1. RAHMAT HUSSAIN JAFFERI, J.-On 31-3-2004 P.W. Muhammad Additional S.H.O, of Police Station Kotdiji along with deceased S.I.P. Inayat Ali, P.C. Sadoro, P.C. Abdul Qadir., P.C. Muhammad Bux and P.C.
2. Muhammad Younis left the police station to perform patrol duty. After patrolling at various places they reached near the railway crossing of Tando Masti where they received spy information that accused Abdul Jabbar required in a case was present in the house of Rafique Chandio in village Kathiri. On receipt of such information, police party went to Police Station Tando Masti Khan where H.C. Inayatullah was present and performing the duty. P.W.1/ complainat Muhammad Bux informed the above facts to him and asked him to provide a help to them therefore P.C. Ghulam Shabhir and P.C. Ghulam Akbar of Police Station Tando Masti Khan accompanied with them after making entry No,16 in the Roznamcha. Thereafter they left the Police Station Tando Masti at about 3-30 p.m. To go to the house of appellant RaHque in village Kathiri. The police party reached at the house of Rafique at about 3-40 p.m. The required accused Abdul Jabbar armed with Kalashnikov came out from the house and started firing from his Kalashnikov at the police party. The shots hit the deceased SIP Inayat Ali Chandio. The complainant also identified other accused persons namely Achar, Ali Bux armed with guns. Muhammad Rafique, Wahid Bux and Mir Hassan armed with rifles.
3. All the said persons also started firing at police party in order to release the required accused Abdul Jabbar and deterred them from performing their lawful duties to arrest the accused Abdul Jabbar. The encounter continued for about 7/8 minutes in which P.C. Qadir Bux and P.C. Sadoro sustained injuries from firearm shots of the accused party. Thereafter the accused persons run away from the place of occurrence. The police party went to SIP Inayat Ali Chandio who was found lying dead and two police constables namely Sadoro and Qadir Bux sustained injuries.
4. ' Leaving the other witnesses over the dead body, the complainant went to Police Station Tando Masti Khan and lodged report at about 5-30 p.m.
5. ' The police after usual investigation challaned the appellants in the Court of Special Judge Anti- Terrorism Court, Sukkur where appellants Mir Hassan, Wahid Bux and Muhammad Rafique were tried whereas accused Abdul Jabbar, Ali Bux and Achar were tried in absentia because they were absconders. After trial learned Judge convicted the appellants for offences punishable under sections 302, 324, 353,337F(V), 336 read with section 149, P.P.C., section 13(d) Of Pakistan Arms Ordinance, 1965 and sentence to various terms of imprisonment with maximum sentence of imprisonment of life and fine under the impugned judgment dated 30-9-2004.
6. ' We have heard Advocate for the appellants, A.A.-G, for the state and perused the record of this case very carefully.
7. ' Learned counsel for the appellants has stated that the police party of Police Station Kodijo had no jurisdiction to go to the jurisdiction of another police station in order to arrest a person who was not required in any case of their police station; that at the most the said police should have communicated the information to the Police of Police Station Tando Masti Khan and then it was their responsibility to apprehend the accused if he was required in any case of the said police station; that there was recorded enmity between deceased and absconding accused Abdul Jabbar; that they were closely related to each other and murder cases were pending against each other therefore the deceased had gone there to commit the murder of accused Abdul Jabbar hence the police party was aggressor. He has further argued that the appellants had not assigned any specific role of causing the injuries to the deceased or any of the injured witnesses; that general allegations have been levelled against the appellant of firing at the police party; that it is not known as to whose fire-arm shot hit both the injured police constables who received injuries therefore the appellants cannot be saddled with the responsibility of causing the said injuries; that the accused Rafique had right of private defence to protect his life and property; that there was no common intention between the accused Abdul Jabbar and the appellants to commit the offence that oral evidence is in conflict with the medical evidence as P,W. Ghulam Qadir had received fire- arm injury with blackening mark around it whereas the witnesses have deposed that the fire-arms shots were fired from a distance of 100 meters; that the dead body of the deceased was found in the courtyard of the appellant therefore he has prayed for the acquittal of the appellants.
8. ' Conversely the learned A.A.-G. Has stated that all the witnesses have supported the prosecution case; that accused Abdul Jabbar was required by the police in seven cases of Police Station Tando Masti Khan therefore the police was justified in going there for the arrest of the said accused person; that there is not conflict between the medical and oral evidence; that there was common intention between all the accused to commit the offence therefore he has supported the impugned judgment.
9. ' We have given due consideration to the arguments advanced by the learned counsel for the appellants, learned A.A.-G. Gone through the material available on record and found that the prosecution examined 11 witnesses.
10. ' The evidence of P.W.1 complainant Muhammad Bux injured P.W.3 P.C. Sadoro and P.W.4 injured P.C.
11. Ghulam Qadir reveals that all the witnesses were posted at Police Station Kotdiji and left the police station for the purpose of patrolling along with the deceased SIP Inayat Ali Chandio. Their evidence further reveals that they gave the same details of incident as mentioned in the earlier part of the judgment therefore need not to be repeated. None of these witnesses deposed that accused Abdul Jabbar was required in any case of Police Station Kotdiji.
12. ' In this background the question arises as to why the police of Police Station Kodiji went to the jurisdiction of another police station i.e, Police Station Tando Masti Khan to arrest a person who was not required by their police station. It has also come in the evidence that SIP Inayat Ali Chandio and accused Abdul Jabbar were related to each other and they had enmity between them as per F.I.R.
13. No,48 of 2003 registered at Police Station Tando Masti Khan in which relative of SIP Inayat Ali Chandio had registered murder case against accused Abdul Jabbar. When the police of Kotdiji had received information about the presence of accused Abdul Jabbar within the jurisdiction of Police Tando Masti Khan then they should have simply informed the said facts to the police of Police Station Tando Masti Khan for further necessary action that could have been done through wireless message or by sending some person or spy to the said policd station. It appears that SIP Inayat Ali Chandio complainant and other police personnels of Police Station Kotdiji took upon themselves to arrest Abdul Jabbar went to the jurisdiction of another police station. They informed the facts to Incharge of Police Tando Masti Khan about the presence of accused Abdul Jabbar in the house of appellant Rafique. They also asked them to provide help so that they might go to perform the functions of Police Station Tando Masti Khan which they were not legally to do so.
14. There is nothing on the record that the police of Police Station Tando Masti Khan asked the police of Kotdiji to help them in arresting the accused Abdul Jabbar for any reason therefore action of the police of Police Station Kotdiji in the Circumstances of the present case was not justified particularly when there was recorded serious enmity between SIP Inayat Ali Chandio and accused Abdul Jabbar. Thus the presence of police of Police Station Kotdiji in the house of accused Rafique outside the jurisdiction of Police Station Kotdiji and that too for apprehension of a person who was not required in any case by police of Police Station Kotdiji clearly demonstrates that they took the law in their own hands which they were not justified or legally to do so. Not only that they started to perform the functions and duties of police of another police station without the sanction or approval of Senior Police Officers of the District which they were neither competent nor legally required to perform such functions or -duties for the simple reason that arresting a person who is involved in a case comes within the ambit of investigation. An investigation of case of another police station can be conducted if it is transferred to another police station on the order of competent authority. It is an admitted fact that the cases in which accused Abdul Jabbar was required was not transferred for investigation from Police Station Tando Masti Khan to Police Station Kotdiji. Thus the action of police of Police Station Kotdiji is not protected under the law.
15. ' Furthermore the P.W.1 produced two entries Exh. 14-C of Police Station Tando Masti Khan showing the entries of their reaching at Police Station Tando Masti and leaving the said police station. The said record pertains to the station diary of Police ' Station Tando Masti Khan. The witness was not competent to produce the said document. It was for the police of Tando Masti Khan to produce the said entries. However if the said entries were produced through P.W.1 of Police Station Kotdiji then the said entries should have been proved in accordance with the law by examining the witness who wrote the entries or signatory of said Exh.14-C.
16. ' A perusal of these entries Exh. 14-C shows that they are signed by S.H.O, of Police Station Tando Masti Khan. They are not signed by P.W.1 therefore the S.H.O, of Police Station Tando Masti Khan should have been examined to prove Exh. 14/C as required by Article 78 of Qanun-e-Shahadat Order under which a document can be proved either by a person who had written or signed it.
17. Neither the P.W.1 had written Exh. 14/C nor signed it therefore the same was required to have been proved through the S.H.O, of Police Station Tando Masti Khan who had signed the same.
18. Furthermore A.S.-I. Ghulam Shabhir of Police Station Tando Masti Khan who recorded the F.I.R, of the presnt case. H.C. Hidayatullah of Police Tando Masti Khan P.W.-SIP Nazar Muhammad, P.W.11 Sikandar Ali SIP Police Station Tando Masti Khan were examined but none of these witnesses deposed that Exh. 14/C was written or signed by them. They could have identified the signature of the S.H.O, of Police Station Tando Masti Khan to prove the said document. But the prosecution did not make any efforts to prove the Exh. 14-C as required by Article 78 of Qanun-e-Shahadat Order.
19. ' It is surprising to note that in spite of production of Exh. 14/C the prosecutor did not bother to show the said document to any of the police officers of Police Station Tando Masti Khan to prove its authenticity therefore without such proof the document Exh. 14/C cannot be proved in accordance with the law.
20. ' No doubt the prosecution led the oral evidence of P.W.6 who was Incharge of Police Station Tando Masti Khan to show that the police of Police Station Kotdiji came at Police Station Tando Masti Khan and informed him about the presence of accused Abdul Jabbar in the house of accused Rafique situated in village Kathri and he gave the list of 7 cases registered against the accused Abdul Jabbar. His evidence further reveals that they demanded the police personnel for their help therefore he deputed P.C. Ghulam Shabhir* and Ghulam Akbar to go with them. They then left the police station and he made such entries in the- Roznamcha. From his statement it appears that he maintained the, station diaries Nos.15 and 17 but prosecution did not show him Exh. 14/C to prove the authenticity of said document. Even from his statement it is clear that he did not request the police of Police Station Kotdiji to help him in apprehending the accused Abdul Jabbar but on the contrary the policfe of Police Station Kotdiji asked P.W.6 to provide help to them for apprehension of the accused Abdul Jabbar of Police Station Tando Masti Khan. They did ask P.W.6 to take any action to arrest the appellant/accused Abdul Jabbar. This clearly demosnstrate that the police of Police Kotdiji was highly interested in the matter therefore they went to the place of incident to arrest accused Abdul Jabbar who had no connection whatsoever in any case of police Station Kotdiji as such the police of police Station Kotdiji had acted illegally to perform the Function of police of police station Tando Masti khan.
21. ' Be that as it may, the fact remains that the deceased and the complainant party reached in the house of appellant Rafique where the accused Abdul Jabbar allegedly fired from his Kalashnikov which hit the deceased thereafter the other accused and appellants were found present. They allegedly started firing and it is alleged that P.Ws. 3 and 7 received injuries. All the witnesses are unanimous that the encounter continued for about 5/7 minutes and there was sufficient distance between both the parties.
22. ' The perusal of medical certification reveals that P.W.7 received one penetrating injury with abrasion of 0.5 c.m. With blackening present on the wound on the lateral side of the left eye. The mark of blackening on the injury clearly shows that the same was fired from a very closed range of less than three feet therefore this injury to P.W.7 could not have been caused as narrated by the witnesses hence it creates a doubt with regard to the receipt of the injury on the person of P.W.7 in the manner as alleged by the prosecution. The medical evidence further reveals that only one injury on the person of P.W.3 was lacerated punctured wound of about 2 c.m. On the left forearm near the elbow. In the x-Ray a pellet was found in the left forearm. The prosecution alleged that three accused persons namely Rafique. Wahid Bux and Mir Hassan were armed with rifles. Accused Achar and Bux Ali were armed with guns and accused Abdul Jabbar was armed with Kalashnikov.
23. The presence of pellet shows that P.W.3 had received injury from a fire-arm weapon having a cartridge with pellets. Thus one of two accused who were armed with guns could be held responsible for causing the said injury. The said accused are not before us. Admittedly the appellants were armed with rifles therefore they cannot be held responsible for gun shot injury to the injured. Thus the prosecution has failed to connect the appellants with offence of causing injuries to the witnesses.
24. ' Apart from the above facts it is clear that the incident had taken place when the police entered in the house of appellant Rafique and deceased received injuries in the courtyard of the house. Even if we believe that the accused were ,present and fired at the police party then it does not show that all the accused persons were sharing common intention to kill any member of any police party.
25. Had there been such intention then the other members of the police party could have received serious injuries. It appears that the fire-arm shots were made in order to scare the police to leave the place as such all the accused did not share common intention to commit the offence of murder therefore each appellant would be responsible for his own act.
26. ' It is further pointed out that the police of Police Station Kotdiji had no jurisdiction to enter the house of appellant Rafique therefore the appellant Rafique had every right to protect his life and property as such he had right of private defence. The appellant Rafique or any other accused except Abdul Jabbar were not required in any case of any police station therefore in such a situation their action would be protected. It has also not been brought on the record that the appellants knew that the accused Abdul Jabbar was required in any case of Police Station Tando Masti Khan. If the prosecution wanted to saddle with the said knowledge then they were required to produce some evidence to establish such fact, Non-production of such evidence also adversely affects the prosecution story.
27. The prosecution also led the evidence that the police had secured rifles from the appellants Muhammad Rafique, Mir Hassan and Wahid Bux but the appellants could not produce the licence of the said weapons. The prosecution relied upon the evidence of P.W.10 Mumtaz Ali and P.W.11 SIP Sikandar Ali. The witnesses were cross-examined but nothing came on record to discredit their evidence, on the point of recovery of unlicensed weapons therefore the prosecution has been able to prove the said recoveries. However in order to connect the said weapons with the commission of crime the prosecution was required to send the weapons and crime empties secured from the place of incident to the ballistic expert for examination and report. According to P.W.9 he went to the place of incident after receipt of investigation papers of the case and found 20 empties of Kalashnikov, 20 empties of 7mm rifle, 20 shells of cartridges of 12 bore gun. The evidence of P.W.4 who acted as mashir of the place of incident shows that the S.H.O. Secured 20 empties of Kalashnikov, 12 empties of rifle and 20 empties of cartridges of .12 bore gun and the same were sealed whereas the P.W.9 did not state that the said articles were sealed at the place of recovery.
28. However out of these 12 empties of .7 mm rifle 3 empties were found to have been fired from one rifle and 2 empties were fired from second rifle whereas none of the empties were fired from the third rifle. The ballistic expert report Exh.25 reveals such facts.
29. Learned A.A.-G. Was inquired to connect the weapons shown at Sr.Nos.1 and 2 of the report to the appellants to which he replied that as all the weapons were bearing no number on the rifles therefore it cannot be said as to which of the two rifles at Sr. Nos.l and 2 were recovered from which of the appellants therefore the rifles have not been properly connected with the appellants so as to connect them to have been armed with such weapons at the time of incident F but the facts remain that out of these three rifles five empties matched with two of them.
30. ' After considering the material available on the record we are of the considered view that the prosecution has failed to prove the offences mentioned in the charge against the appellants except the offence punishable under section 13(d) of Pakistan Arms Ordinance, 1965 therefore they are liable to convicted and sentenced for the said offence only. Whereas they are liable to be acquitted from the charge of remaining offences. As such while passing G the short order we gave benefit of doubt to the appellants in respect of all the offences except the offence punishable under section 13(d) of Pakistan Arms Ordinance, 1965 for that offence we had maintained the conviction and sentence passed by the trial Court.
31. ' Above are the reasons of our shot order dated 24-8-2006 by which we had partly allowed the appeal and partly dismissed it.