1. ' This Criminal Jail Appeal is directed against the judgment dated 10-3-2005 passed by Sessions Judge Nasirabad at D.M. Jamali (hereinafter referred to as the trial Court), whereby the appellant has been convicted and sentenced in the following terms:-- "The accused is, thus, found guilty of the offence of assaulting public servants to deter them from discharge of their duty punishable under section 353 of the P.P.C. As well as offence of attempt to commit Qatl-i-Amd punishable under section 324 of the P.P.C. The accused Dost Muhammad alias Sowali son of Soomar Khan is, accordingly, convicted, of the offence under section 353 of the P.P.C.
2. And sentenced to suffer rigorous imprisonment for one (1) year. The accused is further convicted of the offence under section 324 of the P.P.C. And sentenced to suffer rigorous imprisonment for three
(3) years and fine of Rs.2000 (two thousand) or in default thereof to suffer S.-I. For two months. Both the sentences shall run concurrently. The accused shall have the benefit of section 382-B of the Cr.P.C. And the period of his detention as under trial prisoner should be counted towards the sentence."
3. ' Briefly stated the facts of the case are that F.I.R. No.30 of 2004 under sections 324/34, P.P.C. Was registered with Naib Tehsildar Tamboo on 10-2-2004 at 7-30 p.m. On the report of Jan Muhammad Khosa S.-I. To the effect that he along with other personnel of the police station left for arrest of accused/appellant Dost Muhammad, who was wanted in case F.I.R. No.2 of 2004 under Article 17(3)
4. Offences Against Property (Enforcement of Hudood) Ordinance, 1979. According to the complainant when the police party reached near the house of accused/appellant, who being accompanied by two others with intention to commit the murder of police personnel started indiscriminate firing and fled away taking cover of the bushes.
5. ' Naib Tehsildar Tamboo arrested the accused on 16-4-2004, whereafter the challan of the case was submitted in the Court of Sessions Judge Nasirabad at D.M. Jamali for the trial of accused/appellant under sections 324/353, P.P.C. On the stated allegation formal charge was framed which was read over to the accused/appellant on 3-6-2004, which he denied, thereafter the prosecution in order to substantiate the accusations examined four witnesses namely P.W.1 Jan Muhammad (complainant) P.W.2 Gulab Khan S.-I. P.W.3 Hazoor Bakhsh constable and P.W.4 Liaquat Ali Tehsildar/Investigating Officer. In the end of prosecution's evidence, accused/appellant was examined under section 342, Cr.P.C. Wherein he denied the case of prosecution and pleaded to be innocent, however, he did not opt to make statement on oath and he also refused to examine any defence witness. The learned trial Court concluded the proceedings by means of judgment dated 10-3-2005, whereby accused/appellant has been convicted and sentenced in the aforementioned terms.
6. ' The accused/appellant being aggrieved by his conviction preferred this appeal from jail, hence Mr. Nazir Aftab Advocate was appointed counsel for the accused/appellant who argued that no evidence whatsoever is available on the record to prove the allegations made in the F.I.R. The base of the case i.e. Involvement of accused/appellant in Crime No.2 of 2004, itself is shrouded in doubt as neither the said F.I.R. Was produced not' any evidence was brought on record to show that accused/appellant was involved in the said case. According to the learned counsel, copy of the F.I.R. No.2 of 2004 available on the record rather reflects that the complainant of the case did not identify any of the robbers and neither the accused/appellant nor the others were nominated in the F.I.R. No.2 of 2004, therefore, in such circumstances the raid made by P.W.1 for arrest of accused/appellant in case F.I.R. No.2 of 2004 is found to be without any justification. Besides no empty has been collected from the place wherefrom the accused/appellant allegedly made firing on the police party. According to the learned counsel for the accused/appellant, the witnesses produced in support of the allegations are members of the police force who themselves being party to the incident and inimical towards accused/appellant cannot be relied upon without independent corroboration which finds no trace on record, hence the case of prosecution against the accused/appellant on the face of it is highly doubtful. The learned trial Court by misappreciation of evidence recorded conviction which is against the settled principles of administration of criminal justice, hence liable to be set aside.
7. ' Mr. Abdul Rahim Mengal, the learned Assistant A.-G. Supported the impugned judgment and argued that no motive or on the part of prosecution's witnesses could be brought on the record, in absence of which their evidence cannot be rejected only because they belong to police force. The accused/appellant remained absconder for which he failed to advance any justification, hence the evidence available on the record and the circumstances proved the charge against accused/appellant. The judgment of the trial Court is stated to be in consonance with the evidence available on the record calling for no interference.
8. ' The submissions made by the learned counsel for the parties considered, record of the case perused.
9. ' The case of prosecution as set up in the F.I.R. Was that accused/appellant was wanted in case F.I.R. 2 of 2004 under section 17(3) Offences Against Property (Enforcement of Hudood) Ordinance 1979 and P.W.1 Jan Muhammad who at the relevant time was posted as S.H.O. Police Station D.M.
10. Jamali received secret information about presence of accused/appellant at his house, whereupon he constituted a raid party and went to the house of accused/appellant where accused/appellant allegedly being accompanied by two others made indiscriminate firing on police party and escaped. The firing was alleged to have been made with intention to commit murder of police personnel.
11. ' Prosecution did not produce F.I.R. No.2 of 2004, wherein accused/appellant was allegedly wanted, however copy of the same is available on the record which reflects that on 16-1-2004 one Bashim Kumar lodged report with Police Station D.M. Jamali stating that at about 8-15 p.m. Three persons entered his shop who forced him to hand over cash amount of Rs.35,000 and the gold chain worn by him was also snatched. Complainant Bashim Kumar further stated that he can identify the said three persons if brought before him. The record is silent as to how accused/appellant was found to be one of those three robbers. Besides the record does not reflect that after arrest Bashim Kumar identified accused to be one of the robbers. In such circumstances the allegation of prosecution that accused/appellant was wanted in case F.I.R. No.2 of 2004 is found to be highly doubtful.
12. ' P.W.1 Jan Muhammad in his statement stated that on 18-2-2004 he along with police and levies personnel went to arrest the accused/appellant who was wanted in case F.I.R. No.2 of 2004.
13. According to P.W.1 accused/appellant on sighting them, started firing which was replied by the police. P.W.1 produced the Marsala Exh.P/1-A on the basis of which F.I.R. Was lodged.
14. ' P.W.2 Gulab Khan made statement similar to that P.W.1; whereas P.W.3 Hazoor Bakhsh stated that when they reached near the house of accused/appellant, firing was made on police party by accused/appellant and his two companions, police also replied the firing, whereupon accused/appellant escaped.
15. ' P.W.2 in cross-examination stated that the exchange of firing continued for about one hour and accused/appellant was at a distance of 1/2 furlong from them. He further stated that none of the residents of village came to the site at the time of firing. P.W.3 in cross-examination stated that they reached the place of incident at 7-15 p.m. And it was dark, According to P.W.3 the distance between the accused/appellant and police party was about 60 paces, while he expressed his ignorance about the number of the fires shot by accused/appellant.
16. The evidence referred to hereinabove on due perusal does not show that accused/appellant was known to the police party prior to the incident, whereas P.W.2 in cross-examination stated that it was already dark when the incident took place. In such circumstances identification of accused/appellant by P.Ws.1, 2 and 3 calls for explanation which finds no trace on the record.
17. Furthermore P.W.1 and P.W.2 in their statements did not state about accused/appellant being accompanied by two others; whereas in the Maralsa P.W.2 stated that accused/appellant was accompanied by two others who were also armed and made firing on police party. According to P.W.1 the raid party consisted of police as well as levies, but no levies personnel has been made witness in the instant case. Above all no empty of Kalashnikov has been recovered from the place wherefrom accused/appellant and his two companions allegedly made indiscriminate firing on police party, hence when the very identification of the accused/appellant is doubtful and the statement of the witnesses are found to be not inconsonance with each other, which also find no support from any independent source cannot be made basis for conviction of accused/appellant.
18. The findings of the learned trial Court, therefore, cannot be agreed with, as I am of the view that prosecution failed to prove the charge against accused/appellant. Accordingly the judgment dated 10-3-2005 passed by Sessions Judge, Nasirabad at D.M. Jamali is set aside.
19. Accused/appellant is acquitted of the charge, he be released forthwith if not required in any other case or offence.