TANVIR BASHIR ANSARI, J.---Abdul Sattar alias Yasin and Abdul Jabbar alias Sindhi were tried by the learned Special Judge, Special Court, Anti-Terrorism, Bahawalpur for the murder of Muhammad Arshad Sub-Inspector and Abdul Ghafoor, Constable. The learned trial Judge vide his judgment, dated 2-12-1998 acquitted both the accused by giving them the benefit of doubt.
Ghulam Rasool alias Chhotoo and Muhammad Shehzad alias Mithu were declared Proclaimed Offenders and will be dealt with according to law when they surrender themselves or are arrested.
2. The State has filed the instant appeal against acquittal which was admitted to regular hearing on 9-12-1999.
3. F.I.R. No. 437 of 1996, dated 26-11-1996 (Exh. P.H.) was registered under sections 324/353/302/34, P.P.C. at Police Station A-Division, Rahimyarkhan upon the complaint of Sharafat Ali, S.I./S.H.O.
(P.W.11):
4. The brief facts are that on 16-11-1996, A.S.P. City, Rahimyarkhan received secret information that Abdul Jabbar alias Sindhi, Abdul Sattar alias Yasin and Ghulam Rasool alias Chhotoo who were required in different cases will go to the Dera of one Aslam Pathan of Tibbi Larran on 26- 11-1996.
The A.S.P. thereupon constituted a raiding party to apprehend the said persons.
The police contingent was deployed at Bandore and near the house/Dera of Aslam Pathan. At about 7.45 p.m. three persons riding on a motorcycle came near Bandore/ Canal Bridge. All the three persons were armed with Kalashnikoves. After seeing the police party, two persons got down while the third to escape on the said motorcycle. When the police party tried to apprehend the accused on the motorcycle, the other two persons started indiscriminate firing at the police party, as a result of which, Muhammad Arshad, S.I. and Abdul Ghafoor, Constable sustained injuries and fell down. The police party also fired in-retaliation but the assailants fled away after leaving the motorcycle. Both the injured succumbed to their injuries in the Hospital. According to the complainant, Abdul Jabbar, Abdul Sattar and Ghulam Rasool were nominated as the accused in the F.I.R.
5. The initial investigation wasconducted by Muhammad Sadiq, Inspector/ S.H.O., Police Station, Saddar, Rahimyarkhan. He secured blood-stained earth from the place where Muhammad Arshad, S.I. was injured and also from the place where Abdul Ghafoor constable was injured. The same was taken into possession through recovery memo. Exh. P.B. and Exh. P.C. respectively.
Motorcycle Registration No. 790-RNJ Honda CD-70 was also taken into possession through recovery memo. Exh.P.G. He also took into possession last worn clothes of the deceased vide memo. Exh.P.D. and Exh. P.E. He also got prepared the moulds of foot mark of the accused vide Exh.
P.F. He also prepared the inquest report Exh.P.J./1 in respect of Muhammad Arshad, S.I. deceased while inquest report in respect of Abdul Ghafoor constable deceased Exh. P.K./1.
6. Muhammad Sadiq, Inspector expired during the course of trial. Abdul Majid, H.C. who was associated with him during investigation recorded his statement as P.W.13, identified the handwriting and signatures of Muhammad Sadiq, Inspector on the various exhibits and also affirmed his own signatures on the same. Abdul Jabbar and Abdul Sattar accused were arrested on 27-7-1998 in case F.I.R. No. 182 of 1997. The accused were charge-sheeted on 28-10-1998 under sections 302/353/34, P.P.C. to which they pleaded not guilty and claimed trial.
7. To prove its case, the prosecution examined P.W.1 Bashir Ahmad Patwari, P.W.2 Amjid Rashid, H.C.
P.W.3 Manzoor Ahmad Constable. P.W.4 Irfan Ali Constable, P.W.5 Muhammad Javed, Constable, P.W.6, Muhammad Arshad Khan, A.S.I., P.W.7 Muhammad Akram, A.S.I., P.W.8 Muhammad Yousuf Constable, P.W.9 Muhammad Ashraf Constable, P.W.10 Maqbool Ahmad, P.W.11 Sharafat Ali, S.I., P.W.12 Muhammad Yasin, P.W.13 Abdul Majeed, H.C., P.W.14, Dr. Maqsood Hussain Rana, P.W.I5 Maqboor Hussain Inspector, P.W.16 Ameer Khan, A.S.I. and P.W.17 Aziz Ullah Khan, Inspector.
8. The ocular account was rendered by P.W.7, P.W.8, P.W.10 and P.W.11, the investigation was conducted by Muhammad Sadiq, Inspector (late) and P.W.13, the site plan was prepared by P.W.1 while P.W.9 is the witness of the arrest of the accused in F.I.R, No. 182 of 1997. The medical evidence was provided by P.W.14 Dr. Maqsood Hussain Rana, C.M.O. It may be stated that the post-mortem of the deceased was conducted by Dr. Muhammad Anwar, C.M.O. who could not be produced as he was on Ex-Pakistan leave. According to the postmortem report Dr. Muhammad Anwar found the, following injuries on the dead body of Muhammad Arshad, S.I.
INJURIES:
1. 5 mm inverted wound on the back of left renal area, oval shaped:
2. 2 c.m. everted margin wound which were lacerated on the left hypocondrium area of abdomen which protruted out.
In his opinion, injury No.1 damaged the major artery and vein which led to the massive bleading, shock and death. Injuries were ante-mortem in nature and were sufficient to cause death in ordinary course. Probable time that elapsed between injury and death was within half an hour and between death and post-mortem was within 18 hours.
On the same day, he also conducted the autopsy on the dead body of Abdul Ghafoor on 26-11-1996 at 8-30 p.m. and found the following injuries on his person:---
1. 5 mm ()Val shaped wound which was on the right frontal area of head. No burning or blackening present around the wound,
2. Lacerated 2 c.m. x 2 c.m. bleeding wound on the right occipital area of skull, brain matter was coming out.
In his opinion, the cause of death was damage of the brain by fire-arm and was sufficient to cause death in ordinary course of life. The probable time that elapsed between injury and death was within minutes and between death and post-mortem was within 18 hours. Post-mortem reports and inquest reports of both the, deceased are Exh. P.J., Exh.P.J./1 , Exh. P.K. and Exh. P.K./1 respectively which were also signed by Dr.Muhammad Anwar and identified his handwriting and signatures.
9. Accused Abdul Sattar and Abdul Jabbar were examined under section 342, Cr.P.C. and they denied all the prosecution allegations. In answer to the question that as to why this case against them they made a common statement which is as under:-- "I have been involved in this case falsely. According to the facts of the case, it seems to be a blind murder of both the deceased, and I did, not commit the murder of both the deceased. Actually, the complainant Sharafat Ali belongs to Shia Sect and he presumed that we belong to Sipah-i- Sahaba. So, he involved me in this case falsely due to sectarian enmity."
They did not wish to appear as their own witnesses under section 340(2), Cr.P.C. They also declined to produce their defence witnesses. However, they deposed that they are innocent.
10. The prosecution gave up some P.Ws. being unnecessary and tendered in evidence report of.
Chemical Examiner Exh. P.M. and Serologist report Exh. P.N. and closed its evidence.
11. The learned trial Judge after disbelieving the prosecution evidence acquitted the accused as indicated above.
12. We have heard the arguments. addressed by both the learned counsel for the parties and have examined the entire evidence on the record with their assistance.
13. The ocular evidence comprises of P.W.7 Muhammad Akbar, P.W.8 Muhammad Yousuf, Constable, P.W.10 Maqbool Ahmad, Constable and P.W.11 Sharafat Ali, S.I. /complainant. P.W.11 Sharafat Ali, S.I. appeared and stated that on 26-11-1996, he was posted at Police Station, A-Division, Rahimyarkhan as S.H.O. On that. day, A.S.P. City, Rahimyarkhari received secret information that Abdul Jabbar, Abdul Sattar and Ghulam Rasool were expected to visit the Dera of one Aslam Pathan. These persons were required in many cases in different police stations. After being briefed, the police party which was deployed near the Bandore Bridge included Muhammad Arshad, S.I. deceased, Abdul Ghafoor, Constable deceased, Muhammad Akram, A.S.I. P.W.7 and other 4/5 police constables. All the police officials were armed with fire-arm weapons. At about 7.45 p.m., three persons armed with Kalashnikoves riding on a motorcycle came towards Bandore Bridge. On seeing the police party, two persons got down from the motorcycle, the third person riding on the motorcycle attempted to run away from the spot but the police party tried to intercept. In the meantime, the other two persons opened fire at the police party and in result thereof, Muhammad Arshad, S.I. received bullet injury in his abdomen while Abdul Ghafoor constable received a fire-arm injury on his head. Both the injured fell down on the ground. The police party retaliated and fired upon the accused but they managed to make good their escape leaving behind the motorcycle.
This P.W. also stated about recording his statement on 5-12-1996 with regard to Anjum Shahzad accused who according to him was the person who left the motorcycle at the spot and fled away.
The Other eye-witnesses P.W.7, P.W.8 and P.W.10 made substantially identical statements regarding the occurrence.Each of these witnesses were deployed near the Dera of Aslam Pathan as deputed by the A.S.P. Muhammad Arshad, S.I. deceased and Abdul Ghafoor, Constable deceased were also on such duty. All four eye-witnesses have deposed that the three persons had arrived on a motocycle out of whom two persons armed with Kalashnikoves opened indiscriminate fire upon the police party which resulted in the fatal injuries to the two police officials. Out of the four eye- witnesss, P.W.8, P.W.10 and P.W.11 do not state to have identified the accused at the time of occurrence. Only P.W.7 Muhammad Akram stated that he had recognized Abdul Jabbar, Abdul Sattar and Ghulam Rasool at the spot.
14. A perusal of the F.I.R. would show that the complainant who was himself a Police Officer did, not specify the role attributed to the assailants. After reviewing the eye-witness account, it is not found established as to who caused the fatal injuries to the deceased. There is no denying the fact that the occurrence took place on 26-11-1996 wherein two police officials were murdered.
The manner in which the occurrence took place is also corroborated, by the eye-witnesses.
However, there is nothing in the testimony of these witnesses if anyone of them had known the accused personally before the occurrence took place and if so what was the source of their knowledge. It is also not apparent from the record as to in which particular case the accused persons were required to be apprehended when the police was deployed near the house of Aslam Pathan. It was argued on behalf of the appellant that the accused were known to the police officials as they were notorious criminals of the area. In the absence of any positive evidence connecting the accused with the offence, mere notoriety is not sufficient to inculpate the accused in the commission of the offence. None of the accused were apprehended at the spot. In fact the accused were arrested on 27-7-1998 in connection with some other case F.I.R. No. 182 of 1997 whereafter the recovery of the Kalashnikov was effected. Another important feature of the ocular account is that all the eye-witnesses included the name, of Anjuni Shehzad during their statements as the accused who was driving the motorcycle. If this be so, then either the number of accused involved in the occurrence should be 4 instead of 3 and if the prosecution stidks to this story of three persons riding the motorcycle, which person shall be liable to be excluded from the list of three nominated accused in the F.I.R. The ocular account is discrepant and is wholly insufficient to connect the accused with the offence.
15. The investigation was conducted by Muhammad Sadiq, Inspector alongwith Abdul Majid P.W.13.
The version of the prosecution is that the accused caused indiscriminate tiring at the police party.
It is also in evidence that the police party retaliated and also fired upon the assailant. However, the Investigating Officer, Muhammad Sadiq, Inspector or Abdul Majid P.W.13 who was associated in the investigation have not secured any crime empties from the spot. This lapse on the part of the prosecution is fatal to its case ,as it has been rendered impossible to match the crime empties with the recovered weapons of offence.
16. There are further serious inadequacies in the investigative process carried out by the prosecution. The moulds of the foot-prints Exh. P.8 and Exh. P.9 of the accused were obtained by the Investigating Officer and were sent to the Laboratory. However, after the arrest of the accused, the moulds of the accused were not obtained nor sent to the Laboratory for comparison.
It is also noticed that after the arrest of the accused, no attempt was made at conducting identification parade. This was necessary as no specific role has attributed to any accused in the F.I.R. itself. The necessity for holding the identification parade is also reflected by the fact that none of the eyewitnesses had testified having recognized any of the accused at the spot. Even during the course of trial, none of the witnesses of the prosecution pinpointed any accused present in the Court.
17. The medical evidence produced by the prosecution shall also be of no avail to the prosecution.
Firstly, the Medical Officer who conducted the autopsies on the dead bodies of the deceased was not produced in evidence as reportedly he was on Ex-Pakistan leave. The statement of Dr., Maqsood Hussain, P.W.14 is not of much intrinsic evidentiary value as he has merely identified the signatures of Dr. Muhammad Anwar. P.W.14 has admittedly not conducted the post-mortem examination himself. In any event, the medical evidence by itself does not connect any accused with the offence unless corroborated by other material evidence.
18. After having considered the ocular and medical evidence as also the evidence of recovery and keeping in view the principle of safe administration of criminal justice, we do not find any justifiable grounds for interference in the judgment of acquittal rendered by the learned trial Court.
19. As a result, there is no merit in this appeal which is hereby dismissed.