1995 PLP 1291 (MLD)

ABDUL HAFEEZ CHEEMA, J.‑‑‑Nazir Ahmed (60) Son of Wali Dad Khan Pathan of village Mochh, District Mianwali, was tried and convicted under section 216, P.P.C. Officer, by Presiding Special Court No. II (Suppression of Terrorist Activities), Sargodha, vide his judgment dated 16th February, 1993. The accused was awarded sentence of one year R.I. and fine of Rs.10,000 in default of payment of fine, he was ordered to undergo further R.I. for two months.

2. The appellant has challenged the validity of his conviction by means of this appeal. The accusation against him was that on 14‑12‑1993 at about 5‑00 p.m. he has passed money to his son Muhammad Farooq, a proclaimed offender in case F.I.R. No. 64/92 under section 13 of the Arms Ordinance XX of 1965, P.S. Isa Khel, near the bridge of Canal Kot Belian, District Mianwali.

3. In order to substantiate their case, the prosecution examined three witnesses. Muhammad Amir H.C. (P.W.1) had recorded formal F.I.R. Exh PA/1 on the basis of complaint Exh PA. Qarib Ali Shah (P.W.2), Ghulam Shabbir, S.I. (P.W.3) and six constables were holding Naka near the canal bridge when at the stated time, the proclaimed offender appeared there on a motorcycle and was paid money by Nazir accused and on noticing the police party, the P.O. ran away. P.W.2 who was heading the Naka Party repeated the prosecution version and similar was the statement of S.I. Ghulam Shabbir who deposed as P.W.3.

4. In his statement under section 342, Cr.P.C. the accused denied the accusation and claimed that the case was totally false and the police had concocted it to show their efficiency.

5. Learned counsel for the appellant has assailed the judgment on the following three major grounds:‑‑‑ Firstly, that the story made out by the police appears to be intrinsically false and hollow; secondly Qarib Ali Shah (P.W.2) who happened to be the head of Naka party, had himself assumed the investigation and has appeared as a witness; lastly, although the Naka was allegedly held at a public place but no witness from the area was associated who could have witnessed the occurrence. Elaborating his stand, the learned counsel pointed out that this was clearly a false case because as per contents of the F.I.R. Naka was held with a main purpose of arresting the P.O. Muhammad Farooq but when he appeared at the scene, was allowed to receive money from his father and the Naka party consisting of eight police officials could not apprehend him, though the police was armed while he was allowed to escape, this is clearly unbelievable. Qarib Ali Shah had headed the Naka party and arrested the accused who had passed on money to his son. He himself conducted the investigation and appeared as his own witness. This investigation in all fairness should have been entrusted to some one else and as held in 1989 P Cr. L J 601, it appears to be a mockery. If there was a real search, the police party was standing at a place which was a thoroughfare and it was not difficult for them to associate any independent witness with this Naka, which they failed to do, as such, the version of the police does not appear to carry a ring of truth.

6. Learned State Counsel could not meet the above criticism effectively.

7. We have considered the contentions raised by learned defence counsel and are of the view that prosecution has failed to connect the appellant with the crime beyond reasonable doubt, as such, we are obliged to acquit him giving the benefit of doubt. The appeal is accordingly accepted and the impugned judgment is set aside. The appellant is on bail, his bond shall stand discharged. H.B.T./N‑302/L?????????????????????????????????????????????????????????????????????????????????? Appeal accepted.