' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No, 2020 of 2003 filed by Ali Raza and Nasar alias Nasri, appellants who were convicted and sentenced by Judge, Anti-Terrorism Court, No,1 Gujranwala vide judgment dated 7-11-2003 as under: 10 years' R.I. With a fine of Rs,20,000, in default six months' S.I. Under section 324, P.P.C. Read with section 7(c) of Anti-Terrorism Act, 1997.
2 years' R.I. Under section 353, P.P.C.
' Both the sentences were ordered to run concurrently with the benefit of section 382-B, Cr.P.C.
2. Briefly stated the facts of the case are that Malik Adnan Ahmad complainant P.W.9, Inspector S.H.O. Police Station Sadar Hafizabad on receipt of information about that the proclaimed offenders of case F.I.R. No, 341 of 2002 under section 324/34, P.P.C. Had taken shelter at the dera of Sarfraz alias Farhat, arranged a raiding party and raided at the dera. The Pos Ali Raza Khan armed with .12 bore gun and Nasar armed with rifle .44 and Sarfraz armed with .222-bore rifle were identified by the police. The accused on seeing the police party hid themselves in a sugarcane crop, the accused were chased by the raiding party, they started firing at the police, Elite Force and force from other Police Stations was also summoned. As a result of firing by the accused, Arshad Hussain A.S-I. And one Safdar Hussain were injured. The accused decamped from the spot.
3. Investigation of the case was taken over Inspector Muhammad Sarwar (P. W.10). He after visiting the spot, recording statements of the witnesses, went to civil Hospital, Hafizabad, recorded statements of the injured and on 17-3-2003 arrested Sarfraz who while in custody led to the recovery of rifle .222 which was taken into possession vide memo. Exh.PC. Ali Raza was formally arrested on 29-3-2003 while Nasar was arrested on 23-4-2003 along with rifle ,.44 bore which was secured vide memo. Exh.PG. All the three accused were challaned to face the trial.
4. At the trial, prosecution in order to prove its case produced 12 witnesses in all. Thereafter the learned PP tendered in evidence report of the Forensic Science Laboratory Exh.PH and closed the case of the prosecution. Statements of the accused were recorded under section 342, Cr.P.C. In which they pleaded false implication. After conclusion of the trial, all the three accused were convicted and sentenced as stated above.
5. Learned counsel for the appellants submits that the prosecution has failed to prove its case by producing independent and confidence inspiring evidence, the only independent and natural witness of the occurrence namely Safdar was not produced by the prosecution, there are material contradictions in the statements of P.Ws. 8 and 10 and the P.Ws. Have contradicted each other on material points, Mushtaq Ahmad P.W. 8 who is admittedly a public witness is highly inimical towards the appellants, he is resident of 16 kilometers from the place of occurrence, he is a chance witness, independent corroboration is lacking in the instant case, recoveries effected from the appellants are bogus in as much as according to F.I.R., Ali Raza appellant was armed with .12 bore gun while during the course of investigation, a rifle was recovered from him, no crime empties having been recovered from the spot, recovery of weapons on the pointation of the appellants is of no avail to the prosecution, ocular account is contradicted by the medical evidence inasmuch as no pellet injury was found on the person of Arshad Hussain A.S-I. And injury stated to be on the belly of Arshad Hussain, does not find mention in the Medico-legal report and that it is not believable that in the presence of such a heavy contingent of police, the accused managed to slip away.
Learned counsel lastly submits that in view of the amendment introduced in section 6 of the Anti- Terrorism Act, 1997, the present case does not come within the definition of subclauses (a) and (b) of section 6 of the Act.
6. Learned counsel for the State supports the judgment of the trial Court and submits that the case definitely falls under section 6 of the Act, 1997 and that the injured witness namely Arshad Hussain A.S-I. Has fully supported the case of the prosecution and that Safdar P.W. Had no enmity whatsoever against the appellants to depose falsely against them.
7. I have heard learned counsel for the parties and have gone through the record. There were three accused before the trial Court. All were convicted and sentenced. Sarfraz alias Farhat had not filed appeal as has been reported by the office on the asking of Reader of the Court. So, I while exercising iny suo motu jurisdiction under section 561-A, Cr.P.C. Will also deal with the case of said convict. For this view, I am fortified by a decision of the Hon'ble apex Court in the case of Nur Muhammad and others v. The State 1986 SCM R 174 wherein their lordships of the Hon' ble Supreme Court extended the benefit of acquittal to a non appealing convict.
8. In the instant case, the occurrence had taken place because of police encounter. The accused were named in the F.I.R. They caused injuries not only to Arshad Hussain A.S-I. But also Safdar Hussain though he was not produced by the prosecution before the trial Court. There were eight injuries on the person of Arshad Hussain A.S-I. But no specific injury was attributed to any of the appellants. The injured witness Arshad Hussain has supported the case of the prosecution and his statement finds corroboration from the statement of Malik Adnan P.W.
9. There being no enmity between the police officials and the appellants, there was no earthly reason for their false implication. It has not been brought on record that the appellants were falsely implicated. Learned counsel for the defence while cross-examining Arshad Hussain P.W. 8 has got admitted presence of the accused at the spot. Not a single suggestion was put to said P.W. That the accused were not present at the spot and they have been falsely implicated. It is not believable that the police party had not fired at the accused party but the fact remains that Arshad Hussain injured being star witness of the prosecution has supported the case of the prosecution and his statement finds corroboration from the statement of Malik Adnan, P.W. 9 but since no specific injury was attributed to any of the appellant, through conviction of the appellants and Sarfraz convict under section 324, P.P.C. Is maintained but sentence is reduced from 10 years' R.I. To five years' R.I.
However, the conviction under section 353, P.P.C. In maintained.
' I have gone through the provisions of sub-clauses (a) and (b) of section 6 of Anti-Terrorism Act, 1997 which read as under:-
(a) the action falls within the meaning of subsection (2) and
(b) the use or threat is designed to coerce and intimidate or overawe the Government or the public or a section of the public or community or sect or create a sense of fear of insecurity in society; or".
' A bare perusal of the above sub clauses of section 6 shows that the case in hand was not a case of terrorism but of police encounter and the police had given the occurrence the shape of terrorism. I am therefore, in agreement with learned counsel for the appellants that the provisions of section 6 of the Anti- Terrorism Act, 1997 are not applicable. The conviction and sentence recorded against the appellants and Sarfraz convict under section 7 (c) of the Act is set aside and they are acquitted of the charge under the said section.
' The conviction and sentence of Sarfraz convict under section 13 of Arms Ordinance XX of 1965 is maintained.
' All the sentences recorded against the appellants and Sarfraz convict shall run concurrently with the benefit of section 382-B, Cr.P.C.
' With above modifications in the conviction and sentences of the appellants and Sarfraz, convict, the appeal filed by the appellants stands disposed of.