' Both these appeals filed under section 410, Cr.P.C. Have arisen out of the same judgment, hence they are being disposed of together.
2. Appellants Qayyum Khan (Criminal Appeal No,20 of 1992) and Pervaiz Akhtar Butt (Criminal Appeal No,41 of 1992) were tried alongwith Feroz Khan (since absconding) by Sessions Judge (East), Karachi, for the offence under section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, read with section 307-332-353, P.P.C., who found the appellants guilty for the offence under section 307-353/34, P.P.C., and sentenced each of them to suffer R.I. For five years and to pay a fine of Rs,50,000 or in default thereof to suffer R.I. For six months for the offence under section 307, P.P.C. They were also convicted for the offence under section 353/34, P.P.C. And were sentenced to pay a fine of Rs,50,000 each or in default to suffer R.I. For six months. The benefit of section 382-B, Cr.P.C. Was, however, extended to both of them.
3. The case of the prosecution in brief is that on 1-10-1990 at about 12-30 p.m. Complainant Gul Muhammad stopped his car in front of House No,145.M, P.E.C.H. Society Karachi, when all of a sudden three persons armed with pistols came there on a motor-cycle. They snatched keys from him and drove away the car. In the meantime a mobile van of the police arrived there and the police party was apprised of the incident by complainant Gul Muhammad. The police party took complainant Gul Muhammad with them and followed the culprits. There was an encounter near Sir Syed Road, in which one of the culprits, namely, Qayyum Khan (Criminal Appeal No,20 of 1992) sustained injury. Both the appellants were apprehended, while their third companion escaped on a motor-cycle. On the same day complainant Gul Muhammad lodged F.I.R. At Ferozabad Police Station, which was recorded at 1-15 p.m. During the course of investigation co-accused Feroz Khan was also arrested and all the three accused were sent up to stand trial. Accused. Feroz Khan, however, absconded and the trial was concluded against the present appellants, who as indicated above, were convicted and sentenced for the offence under section 307/353/34, P.P.C. It is in these circumstances that the appellants have filed separate appeals challenging their convictions and sentences.
4. I have heard the learned counsel for the respective appellants and Mr. Abdul Hakeem Bijarani, learned A.A.-G. For State. The latter has supported the impugned judgment.
5. Admittedly the case of the prosecution rests upon the testimony of Tourif Ali, S.I.P. (P.W.1), and Muhammad Raees P.C. (P.W.2) who were in the mobile van at the time when this incident took place. Complainant Gul Muhammad who was robbed of his Suzuki car and who had set the law in motion was, however, given up as his whereabouts were not known. Likewise Ghulam Abbas the Mashir of recovery was also given up as his presence could not be secured. Thus, the case of the prosecution solely hinges upon the testimony of two police officials whose evidence has not been corroborated by any private person, although the incident is said to have taken place at a thickly opulated area. It was obviously for this reason that both the appellants were accquitted on the charge of Harabah. Both the appellants were, however, convicted on the charge of attempt to commit murder and deterring the police party from discharging their duty on the following piece of evidence of Tourif Ali S.I.P. (P.W.1):-- "At the crossing of Sir Syed Road and Kashmir Road, the culprits fired at the police party and the police party also returned the fire. This resulted in injury to one person whose name later on, I came to know as Qayyum Khan. .... "
6. Muhammad Raees P.C. (P.W.2) who was also a member of mobile police party has testified to this effect in the following words:-- "When we reached at the crossing of Sir Syed Road and Kashmir Road, the culprits opened fire at the police party. The police party returned the fire and one of the culprits sustained firearm injury. ....
"
7. From a bare perusal of section 307, P.P.C., it is apparent that an act, though it may be sufficient to cause death, would not constitute an offence under this section if the necessary intention or knowledge is not established. An attempt per se would not bring a case under section 307, P.P.C., which should stem from a specific intention to commit murder. The evidence of the aforesaid witnesses, the relevant extracts of which are reproduced above, does not even faintly suggest that an attempt on the lives of the members of the police party was made by the appellants, whose anxiety was to escape from the B clutches of the police party. So even if the allegations made by both the above witnesses are taken at their face value and accepted in their entirety, they do not constitute the alleged offence. It may be added that from the mere fact that pistol shots were fired, it cannot be said that the only inference which follows is that the intention was to kill. Such a shot can be fired in a fit of temper; it can also be used in the same way for causing merely hurt, it may even be used in self-defence without any intention to kill and so on. This was in fact the view taken by A.S. Faruqui, J. (as he then was) in the case of Dhani Bux v. The State reported in PLD 1964 Kar.
264. This aspect of the case was not considered at all by the learned Sessions Judge. To me it seemed to show a lack of thought and a lack of care and failure to appreciate how grave was the matter that was before him.
8. In my opinion the story of police encounter is inherently improbable and the evidence of these two police officials should have been subejcted to a careful scrutiny before it was acted upon to the detriment of the accused persons. The falsity of the story is further demonstrated by a piece of evidence which has not been considered by the learned Sessions Judge at allAccording to the case of the prosecution appellant Qayyum Khan (Criminal Appeal No,20 of 1992) sustained injury while sitting in the car. No bullet marks were, however, noticed on the body of the car and it is not known as to how appellant Qayyum Khan sustained bullet injury on his thigh or buttocks, as the case may be. It was obviously for this infirmity that the prosecution did not examine the Medical Officer, who had attended appellant Qayyum Khan. The defence of this appellant to the effect that he being a passerby was hit by a stray bullet, when examined in juxtaposition to the above improbable story advanced by the prosecution witnesses leads to the conclusion that the version put forward by appellant Qayyum Khan (Criminal Appeal No,20 of 1992) might be true. It may be recalled that both complainant Gul Muhammad and P.W. Ghulam Abbas who were then only disinterested witnesses did not step into the witness-box. None from the locality where the incident took place was cited as a witness for the prosecution and in the absence of such evidence, with every desire to understand the learned Sessions Judge, I fail to see any wisdom behind this conviction.
9. Having examined the evidence in the case with great care and anxiety, I am unable to hold that the prosecution has established the guilt of any of the appellants. That being my opinion, I must allow these appeals, set aside the conviction and sentences passed on the appellants and direct that they may be released forthwith, if not required in any other case. The fine, if paid, be refunded.