2009 PLP 2101 (YLR)

ALI SAIN DINO METLO, J.--Finding them guilty of attempt to commit murder of police and assault to deter them from performing their public duty, the learned V-Additional Sessions Judge, Larkana (Mr. Muhammad Zaffar Hussain), by his judgment dated 12-5-2005, sentenced the appellants each to undergo rigorous imprisonment for five years and to pay fine of Rs.10,000 and in default of payment of fine to undergo rigorous imprisonment for three months (for attempt to murder) and to undergo rigorous imprisonment for one year (for criminal assault).

2. Briefly, the facts are that on 14-10-2004, at 11-00 a.m. in the street near Shah Muhammad Primary School, Surahia Padhar, Larkano, a patrolling team of police, headed by ASI Rashid Khan Pathan of Police Station Market, arrested the appellants after an exchange of fires and seized an unlicensed pistol with four rounds from appellant Aamir and an unlicensed pistol with two rounds from appellant Ashique Hussain. The appellants were booked for committing the offences of going armed with unlicensed pistols and making murderous assault upon police.

3. At trial, prosecution examined three witnesses, namely, ASI Rashid Khan, PC Muhammad Sharif and SIP Mir Muhammad. The appellants did not produce any evidence in their defence. The trial Court convicted and sentenced them as above.

4. Learned counsel for the appellants has placed on record certified copies of judgments, dated 3-3-2006 in Criminal Appeals Nos.5 and 6 of 2006, in which another Additional Sessions Judge, Larkana (Mr. Ahmed Luqman Memon) has acquitted the appellants of the charge of going armed with unlicensed pistols.

5. The story and the evidence of the prosecution does not inspire any confidence. The incident had taken place in thickly populated area of Larkana town but no person from the locality was examined as witness, notwithstanding the fact that the Investigating Officer had not found any mark or sign or encounter at the place of incident. It was daytime, but in the firing made by police and the appellants, which continued for about five minutes, nobody was injured and there was also no mark of any bullet on any wall of the buildings around the place of incident or the vehicle of police. The Investigating Officer could not find any empty at the place of incident.

6. Out of the two eyewitnesses, one, namely ASI Rashid Khan stated that at the time of exchange of fires, distance between police and the appellants was 20 paces, whereas according to P.C. Muhammad Sharif, the distance was about 100 paces. The ASI stated that they had warned the appellants to surrender, on which they had surrendered by raising their hands. PC Muhammad Sharif first stated in his examination-in-chief that they had warned the appellants, upon which they had surrendered by raising their hands, but in his cross-examination he changed his version by stating that they had not asked them to raise their hands. The ASI has stated that the appellants did not try to escape, while the constable stated that they had tried to flee and had covered a distance of few paces also.

7. The Investigating Officer (SIP Mir Muhammad Khoso) has stated that the place of incident was shown to him by complainant ASI Rashid Khan, while Rashid Khan has stated that he had not shown the place of incident to him.

8. The judgments of the II-Additional Sessions Judge, Larkana, show that in the trial, which was separately held for the offence of going armed without licence, PC Ghulam Akbar, one of the two attesting witnesses of arrest and recovery, had stated that the incident had taken place in the darkness of the night and they had seen the appellants in the light of mobile and the streetlight.

9. In view of the above-mentioned facts, circumstances and reasons, it appears that no such incident of exchange of fires had taken place and the cases against the appellants were fabricated at the police station. The trial Court has clearly erred in convicting the appellants. The learned State Counsel has frankly conceded that the evidence was not sufficient to convict the appellants. Accordingly, the appeal is allowed and conviction and sentence of the appellants are set aside. The bail bonds of the appellants, who are present on bail, stand discharged. H.B.T./A-91/K Appeal allowed.