' GHULAM NABI SOOMRO, J.---By this common judgment, we propose to dispose of the Special Anti- Terrorism. Appeals Nos. 38, 39, 40 of 1999 and the Confirmation Case No, 16 of 1999 as they arise out of the same F.I.Rs,
2. The four convicts-appellants have assailed their conviction and sentence of death under sections 302 and 34, P.P.C. Read with section 7(i)(a) of the Anti-Terrorism Act, 1997 awarded to them by the learned Anti-Terrorism Court No, 1, Karachi by its judgment dated 11-6-1999.
3. The prosecution case briefly stated is that on 21-6-1998 P.C. Muhammad Suleman and three deceased police officials namely A.S.-I. Sher Muhammad, H.C. Muhammad Shafi and P.C. Riaz Ahmed had gone for patrolling duty at Ali Akbar Shah Goth within the jurisdiction of Police Station.
Ibrahim Hydri, District Malir, It is stated that one Kaloo had been arrested on spy information who disclosed name of one Muhammad Ali responsible for robbery of a motorcycle No, KCS-6642.
Muhammad Ali was arrested and being taken to police station. He soon thereafter called out his companions/supporters namely M. Islam, Yousuf, Muhammad Yar, Noorul Huda, Ramzan, M. Alam, Muhammad Hashim (the appellant), Mustafeez (the appellant), Maqbool, Fayyaz Ali, Noor Alam, Yaseen, Siddique Mota (the appellant), Abdul Salam and 10/12 others, hiding themselves in the street with weapons, attacked the police party and took to indiscriminate firing and got freed Kaloo and the motorcycle from their custody. A.S.-I. Sher Muhammad who alone had his pistol, had fired in his self-defence. The police party in the meanwhile took shelter in a nearby house where the assailants also got in and killed all the three police officials in the house. One passerby namely Fazal Hussain also got injured during the firing.. P.C. Suleman, however, happened to save his life by scaling over wall of the house, reached the police station and lodged the F.I.R. At 7-00 p.m. On the same day. The police party of Police Station Ibrahim Hydri reached the place of occurrence and found aforesaid three police officials lying dead. During the investigation the police secured empties of fire-arms and four other empties of small bullets. The disputed motorcycle was also secured. On the 3rd day i,e, 24-6-1998, the appellants were arrested and pistols were secured from them except appellant Muhammad Saleem who, it may be stated, is not named in the F.I.R.
4. At the conclusion of the trial, challan was submitted showing four appellants in custody while 11 others as absconding accused in the case.
5. A charge for offence under sections 302, 353, 34, 395, 147, 148, 149, 224 and 225, P.P.C. Was framed against the appellants to which they pleaded not guilty and claimed to be tried. At the trial the prosecution examined:--
(1) P.W 1. Dr. Muhammad Ismail
(2) P.W 2. Dr. Zafarullah
(3) P.W 3. PC. Muhammad Suleman, complainant
(4) P.W 4. S.-I. Muhammad Akram
(5) P.W 5. A.S.I. Sagheer
(6) P.W 6. Munir Ahmed
(7) P.W 7. Abdul Majeed
(8) P.W 8. Muhammad Ismail
(9) P.W 9. Muhammad Usman
(10) P.W 10. Inspector Ahmed Khan Parhayar Investigating Officer whereafter the prosecution closed its side.
6. The appellants were examined under section 342, Cr.P.C, wherein they denied all the allegations levelled by the prosecution. They neither examined themselves on oath nor led any evidence. At the conclusion of the trial the Military Court awarded death sentence to all the four appellants.
Upon appeal before the Military Tribunal, however, Muhammad Saleem was acquitted while sentence of death against the remaining three was reduced to life imprisonment.
7. In view of the decision of the Hon'ble Supreme Court in the case of Shaikh Liaquat Hussain the case was sent to the learned trial Court for fresh proceedings in the case in accordance with law.
The learned trial Court, however, convicted and sentenced the appellants as aforesaid. The four convicts have thus appealed against such sentence of death.
8. We have heard M/s. Khalid Mehmood, Muhammad Khalil Dogar and Zia Ahmed Awan, learned counsel for the appellants and Mr. Habib Ahmed learned A.A.-G. For the State and have perused the record of evidence and the impugned judgment. It was argued by Mr. Khalil Mehmood learned counsel for the appellant that the prosecution story was highly improbable. The evidence of P.Ws.
S.-I. Muhammad Akram and the complainant PC. Muhammad Suleman are contradictory to each other. The case of the disputed motorcycle was falsely introduced to give strength to the prosecution case, as motorcycle was shown to have been robbed of on 18-5-1998, whereas the report was lodged only on 22-6-1998 i,e, on the next day of the alleged incident of this case. He further argued that even Mashirnama of Wardat does not support the ocular evidence. The inquest report of all the deceased show that the death of the deceased was caused by some unknown assailants. He argued that four co-villagers namely P.Ws. Munir Ahmed, Abdul Majeed, Muhammad Ismail and Muhammad Usman are inconsistent in their evidence P.W. Muhammad Usman has not implicated anyone. P.W Munir Ahmed as also the others have stated that they saw the appellants running away in panic with their arms. It was contended that in the entire evidence led by the prosecution is not clear as to who had fired at the deceased and who committed murders. It was lastly urged that P.C. Muhammad Suleman was also a set-up witness and is not to be relied upon.
It was also contended that the statements contained in the inquest report show that the deceased were done to death by unknown assailants, which further goes to show that the F.I.R. Which carried names of the appellants was registered much after preparation of the inquest reports.
9. M/s. Zia Ahmed Awan and Muhammad Khalil Dogar learned counsel for the appellants adopted the arguments of Mr. Khalid Mehmood learned counsel for the appellants and further submitted that the appellant Muhammad Saleem had been acquitted by the Military Court. It is further contended that Muhammad Saleem was minor boy at the time of incident which fact was denied by the prosecution. He was not named in the F.I.R. And that nothing was secured from his possession. Mr. Zia Ahmed Awan on behalf of the appellant Muhammad Saleem, however, raised various other legal pleas in addition to the above.
10. Learned counsel for the appellants on the charges under section 13-D of the Arms Ordinance submitted that pistols are shown to have been recovered from the house of the appellants at one and the same time which had violated mandatory provision of section 103, Cr.P.C. And that the appellant Muhammad Hashim, is the brother in law (Sala) of the complainant P.C. Muhammad Suleman and both were on inimical terms with each other.
11. On the other hand Mr. Habib Ahmed learned A.A.-G. Appearing for the State mainly relied upon the evidence of the complainant, P.Ws. Munir Ahmed and Muhammad Ismail. According to him the witnesses have fully implicated the appellants and they had no motive to falsely implicate them.
12. We have perused the evidence of the witnesses examined at the trial with particular reference to the evidence of complainant P.C. Muhammad Suleman (page 17), Munir Ahmed (page 40) and Muhammad Ismail (page 52). The sum and substance of the testimony of these two P.Ws. Is that they saw the appellants running away with arms. Admittedly, they are the civilians and residents of the village of occurrence.
13. The complainant P.C. Suleman has deposed that "all four of us went for patrolling without uniform. No official weapon was issued from the police station to any member of the patrolling party". Admittedly therefore, the three deceased had gone to the village in the morning on the day of incident at 8-00 a.m. In plain clothes and without arms. It is not known where the deceased police officials had passed their time and what places had been patrolled during their Gusht. The complainant has further deposed that "we did not prepare any memo. For arrest of Kaloo Khan. We did not prepare any statement under section 154 of Cr.P.C.". This witness has further deposed that, "however, at that time there was nobody in that house. We all entered in one house for shelter, however, with a view to save our lives we all dispersed in the same house and took positions in different places as under:-". The version of the defence put forth right from the beginning, is that the story of the patrolling, arrest of Kaloo and securance of motorcycle was all fabricated. It was suggested that the deceased policemen were the regular visitors of the village where they used to indulge in gambling and that the casualties were the result of dispute between policemen. But such suggestion was denied. The two star witnesses namely Munir Ahmed and Muhammad Ismail have not implicated specifically any of the appellant. None of the two public witnesses namely Imran and injured Fazal Hussain were produced at the trial . Thus being left with evidence of the complainant alone, we are not impressed in our minds of his having deposed the whole truth.
Above gets support from the deposition of S.-I. Muhammad Akram (page 33) who has stated that "I advised PC Muhammad Suleman (P.W 3) to go back to the Ibrahim Hydri Police Station for lodging the F.I.R. To this effect. At the site of occurrence (i,e, a small house), I saw all the three dead bodies lying in the courtyard of that house".
14. Proof of guilt of an accused cannot be based upon probabilities how high so ever these may be.
Finding of guilt in each criminal case should be based upon unimpeachable evidence on record.
The prosecution must affirmatively prove circumstances under which act was committed. Such burden never shifts to defence. In failure of discharge of such burden by prosecution, the golden rule of benefit of doubt to the accused comes into play.
15. Summing up, we find that there is no evidence on record sufficient to maintain the conviction and sentence passed against the appellants. The prosecution has failed to prove its case beyond any shadow of reasonable doubt. We shall, therefore, give benefit of doubt to the appellants and allow their appeals. And order their acquittal in the case. We decline the reference and do not confirm the death sentences of the appellants. The appellants shall be released from Jail forthwith if not required to be detained in any other case.