RIAZAT ALI. SAHAR, J.---Through titled appeals, the appellants Sadaruddin alias Sadoro, Insaaf , Manthar and Sanam Shah have questioned the legality and propriety of judgment dated 27-2- 2013, passed by the learned Judge, Anti-Terrorism Court Khairpur, whereby they were convicted and sentenced as under:--
(i) For offence under section 324 read with section 149, P.P.C. To suffer R.I. For 10 years and to pay fine of Rs,50,000 each and in case of default, to suffer R.I. For six months more.
(ii) For offence under section 353 read with section 149, P.P.C., to suffer R.I. For 2 years and to pay fine of Rs, 5000 each and in case of default, to suffer S.I. For one month more.
(iii) For offence under section 7 ATA to suffer R.I. For 10 years and to pay fine of Rs, 50,000 each and in case of default, to suffer R.I. For six months more.
(iv) For offence under section 13(d) Arms Ordinance, appellant Sadaruddin alias Sadoro was sentenced to suffer RI for 5 years and to pay fine of Rs, 50,00 and in case of default to suffer R.I. For six months more.
All the sentences were ordered to run consecutively with no benefit of section 382-B, Cr.P.C.
2. A brief account of the prosecution case is that on 18-10-2010 at 0530 hours, complainant SIP/SHO Ghulam Mustafa Mirani reported the incident on behalf of State that on the said date, while on patrol duty along. With his subordinate staff, he received secret information that gang of dacoits is present on link road Faizwah leading towards Pirjogoth near water pump machine for the purpose of committing crime. On receipt of such information, complainant party proceeded towards pointed place where on the headlight of police mobile saw and identified accused each Sadaruddin alias Sadoro Chandio armed with Rocket Launcher,
2. Sanam Shah, Vichoon Chandio, Hayat Chandio, Ali Mardan Chandio, Arbab Chandio, Insaaf Chandio, all armed with Kalashnikovs and 8 unidentified persons having Kalashnikovs, who on seeing the police started firing directly upon the police party with intention to commit their murder. In retaliation, police party also made firing after taking positions. The encounter remained continued for about half an hour and during firing police party succeeded to apprehend accused Sadaurdidn alias Sadoro along with Rocket Launcher while his companions succeeded to make their escape good by taking the advantage of crops and a multitude of gardens. The apprehended accused Sadaruddin also disclosed the names of decamped accused to be his companions. Subsequently, appellant Sanam Shah was arrested.
3. After submissions of challan against the appellants, they were formally charge-sheeted to which appellant did not plead guilty and claimed trial.
4. In order to prove its case against the appellants, the prosecution produced and examined eight.
Witnesses.
5. The gist of the prosecution evidence is P.W.1 complainant SIP Ghulam Mustafa Mirani, P.W.2 PC Shahid Hussain being mashir of place of wardhat, P. W.3 ASI Asghar Ali Lanjwari, being mashir of arrest of appellant, P.W.4 PC Shah Nawaz Khaskheli, being mashir of arrest of co-accused, P.W.5 SIP Ahmed Ali Wassan, P.W.6 SIP Mumtaz Ali Pathan, P. W.7 PC Abdul Hakeem Mangi, being mashirs of arrest of co-accused and P.W.8 ASI Gada Hussain.
6. Thereafter, the appellants were examined under. Section 342, Cr.P.C, they denied the allegations levelled against them and pleaded innocence. However, neither they produced any evidence in defence nor opted to record statement on oath in terms of section 340(2); Cr.P.C.
7. The learned trial Judge on evaluating the evidence brought on record and considering the arguments addressed at the bar by the learned counsel for the parties, came to the conclusion that the prosecution had been able to prove its case against the appellants and thus convicted and sentenced them through impugned judgment, which is now under challenge by the appellants through the appeals in hand.
8. It was contended on behalf of the appellants that the case of fake encounter of ineffective firing was foisted by the police wherein admittedly none from the either side has sustained any firearm injury or even scratch so also police mobile, parked there, was also not hit by any bullet despite the alleged exchange of firing between the appellants and police party was continued for about half an hour and that the identification of accused/appellants on the headlight of police mobile was doubtful. It was further argued that the recovery of Rocket Launcher was foisted upon the appellant Sadaruddin. It was argued that the conviction was unsustainable, as the prosecution had failed to prove the case against the appellants.
9. Learned APG for the State attempted to support the impugned judgment.
10. We have carefully considered the arguments advanced at the bar and have also minutely scanned the evidence adduced on record with the able assistance of the learned counsel for the parties.
11. Perusal of the record reveals that from the evidence brought on record, the prosecution had not been able to prove its case against the appellant so also learned trial Judge has not appraised the same while drawing the impugned conclusion. The charge against the appellant is of attempt of Qatl-e-Amd by firing at the police party, deterring the raiding party (police) from the discharge of their official obligations and the constitution of unlawful assembly far the purpose of rioting. The record depicts that admittedly alleged encounter between the appellants and police party remained continued for half an hour, but none of the policemen or accused/appellants was hurt in the encounter, thus making it a mystery and even police mobile parked there was also not hit by any bullet. Likewise, no recovery of crime weapon was effected from the possession of the appellants except Sadaruddin alias Sadoro, but said recovery of the crime weapon was not established, as no independent witness was associated to witness the recovery. Furthermore, according to testimony of prosecution witnesses, they saw the accused/ appellants on the headlight of police mobile, but certainly the identification on the headlight of the police mobile was weak type of evidence requiring strong corroboration but the same was badly lacking. Moreover, the alleged recovered weapon from the possession of appellant Sadaruddin alias Sadoro was never sent to the Ballistic Expert, therefore, the alleged recovery in such situation was of no consequence.
12. Section 3 of Pakistan Arms Ordinance, 1965 provides the definition of arms as under:-
(a) "arms" includes;
(I) Cannon; .
(ii) Fire. Arms of all types, such as light and heavy, automatic and semi-automatic weapons, rifles, carbines, muskets, shot guns (whether single or double barreled) revolvers, pistols and appliances the object of which is the silencing of fire arms;
(iii) Air pistols, bayonets, swords, sword-sticks, daggers, knives with blades of four inches or more (but not kitchen knives or knives used in good faith for carrying on of a profession) and flick knives irrespective of the size of the blade.
(iv) Knuckle-dusters, spears, spear-heads, bows and arrows and parts of arms.
(b) "cannon" includes;
(i) all types of artillery, mortars, machines and submachine guns;
(ii) silencers for all machines and submachine guns.;
(iii) anti-tank rifles and recoil-less guns or rifles and bazookas;
(iv) revolvers or pistols over 46 inches bore;
(v) nuclear weapons of all types;
(vi) projectors, guided missiles and discouragers for grenades, rockets, bombs and gas or smoke containers.
(vii) flame throwers of all types;
(viii) all carriages, plat forms and aPpliances for mounting or transporting cannon; and
(ix) parts of cannon.
Section 13 of Pakistan Arms Ordinance, 1965 provides the punishment as under:-- "Shall be punished with imprisonment for a term which may extend to [seven] years, or with fine, or with both: [Proviso **] [Explanation ***] "Provided that the punishment for an offence committed in respect of any;
(a) cannon, grenade bomb or rocket; or
(b) light or heavy automatic weapon, rifle of .303 bore or over, musket of 410 bore or over or pistol or revolver of .441 bore or over or ammunition which can be fired from such weapon, rifle, musket, pistol or revolver, shall be imprisonment for a term which is not less than three years:"
"Provided that the punishment for an offence committed in respect of any rifle of .303 bore of over Musket of .410 bore or over Pistol or Revolver of .441 bore or over or a term which is not less than three years."
We are of the firm opinion' that the Ordinance provides two categories of punishment on the basis of nature of weapon, as under:-- Category of weapon Punishment Ordinary weapon (To be determined by the expert)May extend to seven years or with fine or with both (no minimum quantum of punishment has been provided,' which is discretion of the court on the basis of facts and circumstances of the case)
(a) cannon, grenade,Not less than 3 years. bomb or rocket; or
(b) light or heavy automatic weapon, rifle of .303 bore or over, musket of .410 bore or over or pistol or revolver of .441 bore or over, or ammunition which can be fired from such weapon, . rifle, musket, pistol or revolver (To be determined by the expert).
In the first category, the Court will award sentence of imprisonment, that may extend to 3 years or fine or both of them, but in second category, the Court will award the sentence i,e, imprisonment not less than 3 years, which is mandatory. Therefore, without ascertaining the nature of weapon, punishment cannot be awarded under section 13 of Pakistan Arms Ordinance, 1965 and it is the ballistic expert who can ascertain the nature of weapon and its condition being functional or not, if the weapon is not in working condition, it can be presumed to be a piece of metal. The ordinary police officer does not come in his person within the ambit of expertise/ballistic expertise. Reliance can be placed in the case of Rahim Bux v. State (2010 PCr.LJ 642) where Balochistan High Court has held as under:-- "Non-sealing of alleged recovered arms and ammunitions and non-sending thereof to expert regarding functional condition of alleged pistol, perhaps uprooted the entire prosecution case and the edifice of prosecution case built in such situation is bound to fall for intentional departure from normal course."
Similar view appears to have been of a Division Bench of this Court in Abdul Sattar and others v.
The State (2002 PCr.LJ 51)
13. It is scarcely necessary to mention here that the Hon'ble Supreme Court of Pakistan in a case reported as Nazar Hussain v. The State (PLD 2010 SC 1021), wherein the Hon'ble Supreme Court while re-visiting the case of Shah Hussain CI. The State (PLD 2009 SC 460), was pleased to hold that refusal by the court to allow remissions of pre-sentence custody period to convict who had been granted benefit of section 382-B, Cr.P.C. Amounted to deprivation of his liberty and was violative of the fundamental right of "right to life" enshrined in Article 9 of the Constitution. The Hon'ble Supreme Court deprecated the denial of remissions to a category of convict prisoners for the pre-sentence period, as arbitrary devoid of reasonable classification and declared the same violative of Article 25 of the Constitution.
14. It is quite astonishing to note that the learned Judge convicted and sentenced the appellants without discussing evidence against them and assigning lucid reasons. The impugned judgment is lacking the ingredients of a judicial verdict for want of sound and valid reasons for arriving at the conclusion. It seems that despite the absence of convincing positive evidence, the appellants were convicted, which in no circumstances could be sustained.
15. It is a well settled principle of dispensation of justice in criminal cases that guilt against the accused must rest surely and firmly on the evidence produced in the case and plain inference of the guilt may irresistibly be drawn from the evidence.
16. On the basis of the settled principles of dispensation of criminal justice and the evidence available on record as discussed herein above, we are fully convinced that the prosecution had failed to bring the guilt home against the appellants/accused up to the hilt. Thus, the conviction was not warranted by law. The judgment of conviction in such circumstances was bound to be reversed/ set aside.
17. For the above reasons, the instant appeals were allowed by a short order dated 12-9-2013, whereby the appellants were acquitted of the charge with directions to be released forthwith, if not required in any other criminal case.