' RASHID AZIZ KHAN, J.-- Ishaque son of Wazira, Rehmat Ali, Murtaza, both sons of Kamir Khan, Kali son of Bashir Ahmad, Musthaq alias Tukli son of Shahbaz, Nazar son of Khan Muhammad, and Ashiq son of Pahlwan were sent up for trial by Police Station Renala Khurd, District Okara, for offences under section 307/148/149, P.P.C. The case was entrusted to Special Court for Speedy Trials No, 2, Lahore, who vide, its judgment, dated 24-10-1988 convicted Ishaque, Mushtaq and Kali and sentenced them to two years' R.I. Each under section 148, P.P.C. They were further sentenced to five years' R.I. Each and a fine of Rs,5,000 each or in default R.I. For two years each under section 307/149, P.P.C. Murtaza and Rehmat Ali accused were sentenced to one year's RI each under section 148, P.P.C. They were also sentenced to three years' R.I. Each and a fine of Rs,3,000 each under section 307/149, P.P.C. Nana and Ashiq were sentenced to six months' R.I. Each under section 143, P.P.C. Only. It was further directed that the sentences shall run concurrently and the convicts shall also be given the benefit of section 382-B, Cr.P.C. The convicts have challenged their convictions by separate appeals. This judgment shall dispose of all the appeals filed by the convicts.
2. The prosecution story, in brief, as given in the F.I.R. Is that on 25-7-1987 at about 4 p.m. Ghulam Qamar, S.H.O. Police Station Sadar Renala Khurd along with Band Ali Shah, SI, Noor Ahmad H.C.
Kehmat Khan, Muhammad Umar, Falak Sher and Muhammad Khalid, Constables, reached Chak No, 67-A Bakhshaywala in connection with the investigation of a case registered under section 457/380, P.P.C. Ghulam Qamar, S.H.O. Received information that the accused in the said case, along with some others were present under a tree while armed. In pursuance of the said information, he along with police contingent went to arrest them; on seeing the police party they tried to run away. After a little chase the police succeeded in apprehending Nazdra and Ashiq appellants who were empty-handed. The remaining accused entered a Jantar crop. The police party after disclosing their identity, ordered them to surrender whereas they started firing. The police in self-defence also fired at the accused. The firing continued for about 2-1/2 hours. During this period the first informant had also sent for more police force which also joined them.
Ultimately, 11 tear gas shells were fired in the Jantar crop, thereafter firing from the accused side stopped. The police party advanced into the Jantar crop and arrested all of them.
3. F.I.R. Exh.P.F./1 was lodged by Ghulam Qamar, S.I. P.W.1 with Police Station Renala Khurd on 25-7- 1987 at 7-30 p.m., with regard to an occurrence which commenced at 4-30 p.m. F.I.R. Exh.P.F./1 was recorded by Riaz Hussain A.S.I. P.W.6 at 7-30 p.m.
4. The case was investigated by Ghulam Qamar, S.H.O. Police Station Renala Khurd. He arrested Ishaq, Kali, Mushtaq, Rehmat Ali and Murtaza accused from the Jantar crop. He secured .12 bore gun Pi and eight cartridges P.2/1-8 from Ishaque accused vide memo. Exh.PA. Gun P.3 with seven cartridges P.4/1-7 was secured from Kali accused vide memo. Exh.P.B. Rifle P.5 and five cartridges P.6/1-5 were secured from Musthaq accused vide memo. Exh.P.C. Hatchets P.7 and P.8 were secured from Rehmat and Murtaza, accused, vide memo. Exh.P.D. And Exh.P.E. Respectively. He got the said memos attested from the witnesses as well. After the usual investigation, he challaned the accused.
5. The prosecution in support of its case produced six witnesses in all. P.W.1 Ghulam Qamar on 27- 7-1987 at 2-45 pm. Had gone to Chak No, 67-A, Bakhshaywala in connection with the investigation of a case registered under section 457/380, P.P.C. He received information about the presence of the appellants and when he reached there to arrest them they resorted to firing; therefore, in self defence he had to order his police party to fire. Falak Sher and Muhammad Khalid, constables fired 20 shots each. Munir Ahmad, Constable fired 11 shots and Hakim fired 5 shots. Muhammad Akhtar A.S.I. Fired eight shots and Noor Ahmad, H.C. Fired 11 tear gas shells.
' P.W.2 Abdul Rahim had accompanied the police party to village Chak No, 67-A Bakhshaywala and witnessed the police encounter. He also attested the recovery memos. Abdullah P.W.3 had accompanied the police party to the spot and witnessed the police encounter. He corroborated the statement of Ghulam Qamar, P.W.1. Falak Sher, Constable, P.W.4 gave a detail of the occurrence and also stated that he chased the appellants on a Mare and in self-defence fired shots at them.He stated that the Investigating Officer had recovered some empties from the place where the appellants were firing. Noor Ahmad A.S.I. Corroborated the statement of Falak Sher and further stated that he fired eleven tear gas shells at the appellants and thereafter they were arrested. Riaz Hussain, A.S.I. P.W.6 had recorded the formal F.I.R.
' At the conclusion of the prosecution evidence, the appellants were examined under section 342, Cr.P.C. Wherein they denied the entire prosecution evidence and pleaded innocence. Muhammad Ishaq, P.W. In answer to a question stated that the gun P.1 shown to have been recovered at his instance was licensed gun of his uncle. Similarly Mushtaq appellant in answer to a question stated that the rifle P.5 shown to have been recovered from his possession was a licensed gun of his brother which was panted on him.
6. It is contended by learned counsel for the appellants that the case against the appellants is absolutely false. I iiey have been involved in the present case only to show the efficiency of the police. Contends that the witnesses from public are admittedly inimical and hostile towards the appellants, and the remaining witnesses arc from the police who could be relied upon only if there was some corroboration. Submits that the encounter lasted for 2-1/2 hours, yet not a single empty was secured from the spot which clearly indicates that the entire prosecution story is imaginary.
The contentions have been controverted by learned counsel for the State who submitted that the prosecution had successfully proved the case.
6-A. We have heard the learned counsel at length and gone through the evidence with their assistance. All the prosecution witnesses have categorically stated that cross-firing continued for about 2-1/2 hours, yet surprisingly, nobody in the encounter received even a scratch. Two of the appellants were admittedly armed with .12 bore guns and had fired at the police party as well from a distance of about one Killa. In such circumstances, a shot fired from .12 bore gun, the pellets would spread in a diameter of at least five feet at distance of one Killa. The absence of the injuries on the person of any of the police officials especially when one of them was riding a mare, becomes highly doubtful. According to the prosecution version, the police had fired at the appellants more than 65 shots, yet not a single empty was secured from the spot. There is no explanation available at all for this grave omission. The Investigating Officer did not even bother to secure the empties alleged to have been fired by the appellants in spite of the fact that they were arrested at the spot along with their guns. This fact leads to an irresistible conclusion that the whole affairs as asserted by the prosecution, is imaginary. Otherwise, too, it is unimaginable that the police would not even A bother to secure crime empties which admittedly were lying at a place from where the appellants were arrested. According to the prosecution version, they had fired eleven tear gas shells as well, but strangely enough, not even one empty shell was secured.
' The recoveries affected at the instance of the appellants would not advance the case of the prosecution because they were neither sent to the firearm expert nor any empty was secured from the spot which could prove whether they had been used in the commission of the offence. Two of the appellants admittedly were armed with hatchets and no overt act has been attributed to either of them to indicate that they had the intention to commit murderous assault. The only role ascribed to them is that on seeing the police party they started running away and thereafter on the direction of the police they did not surrender.
' As far as Nazra and Ashiq appellants are concerned, the only allegation against them was that they were sitting under a tree along with the other appellants and when the police came they tried to run away but were apprehended. It is the prosecution story that both of them were unarmed.
The prosecution has not produced any evidence whatsoever to indicate that at the time they were sitting under a tree it was an unlawful assembly. In the absence of any evidence to that effect we hold that their conviction under section 143, P.P.C. is not justified.
'For what has been discussed above, we hold that the prosecution has not been able to prove its case beyond reasonable doubt against the appellants. Therefore, we accept the appeals and set aside the convictions. The convicts shall be released forthwith if not required in any other case.