JUDGMENT MRS. QAISER IQBAL, J. - Being aggrieved and dissatisfied with the judgment dated 13.06.2007 passed by the learned Vth Assistant Sessions Judge, Karachi .Central convicting the appellant for the offence under Sections 353, P.P.C. And sentenced him to ' undergo rigorous imprisonment for two years with .a fine of Rs.
2,000/- and under Section 324, P.P.C. To suffer rigorous imprisonment for seven years' with a fine of Rs. 10,000/- all the sentences shall run concurrently, in default of fine, the appellant shall suffer rigorous imprisonment for two months, the appellant has preferred this appeal with the prayer that the judgment recorded against him be set aside.
2. The occurrence is stated to have taken place on 02.09.2006 when police constables Shafqat Ali and Muhammad Zaman left Police Station Gabo! Town for patrolling on motorcycles reached at Section 16-B, North Karachi, at about 0500 hours saw two persons standing in suspicious condition, their names were subsequently disclosed as Hajat Mansha and Saeed Rookhan, the culprits did not stop on the signal of the police constables, opened fire with intention to kill them, they were encircled, arrested, on personal search of the appellant, one 30 bore TT pistol with three lives bullets were recovered from left side fold of his Shalwar, from co-accused Rookhan Saeed one double- edged dagger was recovered from left fold of his Shalwar. Appellant and co-accused were shifted to police station alongwith recovered property, FIR was lodged and separate cases under Section 13(d), Arms Ordinance were registered. After submission of challan the appellant alongwith co accused were challenged to face the trial.
3. Charge Ex-3 was recorded by the Trial Court, the appellant had pleaded not guilty and claimed trial.
4. In support of the . Case prosecution has examined PW-1, PC Shafqat Ali (Ex-5), PW-2, ASI Mansoor Ali Warsi (EX-7), PW-3 SIP Aneel Ahmed (EX-8) and prosecution had closed the side to lead the evidence. The appellant and co-accused Saeed Rookhan in their statements under Section 342, Cr.P.C. (Ex-10&11) denied the prosecution story, contended that police officials have deposed against the appellant and co-accused with ulterior motive. The appellant and co-accused Saeed Rookhan were neither examined under Section 340(2), Cr.P.C. Nor any defence was led. The Trial Court on the basis of the evidence acquitted co-accused Saeed Rookhan through the impugned judgment and proceeded to convict the appellant as stated above.
5. On the basis of prosecution evidence, the learned Trial Court formulated the following points for determination.
(i) Whether the accused persons opened fire Ucon police with the intention to kill them?
(ii) What should the order be?
6. The learned Trial Judge after assessment of the evidence led by the prosecution that from the possession of the appellant one 30 bore pistol alongwith live bullets as well as empties were recovered from the place of occurrence, which manifestly shows that the. Appellant had opened fire upon police party, evidence as against co accused Saeed Rookhan was not accepted because the dagger recovered from the fold of his Shalwar had no nexus with the prosecution case and found the appellant guilty of commission of offence.
7. The main contentions raised by Mr. R.K. Kohistani, learned counsel for the appellant are as under:-
(1) Prosecution has twisted the story depicted in FIR to that of the charge sheet as the alleged recovery was shown from the fold of the Shalwar of the appellant
(2) The Trial Court has failed to consider the statement of complainant PC Shafqat Ali, who has frankly admitted that empties were arranged at police station.
(3) The case property was not recovered in the presence of independent witnesses in violation of law'.
(4) The live bullets and empties were different in number.
(5) No one was injured as a result of firing opened by the appellant in the encounter.
(6) There was a delay of 10 days in sending the recovered property to FSL.
(7) The Trial Court has erred in law by not suggesting the material question to the appellant in his statement under Section 342, Cr.P.C.
(8) The evidence adduced by the prosecution was not admitted by the Trial Court as against co accused Saeed Rookhan, on the basis of the presumption same evidence cannot be used to convict the appellant.
8. Learned State counsel has supported' the impugned judgment by stating that sufficient evidence is available against the appellant, opposed the acceptance of the appeal.
9. After hearing the. Learned counsel for the parties, having gone through the record of the case, I am of the view that the case of the prosecution is doubtful in nature. The evidence available on record is not sufficient can be convicted for the offence charged against him. The incident took place at 0500 hours inside the street, Shafiq Colony, Jhonpra Hotel, Sector 16-B, North Karachi, where number of people was available on the sport but no attempt was made by the police to pick up independent witness in order to establish encounter. Admittedly complainant PC Shafqat Ali alongwith other police staff encircled the appellant, appellant opened fire from his pistol yet no one was admittedly injured. Although PC Muhammad Zaman caught hold of the appellant and took his search yet he was not produced by the prosecution. It is also an admitted position that the pistol was secured from the fold of the Shalwar of the appellant, property after the recovery was not sealed on the spot, the empties of the pistol were sealed at Police Station Gabol Town. Despite the best efforts only PC Shafqat Ali could be produced by the prosecution, his testimony cannot be believed when the occurrence was witnessed by number of people and no one was injured. So far as the testimony of PW ASI Mansoor Ali Warsi is concerned, he had only registered the FIR being Duty Officer and had prepared memo, of arrest and recovery at police station, which manifestly shows the lacuna conducted on part of the investigation.
10. The learned Trial Judge admitted the prosecution version as against the appellant did not believe the same evidence as against the co-accused. The findings of the Trial Court are not based upon any valid evidence, moral presumption of the learned trial Judge could not form basis of the conviction. It was not safe to rely upon the testimony of the complainant without corroboration from independent source. Reliance is placed on 2000 SCMR 1038.
11. Perusal of record also indicates that the statement of the appellant under Section 342, Cr.P.C.
Was not recorded in accordance with law. Question put to the accused should be definite and specific. The Trial Court was bound to put questions to the appellant under Section 342, Cr.P.C.
Related to the root of the prosecution evidence for conviction. No question was put to the appellant about the date, time of the occurrence and the encounter. The statement of the appellant under Section 342, Cr.P.C. On the face of it shows that it was not recorded in accordance with law. The Trial Court did not follow the procedure provided. It is well-settled that when the law provides the procedure for doing a thing in a particular manner that should be done in the prescribed manner and in no other contention, reliance has been placed on the following case-law:-
(1) Abdul Sattar and others vs. The State (2002 P.Cr.L.J. (Karachi) 51).
(2) Sarwar Khan vs. The State (2000 P.Cr.L.J. (Karachi) 799).
(3) Muhammad Bashir vs. The State (1985 P.Cr.L.J. (Azad d&K) 391).
(4) Muhammad Siddique vs. The State (1985 MLD 1418).
(5) Jagin. And 2 others vs. The State (PLD 2001 Quetta 64).
12. The Honorables Supreme Court in the case of Munawar Hussain vs. The State, reported in 1996 SCMR 1601 has observed that as a result of omission to put incriminating piece of evidence against the appellant while recorded the statement under Section 342, Cr.P.C. By the Trial Court the same cannot be considered to be a piece of evidence against him and in such circumstances conviction cannot be maintained.
13. It cannot be lost sight of that FSL report was delayed, no explanation has been set forth by the prosecution for such . Delay. The evidence disbelieved against one of the accused cannot be believed against other for awarding conviction in peculiar circumstances. Following the dictum laid down by the apex Court referred (supra), I am of the view that sufficient evidence warranting the conviction of the appellant is not available on record, the case has been dealt with by .The Trial Court in cursory manner resulted in miscarriage of justice, the eye-witnesses account comprising of complainant is of no relevance when independent witness were available on the spot, which is a thickly populated area and the Mashirs of the recovery were picked up from police force in order to strengthen the prosecution case. It would be unsafe rely on such ocular evidence and I am of the view that the prosecution has failed to establish its case against the present appellant. The principle laid down in 1999 SCMR 1228 is applicable to the case in hand.
14. Having regard to the above facts and circumstances of the case, I was inclined ta hold that prosecution has failed to prove the charge against the appellant beyond reasonable doubt, therefore, he is entitled to the acquittal. Consequently, the appear filed by the appellant is accepted, conviction and sentence awarded to him stands set-aside. The appellant was ordered to be. Released forthwith if not required in any other custody case vide short order dated 06.08.2007 appeal was allowed. Above are the reasons for the same.