RIAZ Versus THE STATE Qurban Ali H. Chaohan , Habib Ahmed,
GHULAM NABI SOOMRO, J.‑ ‑‑ The appellant/convict, Riaz has assailed the judgment, dated 8‑2‑1999 passed by the learned Judge, Special Court, Anti‑Terrorism, Hyderabad and Mirpurkhas, Divisions at Hyderabad convicting the appellant arid sentencing him to death under section 302, P.P.C. There is also a reference for the confirmation of the death sentence in the impugned judgment. We propose to dispose of both the appeals arid the reference together through this judgment.
2. The prosecution case briefly stated is that complainant Police Constable Shahid Ali and P.C. Muhammad Hassan were on duty at Khurram Farm picket within the jurisdiction of Police Station Tando Jam. On 27‑12‑1997 at 2‑15 a.m. a truck going from Hyderabad towards Tando Jam came in reverse within 10‑15 minutes after its passing and informed the complainant party that five dacoits were committing dacoity on the road ahead. In the meanwhile a car also came near the police picket and on request by the complainant party lilted the complainant and P.C. Muhammad Hassan towards the pointed place of dacoity and when they reached there they saw some vehicles and camel carts parked there. They noticed on the head lights of the car some five persons armed with different fire‑arms and a hatchet. The complainant saw them when they fired at the complainant party which hit police constable Muhammad Hassan who fell down on the ground and died on the spot. The complainant also fired in his self‑defence. In the meanwhile a police mobile pick up of Tando Jam reached there on hearing the tire shots within about 15 minutes and on firing of A.S.‑I. Umeed Ali, P.C. Anwar and P.C. Fayyaz towards the dacoits, the dacoits ran away. The complainant then narrated the entire story to A.S.‑I. Umeed Ali. Police Constable Shahid Ali then went to lodge the report at the police station. After lodging of the F.I.R., the S.H.O. Police Station Tando Jam came to the place of incident, prepared the Mashirnama, and got the dead body of P.C. Muhammad Hassan removed to the Taluka Hospital for post‑mortem examination. Thereafter, the police arrested two persons one armed with a SBPL gun and another with a hatchet, from the garden of one Bashir Chandio. Both of them were identified to be the associates of the party of the dacoits involved in the incident. They disclosed their names as Manthar and Akbar Ali.
3. On 9‑3‑1998 the police obtained the custody of appellant Riaz Sial from Central Jail, Hyderabad and arrested him in the case. The appellant voluntarily led the police towards jungle near Ansari farm and from there he took out 7 mm rifle after digging the ground and produced the same before police on 14‑3‑1998. Police also arrested one more accused namely Saleh Magsi with a .12 bore country made pistol and four live cartridges. After usual investigation the police submitted challan against the appellant and others to stand their trial for the offences under sections 302, 324 and 34, P. P. C.
4. Charge against the accused/appellant was framed to which they pleaded not guilty and claimed to be tried. At the trial, the prosecution examined Rasool ‑Bux as P.W.1, Dr. Muzaffar Ali as P.W.2, Shahid Ali complainant as P.W.3, Umeed Ali as P.W.4, Niaz Muhammad as P.W.5, Ali Nawaz as P.W.6 and Muhammad Nawaz Arain as P.W.7, all officials whereafter, the prosecution closed its side. The accused were examined under section 342, Cr.P.C. wherein they denied all the allegations levelled against them and pleaded their innocence. At the conclusion of the trial three accused Mathar, Akber Ali and Saleh Magsi were acquitted while accused Riaz (present appellant) was convicted as aforesaid.
5. It was contended by Mr., Qurban Ali H. Chaohan on behalf of the appellant that the prosecution evidence is interested, discrepant and contradictory. Neither name of the appellant, nor his features, stature or age is mentioned in the F.I.R. It was argued that it was not specifically mentioned as to who fired and who in fact was responsible for the death of the deceased police constable. It was also argued that the prosecution witnesses who are police men have improved their statements in order to implicate the appellant. It was emphasized that the evidence of the witnesses at the trial is totally inconsistent and contradictory to each other and that the learned trial Court has disbelieved the evidence of P.W.4, A.S.‑I. Umeed Ali and P.W.5, Ali Nawaz. It was further urged that the recovery of rifle from the appellant would not connect him with the commission of the offence as neither any empty was secured from the place of incident nor the rifle was sent to Ballistic Expert. It was then urged that no efforts were made to pick up public men to witness the recovery, source of light disclosed is a guesswork complainant says he saw the culprits on the light of the car P.W. Umeed Ali says it was on the light of the truck and mobile pick up and P.C. Niaz Muhammad says that it was on the light of the mobile, none of the vehicle drivers or the camel cart owners were examined nor their names or particulars are shown as to who were those persons available at the time of incident. Learned counsel for the appellant placed reliance upon:‑‑
(1) 1988 PCr.LJ 1368, (2) 1999 PCr.LJ 595, (3) PLD 1996 Kar. 246, (4) 1996 SCMR 308, (5) 1998 SCMR 1401 and (6) 1997 MLD 1679.
6. On the other hand Mr. Habib Ahmed learned A.A.‑G. appearing for the State has opposed the appeal stating that there are no major flaws nor serious contradictions in the prosecution evidence and that the conviction can be based on the testimony of a single witness.
7. Admittedly, the F.I.R. does not mention name of any culprit nor any features or description of such accused persons. The impugned judgment reveals that the learned trial Judge, has been convinced only by the evidence of the complainant Shahid Ali (P.W.3) Exhibit 13 on the basis of whose evidence has convicted the appellant and while disbelieving P.W. Umeed Ali and Niaz Muhammad acquitted the three accused named above.
8. Dr. Muzafar Ali (P.W.2) has conducted the post‑mortem examination of the dead body of the deceased and has opined that the death was due to a bullet injury, though he has not mentioned this in the post?mortem report. Ali Nawaz (P.W.6) is A.S.‑I. of Police Station Tando Jam who accompanied the S.H.O. Muhammad Nawaz (P.W.7) to the Wardat and acted as Mashir of all events, place of Wardat Exh.17‑A, inquest report Exh.17‑B, Laash Chikas form Exh.17‑C, recovery of clothes of deceased as Exh.17‑D, arrest of accused Manthar and Akber Ali Exh.17‑E, arrest of accused Riaz Exh.17‑F, recovery of 7 m.m. rifle from appellant Riaz
Exh.17‑G, and arrest of accused Saleh Magsi and recovery of .12 bore pistol from him. Though the above events relate to different dates yet police could just be able to call the same Mashir again and again.
9. On further perusal of the evidence it appears that nothing was secured from the place of. Wardat, neither blood nor any empty cartridge or bullet was found from there. Consequently the rifle allegedly recovered from the appellant Riaz was not sent to the Ballistic Expert as the report of Ballistic Expert could not have been sufficient to connect the appellant with the commission of the offence. The evidence of prosecution witness namely Niaz Muhammad (P.W.5) and A.S.‑I. Umeed Ali (P.W.4) is contradictory to each other and has rightly been disbelieved. It clearly shows that none of the two versions given by the two prosecution witnesses could be true at one and the same time. Besides the contradictions in the depositions of the prosecution witnesses, we notice each one of the P.Ws. say that he had fired. The complainant claims to have fired 13 shots from his rifle, likewise A.S.‑I. Umeed Ali states that he fired nine shots, yet not a single empty is found at the Wardat which was inspected at 3‑30 a.m. by S.H.O. Muhammad Nawaz (P.W.7) just after an hour of the incident.
As far the identification of the appellant on the light of the vehicles there is no reliable, trustworthy evidence on record that any of the witnesses produced by the prosecution at the trial was in position to clearly see the faces of the alleged dacoits at the time of occurrence i.e. 2‑30 a.m. from a distance of 1/2 km. or 1/2 furlong.
11. Thus there appears to be no cogent implicitly reliable and trustworthy evidence. relating to the clear vision of the culprits/accused, when it is stated that the mobile vehicle was parked at a distance of half a kilometer away from the Wardat.
12. In view of what has been discussed above we find that the prosecution has failed to prove its case beyond any shadow of reasonable doubt. We, therefore, give benefit of doubt and set aside the conviction and sentence passed against appellant and order his acquittal in the case. Consequently, the reference for confirmation of death sentence is declined. ? The appellant shall be released forthwith if not required to be detained in any other case.
13. The appellant's appeal was accepted by a short order, dated 18‑11‑1999 and these are the reasons for the same.
N.I1.Q./R‑31/K ?????????????????????????????????????????????????????????????????????????????????? Appeal accepted.