MUHAMMAD FARRUKH MAHMUD, J..~ Mulazim Hussain son of Bahawai and Pathana son of Qadir Bakhsh, appellants, have directed this appeal against the judgment dated 20.4.2002, rendered by Syed Ejaz Hussain, Judge, Anti-Terrorism Court, Bahawalpur, whereby the appellants were convicted as follows:-
(i) Under Sections 324/34, PPC.
Four years' R.S. Each. Fine of Rs. 10,000/- was also imposed upon them and in default thereof further undergo S.I. For one year each.
(ii) Under Section 353/34, PPC.
Two years' R.1, each.
The sentences were to run concurrently. Benefit of Section 382-B, Cr.P.C, was also extended to the appellants.
2. The law was set in motion by Jamshaid Ali, Inspector/SHO Police Station Abadpur, District Rahim Yar Khan, PW-4, who drafted the complaint Ex.PA/1 on 13.1.*2001 at about 11.30 p.m. When he along with other police officials was present near Head Ehsanpur Mouza Nabipur, within the vicinity of Police Station Abadpur. On the basis of complaint Ahmad Ali, H.C. Registered the case for offences under Sections 186/324/353/34, PPC at 12.20 a.m. Vide formal FIR No. 12 of 2001 Ex.PA.
3. Briefly the facts are mentioned in the complaint are that Jamshaid Ali, Inspctor/SHO PW-4 along with other police officials was coming back to Police Station Abadpur from Mouza Nabipur and when he reached near Head Ehsanpur, he saw two motor-cycles coming from Mouza Nabipur. One Motor-Cycle was Honda 125 CC and was ridden by one person while the other motor-cycle was Yamaha 100 CC and was being ridden by two persons. The riders were signaled to stop. However, the drivers speed away the motor-cycles instead of stopping. The complainant started chasing the motor-cycles. During chase, the appellants, who were riding on Yamaha motor-cycle were?
Identified by the complainant. The appellants threw the motorcycle and started running. However, the complainant continued chase therefrom the the accused directly fired at the police party, who rescued their lives by falling themselves on the ground. It was further alleged in the complaint that the police also fired at the accused in self-defence. However, the accused fled away. The motor- cycle Yamaha 100 CC, allegedly driven by the appellants, was taken into possession.
4. Mulazim Hussain, appellant, was arrested on 19.1.2001. At the time of his arrest Kalshinkov P-1 along with two magazines P-2, one of which contained 19 bullets P-3/1 to 19 were taken into possession vide memo. Ex. P3, duly attested by Ghulam Hussain, AS1 PW-2 and Khuda Bakhsh, who was not produced.
5. Pathana, appellant, was arrested by Khalid Masood, Inspector/SHO PW-7 on 27.11.2001. On 30.11.2001 Pathana led to the recovery of Pistol 30 bore P-4, which was wrapped in a black shopper.
Three live bullets P-5/1 to 3, which were lying in the shopper, were also recovered and taken into possession vide memo. Ex.PD attested by Muhammad Ashraf, Constable, PW-6 and Ikhtfar Ahmad, who was not produced.
6. Since Pathana-appellant was declared absconder, Mulazim Hussain-appellant was sent-up to face trial. During trial Ahmad Ali, H.C., Ghulam Hussain, AS1, Ghulam Dastgir, Constable and Jamshaid Ali, Inspector, appeared as PWs 1 to 4 respectively. Ghulam Hussain, AS1, Ghulam Dastgir and Jamshaid Ali stated about the occurrence, recoveries, registration of case and investigation.
7. Subsequently Pathana-appellant was arrested and was sent-up to face trial. Since the trial vis- a-vis Mulazim Hussain- appellant had not concluded, the Trial Court re-examined jamshaid Ali, Inspector, Ahmad Ali, H.C., Ghulam Dastgir and Ghulam Hussain PWs. Ln addition to these PWs, Muhammad Ashraf, Constable, who stated about the recovery from Pathana-appellant and Khalid Masood, Inspector, who stated about the arrest and recovery from Pathana-appellant were also examined as PWs 6 and 7 respectively. Manzoor Ahmad, AS1, appeared as PW-8 and stated about the fact of abscondence of Pathana-appellant.
8. Mulazim Hussain-appellant in his statement under Section 342, Cr.P.C, denied the allegation and stated that the case was cooked-up at the Police Station by the Police Officials in order to show their performance. Appellant Pathana also denied the allegation and stated that he was roped in the case on the instigation of Ghulam Dastgir, his neighbour, who was inimical towards him.
9. The leamed counsel for the appellant has argued that there were major discrepancies in the statements of the PWs; that the recoveries could not be used as corroborative evidence, as none from the public was associated during the recovery proceedings in utter violation of section 103, Cr.P.C.; that no one received any injury; that the recovery articles were neither sealed nor sent to any Arms Expert; and that no empty was recovered from the scene of occurrence, which clearly belied the story of the prosecution.
10. Conversely, the learned A.A.-G. Tried to defend the conviction of the appellants and has submitted that the PWs had no ill-will or grudge against the appellants, so as to involve them in a false case; that the police witnesses were also competent witnesses and their testimony could not be rejected on the basis of their being police officials; and that non- observance of Section 103, Cr.P.C, would not affect the case of the prosecution.
11. I have heard the learned counsel for the parties at length and scanned the entire record. The first and foremost question is the identification of the accused/appellants. Ghulam Dastgir, who appeared as PW-3 and as PW-10, eyewitness of the occurrence, admitted that it was a dark and cold winter night, jamshaid AH mentioned in the complaint that the appellants were identified as the lights of the Government vehicle were on. During his statement before the Trial Court, he stated that he identified the accused as some of his subordinates had informed him accordingly.
However, he failed to mention the names of the said subordinates. This witness further stated that he had seen the record and the photographs'-of Mulazim Hussain at the Police Station, ln other words the appellants were not known to jamshaid Ali PW previously. Neither the photographs and record of Mulazim Hussain were produced before the Court during trial nor this fact was mentioned in the complaint. Ghulam Hussain, AS1, eye-witness of the occurrence, on the point of identification stated before the Court that he had seen Mulazim Hussain accused once 2/3 years ago and six months prior to the occurrence. Ghulam Distgir, Constable, PW-3 stated that he had seen the appellants from a distance of three Kanals. He also admitted that he was sitting on the back seat of the Jeep. There is nothing on the record to show that the appellants were known to this PW earlier to the present incident. According to the complaint, Jamshaid Ali, Inspector, started chasing the persons, who were riding on the motorcycles and during chase in the light of head-lights of the Government Vehicle he identified the appellants. I am afraid, the story put forward by the complainant is repellent to the common sense, when a vehicle is chasing another vehicle only backs of the persons who are being chased would be visible and identification would be almost impossible. PW-4 Jamshaid Ali, Inspector, was conscious of the fact that it was a cold winter night, but during cross-examination he categorically stated that the accused had not muffled their faces and they were not wearing any Chadars. PW-3 Ghulam Dastgir, Constable, on the other had, stated that the accused were wearing Chadars and on was wearing Ajrak while the other was wearing a Safa. He further stated that the accused had covered their heads but not their faces, lt is common knowledge that if a person drives a motor-cycle on such a cold night, he would cover his face and body with a warm cloth.
12. According to the prosecution story, the appellants were riding on a motorcycle Yamaha. They were chased. They dropped the motor-cycle and fled away. That motor-cycle was shown to have been taken into possession but the same Was never produced before the Court. No memo, vis-a- vis the recovery of motor-cycle was available on the record. There is not an iota of evidence about the ownership of the motorcycle. Fulani Hussain, AS1, admitted that the motor-cycle was not available in the Court. Non-production of the motorcycle before the Trial Court has caused an irreparable dent in the prosecution case.
13. The allegation was made that the appellants directly fired at the police party but the bullets fired by the appellants neither hit the police officials nor their vehicle. Kalashnikov is an automatic weapon, able to i.e a burst. The lights of the Police Vehicle were on, therefore, in such circumstances it is had to believe as to why the bullets did not hit the Vehicle or the police officials.
The explanation has been given by the police officials for not receiving any injury in the complaint that they fell on the ground and saved their lives but no such explanation is available on the record about the empties of the bullets fired by the appellants. Jamshaid Ali and the other PWs stated that the firing continued for 15 minutes. It was also admitted that the police party also fired in self- defence while not a single empty was collected from the scene of occurrence. This fact leads to a strong presumption that in fact there was no encounter and exchange of fires in-between the appellants and the police party.
14. The police party consisted of six persons including the complainant, who were fully armed and occupied a ^Jeep. Lt would not be easy for the appellants to run away from the, scene of occurrence when they had left their motor-cycle and were on foot, jamshaid Ali stated before the Court that he drafted the complaint first and started chasing the accused after drafting the same.
In any opinion departmental action should be taken against the In charge Police Officer, who wasted time in drafting the complaint and allowed the accused to run away. The police officials were not empty handed and in normal circumstances, if there was any accused, they would have continued the pursuit and would not start the drafting of complaint.
15. Most stress has been laid on the alleged recover of Kalashnikov from the possession of Mulazim Hussain-appellant and Pistol from the possession of Pathana-appellant. Ghulam Hussain, AS1, who attested the recovery memo. Ex.PB relating to the recovery of Kalshnikov, admitted that the recovered weapon was not sealed and no sealed parcel was made. Khalid Masood, Inspector, who arrested the Pathana-appellant and also recovered Pistol P-4 from his possession, admitted that neither the bullets nor Pistol were secured into a sealed parcel. There is no evidence on record to show that the recovered weapons were in working condition as the same were not sent to any Aims Expert, lt has already been stated above that no empty was recovered from the scene of occurrence. There is no explanation on record as to why the provisions of Section 103, Cr.P.C, were violated with impunity, ln these Circumstances, no reliance can be placed on the recovery evidence.
16. The mere fact that Pathana-appellant remained absconder cannot be made basis for his conviction in the instant case, although the prosecution evidence is based on the testimony of the police officials, who are trained witnesses and frequently appear before the Courts yet the prosecution has failed to prove its case against the appellants beyond reasonable doubt, as is evident from the circumstances discussed above, therefore, I while extending the benefit of doubt to the appellants allow this appeal, set aside the judgment dated 20.4.2002 and acquit the appellants Mulazim Hussain and Pathana of all the charges. They would be released from Jail forthwith, if not required in any .Other case.