The appellants namely Afsar Khan alias Afsari son of Afsar Ali alias Khan, Afsar Ali alias Khan son of Muhammad Ali, Sultan Ayaz alias Tanai son of Afsar Ali and Riaz son of Naqibullah, all residents of Pir Hassan, Kakki, District Bannu were convicted by Mr. Muhammad Yaqoob Khan, learned Judge Anti Terrorism Court, Bannu under section 353, P.P.0 and sentenced to two years' R.I. And fine of Rs,5,000 each or in default, to undergo six months R.I. Each. They were also convicted under section 7-H of Anti Terrorism Act and sentenced to suffer four years' R.I. And fine of Rs,4,000 each or in default, to undergo further four months' R.I. Each. On conviction under section 7-B of the Anti Terrorism Act, the appellants were convicted and sentenced to suffer five years' R.I. And fine of Rs,10,000 each or in default of payment of fine, to suffer one year R.I. Each. On conviction under section 13 Arms Ordinance, appellants Afsar Khan alias Afsari, Riaz and Afsar Ali alias Khan were sentenced to four years' R.I. And fine of Rs,10,000 each or in default of payment of fine, to suffer one year further R.I. Each. All the sentence were ordered to run concurrently and benefit to section 382- B, Cr.P.0 was also extended. However, all the appellants being not found guilty of offences under sections 324/148/ 149, P.P.C, they were acquitted.
2. The appellants have challenged their conviction and sentences by way of filing Criminal Appeal No,72 of 2003, which is before me for consideration.
3. Case of the prosecution in brief is, that pursuant to information stated to have been received by Sanaullah Khan Inspector/SHO, Police Station, Mandan, District Bannu that proclaimed offenders Afsar Khan alias Afsari and others were present in Nawa Kali Pir Khel, Kakki, a raiding party comprising of Inspector Sanaullah Khan and others was constituted. When the police party reached the above village, the accused started firing at the police party with their respective weapons. The police party also fired in self defence: Ultimately, the appellants were arrested.
Appellant Afsar Khan alias Afsari and Rafiullah received injuries. Rafiullah succumbed to the injuries and expired subsequently. Weapons of offence i,e, kalashnikovs and 30 bore pistol and rounds were recovered from the appellants. Inspector Sanaullah drafted a 'Murasila' and sent it to Police Station, Kakki for registration of the case, on the basis of which case vide F.I.R. No,61 dated 19-6-2003 was registered at Police Station, Kakki under sections 324/353, 148 & 149, P.P.0 read with section 13 Arms Ordinance, section 7 of Surrender of Illicit Arms Act and section 7 of Anti Terrorism Act, 1997.
4. The prosecution in order to prove its case produced twelve witnesses in all. The appellants in their statements under section 342, Cr.P.0 denied the prosecution allegations and claimed to have been falsely charged with a view to save their skin from the responsibility of murder of Rafiullah deceased and fire-arm injuries caused to appellant Afsar Khan alias Afsari. They neither examined themselves as their own witnesses under section 342, Cr.P.C, nor produced defence.
5. The learned trial Judge after appropriate appraisal of evidence available on record found the appellants guilty of the charges and convicted and sentenced them as narrated in earlier part of this judgment.
6. In support of the appeal, Mr.Allah Nawaz Khan, Adovcate for the appellants has vehemently contended that the allegations against the appellants are false and fabricated. They had been arrested from their houses; that the police has killed Rafiullah and caused injuries to Afsar Khan alias Afsari in police encounter but to save their skins, have fabricated the present case; that though appellants are alleged to have opened firing on the police party, but surprisingly no member of the police party was injured during the firing and that Police party if has fired in self defence, they have neither been produced nor their weapons were taken into possession or otherwise in proof of their firing in self-defence. On the strength of these submissions, learned counsel argued hat evidence produced by the prosecution is full of contradictions and omissions and that the impugned judgment is not sustainable in the eye of law. The conduct and manner of investigation was also brought under challenge by the learned counsel. To augment the contentions, reliance was placed on Abdul Rashid and others v. The State (1994 PCr.L.J 186 Lahore) and The State through Advocate General, N.-W.F.P., Peshawar v. Tawab Khan and another (2002 PCr.L.J 377.
7. Conversely, Mr. Shaukat Hayat Khakwani learned Deputy Advocate-General for the State maintained that keeping in view the material on file, the trial Judge was fully justified to place implicit reliance on the prosecution evidence and make same basis for conviction of the appellants. He contended that the discrepancies and contradictions pointed out by learned counsel for the appellants in the statements of prosecution witnesses are minor in nature and do not create dent in the prosecution case.
8. I have heard the arguments of learned counsel for the parties at length in the light of material available on file.
9. A perusal of the material on record would reveal that pursuant to authentic information the police party surrounded the village of the appellants to apprehend them. The appellants in order to foil the attempt of the police resorted to indiscriminate firing. The police party took positions and also started firing in retaliation. Rafiullah and Afsar khan alias Afsari sustained injuries. Rafiullah succumbed to the injuries and expired. The police succeeded to apprehend the appellants. Large quantity of arms and ammunition consisting of kalashnikovs. 30 bore pistol and rounds was recovered from their possession. More than 100 empties were recovered from the spot. Having regard to the facts and circumstances of the case, it is difficult to believe that the appellants had no hand in the affair and being empty handed, they placed themselves at the mercy of the police and the police opened fire without any justification with sole object to lay ground for the killing of Rafiullah and causing injuries to Afsar Khan alias Afsari.
10. Regarding submission of learned counsel for the appellants that the evidence on record is discrepant and pregnants with serious infirmities and improbabilities on account of which the appellants are entitled for a finding of acquittal, it may be observed that the learned counsel has not been able to point out any misreading or non-reading of evidence resulting into miscarriage of justice. The prosecution has succeeded to establish its case and the appellants have failed to prove their innocence. The prosecution witnesses have demonstrated complete unanimity on all material particulars and they could not be shattered in cross-examination. Learned counsel for the appellants has failed to point out any background of bitterness and between the said witnesses and the accused so as to prompt the former to falsely implicate the latter in a case of this nature. It may not be out of place to mention here that during the trial, these official witnesses had not been suggested by the defence that they had any animosity against the appellants whatsoever.
11. In view of the above, I am confident that prosecution has brought sufficient material on record to connect the neck of the appellants with the commission of crime and there is no show of misreading and non-reading of the evidence on the part of the learned trial Court. Being so, the impugned judgment calls for no interference. I maintain the conviction and sentences passed by the learned trial Court and dismiss the appeal.