' RAHMAT HUSSAIN JAFFERI, J.--- We propose to dispose of the above two appeals by this common judgment as they are outcome of one and same judgment.
2. The present appeals have been directed against the judgment dated 12-9-2001, passed by the learned Special Judge Anti-Terrorism Court No,III, Karachi, in Special Case No,148 of 2001 (The State v. Habibullah) and Special Case No,149 of 2001 (The State v. Ataur Rehman), both under section 7(1)
(c) of Surrender of Illicit Arms Ordinance, 1991, by which the learned Judge had convicted both the appellants under section 13-D of the Pakistan Arms Ordinance and sentenced them to suffer R.I. For seven years each and to pay a fine of Rs,50,000 each. In case of default in payment of fine the appellants were directed to suffer R.I. For one year more.
3. The facts giving rise to the present appeals are that on 5-7-2001 at about 9-20 a.m. Muhammad Mushtaqul Haq was going on motorcycle bearing No,KCT-6402, when he reached near petrol pump situated at the round about of Gulbahar No,1, Karachi, two persons intercepted him who tried to snatch the motorcycle from him but Muhammad Mushtaqul Haq resisted, therefore, one of the culprits caused revolver butt blow on the head of Mushtaqul Haq, who sustained injuries and thereafter the culprits snatched the motorcycle from him. The complainant raised cries, on which other persons arrived alongwith his colleague Muhammad Tahir, who took him to a Police Chowki on his motorcycle where he informed the incident to the police. The police followed the culprits on mobile and there was exchange of fires-arm shots between the police and the culprits in which the culprits, who were on two motorcycles, received injuries and fell down on the ground. The police secured the robbed motorcycle and a TT pistol from each of the culprits. On enquiry the culprits disclosed their names as Habibullah and Ataur Rehman, the present appellants. The snatched motorcycle was secured. Both the appellants were taken to Abbasi Shaheed Hospital for treatment where Muhammad Mushtaqul Haq after seeing the appellants identified them to be the culprits who had snatched the motorcycle from him. The statement of complainant Muhammad Mushtaqul Haq was recorded and thereafter the two F.I.Rs, were separately registered under section 13-D of the Pakistan Arms Ordinance, 1965, by S.I.P. Saleem Sheikh. The TT pistols and motorcycle were produced before the Investigation Officer who secured the same. At the place of recovery the Mashirnama of arrest and recovery was prepared by the S.I.P. Saleem Sheikh. The police after usual investigation challaned the appellants under section 7(1)(c) of Surrender of Illicit Arms Ordinance,. 1991 separately and a separate case was also challaned for offences punishable under sections 394/353/34, P.P.C. And 7(iii) of Anti-Terrorism Act, 1997 against both the appellants, before the learned Administrative Judge, A.T.C., Karachi, from where all the three cases were transferred to Anti-Terrorism Court Karachi for.Disposal according to law.
4. All the three cases were consolidated with each other, therefore, common charge was framed and common evidence was recorded. After considering the material available on record the trial Court convicted the appellants as mentioned above and so also under sections 394/353/34, P.P.C.
Read with section 6-D of Anti-Terrorism Act, 1997. The appellants were dissatisfied with the said judgment, therefore, they have preferred the present appeals and also appealed against their conviction in the main case viz. Under section 394, P.P.C. Etc. Being Special ATA No,65 of 2001. The said appeal was decided separately in which the appellant did not challenge the merits of the case but requested for reduction of sentence, which was accordingly allowed.
5. At the trial the prosecution examined six witnesses, namely P.W.1 Muhammad Mushtaqul Haq, Exh.6, who produced his 154, Cr.P.C. Statement as Exh.1, Mashirnama of place of snatching of motorcycle as Exh.8, P.W.2 S.I.P. Moinur Rehman, Exh.9, who produced Mashirnama of arrest of accused and recovery of motorcycle and TT pistols as Exh.10, P.W.3 Dr. Zafar Shah Khan, who produced the provisional and final medical certificates of both the appellants as Exhs.11 and 15 and medical certificate of Mushtaqul Haque as Exh.16. P.W.4 S.I.P. Saleem Shaikh Exh.17, who produced the F.I.Rs, under section 13-D of the Pakistan Arms Ordinance, filed against both the appellants, P.W.5 Ali Gohar as Exh.20, who produced the entry of Roznamcha in respect of information received by the police as Exh.21, letter to Medical Officer for examining'the injured as Exh.22, copies of 154, Cr.P.C. Book, in which the statement under section 154, Cr.P.C. Of Mushtaqul Haque and S.I.P. Saleem Sheikh were incorporated as Exhs.23 and 25, P.W.6 S.-I. Nazar Muhammad, Investigating Officer of the case, who produced sketch of the Vardat, Ballistic Expert Report, copies of F.I.Rs, of other cases against the appellant Ataur Rehman as Ehs.27 to 36 and thereafter the prosecution closed their side.
6. Appellant Habibullah in his statement recorded under section 342, Cr.P.C. Denied all the allegations of the prosecution and stated that he was passing from the place of incident on his motorcycle when there was exchange of fire-arm shots between the culprits and the police and during that firing he received injuries. He further stated in his statement that the culprits who were firing on the police ran away, but he was implicated in this case. The appellant Ataur Rehman stated that he was going on his rickshaw when he saw the police party chasing some two motorcyclists and there was exchange of firing between the police and the culprits and that during the firing he received injuries on his person. He became unconscious and when he regained his sense he found himself in the hospital. He stated that the culprits ran away but he was implicated in this case. Both the appellants examined themselves on oath as required under section 340(2), Cr.P.C. Their statement is on the line of statement recorded under section 342, Cr.P.C. They did not lead any evidence in their defence.
7. We have heard the Advocate for the appellants and the learned A.A.-G. On behalf of the State.
We have also perused the record of the case very carefully and applied our mind to the facts and circumstances of the case.
8. The learned counsel for the appellants has argued that there was no encounter between the appellants and the police because according to the prosecution story the culprits had received injuries from a distance of 30/40 paces whereas the medical certificate belies the evidence of ocular testimony which shows that there was blackening marks of the injuries on the person of both the appellants which can only appear when the pistols are fired from a very close range. He has further argued that the time shown by the witnesses is not tallying with each other. He has further argued that no empties of SMG were found at the place of incident and the appellants had received injuries during the exchange of fires between the real culprits and the police. He has further argued that no recovery of pistol was made from the possession of any of the appellants.
9. On the other hand, the learned A.A.-G. Has half-heartedly supported the prosecution case, particularly in view of the conflict between the medical evidence and ocular testimony.
10. In this case the evidence led by the prosecution shows that the complainant was examined on the point of snatching of his vehicle but he did not state anything with regard to the exchange of fire-arm shots between the police and the appellants as he did not follow the culprits but remained at the place where the information of the incident was narrated to the police, as such his evidence is immaterial with regard to the recovery of the pistols from the possession of the appellants.
11. The material evidence in this regard is the evidence of Mashir S.I.P. Moinur Rehman, in whose presence the appellants have alleged to had been apprehended and recovery was made by S.I.P.
Saleem Sheikh. According to Moinur Rehman on 5-7-2001 he was on duty on police Mobile No,15 at round about of Gulbahar No,1, Karachi, on the road and another mobile Rapid 16, headed by S.I.P.
Saleem Sheikh, was also available there, when S.I.P. Saleem Sheikh signalled him to follow him and when he reached near them, S.I.P. Saleem Sheikh informed him that a motorcycle was snatched by two culprits. Therefore, they went towards the directions where the motorcyclists went which was at the backside of the petrol pump and saw the motorcyclists were going and then they heard fire- arms reports. His evidence further reveals that the firing also started from the mobile of Saleem Sheikh and thereafter the said motorcyclists received injuries and they fell down on the ground.
S.I.P. Saleem Sheikh secured pistols from both the culprits, which were found to be loaded with magazine. Then S.I.P. Saleem Sheikh demanded licence from the culprits but they could not produce the same. On enquiry they disclosed their names as Habibullah and Ataur Rehman. Both the culprits were injured, therefore, they were taken to Abbasi Shaheed Hospital. The S.I.P. Saleem Sheikh prepared the Mashirnama of arrest and recovery. His cross-examination reveals that he had seen the appellants going on motorcycles at a distance of about 50/70 yards. The empty cartridges of SMG were not secured from the place of incident. They took 1 or 2 minutes in gathering information from S.I.P. Saleem Sheikh about the snatching of motorcycle at the round about of Gulbahar No,1, Karachi, and they took 3 or 4 minutes in reaching the place of encounter/incident.
12. The evidence of S.I.P. Saleem Sheikh reveals that on 5-7-2001 at about 9-15 p.m. He was present at his mobile, when at about 9-15 a.m. The complainant came and informed him that his motorcycle was snatched by two persons and on his enquiry the complainant disclosed the number of motorcycle and features of the culprits. After receiving such information S.I.P. Saleem Sheikh signalled another rapid mobile, headed by S.I.P. Moinur Rehman, who was performing his duty at the said place and he informed S.I.P. Moinur Rehman about the incident of motorcycle snatching. Thereafter they went towards the direction where the culprits went and from a distance they saw the culprits on the motorcycle, therefore, the S.I.P. Saleem Sheikh made aerial firing from his weapon and on such firing the culprits, who were escaping on motorcycles, retaliated by firing from their pistols. When the police mobile reached near the culprits the police also fired at the culprits, therefore, both the culprits received injuries and fell down on the ground. Both the appellants were arrested and S.I.P. Secured TT pistols from their possession. On enquiry they disclosed their names as Habibullah and Ataur Rehman. After taking them into custody the S.I.P.
Saleem Sheikh found that the pistol of Habibullah was loaded with magazine having two live bullets and pistol secured from the possession of Ataur Rehman was loaded with magazine having four live bullets. The S.I.P. Also secured empty cartridges of TT pistols. He sealed the pistols and cartridges at the spot, prepared the Mashirnama of arrest and recovery and thereafter S.H.O. Police Station Gulbahar reached there. The appellants and the motorcycles were taken to the Abbasi Shaheed Hospital. Then he handed over the property to the S.I.P. Ali Gohar, who recorded his statements under section 154, Cr.P.C. For registration of cases under section 13-D of the Pakistan Arms Ordinance against the appellants. His cross-examination reveals that he consumed 3/4 minutes in gathering knowledge and explaining the same to S.I.P. Moinur Rehman of Rapid Mobile 15 and then he took about 5/6 minutes in chasing the culprits for their apprehension. His cross- examination further reveals that when they fired at the culprits there was distance of about 40 feet in between them. He did not secure empties of SMG weapon from the place of incident.
13. From the evidence of both these above important witnesses it is clear that the complainant informed the incident to P.W. Saleem Sheikh at about 9-15 p.m. Whereas the incident of snatching of motorcycle took place at about 9-20 a.m. Thereafter, the complainant raised cries on which several persons assembled and then his colleague P.W. Muhammad Tahir arrived on a motorcycle and thereafter he was taken to the police station for informing the incident. From this position it is clear that the complainant must had spent 10/15 minutes in reaching the police station and informing the incident to the police which could not be before 9-30 a.m. But from The statement of S.I.P. Saleem Sheikh it is clear that the incident was informed to him at about 9-15 p.m. Which is even before the commission of the snatching of motorcycle. Furthermore, the statement of S.I.P.
Saleem Sheikh clearly shows that when he fired at the accused at that time they were 40 feet away from them. This position has been falsified by medical evidence as according to Medical Officer Dr. Zafar Shah Khan, who after examining both the appellants issued certificate, stating that both the injured received injuries and one of the injury on the person of each appellants was having blackening marks. The blackening marks can only be present if the shots, from the fire-arms, are fired from a very close range, thus the ocular testimony is in conflict with the medical evidence. It is/ the case of the prosecution that after the incident the Mashirnama of arrest and recovery was prepared end they were taken to Abbasi Shaheed Hospital. The incident of motorcycle snatching took place at about 9-20 a.m. And the second incident must had taken place after 9-30 a.m. After conducting the necessary formalities at the place of incident the appellants were taken to the hospital. In this connection the police might had spent 15/20 or at least 30 minutes, therefore, the police should have been present in the Abbasi Shaheed Hospital at about 10-00 or 10-30 a.m. This position has not been supported by the Medical Officer as Dr. Zafar Shah has stated in his statement/deposition as under:-- "On 5-7-2001 I was posted as M.L.O. At Abbasi Shaheed Hospital. My duty timings were from 8-00 a.m. To 8-00 p.m. On the aforesaid date at about 12-05 p.m. Injured Ataur Rehman son of Qamar Aziz and Habibullah son of Wali Khan were brought by S.I.P. Saleem Sheikh of Rapid 15 and 16 with history of police encounter and fire-arm."
14. The statement on oath of the doctor was accepted by the prosecution as there is no clarification in the examination-in-chief or reexamination about the time mentioned by the doctor.
15. There is no explanation from the side of the prosecution as to where were the appellants in between the alleged incident and their production before the Medical Officer. The S.I.P. Saleem Sheikh has stated that he had taken about 3/4 minutes in receiving the information of motorcycle- snatching and conveying the same to S.I.P. Moinur Rehman. His cross-examination reveals that he took about 5/6 minutes in chasing the culprits, therefore, the culprits took about 8/10 minutes in escaping from the scene of incident. Thus, after snatching the motorcycle, the natural conduct of the culprits, who were on motorcycles, would be to leave the scene of offence as soon as possible and for that purpose they must had driven the motorcycles in a high speed and in about 8/10, minutes they must had covered sufficient distance which was in the present circumstances of the case would be impossible to see the culprits and chase them by the police. Thus it is not appealing to the common sense that in the situation like the present one when the culprits were in hurry and anxious to drive the motorcycles in speed they could be able to be spotted within a short distance from the scene of incident.
16. Furthermore, it is the case of the prosecution that culprits were on two motorcycles and the police were chasing them on police mobile. Both the culprits were driving their motorcycles, therefore, their concentration would be on the driving the motorcycles, in speed, so that they can give doudge to the police and escape from the situation in which they were trapped. Therefore, it is highly improbable rather difficult to fire from the pistol in high speed of motorcycle. Pistol is fired from right hand and with the said hand the accelerator of the motorcycle is controlled. If one leaves the accelerator then the speed of the motorcycle would be reduced. How it is possible that the culprits would hold the pistol and control the accelerator with the same hand at one and same time. For firing from pistol, the hand from the accelerator is lifted and in such situation the speed of the motorcycle would be reduced. Therefore, it is highly improbable rather difficult to hold the pistol, fire from it and at the same time control the motorcycle and maintained high speed. The S.I.P. Saleem Sheikh has stated that both the culprits were firing from their pistols at the police party, which appears to be highly impossible in the present circumstances of the case. However, in such situation if the motorcyclists in high speed of motorcycles receive fire-arm injuries while driving then they would fall from the motorcycles in the same speed in which the motorcycles were moving, therefore, the culprits must receive injuries on their bodies because of hitting their bodies on the road by fall from the motorcycles. But it is surprising to note that not a single scratch was found on the bodies of the appellants by the Medical Officer because the doctor had found only two fire-arm injuries on the bodies of the appellants. The prosecution has also failed to explain non-presence of injuries of abrasion, contusion or even scratch on the bodies of the appellants.
17. All these factors if examined and combined together it will lead to the conclusion that the case of the prosecution is highly doubtful. The prosecution has not been able to explain the above mentioned discrepancies in the evidence. When the main incident of police encounter has not been proved from the reliable evidence available on the record and create doubt in the prosecution case then in such situation it is very unsafe to rely upon the prosecution story.
18. The evidence of other witnesses is not on the point of recovery of the pistols from the possession of the appellants as all the other witnesses reached the place of recovery after the incident, therefore, it is immaterial to discuss thier evidence.
19. For the reasons discussed above the case of prosecution is not free from doubt, therefore, the benefit of doubt is given to the appellants. Accordingly, the conviction and sentence awarded to both the appellants, namely Habibullah and Ataur Raman cannot be upheld as such the impugned judgment is set aside.
20. By our short order dated 18-9-2002 we had allowed the appeals Nos. Special A.T.A. No,66 of 2002 and Special A.T.A. No,67 of 2001, the above are the reasons for the same. 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.