' SHAHID HAMEED D AR, J.---This judgment will dispose of Criminal Appeal No.814 of 2007 filed by Muhammad Yousaf and Abdul Qayyurn and Criminal Appeal No.815 of 2007 filed by Wasiullah, who were convicted and sentenced by learned Special Judge, Anti- Terrorism Court, Sargodha vide judgment dated 18-5-2007 as under:--
(I) Under. Sections 148/149, P.P.C. To undergo two years' R.I each.
(II) Under sections 324/149, P.P.C. For attempting to commit Qatl-e-Amd of Fazal-ur-Rehman constable to undergo ten years' R.I each with a fine of Rs.50,000 (fifty thousand) each, in default thereof to further undergo two years' S.I. Each.
(III) Under sections 337-F(v)/149, P.P.C. For causing Jurh Ghayr Jaifah Hashimah to Fazal-urRahman Constable and to pay an amount of Rs.25,000 (twenty five thousand) each as Daman to Fazalur- Rahman constable and also to undergo five years' R.I. Each as Ta'zir. Till payment of Daman to remain in Jail.
(IV) Under sections 324/149 P.P.C. For attempting to commit Qatl-e-Amd of Abdul Ghafoor constable to undergo ten years' R.I each with a fine of Rs.50,000 (fifty thousand) each, in default thereof to further undergo two years' S.I. Each.
(V) Under sections 324/149, P.P.C. For attempting to commit Qatl-e-Amd of Mohammad Afzal S.I to undergo ten years' R.I each with a fine of Rs.50,000 (fifty thousand) each, in ;default thereof to further undergo two, years S.I each
(VI) Under sections 324/149, P.P.C. For each, in default thereof to further undergo two years' S.I. Each.
(VII) Under sections 353/149, P.P.C. For assaulting to and using criminal force against police employees in the execution of their duty, to undergo two years' R.I each.
(VIII) Under sections. 7(c) of the Anti-Terrorism Act, 1997 read with 149, P.P.C. To undergo ten years'
R.I. Each with a fine of Rs.50,000/(fifty thousand) each, in default thereof to further undergo two year' R.I. Each.
(IX) Under sections 7(h) of the Anti-Terrorism Act, 1997 read with 149, P.P.C. To undergo five years' R.I.
Each and Rs.20,000 (twenty thousand) each, in default thereof to further undergo one year' S.I.
Each.
' The benefit of section 382-B, Cr.P.C. Was extended to the appellants and all the sentences were ordered to run concurrently.
2. The co-accused of the appellants Sanaullah Muhammad Younis, Attaullah, Haq Nawaz, Ahmad Nawaz, Rab Nawaz, Ziaullah and Muhammad Ishaq were however, acquitted of all the charges through the impugned judgment. The necessary facts giving rise to the present appeals are that InspectorS.H.O. Nasir Nawaz complainant P.W. Received a spy information on 9-4-2007 that Miskeenuflah (P.0) of case F.I.R. No.233 dated 22-12-2004 under section 302 P.P.C. Police Station Wan Bhachran was present at his house situated at Dera Awananwala, beinghourboard by his father Muhammad Yaqoob brothers theis Wasiullah (appellant) and Shamsullah upon this information mation a raiding party consisting of Muhammad Afzal S.-I., Fazal-ur-Rahman A.S.-I., Zafarullah 774-C, Khan Ameer 324-C, Ghulam Sarwar 245-C, Amanullah 795-C, Iftikhar Ahmad, 53- C, Muhammad Afzal 204-C, Muhammad Anwar, 11-C, Muhammad Khan, 1051-C, Muhammad Mushtaq .1164-C, Attaullah 898-C, Fazal-ur-Rehman, 1259-C, Muhammad Farooq, 51-C, Attaullah 925-C, Muhammad Ishaq 837-C, Muhammad Aslam 1181-C, Shafaullah 917-C, Amanullah 578-C, Allah Yar, 729-C, Muhammad Ashraf, 904-C Ahmad Khan 1264-C and Khan Khawas 817-C headed by Nasir Nawaz Inspector-S.H.O. Was constituted which set off for Police Station Kallur Kot by official vehicles; having reached Police Station Kallur Kot, Abdul Ghafoor 179-C was also taken along with the raiding party which besieged the house of the above said Miskeenullah (P.0) at 5-00 a.m. On 9- 4-2007 an announcement was made by the police through which Miskeenullah (P.0) was ordered to surrender, in response to which, bullets were showered upon the police party from the rooftops of the houses of Muhammad Yaqoob and Haqnawaz; one of the bullets hit Fazal-ur-Rehman 1259- C (P.W.7) of Elite Force on his right wrist; the police party returned the firing in self defence; the exchange of firing continued at considerable length till the accused left their houses and started running towards south while firing; the police overpowered Wasiullah (appellant), who was armed with a .12 bore double barrel gun, Muhammad Yousaf (appellant) also armed with .12 bore gun and Abdul Qayyum who too had .12 bore gun with him besides, other weapons and ammunition was also recovered from them, whereas Miskeenullah (P.0), Sanaullah, Muhammad Yaqoob, Younas Attaullah, Haqnawaz, Ahmad Nawaz, Rab During the produced as many support of its case against the appellants. The ocular account was furnished by Abdul Ghafoor P.W.6, Fazal-ur-Rehman, P. W.7 and Muhammad Afzal S.-I., P.W.8 besides Nasir Nawaz Inspector-S.H.O. (P.W.11) who is also the Investigating Officer of this case. The medical evidence was provided -by Dr. Heesab Khan, P. W.1 and Dr.Muharnniad Aslam Shahid Radiologist (PW-5), Inayatullah P.W.9 Tariq Ahmad Inspector P.W.10 and Inspector Nasir Nawaz, P.W.11 stated about various taken by them during the investigation this case. The remaining evidence Nawaz, Zia Ullah and Muhammad Ishaq decamped from the place of occurrence; Miskeenullah etc. Obstructed the police party and used criminal force to deter them from discharge of their duty besides they spread terror in the area through their criminal act; Fazal-ur-Rehman 1259-C (P. W .7) and accused Abdul Q ayum (appellant) were injured during the occurrence, the Investigating Officer (P.W.11) prepared their separate injury statements and despatched them to civil hospital for medical examination and treatment of their injuries, under the escort of Muhammad Afzal 204-C and Zafarullah 774-C.
4. After investigation of the said criminal case a challan was submitted against the appellants. The appellants co-accused Miskeenullah and Muhammad Yaqoob had become fugitive from law and their case was separated. At the commencement of the trial the learned trial court framed a charge against the appellants and their acquitted co-accused under various heads to which they pleaded not guilty and claimed a trial.
5. During the trial the prosecution produced as many as 11 witnesses in support of its case against the appellants. The ocular account was furnished by Abdul Ghafoor P.W.6, Fazal-ur-Rehman, P.W.7 and Muhammad Afzal S.-I., P.W.8 besides Nasir Nawaz Inspector-S.H.O. (P.W.11) who is also the Investigating Officer of this case. The medical evidence was provided by Dr. Heesab Khan, P.W.1 and Dr.Muharnniad Aslam Shahid Radiologist (PW-5), Inayatullah S.-I., P.W.9 Tariq Ahmad Inspector P.W.10 and Inspector Nasir Nawaz, P.W.11 stated about various steps taken by them during the investigation of this case. The remaining evidence produced ,by the prosecution was more or less of formal nature.
6. In their statements recorded under section 342, Cr.P.C. The appellants denied and controverted all the allegations of fact levelled against them by the prosecution and professed their innocence.
Their acquitted co-accused also adopted the same line while going through said exerciser. It was Haq Nawaz accused (since acquitted) who rendered a detailed reply, having been relied upon by almost all the accused including the appellants, to question as to why this case against him and why the P. Ws. Had deposed against him which, for convenience is reproduced hereunder:-- "Police on that night without any search warrant and warning had entered in our house. We made protest on the illegal act of police Because of our protest police was annoyed with us. Police over powered Abdul Qayyum and Muhammad Yusuf my co-accused and also injured them. None of us were also having any contact or concern with Miskeenullah (PO). The police because of our protest and to restrain us to. Proceed against them registered a false case against us on the basis of concocted story: I am quite innocent in this case. The police had removed my licensed gun from my house and planted it on my son Muhammad Yusuf my co-accused. Khan Amir and Nazir are our enemies and police had connivance with them. At the time of alleged occurrence our enemies mentioned above were with police party so under their influence police involved us falsely in this case. Some of the weapons were also provided to police by said Nazir etc. I and my four sons have been falsely roped in this case. Muhammad Ishaq accused had come to my house to offer condolence. Police involved my all male members of the family in this case. My wife Mst. Ameer Khatoon had submitted an application to police for registration of case against police employees but no action was taken on that application. Police had also removed cash and mobile phones etc. From my house. Indiscriminate firing was made on our houses because of which there was panic and sensation in the entire locality. My wife had also filed a private complaint and that is pending in this Court."
7. None of the appellants made any statement on oath under section 340(2), Cr.P.C. And also did not produce any witness in his defence. Haq Nawaz accused (since acquitted), however, tendered in defence evidence the original license (Exh.DB) of his gun and copy of private complaint Exh.DC, filed by his wife as a cross case to the F.I.R. Case against him and his co-accused including the appellants.
8. At the conclusion of the trial, the learned trial court found the prosecutions case against the appellants to have been proved beyond doubt and the appellants were thus convicted and sentenced as mentioned and detailed hereinabove while their co-accused as hinted at earlier, were acquitted on extension of benefit of doubt as prosecution failed to prove charge against them during trial.
9. We have heard learned counsel for the parties and have perused the record with their assistance. It has been argued by learned counsel for the appellants that the prosecution had failed to prove its case against the appellants beyond reasonable 'doubt and thus the appellants were entitled to be acquitted; the prosecution evidence disbelieved by the learned trial court in respect of eight co-accused of the appellants could not be given any credence and conviction against the appellants has been recorded merely on conjectures and surmises. As against that the learned State counsel has maintained that the guilt of the appellants stood proven by the prosecution to the hilt, therefore, the conviction and sentence of the appellants did not warrant any interference by this Court.
10. Admittedly it is a case of two versions, one has been given by the prosecution, whereas, the other version has been introduced by the appellants in their statements under section 342, Cr.P.C.
The cardinal principle of law for just decision of the case of two versions is that both the versions are put in juxtaposition, and in the light of the evidence brought on the record it is adjudged as to which version is more plausible and nearer to truth; subject to the condition precedent that onus to prove would always remain on the prosecution and the accused may not be convicted on the basis of a blemish in his defence, if the Prosecution otherwise fails to bring home the guilt of the accused. Following the aforesaid principle of law by keeping in view the facts of this case we have entertained serious doubts about the alleged participation of the appellants in the occurrence in question. The prosecution's own case was that the raiding party had been constituted on receipt of a spy information abbut the presence of 1997 Miskeenullah, who was a P.O in case F.I.R. No.233, supra in his house situated at Dera Awananwala, Police Station Kallur Kot and he was being harboured by his father Muhammad Yaqoob (since P.0) and brothers Wasiullah (appellant) and Sanaullah (since acquitted). A strong contingent of police headed by Nasir Nawaz Inspector S.H.O.
(P.W.11) having been reinforced at Police Station Kallur Kot, surrounded the house in question at about 5-00 a.m. On 9-4-2007 and by making a loud announcement, ordered Miskeenullah (P.0) to surrender. According to the allegations the accused party instead of obeying the commandment, started spraying volleys of bullets upon the police party from their rooftop as a result of which Fazal-ur- Rehman 1259-C (P.W.7) received a fire- arm injury on his right wrist. The details of complaint Exh.PD reveal that Abdul Qayyum accused (appellant) was also injured during the occurrence. Admittedly the occurrence took place at a time when the sun had not set in The probability cannot be ruled out that it all, happened under the sheath of darkness of the night. The police party according to the statements of eye-witnesses, Abdul Ghafoor 179-C P.W.6, Fazal ur- Rehman 1259-C injured P.W.7, Muhammad Afzal S.-I. P.W.8 and Nasir Nawaz Inspector P.W.11 encircled the house of Muhammad Yaqoob accused (since acquitted), through a public announcement commanded the accused Miskeenullah to surrender, in response of which the police party was obliged with reckless firing by the accused from the rooftop of their houses and then they made an attempt to flee the place of occurrence under the cover of firing made by them; the return firing, made in self- defence by the police party kept the accused at the bay. The exchange of firing continued for about half an hour. The police succeeded in overpowering Abdul Qayyum, Yousaf and Wasiullah, the appellants while their co-accused made good their escape.
Fazal-urRehman 1259-C being an injured P.W is the star witness of the prosecution case who could nominate only five accused in his testimony to have fired at the police party in reply to an order to surrender. He specifically named Abdul Qayyum accused-appellant to have fired at him which hit his right arm. Muhammad Afzal S.-I. P.W.8 also narrated almost the same facts in his testimony.
Nasir Nawaz P.W.11 gave an account of the details of the occurrence with the specification that fire shot made by Abdul Qayyum accused (appellant) had hit. Fazal-ur-Rehman constable on his right arm. The complaint Exh.PD, prepared by Inspector Nasir Nawaz P.W.11, however, does not contain this fact that fire shot of Abdul. Qayyum (appellant) had hit the injured police official Muhammad Afzal. He was duly confronted with complaint Exh.PD and it transpired that the aforesaid fact involving Abdul Qayyum appellant for causing an injury on the right arm of Fazalur-Rehman constable did not exist therein. It appears that the Investigating Officer after having recorded complaint Exh.PD reconsidered his earlier stance and after finding Abdul Qayyum appellant injured, introduced the factum of firing a specific shot by him at Fazal-ur-Rehman constable. It is the contention of all the eye-witnesses: including that of Fazal-ur-Rehman injured P.W.7 that a specific fire shot of Abdul Qayyum had hit the injured police official which in the attending circumstances of the case is hard to believe. According to the prosecution case as many as five accused Miskeenullah (P.0), Abdul Qayyum (appellant), Wasiullah (appellant), Sanauilah (since acquitted) and Yaqoob (since acquitted) had fired at the police party from the rooftop of their dera house and this distance has been shown as 8 karams in visual site plan Exh. PQ (mark No.3) from the place of presence of the police party. This distance, at another point (mark No.2) the said site plan has been shown as 28 karams. By their own showing the prosecution witnesses contended that the occurrence took place at 5-00 a.m. On 9-4-2007 so it looks like a mere gossip that the infliction of a fire shot at right arm of Fazal-ur-Rehman constable (P.W.7) had been viewed by anyone. Even the injured could not tell as to whose fire shot had hit him. The site plan Exh. PD directly negates the version of the injured P.W. As well as that of other eye-witnesses.
11. The medical evidence tendered by Dr.Leesab Khan, P.W.1 reveals that he being a member of standing Medical Board DHQ, Hospital Bhakkar joined by Dr.Mazhar Abbas Khan and headed by MS. Dr.Samiullah had medically examined Fazal-ur-Rehman constable at 3-00 p.m. On 10-4-2007 vide MLR Exh. PA and noticed following injuries on his person.
(I) A firearm entry wound 1/4 cm x 1/4 cm on the outer side of right forearm, 9 cm below right elbow joint with no blackening and burning.
(II) A firearm entry wound 1/4 cm x 1/4 cm on inner side of right forearm, 11 cm from right elbow joint with no blackening and burning.
(III) A firearm entry wound 1/2 cm x 1/2 cm on back of right fire-arm, 3 cm below right elbow joint with no blackening and burning.
(IV) A firearm exit wound 3 cm x 2 cm on the outer side of right forearm, 20 cm below the elbow joint.
(V) A firearm exit wound 5 cm x 4 cm on the back of right forearm, 4 cm above the right wrist joint.
(VI) A firearm grazing wound. 1 cm x 1/2 cm on front of proximal phalanx of right index finger.
' The above said injuries were caused by a firearm having duration of about 30 hours. The nature of injuries No 1 to 6 was declared Ghayr Jaifah Hashimah and injury No.7 as Jurh Ghayr Jaifah Damiyah.
12. He (P.W.1) being a member of the said Medical Board also medical examined accused Abdul Qayyum appellant vide MLR Exh.PB. On the same day and noticed following injuries on his person:--
(I) A firearm entry wound 1/4 cm. x 1/4 cm medial side on left elbow joint, no blackening or burning.
(II) A firearm exit wound 6 cm x 5 cm on upper side of left elbow joint.
' All the injuries were caused by firearm having duration, of 30 hours. The injured was referred to Nishtar Hospital Multan for further treatment.
' On the same day and at the same time P.W.1 also medically examined Muhammad Yousaf (appellant) vide MLR Exh.PC and found following injuries on his body:---
(1) A defused swelling with bluish discolouration around the right eye Sub-conjunctival hemorrhage on laterial aspect of right eye.
(2) A bruise 1 cm x 1/2 cm and 2 cm lateral to right eye.
(3) A contusion 1/2 cm x 1/7 cm on right side of face and 2 cm from right ear.
' All the injuries were caused by blunt weapon showing the duration as 30 hours and their nature was Shajjah Khafifah.
13. The medical evidence to the mind of this Court does not corroborate the ocular account nor it is strengthened by the visual site plan Exh.PK/1 as a soft bore weapon, like .12 bore gun, if fired from a distance of 50 ft. Or more than that, would cause the dispersal of pellet in a much broader area than the one shown and claimed by the witnesses of ocular account. The pellets fired through a .12 bore gun may travel en-mass up to a distance of 8 to 12 ft. And thereafter it would start fanning out. The more the distance of the fire maker, the broader would be the area of impact of the pellets.
In such an eventuality when the accused had fired at the police party from a distance, exceeding 50.Ft. The contention of the injured P.W. Or that of the other witness cannot be entertained as true as, forearm of a human-being is not broader enough to receive a fire shot of .12 bore gun from such a long distance in the manner and style as it divulges from the statement of P.W.1, or from MLR Exh.PA. Interestingly, the measurement of entry wound (Injury No.1) of Abdul Qayyurn (appellant) is akin to the measurement of Injuries Nos.1 and 2, the entry wounds, on the right elbow joint of Fazal- ur-Rehman P.W.7, The locale of injuries in respect of both the injured is same with the only difference that in case of Abdul Qayyum accused it is the left elbow joint, whereas, the area of injuries of Fazal-ur-Rehman constable is the right elbow joint.
14.
15. #TBS
16. C
17. D
18. #TBE
19. In these circumstances the role attributed to the appellants by the prosecution has appeared to be a result of sheer exaggeration. The ocular account. Is found discrepant and contradictory which is not corroborated by the medical evidence or other attending circumstances of the case. The defence plea, though is not the whole truth yet, it dents the prosecution's case because of a crucial circumstance, pertaining to the alleged escape of Maskeen llah who, according to the defence plea was not present at the house of his father at the relevant time of occurrence. This is highly improbable that he decamped from the place of occurrence despite the area around the appellants' house had been tightly sealed by the police.
15. So far as the factum of recovery of crime weapons and ammunition at the instance of the appellants is concerned, though we find a positive report Exh.P.W., released by the office of Forensic Science Laboratory, Punjab, Lahore, on record, it can hardly blow any life into an otherwise lifeless case of the prosecution, as we have already rejected and brushed aside the ocular account.
16. A few words about the defence plea, which primarily relates to a private complaint filed by Mst.
Khatoon Ameer wife of Haq Nawaz accused (since acquitted) and mother of Muhammad Yousuf (appellant), wherein she alleged that all police employees, complained against, made indiscriminate firing at the house of the appellants which left countless firing marks on the structure of the house and the police allegedly did so being inimical to her family. She on one hand claimed that Abdul Qayum was fired at and injured by the police and on the other hand attributed the injuries of Fazal-ur-Rehman constable (P.W.7) to his fellow police officials. The private complainant Exh.DC and the story contained therein has been dealt with by the learned trial court in paragraph 47 of the impugned judgment. The learned trial court observed that the complaint (Exh.DC) had been filed by Mst. Ameer Khatoon as a counter blast to save her relatives from the consequences of a crime committed by them against law enforcing agency. The private complaint case has .Been decided by the learned trial eourt through an independent judgment of even date. ,The evidence recorded in the said case cannot be read in the instant case nor any witness thereof had appeared before the learned trial court as a defence witness to rebut the case of the prosecutic Mere tendering of copy of the complaint is not sufficient to prove the defence plea of the accused, hence, the same has to be rejected with the observation that the learned trial court committed no illegality while disbelieving the same.
17. For what has been discussed above, we have arrived at a confident conclusion that the role attributed by the prosecution to the present appellants is the result of sheer exaggeration on part of the complainant party. The prosecution evidence which has been disbelieved in respect of the acquitted co-accused had been believed by the learned trial court against the appellants in an uncalled for and injudicious manner, without caring for the feebleness and inconsistencies thereof.
18. For the foregoing reasons Criminal Appeal No.814 of 2007 filed by Muhammad Yousaf and Abdul Qayyum and Criminal Appeal No.815 of 2007 filed by Wasiullah are hereby allowed. The conviction and sentence of the appellants recorded by the learned trial court are set aside and the appellants are acquitted of the charge, they shall be released forthwith from the jail if not required in any other criminal case.