Shamshad Ahmad son of Muhammad Amin, Muhammad Ramzan son of Ahmad Bakhsh, Imam Bakhsh son of Yar Muhammad and Mehboob Farid alias Mama Thakar alias Kala son of Allah Baldish were tried by the learned Judge, Anti-Terrorism Court, Bahawalpur, in case F.I.R. No,347 of 2002 registered at Police Station Samrna Satta, Bahawalpur on 28-12-2002, for offences under sections 353/398/324/ 86/148/149, P.P.C. Read with section 7(h) of the Anti-Terrorism Act, 1997. Vide judgment dated 30-6-2003, the learned trial Court convicted and sentenced the aforementioned accused/appellants in the following terms:--
(i) Under section 398/149, P.P.C. For making preparation to commit dacoity while armed with deadly weapons.
Seven years R.I. Each.
(ii) Under sections 353/149, P.P.C. For their using criminal force against the police to deter them from discharging their duties.
One year R.I. Each.
(iii) Under section 324/149, P.P.C. Five years' R.I. Each with a fine of Rs,2,000 each. In default of payment of fine, the defaulter would suffer further S.I. For one month.
(iv) Under section 7(b) of A.T.A. 1997/149, P.P.C. Five years' R.I. Each with a fine of Rs,2,000 each. In default of payment of fine the defaulter would also suffer further S.I. For one month.
(v) Under sections 148/149, P.P.C. Six months' R.I. Each (for being guilty of rioting, being armed with deadly weapons).
(vi) Under section 7(h) of A.T.A., 1997/149, P.P.C. Five years' R.I. Each with a fine of Rs,2,000 each. In default of payment of fine, the defaulter would also suffer further S.I. For one month. All the sentences were to run concurrently. Benefit of section 382-B, Cr.P.C. Was granted to the accused.
2. Feeling aggrieved Shamshad Ahmad through Criminal AppealNo,12 of 2003, Muhammad Ramzan through Criminal Appeal No,9 of 2003, Imam Bakhsh through Criminal Appeal No,11 of 2003 and Mehboob Farid alias Mama Thakar alias Kala through Criminal AppealNo,13 of 2003 have challenged their convictions and sentences. As all the appeals arise out of the same occurrence, these are being decided by this single judgment.
3. Bashir Ahmad, S.-I. (P.W.1), while he was on patrol duty along with other police officials, recorded the statement of Chanzeb (P.W.7)Exh.PC at about 2-45 a.m. (night) on 28-12-2003 on the basis of Exh.PC Syed Muhammad Ikram, S.-I./S.H.O. (P.W.5) registered F.I.R. No,347 Exh.PC/1 at Police Station Samma Satta, for offences under sections 398/353/324/186, P.P.C.
4. The relevant facts as given in the F.I.R. Are that Chanzeb P.W.7, resident of Abatabad, was owner and driver of Truck No,RIE1925. On the fateful night he alongwith his assistant Rovez Khan, also resident of Abatabad, after loading his truck with cotton seeds (Banola) started from Ahmadpur Shargia to Bahawalpur. At about 2-15 a.m. (during night) when they were near the B.K. Factory, five unidentified persons/accused, who were armed with fire-arms came in front of the truck and stopped the truck on the strength of their weapons. The accused asked, the complainant to hand over his belongings to them. Meanwhile, a mobile police vehicle approached the scene of occurrence. The complainant raised alarm and the accused who was armed with Repeater Gun twice fired at the police party. The police officials in the right of their self-defence also fired at the accused. Bashir Ahmad, S.-I., Muhammad Afzal, A.S.-I., Nabi Bakhsh, Head Constable, Muhammad Yaqoob, Ghulam Abbas, Muhammad Sardar and Fazal Ahmad Constables, while firing at the accused chased them in the Jungle (Zakhira). Rovez Khan, assistant of the complainant, also accompanied the police. One of the accused, who was armed with Repeater Gun and was lying in the watercourse in injured condition was apprehended by the police. He had received fire-arm injury and had also received severe injury on his left leg due to fall. He disclosed his name as Shamshad Ahmad and also disclosed the names of the other accused namely Muhammad Ramzan, Imam Bakhsh, Muhammad Sajjad alias Shada and Mama Thakar.
5. On the same day i,e, on 28-12-2003 Bashir Ahmad, S.-I. Recovered two empty cartridges P-3/1-2 from the spot, which were taken into possession vide memo. Exh. PK attested by Fazal Ahmad- Constable P.W.3 and Muhammad Yagoob-Constable (not produced). Shamshad Ahmad, who had received injuries, was sent to B.V. Hospital, Bahawalpur for medical .Examination after preparing his injury report Exh.PA. On the same day Repeater Gun P-1 was recovered from the possession of Shamshad Ahmad alongwith four live cartridges P-2/1-4 by Bashir Ahmad, S.-I., P.W.1. The articles were taken into possession vide memo. Exh.PB attested by the. Above mentioned witnesses.
Shamshad Ahmad was formally arrested on 15-1-2003. Imam Bakhsh appellant was arrested on 17-1-2003 by Syed Muhammad Ikram, S.-I./S.H.O., P.W.5. On the same .Day, Imam Bakhsh led to the recovery of hockey P-4, which he had hidden in a bush in the Jungle. The same was taken into possession vide memo. Exh.PM attested by Fazal Ahmad-Constable P.W.3 and one Muhammad Zafar (not produced). Muhammad Ramzan and Mehboob Farid-appellants, who were already arrested in some other case, were formally arrested in this case on 5-3-2003. On 10-3-2003 Muhammad Ramzan led to the recovery of Pistol 30-bore P-5, which he had hidden in a bush in the Jungle. Magazine with two live rounds P-6/1-2 was also recovered. The articles were taken into possession vide memo. Exh.PN attested by Waris Ali-Constable P.W.4 and Muhammad Sardar- Constable (not produced). On the same day i,e, on 10-3-2003 Mehboob Farid -appellant led to the recovery of mauser 30 bore P-7, Magazine with four live rounds P-8/1-4, which were hidden in the bushes in the Jungle, and the same were taken into possession vide memo. Exh.PO attested by the aforementioned witnesses.
6. After completion of investigation, the aforementioned appellants were sent up to face trial.
However, one of their co-accused Sajjad alias Shada could not be arrested and was not tried. He was declared proclaimed offender.
7. During trial the prosecution produced seven witnesses to prove its case. P.W.1 Bashir Ahmad, S.-I.
Recorded the complaint. P.W.7 Chanzeb-complainant and Fazal Ahmad-Constable furnished the ocular account. Fazal Ahmad and Bashir Ahmd also stated about the recoveries effected on 28-12- 2003 i,e, the date of occurrence. Fazal Ahmad also stated about the recovery effected from Imam Bakhsh-appellant, while Waris Ali-Constable P.W.4 stated about the recoveries effected from Muhammad Ramzan and Mehboob Farid-appellants. Syed Muhammad Ikram-S.-I./S.H.O. P.W.5 narrated about the investigation of the case. Dr. Muhammad Saleem Manzar, who had examined Shamshad Amad appellant on 28-12-2003, appeared as P.W.6 and stated that Shamshad Ahmad received fire-arm injury on his left upper arm and corresponding exit wound was seen on the lateral aspect of upper scapular area on the left upper chest posteriorly. He further stated that Shamshad Ahmad had received injury on his left lower leg, which had caused fracture of both the bones.
8. After the closure of the prosecution case, the statements of the appellants were recorded under section 342, Cr.P.C. Shamshad Ahmadappellant denied the charges and stated that on the fateful night he was going to take bricks on a Bullock Cart when he reached near the B.K. Industry the truck of the complainant hit his bullock cart, which was damaged. He asked the driver to compensate his loss, who started beating him and gaze him Butt blows with his Repeater Gun. Resultantly, his leg was fractured. He further stated that in order to save himself the complainant with the connivance of the police got a false case registered against him and the other co-accused. He denied that the Repeater Gun belonged to him and stated that the same was owned by Chanzeb-complainant. All the other appellants also denied the charges and stated that they have been roped in this case falsely. The appellants did not appear as witness in their defence and also did not produce any defence evidence.
9. The learned counsel for the appellants Muhammad Ramzan, Imam Bakhsh and Mehboob Farid have argued that the prosecution has palpably failed to prove its case against the appellants. In support of their contention they have argued that none of the aforementioned appellants was apprehended at the spot; that the complainant had not identifiqi the appellants during trial as accused. The learned counsel for Shamshad Ahmad-appellant has very candidly argued that the offences under sections 353/324/148/149, P.P.C. And the offences under section 7(b) and (h), ATA could not be proved against the appellant. He further-submitted that the trial Court has also wrongly convicted the appellant for offences under sections 398/149, P.P.C. As the prosecution case taken to its extremity attracted the provisions relating to the attempt to commit robbery.
10. The learned A.A.-G. Assisted by Mr. M.A. Farazi, Advocate, has frankly conceded that the prosecution has failed to prove its case against Mukammad Ramzan, Imam Bakhsh and Mehboob Farid appellants. However, he argued that Shamshad Ahmad-appellant was apprehended at the spot and the witnesses had no previous grudge or enmity against him so as to involve him in a false case, therefore, the learned trial Court had rightly convicted him.
11. I have heard the learned counsel for the parties at length and scanned the whole record of the case minutely. The occurrence took place during midnight. The prosecution witnesses did not previously know the accused. Bashir Ahmad, S.-I. P.W.1 had explained in his statement that "the driver of the police vehicle turned the face of the vehicle towards the place where the accused were running and the accused became visible in its light". Admittedly, the accused were running away in the Jungle from the police vehicle, so it was not possible for the police party to see the faces of the running accused. P.W.7 Chanzeb-complainant did not name or identify Muhammad Ramzan, Imam Bakhsh and Mehboob Farid-appellants during trial. According to the story as narrated in the complaint Shamshad Ahmad appellant had disclosed the names of the other appellants but P.W. Chanzeb was not certain' about it as he stated that the injured accused might have named the other accused. There is no allegation against the appellants Muhammad Ramzan, Imam Bakhsh and Mehboob Farid that they fired at the police. As far as the recoveries of weapons are concerned, the recovered weapons were never sent to the Forensic Science Laboratory. In these circumstances, I maintain no doubt in my mind that the prosecution has miserably failed to prove its case against Muhammad Ramzan, Imam Bakhsh and Mehboob Farid-appellants. Thus I allow the appeals filed by the aforementioned appellants. The judgment passed by the learned trial Court is set aside to the extent of Muhammad Ramzan, Imam Bakhsh and Mehboob Farid alias Mama Thakar alias Kala. They are acquitted of the charges and would be released from jail forthwith, if not required in any other case.
V. Now coming to the case of Shamshad Ahmad-appellant. It has been noticed that Shamshad Ahmad-appellant was apprehended on the night of occurrence in injured condition; that in his statement he has not challenged the time of occurrence; that during cross-examination it was suggested to the P.Ws that Shamshad Ahmad received injuries including fire-arm injury at the hands of Chanzeb-complainant P.W.7 but in his statement recorded under section 342, Cr.P.C.
Shamshad Ahmad did not state anything about the fire-arm injury and stated only about the injury relating to the fracture of his leg, which he attributed to Chanzeb; and that the aforementioned facts lead to the complicity of Shamshad Ahmad appellant in the case but on the other hand the prosecution has also not come out with truth as according to the prosecution story Shamshad Ahmad had received injury on his leg due to fall while he was running away from the police but the story of the prosecution is totally belied by the independent evidence furnished by Dr. Muhammad Saleem Manzar, who stated about injury No,3 that both the bones of the left lower leg were fractured. During cross-examination he made it clear that injury No,3 could not be caused by a fall on the ground and could not be self-inflicted or caused by friendly hands. Similarly, though, allegedly Shamshad Ahmad fired twice at the police party with a Repeater Gun yet fires did not hit either the police party or the police vehicle. Although the P.Ws. Have stated that the police had been firing at the accused in self-defence yet not a single empty was recovered from the scene of occurrence to substantiate this theory. In other words both the parties have suppressed the truth.
In such eventuality it is the duty of the Court to sift the evidence and draw its own inferences. The apex Court in the case of Syed Ali Bepari v. Nibaran Mollah and others PLD 1962 SC 502 while dealing with the similar situation observed that:-- "Here we may observe that in a case of this type the parties do not generally come out with the true story. It is 'a normal incident of an 'adversary proceeding' to minimize one's own part in the incident. In such a case the Court must not be deterred by the incompleteness of the tale from drawing the inferences that properly flow from the evidence and circumstances In the case of Shahid Raza and another v. The State and another 1992 SCM R 1647 the apex Court observed that:- "When both parties were determined to withhold reality and truth from the Court, such stage and situation should not deter the Court from discovering the truth and thus sifting of grain from the chaff."
13. In the above noted circumstances, I am of the opinion that no police encounter had taken place and the story of police encounter was developed later on. My view is further strengthened by the following facts:--
(i) That Chanzeb-complainant P.W.7 stated during cross-examination as follows:-- "I recorded my statement briefly to the police on the night of occurrence whereafter I went away with my truck and told the police that I would come again tomorrow in the Thana for further proceedings. Next day I again went to Thana and again narrated the story to the police. On hearing my story, police had been recording it. I signed on a paper and came back."
(ii) Dr. Muhammad Saleem Manzar P.W.6, who is an independent witness, admitted that on 31-12- 2002 i,e, three days after the occurrence, the police gave him a docket for M.L.C. And he issued M.L.C. On 31-12-2002, although he had examined Shamshad Ahmad on 28-12-2002.
14. For what has been stated above, I acquit the appellant Shamshad Ahmad from all the charges and convict him for offence under section 393, P.P.C. Appellant Shamshad Ahmad remained in custody since 28-12-2002. He sustained one fire-arm injury on his shoulder and one injury on his left leg with blunt weapon, which resulted into fracture of both the bones. No one received any injury from the prosecution side. In these circumstances, while convicting the appellant-Shamshad Ahmad for offence under section 393, P.P.C. I reduce his sentence to the period already served out by him. He would be released from jail forthwith, if not required in any other case.
15. With the above modification in the conviction and sentence, the appeal filed by Shamshad Ahmad-appellant is partly allowed.