' Criminal Appeals Nos.154 of 1992 and 161 of 1992 arise out of the judgment, dated 27-9-1992 passed by the learned Magistrate vide judgment, dated 27-9-1992 whereby he convicted Muhammad Ishaq and Ibrar appellants under section 307/34, P.P.C. And sentenced to five years' R.I.
With a fine of Rs,1,000 each. In default of the payment of fine to undergo six months' R.I. Each. They were further convicted under section 353/34, P.P.C. And sentenced to one year's R.I. They were also awarded benefit of section 382-B, Cr.P.C.
2. The brief facts of the case as narrated in the complaint are that on 8-6-1988 at 10-30 p.m. When the police party was investigating a case under section 364/342, P.P.C. Near C.B. High School, Rawalpindi, a Taxi driven by Amjad Maseh came from the side of Dheri Hassanabad in which the appellants were sitting. When the police party tried to stop the Taxi, the driver spedaway. Irfan Ahmad S.1. Complainant chased in his car the taxi of the accused. When they reached near Indus Road No,2, the accused left the Taxi and started running. Lbrar accused while running fired a shot of .12 bore carbine at the police party and entered into the house of Munir Akbar. He challenged the police party from the second storey of the house not to chase them and threatened to kill. Ibrar accused also fired six bullets of .32 bore by taking aim at the complainant who returned also fired with .32 bore revolver and got fired in the air with the help of official rifle. Ibrar accused tried to kill the complainant by firing. The police party recovered an empty shell of teargasa .12 bore empty and six empties of .32 bore revolver.
3. The prosecution in order to prove its case produced three witnesses. Zulfiqar Ali, A.S.I., P.W.1 and Irfan Ahmad, A.S.I. P.W.3 Pave given the ocular account of the occurrence while Muhammad Nawaz P.W.2 recorded the formal F.I.R. All the three prosecution witnesses have supported the prosecution version.
4. While examined under section 342, Cr.P.C. The accused denied the allegations levelled against them. Ibrar appellant asserted that the police patronized the norcotics business in the area of Lalkurti. He opposed the same and a concocted case has been registered against them. Ishaq appellant also denied the allegations. The accused Amjad Maseh has absconded during the trial, hence his case was separated while the 4th accused namely Tahir Mehmood, as stated at the bar by the learned counsel, has not preferred any appeal against his conviction.
5. Learned counsel for the appellants submitted that the learned trial Court has ignored the material discrepancies and contradictions in the prosecution evidence and convicted the appellants in a mechanical way. He further submitted that it is an admitted fact that the accused were apprehended at the spot and neither the carbine nor pistol .32 bore, as alleged by the prosecution, was recovered and none of the parties was injured during the course of encounter.
The provisions of section 103, Cr.P.C. Have also been violated. It is lastly contended that the report of Forensic Science Laboratory has not been placed on record to prove the alleged recovery of cartridges and that no police encounter even took place and a false case has been made against the appellants.
6. On the other hand, learned State Counsel has supported the judgment passed by the learned trial Court and justified the conviction awarded against the appellants.
7. I have heard the arguments advanced by the learned counsel for the appellants as well as counsel for the State and have gone through the record with their able assistance.
8. Admittedly, the accused were apprehended at the spot after encounter and neither the carbine nor .32 bore pistol was recovered from Ibrar accused. It is strange that during the encounter none of the parties received any injury. It is also admitted fact that many persons gathered at the spot but none came forward to join the recoveries.
9. It is a well-settled principle of law that two respectable inhabitants of the locality are required to join when the search of a house and recovery is to be made. The rule is mandatory; true is not absolute and search can be conducted without taking such witnesses if there is no time available or the evidence is likely to be destroyed if the search is delayed or suitable persons of the locality are not available but in case in hand being a daylight occurrence as admitted by the eye- witnesses that many persons gathered at the spot. The accused were also arrested at the spot but in spite of it, the mandatory provisions of section 103, Cr.P.C. Were not complied with. It was held by their Lordships in case Muhammad Khan v. Dost Muhammad etc. PLD 1975 SC 607 that:-- "That the provisions of section 103, Cr.P.C. Are meant to protect the citizens against possible plantation, as such the Courts will ordinarily insist on strict compliance of section 103, Cr.P.C."
10. The case of the prosecution entirely depends on recovery and sentence has also been awarded on this basis by the learned trial Court. There is no evidence on record that the alleged weapons have been recovered from the accused Ibrar except the cartridge recovered from the spot and shell. In Abba Ali Shah alias Baba Umar and another PLD 1988 Kar. 409, it was held that:-- "Where the case of prosecution depends entirely on recovery of arms, care should be taken by the Court to scrutinise the statement of the witnesses of recovery with the caution and the prosecution should also take care to produce independent and reliable witnesses to prove the recovery. The evidence of Investigating Officer itself cannot be sufficient for the purpose of conviction."
11. The place of occurrence is situated in a thickly populated area. No witness from the public has been produced. There are material contradictions and improvements in the statements of the P.Ws. Even the report of Forensic Science Laboratory has not been placed on record to prove that the alleged recovery cartridges were used by the alleged weapon. In these circumstances, it is not safe to rely upon the prosecution evidence which is not confidence inspiring.
12. The upshot of the above discussion is that the prosecution has miserably-failed to establish its case against the appellants beyond any shadow of doubt. Accordingly, both the appeals are accepted, the conviction and sentence awarded by the learned trial Court is set aside and they are acquitted of the charge giving them benefit of doubt. The appellants are on bail, their bail bonds shall stand discharged.