' MUHAMMAD NAWAZ ABBASI, J.--- Jaffar Iqbal son of Talib Hussain (aged 27 years), Muhammad Farooq son of Muhammad Aslam (aged 25 years) and Muhammd Irshad son of Ghulam Rasool (aged 24 years) were tried for an offence under section 324/34, P.P.C. By the learned Special Court for Suppressin of Terrorist Activities, Lahore Division, Lahore and were convicted and awarded sentence to undergo five years' R.I. Each vide judgment dated 4-5-1992.
2. The allegations against the appellants were that on 19-5-1991 they were found armed with fire- arm on a motor-cycle at Narowal Muridkay Road in the area of village Chowrah, Police Station Saddar Muridkay. The appellants on seeing the police party made an attempt to escape but were chased and surrounded near Adhian whereupon the 'appellants started firing at the police party, and as a result thereof the police officials also fired in their defence. After the going of an encounter for about 20 minutes, the appellants were arrested at the spot. Papash Gun P.1 with 10 cartridges was recovered from Jaffar appellant, .12 bore gun P.3 with a bag P.4 containing cartridges P.5/1-10 was recovered from Muhammad Farooq appellant, .303 rifle P.6 with a bag P.7 containing 12 bullets P.8/1-12 was recovered from Muhammad Irshad. All the recovered weapons were taken into possession vide memo. Exhs.P.A., P.B. And P.C. Respectively and motor-cycle was taken into possession vide memo. Exh.P.D. A complaint Exh.P.F. Was drafted by Aman Ullah Inspector P.W.1 on the basis of which formal F.I.R. Exh.P.F./1 was recorded by P.W.3 Nazir Ahmad A.S.I.
Muhammad Abid A.S.I. P.W.4 is also witness of occurrence.
3. The accused denied the charge and pleaded false implication. Jaffar Iqbal and Muhammad Farooq appellants took the plea that they were body guards of father-in-law of Muhammad Jamil P.W. And were arrested on 10-5-1991 by Khara D.S.P. They produced Atta Ullah and Muhammad Boota in their defence.
4. The learned counsel for the appellants contends that the alleged occurrence took place on the road in broad daylight in the area of village Chowrah but no police witness has been cited. The police officials fired in their defence with their service weapons but there is no evidence available on the record to establish the factum of issuance of these service weapons with ammunition to them. There is no evidence to know that how many bullets were issued to the individual police official and how many he fired and what is left. In absence of placing on record the account of empties, there can be no other conclusion except that the occurrence did not take place as narrated by the P.Ws. He also submitted that the empties recovered from the spot were not sent to the fire-arm expert and that in spite of the fact that the encounter remained continued for about 20 minutes no body was injured.
4-A. The learned counsel for the State submitted that the recovery of empties furnishes enough corroboration to the charge.
5. We have heard the learned counsel for the parties and have perused the record.
6. Admittedly, it was a police encounter and both sides fired at each other. The police party was armed with service rifles etc. With ammunition issued to them. According to the Police Rules, each bullet issued to the police official is to be counted whether fired or not. If the police party had fired with their service weapons as claimed by them, they were bound to give account of the same and it was incumbent upon the prosecution to produce this evidence before the Court to establish the factum of encounter and firing by the police party in its defence. Similarly, it was necessary to send the empties to the fire-arm expert for examination to known that who fired the same. Mere recovery of empties is of no use to the prosecution. Non-production of evidence giving the account of issue of fire bullets to an individual police official and fire made by him and also not having the result of empties recovered from the spot goes to the root of the matter creating a serious doubt in the prosecution case and as a result thereof the story of police encounter falls on the ground.
7. For the foregoing reasons, we accept this appeal, set aside the conviction and sentence of the appellants. They are directed to release immediately if not required in any other case.