' SAJJAD AHMED SIPRA, J.---Criminal Appeal No,642 of 1992 shall also be disposed of by this judgment alongwith the present criminal appeal, as both these appeals have been preferred against the impugned judgment dated 24-6-1992, whereby the learned Judge, Special Court No,IV (Suppression of Terrorist Activities), Lahore, had convicted Habib Ullah, Muhammad Ayub alias Gullu and Muhammad Saleem alias Shahzada, appellants in the present appeal, i,e, Criminal Appeal No,590 of 1992, and Wajid Umar alias Gogi appellant in Criminal Appeal No,642 of 1992, under section 324/34, P.P.C. And sentenced each of them to R.I. For 7 years with a fine of Rs,25,000 or in default thereof to further R.I. For 2 years.
2. The brief facts leading to the present criminal appeals are that on 16-9-1991, the complainant, Rana Shahid Ahmad, Inspector, while on patrol duty, alongwith other police officials, received a wireless message that five persons armed with fire-arms were going towards Kasur in a white coloured Suzuki car without number-plate, and held a Naka at Ferozepur Road opposite Darbar Hazrat Baba Dewan. At about 4-00 a.m. The said car, coming from Lahore side, was stopped by the police party. Five persons came out of the said car and started firing upon the police party and while firing went into the orchard of trees nearby and taking up the position continued firing. In the meantime, Malik Abdur Rashid, S.H.O. And Manzoor Ahmad, Inspector, accompanied by the police force arrived there and participated in the encounter, which continued for about 25 minutes and then stopped from the accused side. Thereafter the accused were encircled and apprehended. A Klashnikov P.1 with a magazine containing 30 bullets P.2/1-30 and a dagger P.3 were recovered from Wajid Umar alias Gogi accused, vide memo Exh.PA; a Klashnikov P.4 and two magazines containing 50 bullets P.5/1-50 were recovered from Habib Ullah accused, vide memo Exh.PD; a .12 bore gun P.6 and cartridges P.7/1-6 were recovered, vide memo Exh.PC; pump-action gun P.8 was recovered from Saleem alias Shahzada accused, vide memo Exh.PD; and a .30 sten gun P.9 and 6 bullets P.10/1-6 were recovered from Amir Ali accused, vide memo Exh.PE. The white coloured Suzuki car, left by the accused persons, P.11, alongwith canvas bags P.12 and P.13 containing bullets P.14/1- 100, two magazines P.15/1-2 and 30 live cartridges of .12 bore gun P.16/1-30, lying at the rear seat of the car, was also taken into possession vide memo Exh.PF. The complaint Exh.PG was prepared and sent to the police station for the registration of case. During the spot inspection 60 empties of Klashnikov P.17/1-60 and 18 empties of .12 bore gun P.18/1-18 were also recovered, which were taken into possession vide memo. Exh.PJ. All the memos were attested by the police officers present there.
3. At the trial the prosecution had produced as many as four witnesses to prove its case. P.W.1 Rana Shahid Ahmad Inspector, being the complainant and the Investigating Officer, had reiterated the contents of the F.I.R, as stated above. P.W.2 Waris Ali, being the Moharrir Head Constable of the police station concerned had prepared the formal F.I.R. Exh.PG/1 on the basis of the complaint Exh.PG. P.W.3 Rashid Ahmad Inspector/S.H.O. And P.W.4 Manzoor Ahmad, Inspector, being the members of the police party in the encounter with the accused persons, had attested the memos regarding the recoveries etc. As detailed above.
4. Except for Amir Ali accused, whose death having taken place on 28-5-1992 was duly verified by the death certificate Exh.C.W.1/A produced by C.W.1 Gulzar Ahmad, and whose name was removed from the list of the accused persons brought before the learned trial Court, all the accused had pleaded not guilty, professed their innocence and claimed to have been falsely implicated in the instant case.
' Habib Ullah accused/appellant had deposed that he alongwith his father and three brothers was involved in a murder case, in which he was discharged on having been declared innocent and that thereafter a complaint case was filed in which he was summoned as an accused. However, he had filed a criminal revision before the High Court and the proceedings of the complaint case were stayed. Feeling aggrieved by the said action the complainant party had involved him falsely in the instant case; and that he had nothing to do with the alleged police encounter nor any illegal weapon was recovered from him.
' Wajid Umar alias Gogi accused/appellant had deposed that his father had filed a writ petition before the Lahore High Court against the I.-G. And other police officers for his illegal detention, alongwith a contempt application; and that due to their annoyance for it, the police had falsely involved him in this case.
' Muhammad Saleem alias Shahzada accused/appellant had deposed that he was arrested from Chhanga Manga and the police, after keeping him under illegal confinement for about two and a half months, had transferred him to P.S. Sadar Kasur on 9-9-1991 and had planted this false case upon him.
' Muhammad Ayub alias Gullu accused/appellant had deposed that he was arrested on 8-9-1991 from his house, and after keeping him in illegal confinement at different places, on 16-9-1991 the police had falsely implicated in the instant case.
5. The accused/appellants had also produced six defence witnesses to support their plea to the effect that they had not participated in the occurrence and to term the police encounter as fake and false and having been fabricated by the police to save their skin from the liability likely to be fixed against them in contempt application filed by the father of Wajid Umar accused/appellant.
' D.W. 1 Ghulam Gillani had deposed that as Habib Ullah accused had sought his help on 25-8-1991 in order to surrender himself before the higher police officer, therefore, he had produced him before Rana Maqbool Ahmad, D.I.-G. Who had detained him and subsequently had handed him over to the police.
' D.W.2 Rashid Ahmad and D.W.3 Muhammad Saleem had deposed that Muhammad Ayub accused/appellant. Was taken into custody from the house of his brother-in-law, namely, Manzoor Ashraf, on 28-8-1991 by the police and that he was taken to police station Samanabad and from there to Police Station Chunian.
' D.W.4 Maqbool Ahmad H.C. Had produced the daily diary, wherein as per entries dated 24-8-1991 and 26-8-1991, Muhammad Azeem, S.I. Was shown to have left for Chhanga Manga for investigation of a murder case registered vide F.I.R. No,438/91 at Police Station Nawankot, Lahore.
' P.W.5 Hafiz Ahmad Rehman Ansari, Advocate, had produced a copy of the resolution passed by the Lahore High Court Bar Association on 8-10-1991 as Exh.DC.
' D.W.6 Mushtaq Ahmad Qureshi, Advocate, had produced the certified copies of the writ petition filed by the father of Wajid Umar accused, alongwith other documents, as Exhs.DD, DE, DE/1 to DE/8, DF, DF/1 to DF/5 and DG.
6. The learned trial Court, after taking into consideration all the facts and circumstances of the case and having gone through the evidence on the record, had convicted and sentenced the appellants, as stated above.
7. The learned counsel for the appellants and the State were heard at length and the record of the case perused with their assistance.
8. We have given our anxious consideration to the arguments advanced on behalf of the appellants and have taken special notice of the fact that Writ Petition No,7619 of 1991, Exh.DD herein, had been filed in the High Court for the recovery of Wajid Umar, appellant herein, and that during the hearing of the said writ petition various orders were passed and that on 15-9-1991 Hidayat Ahmad, Inspector had requested for time to produce the alleged detenu, Wajid Umar, before the Court. The order, dated 15-9-1991 is being reproduced as under:--- "Hidayat Ahmad Khan, Inspector/Investigating Officer states that the detenu Wajid Umar is not in his custody. However, he says that he has received an information about the whereabouts of the detenu. He, therefore, requests for time to produce the detenu before this Court. He is accordingly directed to appear alongwith the detenu before this Court on 17-9-1991. However, the statement of the police officer has been controverted by the learned counsel for the petitioner. They state that the detenu is still in the custody of the respondent No,3 and the Inspector."
' Therefore, we are constrained to observe that it was already in the knowledge of the police as to the whereabouts of the said Wajid Umar, who is one of the appellants before us and that it raises serious doubts regarding the case of the prosecution, as set out in the instant case. Further notice has been taken of the testimony of D.W.4 to the effect that Muhammad Azeem S.I. Had gone to Chhanga Manga in connection with the investigation of the case registered vide F.I.R. No,438 and that as the present appellants were the accused in the said case, therefore, Muhammad Azeem S.I.
Had obviously gone to the Police Station Chhanga Manga to interrogate them on the said dates i,e, 24-8-1991 and 26-8-1991.
9. Therefore, pursuant to what has been stated above, we are constrained to observe that serious doubts arise in respect of the present occurrence, which is alleged to have taken place subsequently on 16-9-1991. In addition thereto, the testimony of P.W.1 is in conflict with the prosecution version in respect of the timing of the encounter. Further notice has been taken of the fact that for half an hour firing was alleged to have taken place but neither any person nor any vehicle was hit nor the record of wireless message received, pursuant to which the road was blocked was produced in evidence and that neither the recovered weapons nor the crime empties, recovered from the spot, including those as well that were fired by the police party, were sent to the Fire-arms Expert, alongwith the fire arms of the police, to establish and distinguish as to which empties had been fired by the accused/appellants and as to which were fired by the police party, thus raising serious doubts about the case of the prosecution. Therefore, we hereby hold that the prosecution has failed to prove its charge against the appellants.
10. Pursuant to the above discussion, both the criminal appeals, i,e, Criminal Appeal No,590 of 1992 and Criminal Appeal No,642 of 1992, are hereby allowed and the impugned judgment is set aside.
Resultantly, the appellants are acquitted of the offences charged. They shall be released forthwith, if not required to be detained in any other case.