' MUHAMMAD MOOSA K. LEGHARI, J.---This appeal arises out of judgment dated 11-1-2003 passed by the Judge ATC Hyderabad and Mirpurkhas Division in Case No.7 of 2002 whereby the appellants were convicted under sections 324 and 353, P.P.C. To suffer the sentence of 7 years each and a fine of Rs.50,000. In default in payment of fine the appellants were to suffer R.I. For one year more. The appellants were, however, granted the benefit as provided under section 382-B, Cr . P. C .
2. The facts of the case as narrated in F.I.R. Crime No.3 of 2002 Police Station Chambar registered under sections. 324, 353 and 34, P.P.C. Read with section 6 ATA 1997 are that the appellants in furtherance of common intention had opened fire at the police party headed by SIP/S.H.O. Police Station Chambar and Incharge PP Bukhera duly armed with K.K. And D.B. Guns with an intention to cause the death of entire police party or anyone of them. It is further alleged that the appellants in furtherance of their common intention prevented the said police party from discharging their official duties as public servant. It is alleged that the appellants by their above acts of firing created sense of insecurity, terror or tension amongst the people of locality.
3. After conducting the investigation, the police submitted a charge sheet in the Anti-Terrorism Court against the appellants to face trial. It seems that the appellants refused to accept their guilt hence the trial commenced.
4. In order to prove their case the prosecution examined five prosecution witnesses.
5. After closure of prosecution evidence, the statement of accused was recorded as provided under, section 342, Cr.P.C. The accused, in their statements before the trial Court claimed to be innocent and pleaded that they were falsely implicated in the case of the instigation of one Zamindar by caste Deeshak.
6. On conclusion of the trial learned trial Court convicted the appellants in terms as stated above.
7. We have considered the arguments and also scrutinized the evidence produced on record.
8. Admittedly no police officer or anyone else was injured in the incident. It is also admitted position that neither empties were recovered from the place of Wardat nor the same were produced in Court. P.W. Muhammad Yousif who claimed to be heading the police party involved in the encounter has admitted in the cross-examination that when we reached the place of occurrence there was no firing on the spot. It has further been admitted by P.W. Muhammad Yousif that the police encounter lasted for a short while. He admitted that the accused persons present in Court had started shouting that they may not be killed as they were prepared to surrender. He further admitted that the accused were seen by them as they had raised their hands and their weapons were lying in front of them. This statement of the complainant was sufficient to show that the appellants voluntarily surrendered before the police party and thus there was no question of deterring the police party from discharging their duties or causing obstruction of the sort.
Admittedly the place of occurrence viz. Banana garden was surrounded by habitations but none of the private persons was associated to witness the arrest of the accused or the recovery of the crime weapons. In the circumstances, neither any encounter has been proved nor is there any evidence to show that an attempt was made on the police party to commit their murder. The prosecution has miserably failed to bring home the guilt of accused persons. The judgment of conviction recorded by learned Special Judge was devoid of material evidence and was bereft of cogent reasons. The same was unsustainable and was liable to be set aside. The conviction cannot be sustained merely on the basis of surmises.
9. In the circumstances, the appeal is allowed, impugned judgment of conviction it set aside. The appellants are acquitted. They shall be released forthwith if not required in any other case.
' These are the reasons for the short order passed on 11-2-2004.