2007 PLP 2933 (YLR)

MRS. QAISER IQBAL, J.

Being aggrieved and dissatisfied with the judgment dated 13-6-2007 passed by the learned v. Assistant Session Judge, Karachi Central convicting the appellant for the offence under sections 353, P.P.C. and sentenced him to undergo rigorous imprisonment for two years with a fine of Rs.2,000 and under section 324, P.P.C. to suffer rigorous imprisonment for seven years with a fine of Rs.10,000, all the sentences shall run concurrently, in default of fine, the appellant shall suffer rigorous imprisonment for two months the appellant has preferred this appeal with the prayer that the judgment recorded against him be set aside. The occurrence is stated to have taken place on 2-9-2006 when police constables Shafaqat Ali and Muhammad Zaman left Police Station Gabol Town for patrolling mi motorcycles reached at sector 16-B, North Karachi, at about 0500 hours saw two persons standing in the suspicious condition, their names were subsequently disclosed as Hajat Marsha and Saeed Rookhan, the culprits did not stop on the signal of the police constables, opened fire with intention to kill them, they were encircled, arrested, on personal search of the appellant, one .3,0 bore TT pistol with three live bullets were recovered from left side fold of his shalwar; from co-accused Rookhan Saeed one double edged dagger was recovered from left fold of his shalwar. Appellant and co-accused were shifted to police station along with recovered property, F.I.R. was lodged and separate case under section 13-D; Arms Ordinance were registered. After submission of challan the appellant along with co-accused were challaned to face the trial. Charge Exh.3 was recorded by the trial Court, the appellant had pleaded not guilty and claimed trial. In support of the case prosecution has examined P.W.1 PC Shafqat Ali (Exh.5), P.W.2 A.S.I. Mansoor Ali Warsi (Exh.7), P.W.3 SIP Aneel Ahmad (Exh.B) and prosecution had closed the side to lead the evidence. The appellant and co-accused Saeed Roohkhan in their statements under section 342, Cr.P.C.(Exhs:10 & 11) denied the prosecution story, contended that police officials have deposed against the appellant and co-accused with ulterior .motive. The appellant and co-accused Saeed Rookhan were neither examined under section 340(2) Cr.P.C. nor any defence was led. The trial Court on the basis of the evidence acquitted co-accused Saeed Rookhan through the impugned judgment and proceeded to convict the appellant as stated above. On the basis of prosecution evidence, the learned trial Court formulated the following points for determination. (I) Whether the accused persons opened fire upon police with the intention to kill them? (II) What should the order be? The learned trial Judge after assessment of the evidence led by the prosecution that from the possession of the. appellant one 30 bore TT pistol along with live bullets as well as empties were recovered from the place of occurrence, which manifestly shows that the appellant had opened fire upon police party, evidence as against co-accused Saeed Rookhan was not accepted because the dagger recovered from the fold of his shalwar had no nexus with the prosecution case and found the appellant guilty of commission of offence. The main contentions raised by Mr. R.K. Kohistani, learned counsel for the appellant are as under:

(1) Prosecution has twisted the story depicted in F.I.R. to that of the charge-sheet as the alleged recovery was shown from the fold of the shalwar of the appellant. (2) The trial Court has failed to consider the statements of complainant PC Shafaqat Ali who has frankly admitted that empties were arranged at police' station. (3) The case property was not recovered in the presence of independent witness in violation of law. (4) The live bullets and empties were different in number. (5) Non one was injured as result of firing opened by the appellant in the encounter. (6) There was a delay of 10 days in sending the recovered property to F.S.L. (7) The trial Court has erred in law by not suggesting the material question to the appellant in his statement under section 342, Cr.P.C. (8) The evidence adduced by the prosecution was not admitted by the trial Court as against co-accused Saeed Rookhan, on the basis of the presumption same evidence cannot be used to convict the appellant. Learned state counsel has supported the impugned judgment by stating that sufficient evidence is available against the appellant, opposed the acceptance of the appeal. After hearing the learned counsel for the parties, having gone through the record of the case, I am of the view that the case of .the prosecution is doubtful in nature. The evidence available on record is not sufficient to reach to a conclusion that the appellant can be convicted for the offences charged against him. The incident took place at 0500 hours inside the street, Shafiq Colony, Jhonpra Hotel, sector 16-B, North Karachi, were number of peoples were available on the spot but no attempt was made by the police to pick up independent witnesses in order to establish encounter. Admittedly complainant PC Shafqat Ali along with other police staff encircled the appellant, appellant opened fire from his pistol yet no one was admittedly injured. Although PC Muhammad Zaman caught hold of the appellant and took his search yet he was not produced by the prosecution. It is also an admitted position -that the pistol was secured from the ibid of the shalwar of the appellant, property after the recovery was not sealed on the spot, the empties of pistol were sealed at Police Station Gabol Town. Despite the best efforts only PC Shafqat Ali could be produced by the prosecution, his testimony cannot be believed when the occurrence was witnessed by number of peoples and no one was injured. So far as the testimony of P.W. A.S.I. Mansoor Ali Warsi is concerned, he had only registered the F.I.R. being duty officer and had prepared memo. of arrest and recovery at police station, which manifestly shows the lacuna in the prosecution case. P.W. SIP Aneel Ahmed had conducted part of the investigation. Thee learned trial Judge admitted the prosecution version as against the appellant did .not believe the same evidence as against the co-accused. The findings of the trial Court are not based upon any valid evidence, moral presumption of the learned trial Judge could not form basis of the conviction. It was not safe to rely upon the testimony of the complainant without corroboration from independent source. Reliance is placed on 2000 SCMR 1038. Perusal of record also indicates that the statement of the appellant under section 342, Cr.P.C. was not recorded in accordance with-law. Questions put to the accused should be definite-and specific. The trial Court was bound xo put questions to the appellant under section 342, Cr.P.C. related to the root of the prosecution evidence for conviction. 'No question was put to the appellant about the date, time of the occurrence and the encounter. The statement of the appellant under section 342, Cr.P.C. on the face of it shows that it was not recorded in accordance with law. The trial Court did not follow the procedure provided. It is well settled that when the law provides the procedure for doing a thing in a particular manner that should be done in the prescribed manner and in no other manner should be done at all. In support of the above contention, reliance has been placed on the following ease-law :

(1) Abdul Sattar and others v. The State (2002 PCr.LJ (Karachi) 51). (2) Sarwar Khan v. The State (2000 PCr.LJ (Karachi) 779). (3) Muhammad Bashir v. The State (1985 PCr.LJ (Arad J& K) 391). (4) Muhammad Siddique w. The State (1985 MLD 1418). (5) Jagin and 2 others v. The State (PLD 2001 Quetta 64). The Honorable Supreme Court in the case of Munawwar Hussain v. The State, reported in 1996 SCMR 1601 has observed that as a result of omission to put incriminating pierce of evidence against the appellant while 'recorded the statement under section 342, Cr.P.C. by the trial Court the same cannot be considered to be a piece of evidence against him and in such circumstances conviction cannot be maintained. It cannot be lost sight of that F.S.L. report was delayed, no explanation has been set forth by the prosecution for such delay. The evidence disbelieved against one of the accused cannot be believed against other for awarding conviction in peculiar circumstances. Following the dictum laid down by the apex Court referred (supra), I am of the view that sufficient evidence warranting the conviction of the appellant is not available on record, the case has been dealt with by the trial Court in cursory manner resulted ill miscarriage of justice, the eye-witnesses account compromising of complainant is of no relevance when. independent witnesses were available on the spot, which is a thickly populated area and the mashirs of the recovery were picked up from police force in order to strengthen the prosecution case. It would be unsafe rely on such ocular evidence and I am of the view that the prosecution has failed to establish its case against the present appellant. The principle laid down in 1999 SCMR 1228 is applicable to the case in hand. Having regard to the above facts and circumstances of the case, I was inclined to-hold that prosecution has failed to prove the charge against the appellant beyond reasonable doubt, therefore, he is entitled to the acquittal. Consequently, the appeal filed by the appellant is accepted, conviction and sentence awarded to him stands set aside. The appellant was ordered to be released forthwith if not required in any other custody case vide short order dated 6-8-2007 appeal was allowed. Above are the reasons for the same. H.B.T./H-19/K Appeal accepted.