2007 PLP 1612 (SCMR)

ABDUL HAMEED DOGAR, J.

This appeal by leave is directed against the judgment, dated 16-2-2006 passed by a learned Division Bench of the Lahore High Court, Lahore, whereby Criminal Appeal No.193 of 2005 filed by appellant was dismissed and the sentence and conviction recorded by the trial Court were maintained.

2. Briefly, stated the facts of the case according to the complaint lodged by Muhammad Amin, S.-I. are that on 27-4-2004 at about 11-00 a.m. he had arrested a person, namely, Shahzad Butt along with Charas. During the course of interrogation, he disclosed that he purchased the aforesaid Charas from one Parvez alias Peja Kasai resident of Kacha Nisbat Road, Lahore, whereupon a raiding party was constituted which raided al the house of said Parvez and knocked at his door. In the meanwhile a person riding a motorcycle Honda CD-70 bearing Registration No.1RW-8267 reached there. By seeing him, Shahzad Butt disclosed that the rider of the motorcycle was Haroon appellant and he was also involved in the sale of Charas. On this disclosure, complainant tried to apprehend him but appellant alighted from the motorcycle and started firing at the police party, as a result of which Muhammad Aslam constable received injuries on different parts of his body but the complainant remained uninjured. The appellant ran away while making firing and leaving his motorcycle at the spot.

4. The appellant was arrested on 2-7-2004. He led the police party to his house and got recovered pistol along with three live bullets.

5. On completion of investigation, appellant was sent up to race trial before the Court of Special Judge, Anti-Terrorism. No.III, Lahore. In order to establish its case, the prosecution examined eight witnesses, namely, Muhammad Amin, S.-I. complainant P.W.1, Muhammad Aslam P.W.2, Tapir Ikram, S.-I. P.W.3, Mubarak Ali, F.C. P.W.4, Shahbaz Ahmed F.C. P.W.S, Muhammad Yousaf, A.S.-I. P.W.6, Dr. Tahir Zulfiqar P.W.7 and Irshad Ahmed, S.-I. P.W.8.

6. The appellant in his statement recorded under section 342, Cr.P.C. claimed innocence and pleaded that he was involved in this case falsely by the complainant and P.Ws. with the connivance of one Pervez alias Peja due to party friction. He neither examined himself on oath as required under section 340(2), Cr.P.C. nor produced any evidence in his defence.

7. On conclusion of trial, the learned trial Court convicted and sentenced the appellant as under:-- (i) Under section. 7(b) of A.T.A., 1997. To suffer rigorous imprisonment for five years with a fine of Rs.5,000 or in default of payment thereof to further suffer simple imprisonment for two months. (ii) Under section 7(c) of A.T.A., 1997. To undergo rigorous imprisonment for seven years with a fine of Rs.5,000 or in default of payment thereof to further suffer simple imprisonment for six months. The tine, if realized, was ordered to be paid to the injured, namely, Muhammad Aslam, Constable. (iii) Under section 7(h) of A.T.A., 1997. To suffer rigorous imprisonment for one year with a fine of Rs.1,000 or in default of payment thereof to further suffer simple imprisonment for one month. All the sentences had been ordered to run concurrently. Benefit of section 382-B, Cr.P.C. was extended to the appellant.

9. Feeling aggrieved from the conviction and sentence, appellant preferred Criminal Appeal No.164 of 2007 before the learned Lahore High Court, which was dismissed as stated above.

10. Leave to appeal was granted by this Court on 24-5-2007 to consider, inter alia, the following contentions of the learned counsel for the appellant which requires deeper appreciation of the case:-- (i) that the evidence of eye-witnesses, namely, P.W.1 Muhammad Amin, P.W.2 Muhammad Aslam injured constable and P.W.6 Muhammad Yousaf is not consistent with the medical evidence inasmuch none of them has stated about the presence of injury by a blunt weapon; (ii) that the doctor who examined injured P.W.2 Muhammad Aslam, who was taken directly from the place of incident to the hospital, did not find holes in the dress corresponding to the fire-arm injuries; (iii) that the prosecution did not take into possession clothes of injured constable P.W.2 Muhammad Aslam which definitely would have blood-stains on them as he had admittedly received three grazing fire-arm wounds; and (iv) lastly that the motorcycle said to have been used by the appellant and taken into possession by the prosecution did not belong to the appellant but to one Imran who was not produced. 10-A. We have heard Mr. Hifzur Rehman, learned Advocate Supreme Court for the appellant and Ch. Munir Sadiq, learned Deputy Prosecutor-General Punjab for the State and have gone through the record and the proceedings of the case in minute particulars.

11. Learned counsel appearing on behalf of the appellant mainly contended that the appellant has been falsely implicated in the case. He further contended that there are material discrepancies in the medical evidence and the ocular evidence. According to him the evidence of eye-witnesses, namely, P.W.1 Muhammad Amin, P.W.2 Muhammad Aslam injured constable and P.W.6 Muhammad Yousaf is not consistent with the medical evidence and even none of them stated about the-presence of blunt weapon injury. He contended that the prosecution has failed to produce any independent public witness. According to him the motorcycle said to have been used by .the appellant and taken into possession by the prosecution did not belong to the appellant but to one Imran who was not produced as a witness. He contended that in the medical examination of injured P. W.2 Muhammad Aslam, the doctor did not find holes in the dress corresponding to the fire-arm injuries. He also argued that even the police did not take into possession clothes of injured P. W.2 Muhammad Aslam which definitely would have blood stains on them as he had admittedly received three fire-arm injuries.

12. The learned counsel for the State supported. the impugned judgment and contended that the conviction and sentence were rightly awarded to the appellant by the trial Court and affirmed by the High Court and the appellant has not been able to show any reason for his false implication in the case.

13. It is pertinent to note that the Courts below have not appreciated the evidence in its live perspective. According to the case of the prosecution, one Shahzad Butt, informed about the presence of contraband in the house of Pervez alias Peja whereupon complainant party went to his place of residence. It is strange enough that though the incident took place at the house of Pervez alias Peja but he was not apprehended and shown an accused in the case. Another important aspect which lost sight of the Courts below is that Shahzad Butt who disclosed about appellant riding on the motorcycle was not cited as witness in the case. The third and important aspect which was also not considered by the Courts below was that the owner of the motorcycle namely, Imran, was further examined as witness nor arrayed as an accused though motorcycle said to have been used in crime was recovered from the spot. According to the case of prosecution disclosed by eye-witnesses, namely, P.W.I Muhammad Amin, S.-I. and P.W.6 Muhammad Yousaf, A.S.-I. that appellant fired from pistol which injured Muhammad Aslam constable but presence of blunt weapon injury on his person negates the above version. He was fired from pistol but the medical evidence reveals that there were no corresponding holes on the shirt and the Shalwar of the injured. Even blood was not noticed on the clothes of the injured which were taken into possession by police.

14. From the above factors, we are of the considered opinion that the prosecution has not been able to prove its case beyond any shadow of doubt. Resultantly, the appellant is entitled to the benefit of doubt and deserves acquittal.

15. These are the reasons of our short order of even date which reads as:-- "For the reasons to be recorded separately, this appeal is accepted and the judgment impugned is set aside. Haroon son of Ahmed Din appellant shall be released in case F.I.R, No.222 dated 7-4-2004 of Police Station Gowalmandi, Lahore, under sections 324, 337-F(ii), 337-L(2), 353, P.P,C. read with section 7 of the Anti-Terrorism Act, 1997, forthwith if not required in any other case." S.A.K./H-13/SC Appeal accepted.