' This judgment will dispose of Criminal Appeal No,2207 of 2003 directed against the judgment dated 16-10-2003 passed by Judge Anti-Terrorism Court No,1, Gujranwala, whereby he convicted the appellant under section 324, P.P.C. And 7(b) of the Anti-Terrorism Act, 1997, under section 353, P.P.C. And under section 7(h) of the Anti-Terrorism Act, 1997 and sentenced him to undergo 5 years R.I. With fine of Rs,10,000 and one year R.I. Respectively with the benefit of section of 382-B, Cr.P.C.
2. The brief facts of the instant case as narrated by the complainant are that on 31-7-2001 he along with other police officials was present at Check Post Pul Manga, where Shaukat Ali, A.S.-I. Along with other police officials was also present, when a wireless message was received from Police Station, Qila Kalarwala that the wireless control Manzoor 2 Narowal has informed that 5/6 suspected persons are present in a white Toyota Corolla Car No,RNE-8844 which was tried to stop at Check Post but the said car did not stop, hence it is to be stopped and checked. After 20/25 minutes the aforesaid car reached near the northern corner of Pul Manga which was reversed after looking at the police party and was taken on Kacha Bank of canal. The complainant and other police officials followed the said car. The persons present in said car fired at the police van and police also fired in its defence. In the meanwhile, the said car turned towards Qila Kalarwala from bridge of the canal Malokey. The accused parked the said car there and they ran on foot into the fields. The names of three persons were Murtaza, Bashir and Qaisar alias Qaisaru who were chased. In the meanwhile one Muhammad Ashfaque met the police party and informed that three of the accused had snatched his motor cycle on gun point and had run towards Qila Kalarwala. Then the three accused were chased on the police vehicle and when they reached near the office of union council Qila Kalarwala, the motor cycle of the accused slipped due to rash and negligent driving and they fell down. They got up and Qaiser alias Qaisaru fired at the police van with his rifle 244 bore. Three fires hit at the police van and one of the fire hit at his co-accused who died at the spot. Asad Ali, Muhammad Siddique, Saif Ullah, Muhammad Bashir (Nazir) were arrested from the spot whereas Qaiser alias Qaisru accused managed his escape. After thorough investigation the accused were challaned while the accused Qaisar was declared P.O. Later on the police arrested Qaisar alias Qaisaru who while in police custody got recovered rifle (without licence) on which a separate case under section 13/20/65, A.O. Was also registered against him and challan of this case was also consolidated with the main case and was submitted for trial.
3. The prosecution in order to prove its case has produced as many as 21 witnesses including Investigating Officer, eye-witnesses, Doctor, and other formal and relevant witnesses. After tendering in evidence the report of Chemical Examiner Exh.P.O., and report of Forensic Science Laboratory Exh.P.Q., learned P.P. Closed the prosecution evidence. Thereafter statement of the accused/appellant was recorded under section 342, Cr.P.C. In which he pleaded his innocence.
Learned trial Court after taking into consideration every aspect of the case and hearing the arguments advanced by both the parties convicted and sentenced the appellant as mentioned above. It is important to note here that all the co-accused were acquitted by the learned trial Court on the basis of compromise with the legal heirs of the deceased namely Ghulam Murtaza, on 23-11- 2002.
4. Learned counsel for the appellant in support of this appeal submits that case of the appellant is of similar footing to those accused who were acquitted by the learned trial Court, that Ghulam Murtaza was killed by the police in a false police encounter who was alleged to be the companion of the present appellant, that mother of Ghulam Murtaza deceased had filed a complaint against the police officials in this regard but the matter was compromised between the parties, that Ashfaque Ahmad and his wife also did not support the prosecution case, that as far as recoveries are concerned, no public witness was either cited or produced by the prosecution and even there is contradiction between the statements of the P.Ws. Lastly he submits that no case against the appellant is made out.
5. On the other hand learned counsel for the State submits that the case of the present appellant is on different footing to that of acquitted co-accused because he fired at the police officials when he was going on the motor-cycle while his co-accused fired at the police when they were present in the car. She submits that recovery of 7 mm rifle was also effected and he has also been convicted under section 13/20/65 of A.O.
6. I have heard the learned counsel for the parties and also have gone through the record available on the file. Appellant was not arrested at the spot while his co-accused were arrested at the spot and they have been acquitted. As far as Ghulam Murtaza deceased alleged to be companion of the present appellant and co-accused are concerned the mother of said Ghulam Murtaza had filed a complaint against the police officials alleging therein that his son has been killed in a false police encounter but later on a compromise was effected between the mother of the deceased and the police officials. Learned counsel for the State is unable to distinguish the case of the present appellant from the case of acquitted co-accused so the conviction of the appellant under sections 7(b) of Anti-Terrorism Act, 1997, 353, P.P.C. And 7(h) of the Anti-Terrorism Act, 1997 is hereby set aside. However, the sentence awarded to the appellant which the appellant has already undergone is treated to be sufficient to meet the ends of justice. He shall be released forthwith if he is not required in any other case. With these observations this appeal is disposed of.