REHMAT ALI Versus State

1. MRS. QAISER IQBAL, J.--- Rehmat Ali son of Shahzad along with acquitted accused Syed Jameel Hussain alias Sheeno and Siraj-ul-Islam son of Ameer Khan and absconding accused Spain Yar alias Khanzada alias Sherzada, Balado alias Billa, Gui Khan alias Disco, Meeran Arsalan, Qadir and Dacoit Ali Hyder were sent up by the police of Manghopir to face trial in Crime No.146 of 2000 under sections 302/353/324/34, P.P.C. read with section 7 Anti-Terrorism Act, 1997 registered at Police Station Manghopir on the basis of the report of police constable Asghar Ali recorded under section 154, Cr.P.C. Exh.9-A.

2. The learned trial Court vide judgment dated 12-1-2008 convicted appellant Rehmat Ali under section 6(2)(a) of Anti-Terrorism Act to suffer R.I. for life imprisonment awarded him fine of Rs.100,000 and compensation of Rs.1,00,000 to be paid to the legal heirs of deceased police constable Furqan and further sentenced him to under go R.I. for imprisonment of two years in case of default in payment of fine and to pay fine of Rs.50,000 under section 6(2)(m) punishable under section 7(h) of Anti-Terrorism Act, 1997 read with sections 302 and 354, P.P.C. and also to undergo 6 months' imprisonment in default of payment of fine, co-accused Syed Jameel Hussain alias Sheeno and Siraj-ul-Islam son of Ameer Khan were acquitted from the charges levelled against them whereas the case against absconding accused was bifurcated and was tried separately.

3. The prosecution case as disclosed in the statement of police constable Asghar Ali in his statement under section 154, Cr.P.C. is that he along with police constable Raza Hussain Shah, P.C. Furqan Baig was on patrolling in the area proceeded towards Paracha graveyard on motorcycle. At 11-30 spy information was received that Dacoit Ali Hyder along with his companion was present at Gali Muhammad Pura robbing the passerby on the show of fire-arm wanted in dacoity cases by different police stations including Crime No.105 of 1994 at Police Station Pirabad, Crime No.159 of 2000. Soon after the identification of the accused in the process of arresting them they opened fire direct upon the police, a bullet hit to P.C. Furqan Baig on his chest who fell down and died instantly on the spot while another bullet P.C. Raza Hussain Shah on his stomach in retaliation police also fired, Dacoit Ali Hyder received bullet injuries later succumbed to injuries while the encounter was on its way mobile of Police Station Manghopir headed by A.S.-I. Hamayon Khan, A.S.-I. Abdul Majeed and A.S.-I. Muhammad Nawaz Lashari along with subordinate staff reached and they also opened fire on the accused party by taking the advantage of the darkness managed to be fled away. The dead body of P.C. Furqan and Dacoit Ali Hyder along with injured P.C. Raza Hussain Shah was shifted to Abbasi Shaheed Hospital for post-mortem and medical report. After registration of Crime No.146 of 2000 the appellant and co-accused were arrested and the case was sent for trial to IIIrd Additional Sessions Judge Karachi West later under the orders of Administrative Judge, Anti-Terrorism Court the case was transferred to the trial Court for disposal according to law on 8-1-2007.

4. The occurrence had taken place on 29-11-2000 at 23-30 hours inside Gali of Muhammad Pura hill near Paracha graveyard towards South East at a distance of five kilometer from Manghopir.

5. At the trial charge exhibit 5 was read over to the appellant to which he pleaded not guilty and claimed to be tried.

6. Prosecution in support of the case examined P.W. P.C. Ulfat Hussain Exh.7, P.W.2 S.I.P. Muhammad Aslam Exh.8, P.W.3 P.C. Asghar Ali Exh.9, P.W.4 A.S.-I. Hymayoon Jan Exh.11, P.W.5 A.S.-I. Abdul Rasheed Exh.12, P.W.6 H.C. Muhammad Ejaz Exh.14, P.W.7 Muhammad Nawaz Exh.15, P.W.8 Aurangzeb Exh.16, P.W.9 S.M. Saleh Jafri P.A. to Police Surgeon Karachi Exh.19. Prosecution has given up injured P.C. Raza Hussain vide statement Exh.25 and closed the side to lead further evidence.

7. Appellant in his statement recorded under section 342, Cr.P.C. Exh.27 to Exh.29'pleaded that he is innocent and he has been implicated by all police officials deposed against him on the instructions of the police officials.

8. Autopsy on the dead body of deceased Furqan Baig was conducted in Abbasi Shaheed Hospital on 4-12-2000 by Dr. Abdul Hameed Shaikh who could no be traced therefore, autopsy report exhibit 19-A was produced through S.M. Saleh Jafri P.A. to Civil Surgeon Karachi. The dead body was received in hospital at 1-40 a.m. at .30-11-2000 and Autopsy was conducted on the same day between 3 p.m. to 3-40 p.m. the dead body was identified by A.S.-I. Abdul Rasheed and A.S.-I. Muhammad Taufeeq bearing surface wounds and injuries comprising of fire-arms of 0.5 c.m. inverted margin over the right (back) limber region. No blackening etc. seen with exit wound 1.5 c.m. x 0.5 c.m. over the lower part of left kidney of chest. On internal examination upon reflection of scalp, no bone injury was seen, upon opening the cranial cavity no blood was seen. The base of skull was found intact, upon opening the thorax cavity boning cage was found fractured over 6th and 7th ribs, posterity (left) the cavity is with full of blood. Upon opening the abdomen no fluid or blood was seen. All the abdomen viscera's were intact, semi digested food articles were contained in the stomach, urinary bladder contained small residual urine. The doctor opined that the cause of death was cardiac respiratory failure due to irreversible haemorrhage shock as a result of acute chest injury caused by fire-arm weapon. The above medico-legal opinion was not controverted by the defence in rebuttal so produced leading to the influence that the death of deceased P.C. Furqan Baig was homicidal in nature.

9. After considering the medical evidence we have reverted to the evidence led by the prosecution. The prosecution relied on ocular account of (P.W.3) P.C. Asghar Ali and (P.W.4) A.S.-I. Humayoon Jan. There testimonies are the basis of conviction of the appellant. P.W. Asghar Ali deposed that on the fateful night he along with other police staff went to Paracha graveyard, received information about the presence of the dacoits and found that 8 to 10 persons were sitting there as Asghar Ali and his companions over there vehicle near the culprits, they opened fire, a bullet was hit to deceased Furqan Baig while the second bullet hit to Ali Raza Shah constable. Police personnel also opened fire with SMGs upon culprits as a consequence thereof one culprit whose name was later disclosed as Ali Hyder Dacoit was also done to death. in the meanwhile a mobile from Manghopir reached at the spot and the injured and dead body was shifted to Abbasi Shaheed Hospital while deceased Furqan Baig succumbed to injuries on the spot. He went on to say that the faces of the accused could not be seen at the time of the incident as they were down side of the mountain at the some distance from the police party however, he has mentioned the Hulia of culprits in his report recorded under section 154, Cr.P.C. P.W. Asghar Ali was declared hostile by the prosecution admittedly his statement to the effect of the identification of the appellant is not depicted in his first information report. The statement of P.W. Humayoon Jan is limited to the extent that he reached on the fateful night on the spot after receiving information about the encounter and found that constable Furqan Baig and Raza Shah were lying injured and Ali Raza was killed. Later Furqan succumbed to injuries and died. He went on to say that the appellant and co-accused Siraj and absconding accused Spain Yar alias Khanzada alias Sherzada were firing from TT pistols police opened fire from SMGs but the accused after taking of the darkness of the night managed to escape good.

10. Prosecution has mainly relied upon the ocular testimony coupled with medical evidence as the crime weapon was not recovered. There was no motive of the murder in this case. The perusal of the record indicates that no independent witness from the locality was examined to prove the prosecution case through reliable and confidence-inspiring evidence. So far as the encounter is concerned P.W. Asghar was said to be present on the spot whereas A.S.-I. Humayoon Jan has reached later upon receiving information on the violence. The prosecution version was that in the encounter with the police and the appellant and other culprits opened fire upon the police. The perusal of the evidence reveals that the eye-witnesses were interested witnesses. They had a motive to implicate the appellant. The ocular account is not the evidence inspiring and trustworthy. The shaky evidence of the eye-witnesses cannot be relied upon for recording the capital punishment when their evidence is not corroborated by independent and reliable sources.

11. The learned trial Court disbelieved the prosecution evidence to the extent of acquitted co-accused on the basis of the same set of evidence the appellant was convicted without having any independent corroboration and reasonable ground.

12. On reappraisal of the evidence in the absence of clear and straight forwarded evidence not brought on record by the prosecution doubtful narration of the prosecution witnesses does not carry weight to record conviction in the absence of evidence of unimpeachable character as held in the case of Muhammad Ajmal v. The State 1989 SCMR 434.

13. We are conscious that the testimony of the hostile witness cannot be brushed aside, version believable, to the prosecution can be taken into consideration for awarding conviction. In the case of Kathi Odhabhai Bhimabhai v. State of Gujarat 1993 SCMR (Supreme Court of India) 2405, the dictum laid down is that the evidentiary value of testimony of hostile witness being an eye-witness was doubtful in nature as to the participation of all the accused persons nor he had stated anything about the occurrence therefore the evidence of hostile witness was treated of no use in circumstances. The statement of P.W. Asghar Ali recorded under section 154, Cr.P.C. Exh.9/C per se is not a substant piece of evidence yet it disclosed the facts laying foundation of the case as depicted in the first information report the appellant and co-accused were wanted in. Crimes Nos.105 of 1995, 97 of 2000 of Police Station Manghopir and Crime No.159 of 2000 under sections 353/324, P.P.0 of Police Station Pirabad as well as in several other dacoity cases registered in various police stations of Karachi.

14. It is admitted fact that the appellant and co-accused after being arrested were not put to identification parade, although they were produced before the Magistrate for remand purpose during investigation. The police party was not in a position to identify the culprits at the time of the occurrence later when statement of the complainant under section 154, Cr.P.C. was recorded, he had given the names of accused involved in different dacoity cases but no Hulia or the description of the appellant and co-accused is available on record. In any view of the matter it cannot be conveniently held that on the shaky evidence of P.Ws Asghar Ali and Hymayoon that the appellant was responsible of the commission of the crime even it cannot be shifted from the evidence with which one of the appellant had opened fire on the deceased nor it could be conveniently held that injured Raza sustained fire-arm injury at the hands of the appellant for two reasons; firstly he was not traceable could not be examined; secondly none of the prosecution witnesses has come forward to support the prosecution case to the extent of the injury sustained by the convict even doctor was not examined. The testimony of the police officials cannot be the basis of the conviction.

15. After going thoroughly through the evidence we are of the firm view that the police party was not able to, identify the culprits at the time of occurrence except Dacoit Ali Hyder who died on the spot. The arrest of the appellant is highly doubtful and from the circumstances a reasonable doubt can be drawn that the defence evidence in this behalf could be most probable.

16. For the foregoing reasons the impugned judgment of the trial Court awarding conviction and sentence to the appellant is hereby set aside. The appellant is confined in central prison, Karachi ordered to be released forthwith if not required in any other custody case.

17. This appeal was disposed of by a short order dated 24-7-2008. These are the reasons for the same.

18. H.B.T./R-27/K Appeal allowed.