' GHULAN NABI SOOMRO; J.---By this common judgment we propose to dispose of Special Anti- Terrorism Appeal No,34 of 2000 and Special Anti-Terrorism Acquittal Appeal No,127 of 1999. The Acquittal Appeal No,127 of 1999 arises out of the judgment dated 25-8-1999, whereby the learned Presiding Officer Mr. Hussain Bux Khoso of the Anti-Terrorism Court No,IVth, Karachi acquitted all the four accused/respondents present before the Court and ordered trial of the seven absconders upon their arrest by bifurcating their case. Absconder accused Shabbir Chiter was arrested later and was tried by the same Court then being presided over by Mr. Khan Pervez Chang who by his judgment dated 22-3-2000 convicted the accused Muhammad Shabbir and sentenced him to life imprisonment and other sentences, which give rise to his appeal against his conviction, bearing No,34 of 2000.
2. The prosecution case briefly stated is that on 27-12-1997 at about 10-30 a.m. Complainant A.S.-I.
Aijaz Hussain lodged the F.I.R. At Police Station Liaquatabad stating therein, that on the above date he alongwith P.C. Imtiaz Hussain, P.C. Asif and P.C. Javed were on patrolling duty in a police mobile.
It has been alleged in the F.I.R. That at about 7-45 a.m. They seeing a motorcycle going ahead tried to stop on which two persons were sitting, but the motorcyclists drove away the motorcycle in narrow streets. The complainant followed them in the Mobile, and near Quwat-ul-Islam Mosque some persons started firing at them with the result that P.C. Imtiaz Ahmed received bullet injury on the back of his head, he fell down and died on the spot. The dead body was, thereafter removed to Abbasi Shaheed Hospital and, thereafter, complainant went to police station and lodged the F.I.R. It has been alleged in the F.I.R. That complainant identified some of the culprits as Naeem Macha, Faraasat, Javed, Waseem Tinta, Aslam Sundhi and Shabbir Chiter as they all fired at the police with Kalashnikovs.
3. During the patrolling police arrested accused Tariq Hussain, Mirza Irfan Baig and Muhammad Imran on 25-7-1998 from a carat Teen Hatti Bridge, although the names of the above accused are not mentioned in the F.I.R., but at the time of their arrest complainant statedly identified them that they are the same accused, who fired at them on 27-12-1997. Accused Naeem Macha was also arrested by the Police in another case and was produced before the Court. After usual investigation all the acquitted accused were challaned in the Court whereas remaining accused were shown as absconders in the challan.
4. At the conclusion of the investigation the challan was submitted in Court against the accused as aforesaid. A charge was framed to which they pleaded not guilty and claimed to be tried.
5. During the trial prosecution examined complainant A.S.-I. Aijaz Hussain at Exh.8, P.C. Muhammad Asif at Exh.11, P.C. Muhammad Javed at Exh.12, Dr. Moula Buksh at Exh.13, injured P.W.Arif at Exh.14, H.C.
Abdul Aziz at Exh.15, SIP Jan Muhammad at Exh.16, DSP Qamar Ahmed at Exh.17, Dr. Muhammad Khalid at Exh.18 and Inspector Muhammad Nawaz at Exh.19. During the evidence complainant produced the F.I.R. As Exh.8/A and the memo. Of place of incident as Exh.12/A, Dr. Moula Buksh produced the post-mortem report as Exh.13/A and the letter of SIP as Exh.13/B, H.C. Abdul Aziz produced the memo of inspection of dead body and the inquest report as Exh.15/A and Exh.15/B, SIP Jan Muhammad produced the receipt of dead body as Exh.16/A and letter to M.O. As Exh.16/B. Dr. Muhammad Khalid produced the provisional and final medical certificates of injured Muhammad Arif as Exh.18/A and Exh.18/B. Inspector Muhammad Nawaz produced the report of the Chemical Examiner as Exh.19/A. Learned Public Prosecutor closed the evidence side of the prosecution vide Exh.20.
6. In their statements recorded under section 342, Cr.P.C. At Exh.21 to Exh.24 the respondents have denied the case of the prosecution. In support of its cases respondent Muhammad Imran has produced three documents as Exh.20/A to Exh.20/C so also respondent Mirza Irfan Baig as Exh.23/A to Exh.23/C.
7. It was contended by the learned counsel for the appellant-convict M. Shabbir Chitter that though it is alleged that some 300 rounds were fired by the culprits upon the police mobile" and in return police also fired about 100 rounds but not a single empty shell was recovered from the place of encounter. It was further argued that not a single bullet mark was found on the mobile vehicle nor on the wall of a building or on shop. P.W. Arif Exh.14 (aged 12 years) who got injured does not speak of any encounter and does not implicate the appellant and that the appellant was not put to identification test. It was further argued that the cap, shoes and the service rifle of the deceased constable have not been shown recovered or accounted for. It was lastly urged that the appellant's case falls in line with the acquitted accused and he is also entitled to acquittal.
8. Mr. Katpar, on the medical evidence contended that the deceased constable Imtiaz had sustained a single injury on head, which is described as 15 c.m. x 8 c.m. With no wound of entry or exist. According to him such injury cannot be the result of a bullet shot. It was further argued that no blood was found on the clothes of the deceased. The injuries as per the inquest report were also found on the legs of the deceased, which are ' not explained. It was, therefore, urged that the conclusions drawn in the judgment of acquittal, get vehement support from the above. Reliance was placed 1992 SCM R 96, 1997 SCM R 569, 2000 SCM R 1038, 2000 PCr.LJ 1434.
9. . Mr. Habib Ahmed, learned A.A.-G. Appearing for the State submitted that there was only ocular evidence in the case which consisted of the complainant A.S.-I. Aijaz Hussain Exh.6 and P.C. Javed Exh.8, and P.C. Asif Exh.11. He further submitted that the trial Court's view in its judgment of acquittal dated 25-8-1999, that 'the deceased was killed at some other place, was not correct. The learned A.A.-G. Was, however, not able to substantially controvert the contentions raised above.
10. In the acquittal appeal, Mr. Muhammad Ikram Siddiqui appearing for respondent Muhammad Imran supported Mr. Abdul Waheed Katpar appearing for the remaining respondents (acquitted accused) and reiterated that the judgment of acquittal cannot be set aside unless it is found to be arbitrary perverse or whimsical.
11. We have heard the learned counsel for the parties and the learned A.A.-G. For the State and have perused the judgment of acquittal dated 25-8-1999 and the judgment of conviction of the appellant Shabbir Chitter dated 22-3-2000.
12. The record reveals that the appellant-convict was after his arrest on 30-10-1999 confined in the lock up of the Police Station Liaquatabad where P.Ws. (police officials of the same police station) identified them before S.H.O. Rightly, therefore, identification before a Magistrate was not held in the above situation holding of any identification test of the appellant or his identification by the P.Ws. At any later stage was futile and meaningless. Though it is alleged that the fires were made at the police mobile from the four sides and exchange of firing continued for about half and hour, yet not a single empty is shown to have been recovered by police. The cap and the shoes of the deceased are also not recovered. Nothing is said about his service rifle, which goes to make a room to doubt the occurrence of the incident in the manner as alleged by prosecution.
13. The only public independent witness namely M. Arif (aged 12 years) Exh.14 has stated that the incident took place at 8.00 a.m. While he was going to Madressa and as soon as he came out of his house he got hit by a bullet so he returned home and went to hospital with his ' father and further that he had not seen the culprits, who were firing. This evidence of P.W. Arif does not implicate the appellant in any manner.
14. The judgment of acquittal is based on well reasoning and the respondents (acquitted accused) have rightly been given benefit of doubt and acquitted. Consequently, we dismiss the Acquittal Appeal No,137 of 1999.
15. The reasoning given in the subsequent judgment of conviction in the case of Shabbir Chitter does not convince us. The prosecution appears to have failed in establishing its case beyond any shadow of doubt. Important questions like missing of cap, shoes and rifle of the deceased (2) non- availability of any empty (3) mobile going untouched, unhit when prosecution alleges about firing of 300 bullets at police party from all its sides, have been left unanswered and unexplained. These circumstances have created great doubts in the prosecution case. We do not find any tangible material on record to draw a separate or an adverse conclusion to the judgment of the acquittal.
We find the appellant Shabbir Chitter also entitled to benefit of doubt and accept the Special Anti- Terrorism Appeal No,34 of 2000 and acquit the appellant Shabbir Chitter in the case. He be released from Jail if not required to be detained in any other case.
16. Above appeal was decided by a short order dated 7-3-2002 for the aforesaid reasons.