1. SALAHUDDIN MIRZA, J.--- F.I.R. No.482/90 of Police Station Khawaja Ajmair Nagri, Karachi (Central), was recorded under section 399/402/307/34, P.P.C. At the instance of Inspector Sultan Masood Kayani of C.I.A. At 0720 hours on 8-11-1990 in the following terms: One Abdul Hafeez alias Javed was already under arrest in Crime No.214/90 under section 365/34, P.P.C. Of Police Station Aziz Bhatti Park and while in the custody of the complainant he led the police to the house of one Elahi Bux Wadera at 0600 hours on 8-11-1990. The house was located in Khawasti Brohi Goth, Karachi and the raid was conducted to arrest the other persons involved in Crime No.214/90 whose names are (1) Anwar Ali, (2) Wazir, (3) Javed, (4) Khalid, (5) Mazhar Abbas,
(6) Sajid and (7) Javed alias Papoo. These persons were present when the raid was conducted and they were armed. Fire was exchanged and thereafter some of these persons were apprehended while others managed to escape whose names are (1) Elahi Bux Wadera, (2) Saleem Javed, (3)
2. Khalid and (4) Sajid.
3. Those who were arrested were:
(1) Wazir with mini K.K. Rifle of .30 bore with 5 bullets.
(2) Anwar Ali with one Mauzer local made without number and with empty magazine.
(3) Mazhar Abbas with T.T. Pistol of .30 bore No.67688 local made with 6 rounds.
(4) Javed alias Papoo with one T.T. Pistol of .30 bore No.1971 loaded with 5 rounds.
4. In addition, thirty rounds of ammunition were recovered from the floor of the room. On the basis of this recovery, Crime No.482/90 was recorded under section 399/402/307/353, P.P.C. On the basis of which the above-noted four accused were put on trial in the Court of Special Judge, suppression of Terrorist Activities, Karachi, and on the basis of evidence adduced by the prosecution learned Judge vide judgment dated 14th September 1991 acquitted Anwar Ali but convicted the remaining three and sentenced them to "undergo" (it is not known what, since it is not mentioned, but presumably "imprisonment" for the period they had already remained under custody as under-trial prisoners (about 10 months).
5. Learned counsel of the appellants and learned A.A: G. Have been heard.
6. It maybe noted that the charge against the accused was two-fold:
(a) under section 399/402, P.P.C. For making preparation for committing dacoity;
(b) under section 307/355/34, P.P.C. For interfering in the lawful discharge of duties by the police personnel and in assaulting them with the intention to murder them.
7. The finding given by learned Judge at page 3 of the judgment is that' part (a) of the charge is proved but the finding is silent as to part (b) of the charge. However, under "reasons" learned Judge stated at page 18 of the judgment that charge under section 307/34, P.P.C. Has not been proved, indicating that part (b) of the charge has not been proved. The snag, however, is that the "reasons" do not clarify what is the finding under section 353, P.P.C. However, under the circumstances, it may be presumed that charge under section 353, P.P.C. Had also not been proved.
8. A perusal of the judgment shows that learned Judge was in a thoroughly confused state of mind while dictating the judgment and was not sure what he was dictating. There is very little discussion of evidence and the judgment, for the most part, consists of a narration of the evidence. It is not clear how the same evidence, which was not believed when considering part (b) of the charge, was believed when considering part (a thereof. Besides what is this evidence?
9. P.W.3 is Inspector, Abdul Sama Bhatti. He states Pat on receiving information under the command of Inspector Sultan Masood Kiyani, Inspector Anwar Zeb and police personnel and Inspector Jabbar". We have not been able to understand how some information be received "under the command" of anybody; besides, there is no `verb' in the sentence and since there can be no sentence without a `verb' the whole portion quoted above is a meaningless jumble of words.
10. Learned Judge appears to be totally incapable to express himself in appropriate language.
11. However, by reading the whole thing, one may surmise that a police, party consisting of Inspector Abdul Samad Bhatti, Inspector Sultan Masood Kiyani, Inspector Anwar Zeb and other police personnel, raided the house of Elahi Bux Wadera and surrounded it whereupon the appellants and others, who were inside, opened fire and then an exchange of fire took place between the two groups. None was however, injured from either side. After some time the persons who were inside the house stopped firing whereupon police party arrested four of the persons whereas four others managed to escape. Lethal weapons were recovered from all the four persons who were apprehended as per details given in earlier part of the judgment. It was further stated that "it was information that accused used to commit offences for abduction for ransom" and that "they were gathered there to commit crime". Now, firstly, this evidence is one compact unit which can be disbelieved or believed against all the accused. It is not clear how this evidence was believed in the case of the two appellants but was not believed in the case of the acquitted co-accused and, secondly, it does not show, even if it were to be believed, that the Appellants were snaking preparations to commit dacoity. Even otherwise, this witness says that he does not know from where Inspector Kiyani had taken the witnesses. It is rather strange since the witness and Inspector Kiyani had gone together, even though in different vehicles. The witness also does not clarify why the raiding party allowed the other co-accused to escape. The next prosecution witness is P.W.4 Mohammad Asghar, who had acted as Mashir. His evidence is to the effect that he is vegetable vendor and on 8-11-1990 he was in Sabzi Mandi at about 0500 hours or 530 hours and was purchasing vegetables for his shop when a police mobile van came there and the police asked him to accompany it and act as mashir and he accordingly went with the police. He further stated that a man in custody of the police was also sitting in the van. The police took him to the Gulberg Area and the man in custody led the police party to a house where the police got down from the vehicle and at that stage the persons, who were in the house, opened fire on the police party which also returned the fire and this exchange of fire continued for about a minute or two whereafter the police party entered the house and apprehended 4 persons while some others ran away. The witness identified the two appellants and acquitted two co-accused as the persons who had been apprehended by the police from the said house. The witness then gave the description of the arms and ammunition recovered from each of the 4 persons. This witness may be a good witness in the case under the Arms Ordinance but he has deposed nothing whatsoever in respect of an offence under section 399/402, P.P.C. He does not say a word as to what preparations were being made by the appellants. The evidence of this witness is, thus, also irrevelant for our purposes. Inspector Aziz Ahmed of C.I.A. Appeared as P.W.5. He stated that acting on some secret information received by him, he left C.I.A. Head Quarters at 0400 hours on 8-10-1990 for conducting the raid. After picking up a mashir while on his way to Khawasti Goth, he reached the said Goth at 0600 hours and conducted the raid at the house of Ilahi Bux whereupon an exchange of fire took place and after the fire died down the police party after giving warning to the inmates of the house entered the same. The house was under construction and there was neither any boundary wall nor doors to the rooms. Four armed persons were found in the house and the witness gave the details of the arms and ammunition recovered from each of them. He then corrected himself by saying that the date of conducting the raid was 8-11-1990 and not 8-10-1990, and earlier he had given the wrong date due to misunderstanding. He does not mention the 4 other co---accused who were cited by other witnesses to be present in the house and who had managed to escape. He categorically stated that only the 4 accused persons, who were apprehended, were present in the house. In cross- examination he had to admit that the date given in 161, Cr.P.C. Statements of witnesses was also 8- 10-1990 but again explained that it was also due to mistake. It was an early morning hour and the house is stated to be by the side of a mosque but according to Inspector Aziz Ahmed no one came at the Wardat in spite of the exchange of fire between the police party and the culprits. The other Mashir of the raid was Safdar Raza Zaidi and according to the defence version he had died as long ago as 22-7-1989. Even a photostat copy of the death certificate of Safdar Raza Zaidi was shown to the witness who contested its genuineness but Inspector Aziz Ahmed, while admitting that he could not produce Safdar Raza Zaidi before Court as a witness, explained that his inability was due to the fact that Safdar Raza Zaidi had changed his residence and his whereabouts were not known. When confronted with the challan which showed that 4 other culprits had managed to escape from the house when the raid was conducted, the witness stated that he had himself seen those persons running away (even then he had not said a word about them in his examination-in-chief). He contradicted Mashir P.W.4 Muhammad Asghar when he stated that no person in police party was in plain clothes, although immediately thereafter he stated that the Mashirs were in plain clothes.
12. This is all the relevant evidence adduced by the prosecution.
13. As we have already noted above, the prosecution story is not convincing. An exchange of fire had taken place but none was injured from either side. Three vehicles are said to have been used in the raid which means that there was a substantial number of police personnel available on the spot and yet 4 persons are said to have escaped from the house. One of the Mashirs was claimed by the appellants to be dead as long ago as 1989 and even his death certificate was confronted with the police official in his cross-examination and the fact that the prosecution did not produce him before the Court and had to concede that his whereabouts were unknown gives rise to doubts. The wrong date as given upon 161, Cr.P.C. Statements is another factor which creates doubts about the authenticity of the prosecution case. However, even if the evidence adduced by the prosecution were to be taken at its face value, even then no case has been made out under section 399/402, P.P.C. Because all that has been shown is that the appellants and the acquitted two accused were found in possession of arms and ammunition and they had resisted their arrest when the police party tried to arrest them. In view of this position, learned State counsel did not support the impugned judgment and the conviction and sentence of the appellants. Moreover, it is surprising that on the basis of the same evidence, learned Special Judge has acquitted two of the co- Accused. In spite of our best efforts we could not differenciate between the cases of the two acquitted accused from the cases of the present appellants. As such we had allowed this appeal and quashed the conviction and sentence of the appellants a snort order on 13-2-1992 after the conclusion of the hearing and these are the reasons for the same.
14. N.H.Q./J-143/K