound on lateral side of right thigh upper part measuring 3/4 x 3/4 c.m. x going deep.
7. Dr. Rao Asif Ali Khan P.W.18 medically examined Usman Saleem on 11-8-1996 and found the following injuries on his person:- ' A fire-arm lacerated wound of entry 1 x 0.75 c.m. Into going deep on the front of right side, of abdomen above the level of umbilicus.
10.5 c.m. From umbilicus and 8.5 c.m. From mid-line.
8. Ocular account was furnished by Muhammad Younas, S.I. P.W.5 who was complainant of the case: He supported the contents of F.I.R. Exh.P.E/1 and narrated the facts being member of the raiding party. Usman Saleem was examined as P.W.3 who stated that on 11-8-1996 at 7-30 p.m. He was present along with his brother Kamran in front of his house when Nikka and Asad accused knocked the door of house of Mst. Parveen accused who told her that they have murdered police officer and her son Sheraz was with them and they were fired at by the accused in which he received fire-arm injury on his belly caused by Akram alias Nikka. He was removed to the hospital in serious condition. Muhammad Akram P.W.6 also supported the prosecution case as an eye- witness of the occurrence. He was member of the police party who conducted raid at the house where the accused were hiding and Hafiz Ullah, A.S.I. Was murdered and he was also injured in the same occurrence. Iftikhar Hussain, S.I. Was examined as P.W. 7 who caused arrest of Mazhar Hussain alias Mazhri after his transfer from Kot Lakhpat Jail, Lahore. Qurban Ali L.H.C. P.W.9 was entrusted with the proclamation for arrest of Mazhar Hussain who was declared subsequently as proclaimed offender of the case. Tahir Majid, S.I. P.W.10 arrested Kamran alias Kami and attested the recovery memo. Exh.P.N. Sami-ul-Saleem, A.S.I. Was examined as P.W.11 who was also member of the raiding party and he joined the investigation with Muhammad Younas, S.I. And also identified the dead body of Hafiz Ullah, A.S.I. At the time of post-mortem examination and attested the recovery memo. Exh.P.O. Dildar Ahmad, L.H.C. Was examined as P.W.12. HF was also member of the raiding party and joined the investigation and .He attested the recovery memos. Faiz Rasool was examined as P.W.13 who attested the recovery memo. Of klashnikov taken into possession by Tahir Majid, S.I. From Kamran alias Kami accused. Shamshad Hussain, S.I. Was examined as P.W.14 who had recorded the formal F.I.R. Exh.P.E/1 on the Fard-i-Bian of Muhammad Younas, S.I. Exh:P.E. The remaining witnesses are of formal in nature and need not be discussed.
9. Statements of the accused under section 342, Cr.P.O. Were recorded towards the end of the trial.
They denied the allegation and claimed their innocence and false involvement.
10. The trial culminated into conviction of the appellants as mentioned above. Kamran alias Kami has challenged his conviction and sentence through Criminal Appeal No,847 of 1999 while Sheraz alias Sherazi and Mazhar Hussain alias Mazhri have filed Criminal Appeal No,108 of 1999 (from Jail) against their conviction and sentence. The trial Court has sent up Murder Reference No,29I-T of 1999 under section 374, Cr.P.C, for confirmation of death sentence of the appellants.
11. Learned counsel for the appellants have argued that it was night occurrence. The accused admittedly escaped from the place of occurrence due to darkness and they were not identified by any member of the raiding party. They were not known to the P.Ws., therefore, identification of the accused is doubtful and the prosecution has failed to establish its case against the appellants; that prosecution witnesses are police officials and they have deposed against the appellants under the direction of their higher officers. Their testimony has not been corroborated from any other independent source. The only eye-witness was Usman Saleem P.W.3 whose name was not mentioned in the F.I.R.He was introduced subsequently and his statement is based on hearsay although he claimed to be injured in the occurrence by the accused which cannot be relied upon.
Therefore, the case against the appellants is doubtful and they are entitled for acquittal.
12. Conversely the appeals have been opposed by the learned State counsel who has supported the impugned judgment.
13. Heard. Record perused.
14. Admittedly the occurrence took place after sunset in the night. None of the accused was identified by any member of the raiding party. They were also not previously known to them. They escaped from the house and were chased by the police party. None of the accused has been nominated with whose fire Hafiz Ullah, A.S.I. Died. It is also not mentioned that with whose fire Muhammad Akram, FC was injured. It was stated by Muhammad Younas, S.I. P.W.5 in his complaint Exh.P.E that he and other police officials can identify the accused if they are brought before them.
No identification parade was conducted in the case. Therefore, identification of the accused could not establish the case against the appellants. The only independent witness who was examined by the prosecution was Usman Saleem P.W.3 who deposed that he was resent in front of his house along with his rother Kamran on 11-8-1996 at 7-30 p.m. When he overheard accused Nikka and Asad talking to Perveen Bibi and thereafter Akram alias Nikka accused fired at him hitting on his belly but said Akram alias Nikka was murdered in a police encounter and has not faced the trial. He has not seen or identified any other accused, therefore, identification of the appellants remained unsubstantiated during the trial. Muhammad Akram P.W.6, Usman Saleem P.W.11 and Dildar Ahmad P.W.12 who were members of the raiding party neither know the accused nor they mentioned in their statements the name of the appellants. Learned trial Court has placed reliance on the statement of Muhammad Younas, S.I. P.W.5 and Usman Saleem P.W.3 who had implicated the appellants with the commission of crime but they had not nominated them in their earlier statements before the Investigating Officer and they have also not disclosed their source of information as how they identified the accused. Their statements cannot be relied upon, regarding the identification of the accused-appellants and to connect them with the alleged crime.
15. After deep re-appraisal of the evidence we are convinced that the prosecution has failed to establish its case against the appellants beyond any shadow of doubt. Therefore, we allow Criminal Appeals Nos.847 of 1999 and 108-.1 of 1999, set aside the conviction and sentence of the appellants and acquit them of the charge by giving them the benefit of doubt. They are ordered to be released forthwith if not required in any other case. Death sentence is not confirmed.