MRS. RASHIDA ASAD, J.---This judgment shall dispose of instant criminal acquittal appeal filed by the appellant under section 417(2-A) of the Criminal Procedure Code, 1898 (hereinafter Cr.P.C.), being aggrieved by the judgment dated 6.2.2015 passed by Additional Sessions Judge-III, South, Karachi (hereinafter trial Court) whereby, the respondents (hereafter accused) were acquitted of charge against them under Ss. 324/337- D/148/149 of the Pakistan Penal Code, 1860, initiated on FIR No.33/2012 registered at Police Station Garden by Asif Rafique Siddiqui.
2. Succinctly stated the case of the prosecution as unveiled by complainant Asif Rang Siddiqi (PW-1) in FIR (Ex- 3-B) is that on 24.2.2012, he along with his mother Mst. Farzana Siddiqui (PW-02) and sister-in-law (PW-8) who is also appellant, was returning back to their home from Clifton in Car No.AKY040, maker Toyota Corolla, when they reached at the garden road, close to gate of police headquarter, a blue colored police mobile driven recklessly suddenly appeared from the gate of the police headquarter which prompted him to stop the car. On this abrupt situation the police personnel sitting in the rear cabin of the police mobile verbally abused to which he lightly replied and to his knowledge the matter ended and he drove to his house. At about 9:15 p.m when he reached near Aslam General Store, Saifi Building Nishter Road the said police mobile, which followed them, stopped his car and three police personnel alighted from mobile, one of them came to his side and inflicted him a riffle butt whereas the other hit the bonnet of the car with butt of his riffle. He urged them why were they beating him. In the meanwhile, the third police personnel fired a gunshot from behind the car which hit the driving seat passing through the body of his sister-in-law (PW-08), sitting on the rear seat of the car resulting in her bleeding severally. During this incident his mother got off from the car, he accelerated the car towards his building (Hussain Dislwa Garden) where he saw his cousin Ahmed standing over there, took him and moved the injured sister in law to Liaquat National Hospital. The injured was incapable for recording her statement. His car was also damaged and there were five persons sitting in the police mobile, who were identifiable, who caused injury to his sister in law by gunfire and manhandled/maltreated him also. On registration of the FIR the investigation was assigned to SI Shaukat Ali Abbasi.
3. After usual Investigation the respondents/accused were sent up for trial in custody, whereas accused Waseem Ahmed son of Sajjad Ahmed could not be arrested and as such was eventually declared as proclaimed offender.
4. In compliance bf section 265-C, Cr.P.C, copies of the relevant record were supplied to the accused persons vide Ex-1, and charge was framed against accused persons on 11.5,2012 vide Ex-02 and accordingly the plea(s) of the accused persons were recorded vide Ex-2-A to Ex-2-D respectively.
5. To prove the charge, the prosecution examined 11 witnesses and Muhammad Tariq SIP was examined as Court witness (Ex-20) who produced the CCTV footage secured on 24.02.2012 at about 2030 hours, saved on CD and DVD and USB as well, vide Article 20-A and 20-B. He also produced his report dated 18.9.2014 and station diaries vide Ex-20/1 to Ex-20/12. The names and gist of the prosecution evidence is as under:
(i) PW-01 Asif Rafique Siddiqui, the complainant. He gave the oral narration of the occurrence and stuck to his evidence as reported in statement under S.154, Cr.P.C. which culminated into FIR which was produced by the witness. The witness also testified about arrest of accused Muhammad Arshad Zaidi, Atif Khan and Mohammad Amin on 25.2.2012 and produced memo of arrest as Ex-3-C. He also testified arrest of accused Iran Tanoli on 25.2.2012 and produced such memo of arrest as Ex-3-F. The witness also deposed about the seizure of blood stained shirt and piece of long scarf (Dupata) and produced such seizure memo as Ex-3-E. The witness also produced the memo of site inspection carried out at 07:30 on 25.02.2012 as Ex-3-D. The witness also disclosed about the recovery of crime weapon i.e. SMG vide Ex-3-G and produced its seizure memo. The witness also disclosed about the recovery of bullet projectile (sikka) from the driving seat of the car and produced seizure memo as Ex-3-H. He was cross-examined on behalf of the accused persons.
(ii) PW-02 Farzana Siddiqui (Ex-4). She was an eye-witness of the occurrence. She identified the accused present in the court to be the same culprits and stuck to her statement recorded under S. 161, Cr.P.C. She was cross-examined on behalf of the accused persons.
(iii) PW-03 Ahmed-ur-Rehman (Ex-05). He gave oral account of the event of arriving of the complainant along with his sister in law (injured) in front of Jehangir building and helping him in shifting the injured to Liaquat National Hospital on 24.02.2012.
(iv) PW-04 Mian Bashir Ahmed (Ex-07), Head Constable posted at Headquarter CID Garden (South). He disclosed about issuance of SMG No.55081 along with 30 bullets to accused Atif and another SMG to accused Muhammad Amin from the cote at about 2100 hours on 24.02.2012. He also disclosed about the seizure of the said SMG by the I.O. and testified the seizure memo Ex-3-G already produced by PW-01. The witness was cross-examined on behalf of the accused persons.
(v) PW-05 SIP Zulfiqar (Ex-08). He deposed about recording of statement of the complaint under S. 154, Cr.P.C., and registration of the FIR. He also deposed about seizure of the car and performance of other legal formalities. He testified statement under S.154, Cr.P.C., and FIR available at record vide Ex-3-A and 3-B. The witness also produced station diaries about the event and occurrence as Ex-8-A, his letter addressed to RMO Ex-8-B, progress of registration of FIR made in station diary as Ex-8/C and a letter issued to the complainant for medical treatment as Ex-8/D. The witness was cross-examined on behalf of the accused persons.
(vi) PW-06 Fareed Ahmed Khan (Ex-09), a police inspector. The evidence of this witness is just confined to the arrest of accused Irfan Tanoli on pointation of the complainant, vide seizure memo Ex-3-F. This witness was cross-examined on behalf of accused.
(vii) (PW-07) Malik Mohammad Adil (Ex-10), a police inspector. The evidence of this witness is also about the arrest of three accused persons namely Muhammad Arshad Zaidi, Atif Khan and Mohammad Amin at CID/ AEC on 25.02.2012 at 0400 hours on identification and pointation of the complainant who arrived at the place of arrest with SHO garden. The witness also produced the station diary entries as - Ex-10-A which reveals handing over the custody of said accused persons and their arrest. This witness was cross-examined 'on behalf of the accused persons.
(viii) PW-08 Dr. Zaib (Ex-11), the appellant and victim of the occurrence who sustained bullet injuries. During her statement she identified accused Atif to be the same person who quarreled at spot, causing her injury by co accused, resulted into her permanent disability/paralysis.
(ix) PW-09 Dr. Saadat Fatima (Ex-12). She was DMLO at Civil Hospital Karachi at the relevant time and was deputed to examine Dr. Zaib, the appellant, who was admitted in Liaquat National Hospital on 28.02.2018 as a result of receiving bullet injury. She disclosed about physical examination of the appellant (PW-08-Zaib) and about the nature and size of the injuries received by appellant and produced medico-legal report as Ex-12/ A and 12/B, declaring the injury as Jurh Jaifah.
(x) PW-10 Dr. Mubarak All (Ex-13), the senior medico legal officer. This witness was posted as senior medical officer at Civil Hospital Karachi and as such on 25.2.2012 he examined complainant Asif Rafique referred by the Investigation Officer. The witness submitted medico-legal report as Ex-13/ A and 13/B respectively, describing the nature of the injuries received by complainant PW-01. He described the injuries of the complainant as Shajjah-i-Khafifah and Shajah-i-Ghairy Jaifah Damiyah and Jurh-i-jaifah Munaqillah respectively.
(xi) PW-11 Shaukat Ali Ex-14, the Investigation Officer, who disclosed about the investigation and recovery of bullet projectile (Sikka) from the car, seizing of SMG and obtaining of the examination report of fire arms/ chemical examiner, recovery of CCTV footage, arrest of the three accused persons. He produced sketch dated 25.02.2012, attested copy of the cote register reflecting issuance of SMG No.55081 to accused Atif on 24.2.2012, FSL report 22.3.2012, chemical examination report 6.3.2012, photographs obtained from CCTV footage, 21 station diaries (roznamacha) as Ex-14/A to Ex-14/I. The witness was cross-examined on behalf of accused persons.
6. The accused persons were examined under section 342, Cr.P.C, wherein they conversely denied their involvement in the alleged offence and claimed to have been falsely implicated in the case at the behest of senior police officer who used to maintain relation to the relatives of the complainant.
7. The learned trial Court after evaluating the evidence available on record found that version of the prosecution and charge against the accused persons is doubtful and as such acquitted the accused persons/respondents.
8. The learned counsel for the appellant has assailed the finding of the trial Court and strongly argued that the learned trial court did not appreciate the evidence in its true and proper perspective and fell into grave error in disbelieving the statement of PW-01, PW-02 and PW08 instead the learned trial court indulged into un- necessary nitty-gritty for witch-hunting to maneuver benefit of doubt on assumptions, presumption and hypothesis. The learned counsel for the appellant also strenuously urged / that the learned trial court has conveniently ignored to the fact that evidence of the eye-witnesses is cogent, consistent and trustworthy and there seems to be no discrepancy in making disclosure about the material aspects of the events and the occurrence which unequivocally proved the high handedness, recklessness and unbefitting conduct of the police personnel who on a petty issue assaulted the law-abiding citizens and while power drunk under the police garb, caused fire arm injury to the appellant resulting her permanent disability and along with causing injury to the complainant. According to the learned counsel for the appellant the learned trial court erred in giving weight to the feeble discrepancies of the prosecution witnesses from the police department who on material aspect, though, corroborated the evidence of PW-01, PW-02 and PW-08, the victim of highhandedness of the police personnel who acted carelessly and recklessly with their common intention. Per learned counsel for the appellant there is no material contradiction and discrepancy in the evidence of PW-01, PW-02 and PW-08 who are the eyewitnesses of the offence committed by the accused persons and further they have no personal enmity or with the accused persons; that immediately after the incident the respondents/police officials were identified at the C.I.D Police Headquarter, when the then senior police officer had shown him the footage captured in the CCTV and were recognized as the same persons; that this identification cannot be discarded on account of the application of Article 164 of Qanun-e-Shahadat Order, 1984; that the learned trial Court, while disbelieving the prosecution evidence and acquitting the accused persons/ respondents, committed misreading of evidence which amounted to miscarriage of justice; that a reappraisal of the evidence by this Court would show a clear and manifest perversity wrong or uncalled for conclusion from the facts proved on record; that finding arrived at by the learned trial court were wholly artificial, shocking as the material evidence had been discarded and misread blatantly to an extent that miscarriage of justice had been occasioned.
9. The learned State counsel supported the appeal and the arguments of the learned counsel for the appellants and sought setting aside of the impugned judgment as the same is candidly perverse, bad in law and based on surmises, conjectures and hypothesis extending weight to the immaterial so-called discrepancies and contradictions, if any in the prosecution evidence which seems to be natural, but not fatal to the prosecution case. The learned state counsel argued that the accused persons who are police personnel, while drunk off police authority, acted carelessly and heartlessly for satisfaction of their revenge on a little hot conversation and as such they are not entitled for any mercy.
10. On the contrary, the learned counsel for the respondents conversely supported the impugned judgment and vehemently argued that the appellant (injured and PW-08), complainant PW-01 and PW-02 and the respondents were strangers to each other and since the names of accused persons/respondents do not depict in the FIR, for involvement of the latter, therefor, there should have been identification parade for determination of the real culprits of the occurrence. Per learned counsel for the respondents, instead, three respondents were arrested after short span of the time of occurrence from the office of SSP CID without there being any explanation as how and why they were implicated in the case when their names did not appear in the FIR. The learned counsel for the respondents further argued that the respondents Mohammad Arshad Zaidi, Atif Khan and Mohammad Amin were shown to the complainant by SSP C.I.D before they were nominated and arrested in the case in his presence and at the behest of their senior officers. The learned counsel for the respondents argued with vehemence that there are shocking lapses in the prosecution evidence inasmuch the prosecution has not produced evidence that the crime weapon i.e. SMG was issued to the accused Atif. Moreover, no identification parade of the accused persons was held in the Court and, therefore, the identification of the accused persons in the Court after months cannot satisfy the requirements of the law for proving of the identity of the culprits involved in the offence of assaulting the appellant (PW-08) and complainant (PW-1), thus the instant appeal is baseless and accordingly liable to be dismissed as the appellants have failed to make out the case for interference by this Court, The learned counsel further argued that the prosecution had even failed to make out the charge of common intention to attract the provisions of section 34, P.P.C. The learned counsel for the respondents relied on the following case law:- i. 1978 SCMR 49, 2000 SCMR 1859 (deals with common intention and motive). ii. 2017 PCr.LJ 535, 2015 PCr.LJ 551, 2015 MLD 1927, 2014 YLR 2191, 2019 PCr.LJ 973, 2003 SCMR 477, 2012 YLR 474, 2018 PCr.LJ 505, 2004 SCMR 249 (deals with principles of interference by High Court in an acquittal appeal). iii. 2009 SCMR 985. (about medical - evidence in support of the prosecution version). iv. 1992 SCMR 2088.
11. I have heard, considered and appreciated with great care the arguments advance from both sides and perused the record with able assistance of the learned counsel for the parties. There seems to be no cavil at all for interference by this Court in instant acquittal appeal. The case for manifest wrong perversity or uncalled for conclusion from facts is proved on record; that findings arrived at by trial court are wholly artificial and shocking; that material evidence had been discarded and misread blatantly, resulting into miscarriage of justice.
12. I, being aware, conversant and conscious of the standard evidence to prove criminal charge inasmuch as to convict accused of criminal case and that too accused of such case in an acquittal appeal, am also considerate enough to keep in mind the reality that the accused persons are police personnel or their alleged sheer accomplice acting under the garb of police service in the company and or with the police personnel. Therefore, deliberately creating or managing some flimsy or immaterial lapses, discrepancies or contradictions in prosecution's case has to be scrutinized to rule out possibility of favour to the accused persons by their own colleagues involved in the investigation and responsible for successful prosecution of the case. Such situation makes it obligatory for a Court to sift grain from chaff through scrutiny of the available evidence to foster or administration of complete and substantial justice to prevent a possibility of escape of a real culprit on the basis of mere technicalities of law and managed immaterial lapses in the prosecution case during the trial.
13. Considering arguments of the respective parties, examination of case record and evidence, there seems to be following core points for determination of guilt of the respondents or otherwise: i. Whether the evidence of PW-01, PW-02 and PW-08 is consistent, cogent, reliable and whether it has corroborative evidence in support thereof to establish series of events of the occurrence? ii. Whether the lapses, infirmities and discrepancies pointed out on behalf of the respondents are fatal to the prosecution case inasmuch to extend benefit of doubt emanating to the acquittal of the accused persons? iii. Whether appellant (PW-08) and complainant (PW-01) has any ill motive or reason to implicate the respondents in the occurrence / offence?
14. In light of the above formulated points it looks that the case of the prosecution against the appellants hinges upon the evidence of PW-1 (complainant), PW-02 and PW-08' (appellant) who were eye-witnesses of the occurrence and the victims/injured, allegedly at the hands of the respondents, who as per prosecution case acted recklessly, arrogantly and in unbefitting manner with the common intention culminating into the alleged offence for which the respondents have been charged. For appraisal of the evidence the first material which is to be examined is the narrative of the case of prosecution as setup and depicts in the FIR' lodged by complainant PW-01, on 25.02.2012 at 0035 hours the report/ statement under section 154, Cr.P.C. whereof was lodged at 2330 hours on 24.02.2012, recorded by PW-05 SIP Zulfiqar about an occurrence which took place at 9:15 p.m. on 24.02.2012 is reproduced hereunder:- "On 24.02.2012 I along with my mother Mst. Farzana Siddiqui and Bhabl Dr. Zeb Siddiqui wife of Atif Raffique Siddiqui were returning home from Clifton on my car No.AKY-040 Toyota Corrolla Plates Silver Colour. When I reached garden road near the gate police headquarter a blue coloured police mobile which was driven in "rashly" suddenly emerged from the gate so when I put my car on brake a police personnel sitting in the back cabin of the mobile abused me which I replied too and the matter concluded and I continued to proceed toward my home. It was about 9:15 p.m. when I reached at Nishter Road near Aslam General Store Saffi building the earlier stated police mobile after making a chase made me stop and then three personnel alighted from the mobile out of them one came on my side and hit me with the butt of the riffle. The other one repeatedly stacked the butt of riffle to my car bonnet. I asked them as to why they were beating me and in the meantime the third police official made a fire from backside of the car which bullet after crossing my car's trunk (diggi) and stomach' of sister-in-law (bhabi) hit the driving seat. My sister in law sustained injury and started bleeding. During this event my mother got out of the car and I drove my car to Hussain Disilwa Garden where I found standing my cousin Ahmed whom I informed about the incident and then we shifted my sister in law to the Liaquat National Hospital who is under treating and incapable of recording of her statement, My car is also damaged. Five persons were sitting in the police mobile whom I can identify".
15. The above stated FIR put the law into motion and at about 0400 on 25.02.2012, three accused namely Mohammad Arshad Zaidi, Atif Khan and Mohammad Amin the respondents Nos.1 to 3, respectively, were arrested from the office of CID/AEC South Karachi on the pointation, identification and in presence of the complainant as it emerged from their memo of arrest Ex-3-C. The posting of the respective accused persons at such office and their duty hours in between the time of occurrence are not denied or even disputed. Now what needs to be established by the prosecution is that the evidence of the complainant PW-01, mother of the complainant who was also in the car (PW-02) and injured lady PW-08 is consistent and coherent with the narrative of prosecution's case as set up in the FIR. It must be born in mind that the statement of complainant under section 154, Cr.P.C., (Ex-3-B) was recorded at Liaqaut National Hospital which is first place the complainant drove to get treatment of his sister in law, who sustained bullet injury in the occurrence which took place at about 9:15 p.m. in garden area, just after they crossed the gate of police headquarter garden road and had an incident of abuses and counter abuses between him and the police personnel who were sitting in the police, mobile which emerged from the gate of police headquarter. It is quite natural and understandable that the names of the personnel sitting in the mobile would not be known to the complainant unless they are disclosed or told to him after he looked and identified the persons in CCTV footage. In 'all fairness the arguments advanced on behalf of the respondents/accused persons that their names are not found in the FIR so their subsequent involvement and arrest in the case is ill motived and thus doubtful, does not seem to be convincing for any prudent mind.
16. Now the evidence of PW-01, PW-02 and PW-08 seems to be importantly relevant to appreciate that whether it is consistent with the narrative of the prosecution's case as set up in the FIR and whether it successfully stood to the test of cross-examination to the extent of such relevancy, The relevant extract of the VW-01 is reproduced as below: - "This is an incident of 24th February, 2012. After shopping from Hyper shopping mall from Clifton. 1 along with my mother namely Farzana Siddiqui, Bhabbi, Dr. Zeb Siddiqui were proceeding back to our house in a car driven by me. My mother was sitting next to me and on the back side my bhabi was sitting. When our car reached to the garden road, near police headquarter; I saw a police mobile was coming from the gate of police headquarter, The said police mobile came in front of the road in the middle and attempted to take the right side of the road, I had to apply brake to stop my car and my car Just stopped near to the mobile by a distance of about 1 foot. One of them while sitting in the Police Mobile called me names (galli di). The said accused I see today in the Court. Note: He has pointed out toward the accused Irfan and I replied him in the words "Kiya Hua'
"(What happened). I then did not get any reply and the police mobile turned toward the right and moved away and I took my way. When my car reached near Aslam General Store, Saifi Building; at about 09:15 p.m all of a sudden the same police mobile intercepted me from the front of my car got my car stopped. They came from the behind to stop my car. 3 persons came out from the police mobile and one of them hit the butt of the riffle on the front bonnet of my car. The window glass of my car from the driving seat where I was sitting was opened and the second one started beating me from the butts of Riffle. The said accused is present in the court. Note: He has pointed out to the accused Irfan Tanoli. I was asking him why he was beating me. In the meantime the accused policeman who hit the butt of his riffle on the bonnet of my car moved towards back of my car. And at that time I heard a gunshot and same time I heard the cry of my Bhabbi and she said "bhai Jaan mujhay goli lagi hay" (got a bullet shot). She was saying she was bleeding and knowing this I got scared. Till that my mother got off from the car but my entire attention was towards my Bhabbi so I accelerated the car to get the help and reached to my Building Jehangir House; hardly 8/9 yards away from the scene of the incident.
This extract of the testimony of the PW-01 (Complainant) is completely consistent to the statement made under section 154, Cr.P.C. which culminated into the FIR.
17. It appears from the cross-examination that the complainant identified the accused persons through CCTV footage and then he saw them in the Court. It also appears from the cross-examination that the names of the accused persons were disclosed to the complainant in the office of SSP CID. This fact rather supports to the evidence of said witness and it seems that he did not make any improvement. There is very strange defence taken up on behalf of the accused Mohammad Amin in the cross-examination where a suggestion was put to the complainant to which he replied that "It is correct that during the incident my mother came out of the car. I am not aware of the fact that my mother got the riffle of the police man hold as at the same moment I was being beaten by a policeman". Such suggestion put on behalf of accused leaves no space for them to accept that appellant PW-08 sustained gun bullet injury of a fire from the riffle of the policeman. The other question put to the complainant further demolished the defence of the accused persons to deny any occurrence between the complainant, his family and the police personnel who came at the scene of occurrence in a police mobile. The question put to the complainant is that "while your mother was struggling, the bullet went off from the riffle of the policeman". If it would have been the case that the mother of complainant made such fire shot, neither of the accused had come forward to get him examined on oath to this effect, nor produced any defence witness in support of such stance.
18. The scrutiny and appreciation of the evidence of PW-01 reflects that no serious dent could be caused to demolish the prosecution case on the point of occurrence, receiving gun bullet shot injury from a fire of the policeman, identity of the accused persons in the offence and their arrest. A very material admission on behalf of accused (Irfan) cannot be oversighted and ignored that does not leave even a point blank chance of doubt about the involvement of the accused in the occurrence, while replying to a specific question on behalf of accused Irfan, complainant relied that "it is correct that only one bullet fired at the behest of the police at the place of occurrence". Can any prudent mind ignore this admission, put themselves on behalf of the accused persons and even if such attempt is made can a prudent mind conceive or concede to this argument that accused person were not involved in the occurrence which resulted into causing an injury to the appellant.
19. The other eye-witness account of the occurrence (offence) is the evidence of PW-02 Farzana Siddiqui, the mother of the complainant who was also a passenger of the car. The relevant extract of her statement is also reproduced as below: - "When our car reached at some distance ahead from Makki Masjid near CID centre in the meantime a police mobile coming out from there . We were on the main road, in the car and my son slowed down the car, reaching close to the police mobile. The policeman sitting in the mobile while turning the mobile used abusive words to my son. My son asked. "What happened" but the police mobile moved to the Makki Masjid we took our destination leading to our home. When our car reached at the turn of Aslam Store, the same police mobile sped up from the back of our car intercepted our car and stationed their Mobile in front of our car. My son braked stopped our car. Hurriedly policeman got down from the police mobile one started hitting the butt of his gun on the bonnet of our car with a full force. Later on I came to know his name was Waseem Sajjad. The another policeman wearing beard whose name I came to know Irfan Tanoli who started beating my son with the gun as an instrument from the window of the car and my son had been asking him, what happened, ("Kya Hoa, Kya Hoa"). In the meantime, I got off from the car and walked up from the back of the car and approached to the policeman who was beating my son and I asked him why he is doing so, ("Meray bety ko kyon marr rahy ho"). In the meantime the policeman namely Waseem Sajjad moved back side of the car and he opened fire. Thereafter speedily they all sat back in the police mobile and accelerated away. My son alio sped up the car towards the house"
20. The statement of this eye-witness was consistent, confidence inspiring and also corroborated to the evidence of PW-1 in describing the scene and event of occurrence and involvement of the police personnel in the offence who first time came across to the prosecution witnesses in front of the gate of the police headquarter while they kept sitting in their vehicle, and then after few minutes when the occurrence took place and the PW-08 received gunshot injury.
21. From the cross-examination I wondered to find whether the evidence of this witness for involvement of the police personnel in the offence is denied or even disputed but could not find' anything to this effect instead entire thrust was to extort from the mouth of the witness to create a doubt and mistaken identity and role of the accused persons in the occurrence. The suggestion given by the learned counsel on behalf of accused Mohammad Amin is very relevant that again closed all windows for accused persons to deity their involvement in the occurrence regardless of their specific role. The reply to a question so put was "It is correct that I caught hold the accused Irfan Tanoli who was beating my son with gun butt." Likewise, to a suggestion given by the learned counsel for the accused Mohammad Irfan Tanoli,, she replied that "It is correct that when the accused Wan has hit the Butt of the Rifle to my son it also hits to his armpit." However, she had categorically denied grabbing the gun of accused Irfan Tanoli and making firing from the said gun. In presence of above evidence it is admitted on behalf of the accused persons that they came at the place of occurrence in a police mobile, duly armed, and there was a gunshot fire from a gun of the police personnel among them, rest of the nitty, gritty, so called/intentional lapses and argument for involvement of the accused persons in the case at the behest of the senior police official, their arrest without identification parade and so what becomes redundant.
22. Now scrutiny of evidence of PW-08 appellant appears to be essential to thrash out whether the same is consistent and in the line with the evidence of PW-01 and PW-02 who were the witnesses of eye account and the passengers of the car wherein she received gunshot injury and ultimately suffered a permanent life time disability. The deposition (evidence) of PW-08 is reproduced herein below: "It was 24th February 2012, 1 along with my mother in law and my brother in law after shopping from Hyper Star, returning towards our house situated at Garden. My brother in law was driving the car. We reached at the head quarter of police, meanwhile a police mobile came on the road from police headquarter and we were on the way. Our vehicle and the police mobile came in front of each other. My brother in law stopped our vehicle.
Police officials sitting in the police mobile became annoyed and abused my brother in law. We while taking our way on the road, after crossing traffic signal and a police chowki we were intercepted and the said police mobile came ahead us and stopped. The staff sitting in the police mobile in plane clothes in angry manner alighted from the police mobile and came to our vehicle caused damage and threatened my brother in law. They maltreated my brother in law and directed us to alight from the vehicle. My mother in law was also in the car, she alighted from the car and went to the said persons and tried to intervene after inquiry. I was sitting on the rear seat and became terrified. Suddenly I heard bullet fire which I felt that which hit to me and I when checked my belly found that said bullet had hit me on my person, I informed my brother in law that I have sustained the bullet injury but he did not hear when I informed him at first instance on the pretext that those persons were maltreating to my brother in law namely Asir I once again informed while diverting his attention towards me that I have sustained the bullet injury and feeling that the said bullet hit me from backside and it was found a pain to me at right leg with a severe pain. My brother in law after hearing me geared up the vehicle and he was so disturb that he left his mother there and drove the vehicle from here to Liaquat National Hospital. Since my brother in law has come from England and was not aware for the routes of traffic thus he shifted me to Liaqat National Hospital instead of Agha Khan Hospital. I became semiconscious after sustaining bullet injury and reciting Kalimah and I directed my brother in law to shift me at Hospital as soon as possible as I was feeling severe pain in my body and later part of my body was found not in working order. I became paralyzed due to sustaining bullet injury and I am in ambulant condition, having artificial leg and even cannot walk, got to toilet and cannot move freely.
Note; Since I could not see the person who caused me the bullet injury or who shoot out bullet from his weapon but I can identify the person/persons who made quarreled at spot with us. The person present at number second of row of the accused might be the same. I did not know the name of person. The person pointed out by this witness is inquired his name by the Court whereupon he disclosed his name to be kV. I do not remember for the other accused present in the Court as the incident took place two years ago. Police officer once attended me at Hospital and recorded my statement, Since from the day of incident, I am paralyzed and have sustained the loss which cannot be compensated in money. My lower part of the body has become paralyzed and I am unable to move frequently.
23. The first part of the evidence of this witness is about the scene and scenario of their contact with the accused persons, first in front of the gate of police headquarter and then when the unfortunate 'occurrence took place. In my considered view, the said part of the evidence is simply and clearly consistent with the evidence of PW-01 and PW-02 and even by use of magnifying glass no petty contradiction in the narration of scene and scenario of the occurrence could be found. It is in my mind that herein before I have already' dilated upon the admission on the part of the accused persons of there being present at the place of occurrence and about their quarrel and nitty-gritty with the passengers of the car (underlining is for emphasize). Even a thread bare scrutiny of the cross-examination could not find any dispute or denial of the scene and scenario of the occurrence and first and second contact/interaction of the police mobile with the passengers of the car including this witness. A suggestion put to the witness, though an attempt to make out the case for vicarious liability, which makes it undoubtedly clear that it was the same police mobile and the persons sitting in the mobile who met with the car of the victims and then intercepted the car by making the chase and acted inappropriately. The reply to the suggestion so put was that "It is incorrect to suggest that accused Atif did not alight from the police mobile at the time of occurrence". Such suggestion himself put by the learned counsel for the accused to the witness amounts to an admission of the facts stated by the witness about their unfortunate face-off/showdown with the accused persons who were in the police mobile. Through the entire cross- examination conducted by all the defence counsel no material contradiction inasmuch to disbelieve the evidence of PW-01, PW-02 and PW-08, involving the respondents in the offence could be established. The contention of learned counsel for respondents that the eye-witnesses of the incident were close relatives and their evidence cannot be taken on account has no relevance as mere close relationship of the witnesses with complainant would not discard their testimonies if otherwise the same was trustworthy, confidence inspiring, appealing to reasons and corroborated by independent circumstances as has happened in this case. Reliance in this regard is placed on the ratio decidendi of august Supreme Court of Pakistan in the cases of Aijaz Ahmed v. The State (2009 SCMR 99) and Talib Hussain and others v. The State and others (2009 SCMR 825 rel.).
24. Nevertheless, for satisfaction of the judicial conscience before interfering with the impugned judgment it would be rather much appropriate to refer to Ex-14-I which is a daily diary (Roznamcha) No.30 at 2100 hours dated 24.02.2012 of Police Station CID AEC Sindh, Karachi which reveals that accused Mohammad Arshad Zaidi, Atif Khan, Mohammad Amin duly armed proceeded on patrol in a police mobile. Ex-14-J which is another daily diary (Roznamcha) No.42 recorded at 0110 hours on 25.02.2012 of Police Station CID AEC Sindh, Karachi which discloses about arrival of the above said accused persons back to the police station which all land lawful pointation that the said three accused persons were out of the police station which they left around at 2100 hours on 24.02.2012 and had a face-off with the victims in front of the gate of police headquarter and indisputably their showdown with the car of the victims at some distance by chasing them, which culminated into a gun fire, apart from beating the complainant PW-01, which caused permanent disability to the appellant. It may again be kept in mind that through the cross-examination the presence of police mobile and firing of gunshot from the official SMG has been admitted by one way or other.
25. I am not oblivious of the arguments advanced on behalf of the respondents/accused that before booking them in the case their identification parade was not held before the Magistrate. Let's not forget that I have already given a reason to believe that it was none but the present accused persons who were present at the place of occurrence and there was a gunshot fired from the official SMG on the basis of admission made on behalf of the accused persons at the place of occurrence and there being no denial of the events and facts stated by the witnesses about the face-off with the accused persons and they being identifiable. Accordingly, respondents Nos.1 to 3 were arrested on identity and pointation of the complainant at Police Station CID AEC, Sindh, Karachi promptly after registration of the FIR. Assuming that they were not the respondents who were involved in the offence of causing gunshot injury to the appellant and their involvement and or their implication in the case was on the behest of senior police officer, how it became possible to arrest the 4th accused namely Irfan Tanoli on the pointation of complainant. The answer off course is that the complainant himself identified the persons involved in the offence and they were not implicated at the behest of the senior police officers as agitated on behalf of the accused persons. It is important to point out that the arrest of Irfan Tanoli in front of Makki Masjid Garden road is not disputed.
26. Now the question arises that whether all the persons sitting in the police mobile which was involved in the occurrence acted in furtherance of common intention. Section 34, P.P.C. deals with the acts done by several persons in furtherance of common intention. When a criminal act is done by several persons, in furtherance of the common intention of all, each such person is liable for the act in the same manner as if it were done by him alone. In my considered view the common intention referred to in 34, P.P.C. presupposes a prior concert, prearranged plan but that did not mean that there must be long interval of time between the formation of the common intention and doing of the act. It was not necessary to adduce the direct evidence of the common intention. Indeed, in many cases, it may be impossible to do so. The common intention may be inferred from the surrounding circumstances and the conduct of the parties, and even it can be formed on spur of moment.
Reliance is placed on the cases reported as PLD 1975 SC 351 and 1973 SCMR 503. In the present case if, carefully visualized the scene and scenario as disclosed in evidence of PWs-1, 2 and 8 about their face-off in front of the police headquarter and then arrival of police mobile at the place of occurrence after making chase involved the complete harmony between the accused persons and their common intention as unless the driver of the mobile would not have joined the intention of the other members of the party they were unable to chase the victims and then the show-off power at the place of occurrence by the accused persons constitutes actus reus in furtherance of common intention and as such the offence was committed. The Honourable Supreme Court in the case reported as Sh. Muhammad Abid v.The State (2011 SCMR 1148), while dealing with the issue of common intention was pleased to hold that once it is found that the accused persons had common intention to commit the crime, it is immaterial as to what part was played by whom as law as to vicarious liability is that those who stand together, must fall together. The question what injuries were inflicted by a particular accused in cases to which section 34, P.P.C, applies is immaterial, the principle underlying the section being that where two or more persons acted with a common intention each is liable for the act committed as if it had been done by him alone.
27. The above reference to the evidence of the prosecution evidence and discussion thereon established It without any shadow of doubt that the evidence of PW-01, PW-02 and PW-08 is consistent, cogent and confidence-inspiring to the effect inasmuch involvement of accused persons/respondents in the offence and there is no material lapses, contradiction or infirmity in the prosecution case which could confuse and/or create a doubt in any prudent mind about the involvement of the accused persons in the occurrence which culminated and constituted into an offence and there is also no material on record about any ill motive or ill-will of the appellant and complainant to maliciously involve the accused persons in the commission of offence. Rather there had been certain material admissions on behalf the accused persons that they were responsible for the occurrence.
28. Now dealing with the kind of G injury and its legal consequences I would revert back to the evidence of appellant (PW-08) who stated that during their second time show-off with the police mobile and the persons sitting in the mobile and their reckless action of show of force she sustained an injury of a gunshot fired from the rear side of the car which hit her back and she also felt that the same has also injured her right leg, This statement of the witness get corroborative support from the evidence of PW-09 Dr. Sadat Fatima who produced the medico-legal report of the injured (appellant) and according to such MLO the nature of injury is disclosed to be I Jurh-i-Jaifah which constitutes an offence under Section 337-D, P.P,C., caused by the accused persons/ respondents as a result, of actions committed in furtherance of the common intention under Section 34, P.P.C. accordingly the impugned judgment is perverse, bad in law and suffers from misreading and non-reading of the evidence and thus the same is set-as side .
29. The accused being member of the police and their associates who also recklessly acted in the association of the police personnel under the garb of being police staff are not supposed to and also not expected to act so recklessly instead to ensure the prevention of crimes and safety of the public property and person and as such they are not entitled for any leniency. Such miscreants and delinquents have to be made example to avoid and prevent abuse of powers. The appeal is allowed, consequently, I convert the acquittal of respondents namely Muhammad Arshad Zaidi, Muhammad Atif Khan, Muhammad Ameen, and Muhammad Irfan Tanoli into conviction and award them conviction under Sections 337-D and 34, P.P.C. They are sentenced to suffer R.I for 10 years and to pay a fine of Rs.1,00,000/- each as Arsh payable to the appellant. In case of default, they shall suffer S.I. for six months each. They are also extended benefit of Section 382-B, Cr.P.C. The accused persons shall be sent to jail to serve out their sentence accordingly. Since the respondents Nos.1 to 4/accused are not present in the Court, issue NBWs of their arrest through SSP South, to immediately take them into custody and handover to the jail authorities to undergo their respective sentences. Compliance of this order by the SSP South, Karachi within seven days from today should be submitted to this Court through MIT-II for information.