GHULAM RASOOL Versus State

1. NADEEM AZHAR SIDDIQI, J.--- The appellant has challenged his conviction and sentence recorded . by Anti-Terrorism Court-II, Sukkur vide judgment, dated 6-12-2003 in Special Case Nos.67 and 68 of 2003. The conviction and sentence awarded to the appellant is as under:--

(1) Imprisonment for life and Rs.200,000 as compensation to be paid to the legal heirs of deceased and in default in payment of the compensation R.I. for six months more, for offence under section 302(b), P.P.C.

(2) R.I. for ten years and fine of Rs.50,000 in case of default in payment of fine R.I. for one year more, for offence under section 324, P.P.C.

(3) R.I. for two years and fine of Rs.5000, in case of default in payment of fine S.I. for three months more, for offence under section 353, P.P.C.

(4) Imprisonment for life and fine of Rs.200,000 as and in default in payment of the fine R.I. for two years more, for offence under section 7 of ATA Act, 1997.

(5) R.I. for five years and fine of Rs.10,000, in case of default in payment of fine R.I. for one year more, for offence under section 13(c), Arms Ordinance.

2. The allegation against the appellant is that on 6-9-2003 at about 0030 hours in the night he committed the harrabah of the Government Semi-Rifles belonging to P.C. Muhammad Bux Buledi and PC Attaullah Jakhrani at Police Picket Bahoo and while committing harrabah caused the death of PC Muhammad Bux Buledi by firing at him and also deterred the police party headed by HC Hazoor Bux from discharging their lawful duty as public servant and also fired on the said police party with intention to cause their Qatl-i-Amd, and also created panic, terror and insecurity -in the mind of persons of the locality.

3. The charge was framed and the appellant has pleaded not guilty and claimed the trial.

4. Prosecution in support of its case has examined eight P.Ws., namely, complainant HC Hazoor Bux, PC Ali Asghar, A.S.-I. Hussain Ali, Medical Office Dr. Amanullah, Tapedar Shah Nawaz, A.S.-I. Abdul Hadi, Mashir HC Hair Din and S.H.O. Qurbdn Ali Khokhar and closed their side.

5. The statement of the appellant was recorded under section 342, Cr.P.C., in which he claimed that he was falsely implicated in a false case and that all the P.Ws. are police officials and are interested persons. The appellant has also denied the recovery of incriminating articles. The appellant has denied to give statement on oath or to produce any witness in his defence.

6. P.W. complainant HC Hazoor Bux in his deposition has stated that on 6-9-2003 he was the Incharge of P.P. Akbar Suhriani Laro of P.S. A-Section Kandhkot, PCs Ali Asghar, Alam Khan, Ahmeduddin were also attached with him and on the said date he and said PCs- were on duty and other constables were sleeping. He further states that in the night at about 12.00/12.15 they heard the gunshot reports coming from the side of Bahoo Picket. He and PC Ali Asghar rushed to that direction and saw accused Ghulam Rasool on electric light. On reaching there he also heard second shot fired by the accused Ghulam Rasool. On seeing them accused person also started firing on them in order to cause their death. He further states that he saw PC Muhammad Bux Buledi was lying dead having fire-arm injury on his head. He further states that accused had taken away government rifles of 7.62 bore belonging to PC Muhammad Bux Buledi and PC Attaullah Jakhrani. In his cross-examination he states that Police Picket Akbar Suhriani is at the distance of about 1000 paces from Bahoo Picket. There is cultivation in between both the pickets. He denied a suggestion made by the learned counsel for the appellant that he had not seen the appellant at the place of Wardat and was deposing falsely.

7. P.W.2 PC Ali Asghar in his deposition states that on 6-9-2003 he was posted as PC at P.P. Akbar Suhriani Laro. H.C. Hazoor Bux was Incharge of the Picket and PC Ahmed Din and Alain Khan were also posted with them. On the said date at about 12-00 night they heard gun report coming from the Police Picket Bahoo. He and HC Hazoor Bux rushed to that direction and saw accused Ghulam Rasool on the electric light. They challenged him but he started firing on them from government rifle. They also in their self-defence fired at the appellant. They went to P.P. Bahoo and found PC Muhammad Bux Buledi lying dead having fire-arm injury on his head. In his cross-examination he submits that when the saw he accused he was at the distance of about 75 paces. He admitted that the night was dark but there was light of electric bulbs and on the side of accused there was no light.

8. P.W.4 Dr. Amanullah, Medical Officer, Civil Hospital Kandhkot in his deposition has stated that he has conducted the post-mortem of the deceased Muhammad Bux Buledi and found the following injuries:--

(1) Two lacerated punctured wounds, each measuring size 1 c.m. x 1 c.m. into diameter-2 1/2 c.m. away from each other occipital region with blackening margins with inverted margins. (Wound of entry) communicated through and through with wound of exit on front of face with missing of nose, both eyes and forehead with brain matter out.

9. P.W.8 Qurban Ali, S.H.O. P.S. A-Section Kandhkot in his deposition states that from the wardat he secured blood-stained earth of deceased P.C. Muhammad Bux, two empties of 7.62 bore and 50 empties of 7.62 bore and separately sealed them at the spot. He also examined A.S.-I. Hussain Ali Shah, HC Heerdin, H.C. Arbelo, HC Hamid Mehmood, P.Cs Khair Muhammad, Rauf, Imdad Ali, Wali Muhammad, Bashir Ahmed, Mahsooq Ali and P.C. Ali Asghar under section 161, Cr.P.C. He also states that he has arrested the appellant and from his personal search nothing was recovered. The appellant volunteered to lead him for production of the crime weapon, which was found from the `Lace' bushes along with bag containing live bullets. The appellant failed to produce any licence and has stated that the rifle belongs to deceased PC Muhammad Bux and PC Attaullah. He also produced, the Chemical Analyser's report and Ballistic Expert report in respect of the rifles and the empties. In his cross-examination he states that he did not recover the electric bulbs which were available at the place of wardat. He further states that the empties recovered by him from the place of wardat were of government weapon and he sealed the empties and rifles at the place of wardat in presence of mashirs.

10. P.W. Hairdin, mashir of the recovery of rifles, in his deposition has stated that appellant volunteered to lead them to the .place for production of the weapon. The rifles were recovered from the `Lace' bushes along with a bag containing 122 live bullets at the pointation of the appellant. In his cross-examination he states that private persons were available at the place of, wardat but nobody from them was prepared to act as mashir in this case. He further states that from police picket the place of recovery was at the distance of about one furlong.

11. The evidence of remaining witnesses being formal in nature and apparently of no help to the prosecution in establishing the charge against the appellant, hence is not discussed.

12. The learned counsel for the appellant has submitted that the incident is an unseen one and no eye-witness was produced to connect the appellant with the commission of the offence. He further submits that admittedly the offence was committed in dark night and there is no evidence that the electric bulbs were illuminating and mistaken identity cannot be ruled out. He further submits that 161, Cr.P.C. statements of witnesses, who are all police officials, were recorded after delay of 12 days and that the recovered articles were sent to the Ballistic Expert on 17-10-2003 after delay of one month and 11 days without any explanation. He further submits that the delay in sending the recovered articles to Ballistic Expert create reasonable doubt with regard to the recovery of articles.

13. The learned Asst. A.G., has supported the judgment of the trial Court and has submitted that the trial Court as rightly convicted the appellant and there is no misreading or non-reading of evidence and the trial Court has passed the conviction and sentence after proper appraisal of the evidence available on record.

14. We have heard the learned counsel for the parties and perused the record made available before us.

15. In the F.I.R. the complainant states that he saw in light of bulbs one Ghulam Rasool son of Meero, by caste Subzoi, resident of Katcho near Durani Mahar, Taluka Kandhkot, who had official rifles of 7.62 bore. He further states that after escaping of the appellant from the place of wardat they saw at Bahoo Picket that Santry PC Muhammad Bux Buledi had sustained two holes on backside of his head, exit from front side and his both eyes were out of skull and his official rifle was missing, so also weapon of PC Ataullah was missing.

16. In his examination-in-chief the complainant H.C. Hazoor Bux has made some improvement and has stated that on reaching at the Picket Bahoo he heard second shot fired by appellant Ghulam Rasool. The P.W. Ali Asghar, who is also one of the eye-witnesses, has not stated about the second shot fired by the appellant. From the statement of both these eye-witnesses it is clear that they were not present at the site and they were about 1000 paces away from P.P. Bahoo. They further state that they have seen the appellant in dark night from the distance of about 75 paces. The prosecution has not secured any evidence with regard to the presence of electric bulbs at the place of wardat. Although, the case of the prosecution is that appellant had also taken away the rifle of PC Attaullah but the prosecution is silent about the presence or non-presence of PC Attaullah at the place of wardat. It is not possible that PC Attaullah was not present at Police Post Bahoo but has left his rifle at the Police Post. The complainant has made improvement in his statement and his deposition is to be examined very carefully. The evidence of the eye-witnesses is not confidence inspiring. None of the eye-witnesses has clearly stated that they have seen appellant firing upon the deceased and in absence of clear evidence the conviction on the basis of deposition of the witnesses who are capable of improving their statements cannot he maintained. Furthermore, the prosecution has failed to give any explanation with regard to 12 days' delay in recording the 161, Cr.P.C. statements of the P.Ws., who are all police officials. The prosecution has also failed to explain the delay in sending the recovered articles to the Ballistic Expert. In the case of Sobho v. The State reported in 1982 PCr.LJ 243, a learned Division Bench of this Court has held as follows:

17. "(d) It may be stated that the learned Additional Sessions Judge has discarded the recoveries and the Chemical Analyser's reports for the reason that there was a delay of about two months in delivering the alleged blood-stained articles, and in our view rightly so, as it has been consistently held by this Court that the delay in the recovery of dispatching of the alleged blood-stained articles for one or two months or more months may be fatal to c admissibility of the recoveries. In this regard, it may be pertinent to mention the case of Suleman and 2 others v. State (1981 PCr.LJ 434) in which there was a delay in the dispatch of incriminating articles for about 5 months and because of that the same were discarded. While arriving at the above conclusion inter alia the reliance was also placed on the case of Gulzar v. State (1976 PCr.LJ 419), wherein one month's delay was considered by a Division Bench of Lahore High Court to be sufficient for rendering the recoveries as valueless."

18. In the case of Saeed Muhammad Shah v. The State (1993 SCMR 550) a full Bench of the Honourable Supreme Court has held that "in the absence of satisfactory nature of explanation normally rule is that statements recorded by police after delay and without explanation are to be ruled out of consideration".

19. In another case reported as Iltar Hussain v. The State (1996 SCMR 167) the Hon'blc Supreme Court has held that "the argument that public witnesses do not come forward to support such like recoveries because of risk to their life and liberty, nonetheless could not absolve the Police of their heavy responsibility to produce witnesses from public. There is no dearth of citizens of strong views and character who would come out to support such like cases provided they were taken into confidence, given due respect and were ensured that full protection would be given to them, in case, they aided the law-enforcers to curb the crimes in the best interest of the society as a whole".

20. From the post-mortem report it appears that the fire on the deceased was made from close distance whereas no worth relying ocular evidence is available to show that both the eye-witnesses have seen the appellant firing upon the deceased from close distance, therefore, the medical evidence is not in corroboration of ocular evidence and cannot be treated as corroborative piece of evidence. From the medical evidence it can only be said that the deceased has died unnatural death but the appellant cannot be connected with the alleged offence due to lack of ocular evidence.

21. When the ocular evidence has become unreliable and doubtful, the remaining evidence is not sufficient and of satisfactory nature to justify the conviction. Furthermore, no motive of murder has been assigned and in absence of any motive the appellant cannot be convicted on the basis of weak ocular evidence not inspiring confidence.

22. In view of the above, by a short order passed today we have allowed the appeal and above are the reasons for the said order.

23. N.H.Q./G-9/K Appeal allowed.