' TASSADUQ HUSSAIN JILLANI, J.---Appellant-Mumtaz Ali was tried in the case registered vide F.I.R.
No, 20 of 2002 dated 28-6-2000 at Police Station Khabar, District Larkana under sections 324, 353 and 34, P.P.C. And in terms of the judgment of the learned Special Judge, S.T.A, Larkana dated 8-5- 2002, he was convicted for the offences punishable under sections 324 and 353, P.P.C. And sentenced to suffer R.I. For ten years and to pay fine of Rs,10,000 or in default whereof, he was further sentenced to suffer S.I. For six months. He was also convicted under section 353/34, P.P.C.
And sentenced to one year R.I. Under section 13(d) of the Arms Ordinance for seven years' R.I. And to pay fine of Rs,3000 or in default whereof undergo six months' S.I. Benefit of section 382-B, Cr.P.C.
Was also extended. The learned High Court, in terms of the impugned judgment dismissed the appellant's appeal and affirmed the conviction and sentences awarded to him.
2. The prosecution story as given in the judgment of the learned Special Judge, Larkana is as follows:-- "that on 29-6-2000 at about 10-00 a.m. Complainant SIP Muhammad Umer Mirjat lodged the F.I.R.
At Police Station Khabar, stating therein that on 28-6-2000 under Roznamcha Entry No,21 at 6-30 p.m. He along with his subordinate staff HC Akhtiar Ali, PC Nazir Hussain, PC Gulab Khan, PC Irshad Ali and driver HC Rahib Ali left police station in mobile for patrolling and nakabandi. At about 10-00 p.m. Complainant along with his staff arranged nakabandi at the bridge of Gopang Regulator.
During the nakabandi at 10-30 p.m. Complainant saw three persons coming on the motorcycle, out of whom two were armed with Klashnikov and third one was empty handed, who was driving the motorcycle. When complainant gave signal to the accused to stop the motorcycle, they took the position and started firing at the complainant and his subordinate staff the complainant and his staff also fired in their defence and the encounter continued for about 15 minutes, thereafter the firing was stopped. As per F.I.R. One accused, who was armed with Klashnikov, made his escape good while taking the advantage of the darkness, one person was lying injured, whereas one person died during the encounter and his dead body was lying there. The injured accused was arrested and one Klashnikov was recovered from his possession. On inquiry, accused disclosed his name as Mumtaz Ali son of Muhammad, by caste Heesbani Magsi and he further disclosed that he has no licence of the Klashnikov. Apprehended accused further disclosed that the dead accused was his friend Shafoo alias Ghulamullah Chandio and the absconding accused was not known to him, as he was friend of deceased accused Shafoo."
3. The accused when examined under section 342, Cr.P.C. Denied the prosecution story and submitted that he was injured during cross firing between two private parties and he was arrested by police on suspicion. Learned counsel for the appellant submitted that it is a case where although alleged occurrence took place in a populated area, yet none from the public appeared as an eye-witness; that medical evidence with regard to injuries received by appellant was withheld; that there is nothing in evidence to indicate that appellant fired at the police raiding party and that being so the prosecution case with regard to alleged police encounter is not free from any doubt.
4. Learned counsel for the State, on the other hand, defended the impugned judgment by submitting that the two witnesses who appeared to support the prosecution case are police officials; that there is no reason whereof they should falsely implicate the appellant; that they are consistent on material particular that evidence of recovery of Kalashnikov from the appellant is corroborative of the fact that he fired at the police party.
5. Having heard the learned counsel for the parties and having reappraised the evidence with their assistance, we find that admittedly the occurrence took place at a public place and according to Muhammad Umar, SIP (P.W.1), he fired 45 shots in the alleged police encounter but surprisingly, neither during occurrence nor after the occurrence any one from public reached the spot. The statement of the other witness namely Akhtar Hussain, HC (P.W.2) does not improve the prosecution case in any manner and a bare reading of the same, would show that neither in his statement nor in that of P. W.1 there is allegation that appellant fired at the police party. Their statements are to the effect that after the encounter they reached the spot and found a person lying dead, one decamped and appellant was lying injured. Although according to the prosecution, three accused fired at the police party but surprisingly no member of the police party was injured nor any bullet hit police vehicle. The consistent plea of the appellant during the trial was that there was exchange of firing between two parties and he got injured in the cross firing. There is nothing on record to indicate that this plea was ever investigated instead the complainant police officer himself investigated the case. The non-production of medical evidence particularly with regard to injury received by the appellant is a serious infirmity in the prosecution case as in absence of that it would not be free from doubt to hold that the appellant received the injury on account of firing by police party or those were caused by cross firing between the two parties. Even if the prosecution story is admitted to be true that there was firing from the side of the accused the possibility that it was the deceased Shafoo or the absconding accused who fired at the raiding party, could not be ruled out.
6. For what has been discussed above, we find that the prosecution has failed to prove its case against the appellant beyond any reasonable doubt, to sustain conviction. Consequently, this appeal is allowed the impugned judgment is set aside and Mumtaz Ali-appellant be released from jail forthwith unless detained in any other case.