' Ghulam Abbas appellant alongwith Muhammad Azam and Muhammad Rafiq was tried in case F.I.R. No,27 of 2001, dated 30-1-2001 under sections 399/402/324, P.P.C. Read with section 7-B of the Anti-Terrorism Act, 1997 by Mr. Muhammad Khalil Chaudhry, Judge, Anti-Terrorism Court No,2, Multan. He was convicted under section ,324, P.P.C. Read with section 7-B of Anti-Terrorism Act, 1997 and sentenced to 5 years' R.I. And a fine of Rs,20,000 and in default to further undergo one year's R.I.
Muhammad Azam and Muhammad Rafiq were acquitted.
2. The prosecution case in brief is that appellant and his co-accused on 30-1-2001 while armed with different fire-arms after preparing for committing the dacoity assembled in the area of Mauza Obarha Shamali towards southern side and on seeing the police party started firing upon them with such intention and knowledge that if anybody had died on receipt of fire shot injuries they would have been guilty of their Qatl-eAmd. Muhammad Waseem, S.H.O. P.W.3 alongwith police employees on 30-1-2001 was present at Ganwain Morth. He received a spy information that Riaz armed with rifle, Gaman Noon with pistol, Fayyaz Hussain .222 bore rifle (absconders), Ghulam Abbas (appellant) armed with .30 bore revolver, Azam with .30 bore pistol and Rafiq armed with .12 bore gun beside two unknown persons with intent to commit dacoity were present on the sandy dunes S.H.O. On receipt of information alongwith other police officials reached at the place of occurrence. Accused started firing upon the police party but they saved their lives while lying on the ground. Members of the raiding party were directed to fire upon the accused in exercise of their right of self-defence. Complainant further stated that during firing Ghulam Abbas accused received injuries and fell down the others while firing escaped them. Ghulam Abbas was arrested at the spot alongwith .30 bore revolver and six bullets. P.W.3 drafted Exh.P.B., sent to the police station through Ibrar Hussain Constable for registration of case. Investigating Officer took into possession revolver P.1 and bullets P.2/1-6 vide recovery memo. Exh.P.A. And also got registered a case against Ghulam Abbas under section 13 of the Arms Ordinance, 1965. He recorded statements of P.Ws. Under section 161, Cr.P.C. Prepared injury statement of accused Ghulam Abbas Exh.P.C., prepared the rough site plan Exh.P.D., arrested Rafiq accused through Nazar Mehmood , S.-I. And sent to judicial custody. Jam Riaz, Gaman Noon and Fayyaz accused could not be arrested and they were declared proclaimed offenders. He completed the formalities and submitted the challan.
Formal charge was framed against the accused who pleaded not guilty and claimed to be tried.
3. Prosecution examined eight witnesses. Abdul Razzaq, Head Constable P.W.2 on receipt of complaint Exh.P.B. Correctly recorded the formal F.I.R. Exh.P.B./1 which is in his hand and bears his signatures. Muhammad Zarif, Constable P.W.1 accompanied the S.H.O. On 30-1-2001 alongwith other police employees when spy information was received. Police party raided the accused with intent to arrest them but they started firing upon them. Except Ghulam Abbas accused others fled away. Abbas was arrested alongwith pistol P.1 and bullets P.2/1-6 which were taken into possession vide memo. Exh.P.A. Attested by him and Tahir Aziz, A.S.-I. (given up), Dr. Naseer Ahmad P.W.4 on 30- 1-2001 examined Ghulam Abbas accused and found the following injuries on his person:--
(1) Lacerated entry wound measuring 0.5 x 0.5 c.m. Circular in shape, margins were inverted slight blackening present around the wound on postero medial lower right thigh.
(2) A lacerated exit wound measuring 2 c.m. x 1.5 c.m., margins were everted on the antero medial surface of lower right thigh 9 c.m. x apart from each other.
' Haq Nawaz P.W.5 and Bashir Hussain P.W.8 accompanied Nazar Mehmood, S.-I. (not produced) when Azam accused was apprehended and on his personal search unlicensed .30 bore pistol P.3 besides 3 bullets P.4/1-3 were recovered and taken into possession vide memo. Exh.P.F. Attested by them. Muhammad Asif P.W.7 on 11-6-2001 took the proclamation of Fayyaz Hussain, Jam Riaz and Gaman Noon absconding accused issued by the Court and after completing the proceedings one copy each was returned to the Court. Nazar Mehmood S.-I. Was not produced. Tahir Aziz, A.S.-I. Was given up as unnecessary. The prosecution case mainly rests on evidence of P.Ws.3 and 5.
4. The accused in their statements under section 342, Cr.P.C. Denied the charges and appellant stated as under:-- "On 30-1-2001 there was a dog fighting towards the southern side of Mauza Obraha Shamali and I was present there in a capacity of spectator, on seeing the police party, out of fear I started running and the police party while chasing injured me through fire shot from my backside and I fell down. I was having nothing with me at that time and a false case under section 13 of the Arms Ordinance, 1965 was got registered against me. The police party in order to save their skin from the punishment given the colour to that incident as police encounter. My case was not got registered by the police which compelled me for filing the private complaint in the Court of Judicial Magistrate Section 30, Shujabad."
'Appellant produced Allah Bachaya D.W.1 in support of his plea raised in the aforesaid statement.
Learned trial Judge relying upon prosecution evidence disbelieved D.W.1 and convicted the accused in the terms indicated above while the co-accused were acquitted.
4. Sardar Mehboob learned counsel for the appellant contends that the prosecution version is improbable and highly doubtful. Appellant has been falsely implicated in the case. In fact the incident took place in the manner stated by the accused in his statement under section 342, Cr.P.C.
Neither any empty was found at the spot nor any member of the police force 'was injured during the occurrence. Police party in order to save their skin have given the colour to the incident as police encounter. The case was not registered against the police although he made his best efforts and ultimately forced to file a private complaint in the Court of Magistrate, Section 30, Shujabad.
Prosecution miserably failed to prove its case against the accused. The medical evidence does not support the prosecution version.
5. Learned State Counsel has supported the impugned judgment.
6. Heard. Record perused. According to the F.I.R. Exh.P.B./1 the police party on receipt of spy information reached at the place of occurrence. They found six nominated accused armed with fire-arms alongwith two unknown persons. Accused started ruthless firing towards the police party.
Police officials saved their lives by lying down and fired in self-defence whereby appellant was injured. P.W.1 stated that no person from the public was attracted to the spot so far as the firing remained in progress. No empty due to sand was available at the spot. P.W.3 Muhammad Waseem, Sub-Inspector sated that the names of the accused were told to him by the secret informant who was not previously known to him. The informer has not been produced. He admitted that no empty was available at the spot due to sand. None of the members of the police party received any injury. He denied the suggestion about the dog fighting as stated by the accused. He admitted that the raiding party was at a distance of 70/80 yards from the accused when they started firing upon them. The statements of P.W.1 and P.W.3 show that the accused indulge into indiscriminate firing at the police party but not a single empty was recovered from the spot. Claim of the prosecution that due to sand the empties could not be found is unbelievable. If in fact such a large scale firing has taken place then dozens of empties would have been found at the spot. No empty having been recovered from the place of occurrence the prosecution version becomes doubtful. No person of locality despite reckless firing was attracted to the spot to support the prosecution stand. All the police officials have been cited witnesses in this case but their version is not substantiated by any other reliable piece of evidence.
7. The ocular account is in conflict with the medical evidence. According to P.W.3 the police pasty fired at the accused from the distance of 70/80 yards but injury No,1 on the person of the appellant shows slight blackening present around the wound. Blackening is possible only when the fire is made from a distance of about 5/6 feet. Injury No,2 is exit wound. Medical evidence being in conflict with the ocular account prosecution case seems to be doubtful.
8. The prosecution evidence has been disbelieved qua the acquitted B accused. The distinction drawn against the appellant was of having been arrested at the spot with an injury on his person.
Appellant has stated that he was injured by the firing of the police when a dog fight was going on and he was there as a spectator. He started running and the police party while chasing injured him through fire shot at his backside. The nature of injury also shows that he was not facing the police when he received the injury. The accused also filed a private complaint against the police after having failed to get a case registered against them. The plea raised by the appellant seems more plausible. He has produced D.W.1 in support of his defence version, who has been disbelieved on the mere ground that he is related to appellant, Prosecution version is in conflict with the medical evidence. No empty was recovered from the spot. Not a single person from police side was injured.
In the aforesaid circumstances the prosecution version is highly doubtful and improbable. The case is not free from doubt and it is unsafe to rely upon above-referred prosecution evidence for conviction of accused.
9. For the reasons stated above, appeal is allowed, the conviction of the appellant is set aside. He shall be released forthwith if not required in any other case. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.