2013 PLP 543 (YLR)

RIAZAT ALI SAHAR, J.

The appellants Bharo son of Gul Sher, Ali Hassan son of Dad Ali, Lal Bux son of Khamiso, Peando son of Mevo and Shafi Muhammad son of Tagio were convicted and sentenced by the learned Assistant Sessions Judge, Kashmore for offence punishable under section 324, P.P.C. to suffer R.I for the period of 5 years each and fine of Rs.2,000 each and in default of payment of fine the appellants shall suffer for 3 months more, for offence punishable under section 353 P.P.C. to suffer R.I for the period of 2 years and fine of Rs.2,000 each and in default of payment of fine the appellants shall suffer for 2 months more, for offence punishable under section 402 P.P.C., to suffer R.I. for the period of 1 year and fine of Rs.2,000 each and in default of the payment of fine the appellants shall suffer for 2 months more, for offence punishable under section 440, P.P.C. to suffer R.I for the period of 1 year and fine of Rs.2,000 each and in default of payment of fine the accused shall suffer 2 months more, for offence punishable under sections 148, 149 P.P.C. to pay fine of Rs.2,000 each and in default of payment of fine the appellants shall suffer for 1 month more. The entire sentence was awarded concurrently and also the benefit of section 382(B), Cr.P.C. was given to the appellants, by the judgment dated 25-6-2012.

2. The relevant facts of the prosecution case are that on 5-10-2011 the police party headed by the complainant S.H.O. Ziad Ali Noonari left Police Station vide Daily Diary Entry No.30 at 1900 hours for patrolling, it was 2000 hours, when they reached near Lal Beg diversion at 'Geehalpur Road', they saw the appellants along with two unidentified persons on the light of vehicle having weapons in their hands, on seeing police party they started straight firing upon the police, such firing was made face to face for 20/25 minutes, after all, they were apprehended along with weapons. The police received T.T pistols and repeaters from them in presence of police mashirs and found some stones and pieces of bricks were lying on the road as they gathered there with intention to commit any offence. The appellants and recovered weapons were brought at Police Station where the F.I.R was registered, stated hereinabove along with separate F.I.Rs. of 13-D Pakistan Arms Ordinance 1965.

3. The trial Court framed the charge against the appellants for offence punishable under sections 324, 353, 402, 440, 148 and 149 P.P.C., on 29-2-2012 as Exh.nil. the appellants did not plead guilty to the charge and claimed to be tried. In support of the case, prosecution examined P.W.1 SIO Khan Muhammad as Exh.7, he produced the memo of place of incident at Exh.7/A, being an Investigating Officer, P.W.2 PC Nawaz Ali as Exh.8, he recognized the memo of place of incident being a mashir and member of police party, P.W.3 SIP/S.H.O. Ziad Ali as Exh.9, he produced the copy of D.D. Entry No.30 as Exh.9/A and memo of arrest and recovery at Exh.9/B, P.W.4 PC Saeed Ahmed Khan as Exh.10, he recognized the memo of arrest and case property at Exh.9/B being a member of police party and mashir, whereafter, the prosecution closed its side by statement as Exh.nil.

4. The statements of appellants under section 342, Cr.P.C. were recorded by the trial Court wherein they all denied the prosecution evidence. The appellants were convicted and sentenced as stated hereinabove.

5. It is, inter alia, contended by the learned counsel for the appellant that none of P.Ws. have deposed regarding the damaging of vehicle, on the contrary the complainant stated in the F.I.R that the police vehicle received one bullet injury by crossing it (hole) and the wind screen was broken in the result of cross-firing. The stones and pieces of bricks allegedly available on the road for blocking it, were not secured. P.W. A.S.-I. Khan Muhammad deposed that they visited the place of incident on the following day of 6-10-2011 whereas the memo of visiting the place of incident showing the date 6-10-2011. The weapons and alleged empty shells are said to have been recovered from the spot, both were not sent to the Ballistic Expert in order to seek opinion whether empty shells were fired from that weapons or not and to ascertain the nature and kind of weapon. He further urged that the F.I.Rs. regarding recovery of alleged weapons were registered under section 13-D Pakistan Arms Ordinance 1965, the cases were challaned separately, consequently the appellants were acquitted by the trial Court from the charge of recovery of weapons vide judgments dated 10-12-2011 and 18-6-2012. Lastly he prayed that the prosecution has miserably failed to prove its case beyond reasonable shadow of doubt, therefore, appellants may be acquitted while giving benefit of doubt.

6. Conversely, learned State counsel has raised no object in the light of major contradictions and infirmities on the part of prosecution.

7. I have minutely considered the respective arguments of learned counsel for the appellants, learned State Counsel, examined the record and found that the evidence of the prosecution witnesses is contradictory and discrepant one. CONTRADICTIONS F.I.R.: The Column No.4 of F.I.R. shows the place of incident is link road towards village 'Geehalpur'. It is further mentioned in the F.I.R. that the rear screen of Govt. vehicle was damaged and received one fire arm injury during cross-firing. P.W.1 SIO Khan Muhammad: The incident had taken place on 6-10-2011, on the next morning (7-10-2011), we along with A.S.-I. Saeed and PC Nawaz visited the place of incident, PC Kashif Shah written the memo of place of incident. There was road but the incident had taken place at 20 paces away from the road. I had not asked any private person to act as mashir. P.W.2 PC Nawaz Ali.

On 6-10-2011 I was posted as PC at Police Station Kashmore, on the same day SIO Khan Muhammad had visited the place of incident on the pointation of A.S.-I. Saeed Ahmed Khan. The encounter had taken place adjacent to the bank of river. Both the parties (were said to have been made firing) on the same side. I had seen the private persons. SIO had not asked any private person to act as mashir. P.W.3. Complainant SIP Ziad Ali.

I had written the mashirnama. I with the help of other police personnel arrested accused Munir with T.T pistol and Lal Bux with T.T pistol (at place of incident). I had not sealed the recovered weapons. I had not seen any private person or villager. The place of incident is situated at southern side from village Lal Beg Mazari. There were no crop. P.W.4. PC Saeed Ahmed:

The place of "wardat " is situated on link road leading to 'Geehalpur' and other villagers. The place of 'wardat' is situated in kacha area towards western side of village Lal Beg Mazari. At that time, there were crops. It is not fact that accused are not known to me prior to the incident. Accused sitting in Court but he has not taken the correct names of accused. The road was closed due to stones and 13 accused persons standing there, we identified 11 persons out of 13 on the light of vehicle. The S.H.O. unloaded all the T.T. pistols and repeaters which were found empty. It is a fact that police mobile had not received any bullet injury. DISCREPANCIES (i) The vehicle is said to have been damaged during cross-firing was not produced before the Court. (ii) The evidence shows that alleged recovered property viz. weapons and empty shells were not exhibited with article number during course of evidence, which shows that mere formality was completed and presumption could be drawn that in real sense neither the property was produced nor it was exhibited with article number. (iii) The station diary regarding the departure and arrival of Investigating Officer for visiting the place of incident was not produced during trial. (iv) The copy of D.D Entry No.30 regarding departure of police is without paging number and rubber stamp of attesting officer. (v) It is unbelievable that one can identify 11 accused persons out of 13 on the light of vehicle, particularly at the time of cross-firing. Admittedly none has received any injury from both the sides though the encounter is said to have been made for about 20/25 minutes. According to F.I.R. the place of incident is a link road which is contradictory and when the place of any incident becomes contradictory, entire incident would be presumed as manipulated one. (vi) The main aspect of the case is that the appellants were gathered with intention to commit any offence by lying the stones and pieces of bricks on the road, punishable under section 402, P.P.C., the same were not secured by the prosecution.

8. The sections in which the appellants were charged are not applicable with the prosecution story. At the most it can be presumed that the offence falls within the ambit of section 13-D of Pakistan Arms Ordinance, 1965 in which they have been acquitted by the trial Court.

9. It is well-settled law that the rule with regard to corroboration of evidence of an interested witness is although rule of caution, yet virtually it is ripened into rule of law. For the purpose of benefit of doubt to an accused more than one infirmity is not required. A single infirmity creating reasonable doubt in the mind of a prudent mind regarding the truth of the charge is sufficient to give the benefit of doubt to the accused.

10. The upshot of the above discussion is that the investigation was conducted dishonestly, and it has rendered the entire prosecution case doubtful. Consequently, the appellants are extended benefit of doubt and they are acquitted accordingly. By the short order dated 24-7-2012, I allowed the present appeal, set aside the impugned judgment dated 25-6-2012 and above are the detailed reasons for the same. MWA/B-11/K Appeal allowed.