JAMAL KHAN MANDOKHAIL, J.---This appeal has been presented against the judgment dated 9-2- 2010 passed by the Sessions Judge, Loralai, whereby, the appellant has been convicted and sentenced under section 225, P.P.C. To suffer one year R.I., with benefit of section 382-B, Cr.P.C.
2. Brief facts of the case are that an F.I.R. No, 5 of 2008, under sections 324-225-224-427-186-353- 149-148-147, P.P.C. Was registered by one Wazir Khan against the appellant and others. It is alleged that the appellant and others offered resistance, which resulted into the release of one Ahmed Din, who was in custody of the police. The appellant was arrested and to his extent incomplete challan was submitted before the Court of Sessions Judge, Loralai.
3. The prosecution in support of its case, produced six witnesses and exhibited certain documents.
The appellant was examined under section 342, Cr.P.C, who also recording his statement on oath and produced one witness in his defense. On conclusion of the case, the appellant was convicted as mentioned hereinabove, hence this appeal.
4. The learned counsel for the appellant submitted that the prosecution has failed to prove the case against the appellant, but the trial Court has failed to consider the evidence and material available on record properly, which amounts to misappreciation of the evidence. He further argued that the story narrated by the prosecution does not appeal to a prudent mind, as such, it is a concocted one. He stated that the F.I.R. Has been registered after a delay of about seven hours, without any explanation, which shows that it has been recorded after consultation and deliberation, therefore, false implication of the appellant cannot be ruled out. According to him, the impugned judgment in the circumstances, is illegal and unlawful, therefore he requested to set- aside the same.
5. On the other hand, the learned State counsel opposed the contention and submitted that the appellant has been nominated in the F.I.R. With a specific role. He stated that the witnesses remained firm on their deposition and have corroborated each others. According to him, the trial Court has come to a right and just conclusion, therefore, the appeal deserves to be dismissed.
6. I have heard the learned counsel for the parties and have perused the record. Keeping in view the allegation, section 225 of the P.P.C. Attracts, which is reproduced herein below.
225. Resistance or obstruction to lawful apprehension of another person.--Whoever intentionally offers any resistance or illegal obstruction to the lawful apprehension of any other person for an offence, or rescues or attempts to rescue any other person from any custody in which the person is lawfully detained for an offence, shall be punished with imprisonment of either description for a term may extend to two years, or with fine, or with both.
7. In order to bring the case within the purview of section 225, P.P.C, the custody of a person must be lawful, through a warrant of arrest, issued by a competent Court or the person heaving custody of an accused, must have the authority to lawfully detain him/her. Thus, to attract section 225, P.P.C, a lawful apprehension is a condition precedent.
8. In the present case, it is alleged that the main accused was arrested by Duki police officials, who handed over him to the police officials of Loralai. It is a fact that none of the official of Duki Police Station did appear as a witness to prove the contention of the prosecution. No ,evidence has been produced to prove the fact that the prosecution has adopted a lawful means to arrest or to detain Ahmed Din in custody, therefore, the detention of the alleged escaped prisoner with police officials had not been proved to be lawful. Thus, rescue of Ahmed Din, if believes to be true, even then, no offence under section 225, P.P.C. Is made out. Reliance has been placed on case title Public Pitsecutor v. Annadham Annamalai and others, reported in AIR 1954 MADRAS 321 (Vol. 41, C. N.133), relevant portion of the judgement at page-324 is reproduced herein below:- Para No,13... Therefore, the apprehension of the person in question Vasudeva was not lawful and once the apprehension or detention is not lawful, it is well settled law that his own escaping as well as the rescuing of such a person by others is no offence. The person from whose custody the rescue is effected or escape made must have authority to lawfully detain the person rescued.
Otherwise no offence is committed in effecting the rescue.
Para No,15... This embodies only the sound rule embodied in section 80, Cr. P. C. Viz, that the Police Officer shall inform the warrantee the substance thereof and if so required has got to show the warrant. This court has laid down in 'AIR 1924 Mad. 555(A)', that a person about to be arrested is entitled to show under what power the constable is arresting him and if he specifies a certain power which the person knows the constable has not got, he is entitled to object to such arrest and escape from custody, such custody not being lawful one. See also Ramjit v. Emperor', AIR 1938 All, 120 (V). Thus, where an inspector of police catches hold of the wrist of the accused without informing him for what offence he was being arrested accused wrenching himself free is not guilty of any offence under the Indian Penal Code:-`Moneshwar Bux v. Emperor', AIR 1939 Oudh 81 (W).
Para No, (16)... There is a long line of decisions that resistance to the execution of an unlawful order, or unlawful arrest or defective warrant making out it is 'ex facie' illegal is no offence. Where the Sub- Inspector asked the constable to bring the accused to thana by force and there was a scuffle; held as there was no direction for arrest accused was not guilty of an offence under Ss. 224, 225, 353, I.P.C.-'Gulabi Mahto v. Emperor', AIR 1940 Pat. 361(x). Under the Madras Gaming Act arrest of accused in a shop in the absence of proof that it was a common gaming house led to obstruction to arrest and it was held to be no offence-'Kandasami Thevan v. Emperor' 1934 Mad WN 616(Y).
Where warrants have not been duly signed or sealed or they are sought to be executed beyond duly authorized and authorizeable persons obstruction to execution of such warrants is not unlawful provided the force used is the minimum necessary:- Jagnannath v. Emperor', AIR 1932 All 227 (Z);-- Fattu v. Emperor, AIR 1932 All 692 (ZI);-'Subbaramiah v. Emperor', AIR 1934 Mad 206 (Z2);-- In re Bhullikhan, AIR 1938 Nag. 45 (Z3),;--` Bansropan Singh v. Emperor', AIR 1973 Pat. 603 (Z4).
Para No,(17). Therefore, the acquittals made by the learned Stationary Sub-Magistrate are correct and these appeals are dismissed.
9. Considering the merits, the complainant of the case appeared as P.W.1 and states that the appellant in convenience of others, succeeded in helping the accused Ahmed Din to escape. The record reflects that the incident had taken place at 11-45 a.m., but the F.I.R. Has been lodged at 7-30 p.m. Without explanation of the delayed registration of the F.I.R. It seems that after the occurrence the complainant went to the police station and after consultation and deliberation, nominated the appellant in the F.I.R., being brother of Ahmed Din, which creates doubt.
10. Another aspect of the case is that the complainant, in the F.I.R., stated that the nominated accused along with the appellant attacked and started firing upon the police party which has damaged the police vehicle. When the complainant appeared, in the Court, he was not only silent about the damages allegedly caused to the police vehicle, but has also failed to produce the vehicle in the Court, which belies the story narrated in the F.I.R.
11. Muhammad Ismail appeared in the Court as P.W.2 and stated that the main accused namely Ahmed Din, taking advantages of the firing, succeeded to pull handcuffs from him and ran away towards nearby forest. Another alleged eye-witness appeared as P.W.3 and stated that one Surf vehicle crossed the police vehicle and stopped in front of it. Few people alighted from the Surf vehicle and opened firing upon the police. According to the witness, those persons succeeded in releasing the' escaped prisoner Ahmed Din, from the custody of the police.
12. Perusal of the statement of the complainant and the alleged eyewitnesses, there are contradiction on the point of release of Ahmed Din. They do not corroborate each other on the point.
13. Even otherwise, the manner, in which the story is alleged, does not' appeal to a prudent mind. It is unbelievable that after such a heavy firing, none from either side was injured nor any damage to the police vehicle has been proved. If it is believed that the accused ran away, after pulling the handcuffs, then question arises as to why the police official did not chased him, despite of the fact that they were numerous and were armed. The unexplained delayed F.I.R. And the fact that the appellant is a brother of the main accused, Ahmed Din, coupled with the contradictory statement of prosecution witnesses, creates doubt in the prosecution story, therefore, false involvement of .The appellant cannot be ruled out. The impugned judgment is not sustainable. Thus, in the circumstances, the appeal is accepted. The impugned judgment dated 9-2-2010, passed by the Sessions Judge, Loralai is set aside and the appellant is acquitted of the charge.