KHIZAR HAYAT, J.-- Muhammad Hussain (26), Ashiq Hussain (24), Nazar Hussain (22) and Zafar Hussain (20), all sons of Nabi Bakhsh, cultivators, case Baloch, residents of Mauza Dinpur, Tehsil and District Muzaffargarh, have filed this appeal against the judgment dated 22-12-1987, passed by Judge, Punjab Special Court for Speedy Trials No. XI, D.G. Khan, convicting them under sections 307 and 333 read with section 34, P.P.C. And sentenced to 10 years' R.I. And a fine of Rs.10,000 each or in default to undergo one year's R.I. Each under first count and to 5 years' R.I. And a fine of Rs.3,000 each or in default to undergo six months' R.I. Each under the second count. They are further directed to pay Rs.10,000 each to Syed Asghar A.I Shah Inspector (P.W.2) as compensation or in default thereof to suffer six months' R.I. Each.
2. The occurrence took place on the night between 1st/2nd April, 1978, in the area of Basti Pir Jahanian, Mauza Dinpur, Tehsil and District Muzaffargarh, and report Exh.P.C. Regarding the incident was lodged by Mahboob Ahmad, Sub-Inspector, Special Cell, Special Staff Circle, Haram Gate, Multan City, on the basis of which Ashiq Hussain S.I./S.H.O. P.S. Sadar Muzaffargarh (P.W.8) drew up formal F.I.R. Exh.P.C./1, the same day, at 5-45 a.m.
3. The prosecution case is that Syed Asghar A.I Shah Inspector Police (P.W.2) while posted as Incharge of Special Cell, Special Staff Anti-Narcotics, Multan, was entrusted with the investigation of case F.I.R. No. 46, dated 18-3-1987, under Articles 3/4 of Prohibition (Enforcement of Hadd) Order (IV of 1979), registered at Police Station Bohar Gate, Multan, against the four appellants herein. The Inspector Police (P.W.2) in order to arrest the appellants and recover Charas and other Narcotics by searching their house constituted a raid party comprising six uniformed constables armed with rifles and six Plained clothed constables besides Sarfraz Hussain S.I., Muhammad Waris, Rashid Ahmad and Muhammad Jahangir A.S.Is. They left Multan in a Government owned vehicle at about 3-30 a.m. (mid-night) for raiding the house of the appellants. Reaching Muzaffargarh they stopped for a while near Police Lines and sent Muhammad Ismail H.C. (not produced) to Police Station Sadar Muzaffargarh for informing the S.H.O. About this raid. The raid party while proceeding towards the house of the appellants, in the way, took alongwith them Qadir Bakhsh Lambardar, Kalu Khan, Fida Hussain P.Ws. (not produced) and Kifayat Hussain (P.W.4), the residents of the locality. Having reached the house of the appellants at 4-55 a.m. Syed Asghar A.I Shah Inspector (P.W.2) posted the members of his party around the residence of the appellants and encircled it. A constable entered the house by scaling over its wall and unchained the door and then Syed Asghar A.I Shah, with Muhammad Waris and Jahangir A.S.Is. And two constables gained entry in the courtyard wherefrom addressing the appellants (by name) loudly the Inspector introduced himself to them and told them that he had come from Multan with police party for searching their house to recover narcotics so they should surrender. At this, the appellants replied from within the room where electric light was on, that they were `Balochs' by case and would fight till last, than to surrender before him. The appellants then started firing at the police party after opening their door.
A shot fired from his rifle by Muhammad Hussain appellant hit Syed Asghar A.I Shah (P.W.2) on his right thigh. Other shots fired by the remaining appellants from .12 bore fire-arms also hit him on the same leg. Syed Asghar A.I Shah P.W. Also returned the fire. He had, however, fallen down on account of injuries. The appellants, then managed to escape from the spot. Syed Asghar A.I Shah P.W. Was removed to D.H.Q. Hospital, Muzaffargarh for treatment where Dr. Irshad Ahmad Khan (P.W.3) examined him medically and found three gunshot entry wounds, on his right leg, each having dimension of 1 c.m. x 1 c.m. With blackening around it, vide M.L.R. Exh.P.D. He advised X-Ray of the injuries which does not appear to have been taken. The injuries were found to have been caused freshly.
4. S.I. Mehboob Ahmad (P.W.1) then searched the house of the appellants but nothing incriminating was found vide memo. Exh.P.B. He then drafted complaint (Exh.P.C.) and sent it for registration of the case at Police Station Sadar Muzaffargarh. He secured rifle (Exh.P.I), two live cartridges (P.2/1-2), a bandolier (Exh.P.3) and twenty-two empty cartridges (Exh.P.4/1-22) from the spot under memo.
Exh.PA. Attested by Kifayat Hussain (P.W.4), Kalu Khan, Qadir Bakhsh and Fida Hussain P.Ws. (not produced). Sub-Inspector Ashiq Hussain (P.W.8), S.H.O. P.S. Muzaffargarh reached there at 6-30 a.m. And S.I. Mahboob Ahmad made over the investigation to him. He removed blood-stained earth from the spot and seized it under memo. Exh.P.E. He arrested Muhammad Hussain and Ashiq Hussain on 6-4-1987 while Nazar Hussain and Zafar Hussain on 8-4-1987.
5. A.S.I. Muhammad Azam (P.W.7) interrogated Nazar Hussain and Zafar Hussain appellants who on 16-4-1987, while in custody by pointing out separately got recovered .12 bore pistols P.5 and P.6 which lay buried in a graveyard of Pir Jahanian, which were secured respectively under memos.
Exhs.P.F. And P.G. Attested by Rahim Bakhsh (P.W.5) and Wazir Ahmad P.W. (not produced).
6. At the trial the prosecution in support of its case produced nine witnesses, referred to above.
7. The appellants when examined under section 342, Cr.P.C. Denied the allegations and declined to appear in disproof of the charge as envisaged under section 340(2), Cr.P.C. They examined Muhammad Akram A.S.I. (D.W.1) in defence and Muhammad Hussain appellant produced a copy of the F.I.R. No. 46, dated 18-3-1987 of P.S. Bohar Gate, Multan (Exh.D.D.). Muhammad Hussain appellant explained in answer to question No. 10 that he was already in police lock-up at Police Station Sadar Muzaffargarh when he came to know that Syed Asghar A.I Shah Inspector was injured by a person travelling in a truck in the area of Police Station Sadar as he attemped to extort money from the truck driver on the pretext of checking of narcotics. Muhammad Akram A.S.I. (D.W.1) stated that he remained posted as Muharrir Head Constable at P.S. Sadar Muzaffargarh in April, 1987. After consulting the Roznamcha as well as Register No.19 of P.S. Sadar Muzaffargarh pertaining to the month of April 1987, he deposed that Muhammad Ismail H.C.'s arrival at P.S. On 2-4-1987 was not found recorded in the Roznamcha and that according to entry No. 47 of Register No. 19 a rifle (Exh.P.2) alongwith its licence are shown to have been recovered from Muhammad Hussain appellant on 14-4-1987. He further stated that on 2-6-1987 one Muhammad Azam A.S.I. Deposited two pistols (P.5 and P.6) allegedly recovered from Nazar Hussain and Zafar Hussain appellants, vide entries Nos. 50 and 51. He however, admitted in cross-examination that Muhammad Ismail H.C. Did visit the police station at 4-30 a.m. On 2-4-1987, who talked to the S.H.O. For some time and went away.
8. Learned trial Court on consideration of the material on record finding the prosecution witnesses as independent and disinterested, accepted their version. It also observed that Syed Asghar A.I Shah's injuries were not X-Rayed as advised, and that he was brought in Court in a chair, who was not in a position to stand, therefore, learned trial Court treated his injuries as grievous in nature and, thus, held the appellants guilty and sentenced them accordingly as indicated above.
9. We have heard learned counsel for the appellants as well as for State and also perused the record. Rifle (Exh.P.1) and 22 empty cartridges (Exh.P.4/1-22) were seized from the spot on 2-4-1987 immediately after the occurrence but according to Muhammad Akram (D.W.1) they were deposited at the police station on 14-4-1987 and likewise the two pistols (Exhs.P.J and P.6) said to have been recovered from Nazar Hussain and Zafar Hussain, appellants, on 16-4-1987, had been deposited there on 2-6-1987 for which no explanation is forthcoming from the prosecution. It is, however, a fact that neither the fire-arms recovered from the appellants nor empty cartridges picked up from the spot were sent to fire-arms expert for examination and report if these cartridges were wedded with those weapons, therefore, the recovery of weapons allegedly effected from the appellants is inconsequential.
10. The prosecution case mainly rests on the ocular evidence furnished by Mehboob Ahmad (P.W.1), Syed Asghar A.I Shah (P.W.2) and Kifayat A.I (P.W.4) which to our mind is not worth reliance for the reasons as follows. The prosecution case is that 1-1/2 dozen armed policemen encircled the appellants' house having one door only. It was not, therefore, possible for the appellants to escape from there. It seems ridiculous that Muhammad Hussain, appellant, the A party-leader of the appellants ran away leaving his rifle and five cartridges (P.1 and P.2) on the spot which he needed most for use for avoiding his arrest by the police. As noted above, it is highly intriguing that the rifle (P.1) belonging to Muhammad Hussain appellant said to have been picked up from the spot immediately after the occurrence was deposited at the police station with 12 days t delay without any excuse as indicated earlier.
11. Mahboob Ahmad (P.W.1), Syed Asghar A.I Shah (P.W.2) stated that the appellants were not known to them before the occurrence but strangely the former claims to have identified them from their voice whereas Syed Asghar A.I Shah (P.W.2) asserted with precision that it were the shots fired by Nazar Hussain and Ashiq Hussain appellants which hit his right leg. He was, however, confronted with his statement Exh.DA. Recorded under section 161, Cr.P.C'. During the investigation, wherein he had not so stated. All the P.Ws. And particularly Syed Asghar A.I Shah, the star witness, in the case,, stated that the appellants had fired at him from a distance of 10/15 yards. This is belied by the medical evidence as according to doctor (P.W.3) there was blackening around the wounds found on the right leg of Syed Asghar A.I Shah (P.W.2). This means that he was fired at from a distance of less than three feet. Syed Asghar A.I Shah (P.W.2) stated that his statement was recorded by Investigating Officer 2/3 days after the occurrence. He has not named Mahboob Ahmad (P.W.1), the first informant, as member of his raiding party. Doctor (P.W.3) has not stated that Syed Asghar A.I Shah (P.W.2) when brought to the hospital was unconscious or unfit to make statement for 2 3 days. It is, therefore, not understood as to why he avoided to lodge the report himself about the occurrence being the head of the raid party and why he was examined so late. His conduct created doubt in our mind that the occurrence had taken place in the manner as stated by prosecution witnesses. Furthermore, the prosecution case is that the occurrence took place 'at 4- 45 a.m. Wherein Syed Asghar A.I Shah Inspector (P.W.2) was injured by the appellants but according to the medical witness (P.W.3) Syed Asghar A.I Shah was examined for his injuries at 4 a.m. At D.H.Q. Hospital, Muzaffargarh. It means that Syed Asghar A.I Shah had been injured hours before 4 a.m. And the prosecution story that he was injured at 4-45 a.m. In the house of the appellants is knocked out of bottom. There is yet another peculiar feature i.e. Syed Asghar A.I Shah Inspector (P.W.2) raided the house of the appellants for arresting them and recovering narcotics from their possession as they were named as accused in the F.I.R. No. 46/87 registered at P.S. Bohar Gate, Multan, the investigation of which case had been entrusted to him. This F.I.R. Was not produced by the prosecution to show that the raid made on the house of the appellants was for a genuine purpose. However, the defence has produced certified copy of that F.I.R. (Exh.D.D.) and S.I.
Mahboob Ahmad (P.W.1) admitted that none of the appellants was named in it as accused.
Obviously therefore, the police party could hardly make use of the authority provided under section 48 of the Code of Criminal Procedure to break into their house for arresting the appellants or carrying out house search under the cover of the provisions of section 166(3), Cr.P.C. In order to establish a charge under section 333, P.P.C., it was essential for the prosecution, in this case, to prove that Syed Asghar A.I Shah (P.W.2) and his party had gone to the house of the appellants for lawful discharge of their duty C and that the appellants with intention to prevent them from discharging of such duty had attacked them. As pointed out earlier the prosecution has not shown that the appellants were really required to be arrested as accused in a cognizable case, therefore, the charge under section 333, P.P.C. Fails even if the evidence (which is otherwise incredible) is accepted on its face value.
12. For what has been stated above we find that the prosecution has failed to bring home the charges under sections 333 and 307/34, P.P.C. To the appellants beyond reasonable doubt.
Consequently, we accept this appeal, set aside the conviction and sentence of the appellants and acquit them. They are directed to be released forthwith if not required to be detained in any other case. State Appeal No. 242 of 1987 fails automatically.