2004 PLP 33 (YLR)

A.S.‑I.P. Zulfiqar Ali Reached the Vardat on wireless message, heard firing, firing made form the car.

10. P.W.10 H.C. Muhammad Aslam Mashir of arrest of co accused Mst. Shahnaz and Khalid.

11. P.W.11 H.C. Khizarul Hasan Police official Including appellant M. Arif deposited' arms and ammunition. but the same were short. Mahsir of arrest of appellant Arif and other said police officials and recovery of weapons. 12 P.W.12 S. I. P. Syed Zahid Hussain Mashir of Arrest of accused Jaseem and Darvesh, recovery of golden articles on the pointation of co‑accused Khalid. 13 P.W.13 Ghayoor‑ur Mehmood Neighbour. He informed the police on Rescue 15, after arrival of police he heard firing. 14 P.W.14 A. S. I. P. Basharat Hussain Arrested accused Jaseem alias Joshi and Darvesh. 15 P.W.15 S. I. P. Muhammad. Ashraf Arrested Jaseem and Darvesh and recovered pistols, from them, recorded F. I. R. under section 13(d), Ordinance, 1965 against the accused. 16 P.W.16 Muhammad Saleemuddin Neighbour, eye‑witness, saw the police firing at the car. 17 P.W.17 Parwaz Qadir J. M.; held Identification parade of accused Jaseem alias Joshi, recorded judicial 18 P.W.18 Dr. Ghulam Hussain Conducted post‑mortem upon deceased Aliza and Uzaam and issued medical certificate of injured (1) A.S.‑I. Ghulam Sarwar, (2) Dead accused Mohammad Hussain and (3) Mrs. Rashida Asad. 19 P.W.20 A.S.I.P. Inayat Marwat Mashir of Arrest and recovery of pistols from accused Jaseem and Darvesh and Investigated Case under section 13‑D, Ordinance, 1965. 20 P.W.21 S.H.O. Khan Shahnawaz Recorded 154, Cr.P.C. statements of A. S. I. P. Ghulam Sarwar, investigated the case. 21 P.W.22 D. S. P. Syed Mohammad Ali Reached the Vardat on wireless message and heard the firing. 22 P.W.23 Inspector Meraj Ali Shah Investigating Officer.

8. After considering the material available on the record the learned trial Judge convicted the appellants as mentioned above, and acquitted the co‑accused under the impugned judgment.

9. The appellants were dissatisfied with the said judgment, therefore, they have preferred the present appeals.

10. The learned Advocate for the appellant Muhammad Arif in Special A.T.A. No.88 of 2001 has stated that the appellant has been convicted for offences punishable under sections 319 and 337(F), P.P.C. but there are no eye‑witnesses in the case; that the prosecution have not led any evidence connecting the appellant with the commission of this crime; that the appellant had no motive to commit the offence; that there is no allegation that anybody had seen the appellant firing at the car or he was holding the rifle in his hands; that other police officials also fired from their weapons and it is not known as to whose fire had hit the deceased and the injured; that the entire case is based upon the deposit of short ammunition by the appellant before the police after the incident when he reached at the police station. He has further argued that the said evidence is not sufficient to connect the appellant with the commission of this crime.

11. On the other, hand, the learned A.A.‑G. and the learned counsel for the complainant have frankly conceded that the only piece of evidence against the present appellant (Muhammad Arif) is of deposit of short ammunition by the police official when they reached at the police station; that there is no direct evidence or the statement of any witness to the effect that they had seen the appellant armed with rifle or firing at the car. They have further argued that the police had no authority to fire at the car as such they had exceeded the right of private defence, therefore, the appellant has committed the offence.

12. As regards the death of Uzaam and Aliza and receipt of injuries on the person of Mrs. Rashida Asad, nobody has denied the said facts. The said facts have been proved through the evidence of Medical Officers which went unchallenged.

13. The question involved in this case is as to who is responsible for causing the injuries on the person of deceased and injured Mrs. Rashida Asad.

14. It is the case of the prosecution that a large number of police officials were present at the place of incident in order to apprehend the culprits, who were firstly found inside a house then subsequently they shifted to the house of the complainant Asad Mirza from Where they fired at the gate of the house and when the car came out of the house in reverse position, the, witnesses had seen the culprits firing from the car at the police and then the firing started from the side of the police.

15. The prosecution examined witnesses in this case who gave the above details but none have deposed that they saw the present appellant armed with rifle or firing at the car. The involvement of the present appellant has been made through the deposit of short ammunition at the police station. Now, it is to be seen whether this evidence is sufficient to connect the appellant with the commission of this crime.

16. From the above evidence it can only be gathered that the rifle of the appellant was used in the commission of this crime, beyond that no other inference can be drawn. The said piece of evidence is a corroborative piece of evidence. This by itself is not a substantive piece of evidence. The next point arises as to who was having the rifle of the appellant at the time of incident and who had fired at the deceased and injured. On the above point a general allegation has been levelled that police present at the Vardat had fired. But there is no evidence that the appellant was seen holding the rifle or firing at the‑car. As such the rifle and short ammunition deposited at the police station by the appellant is a corroborative piece or evidence. This piece of evidence by itself is not enough to connect the appellants with the commission of this crime. It is well settled principle of law that corroborative evidence is meant to see the veracity of the ocular testimony. Both corroborative and ocular evidence is to be read together and not in isolation with the other. Reference is invited to the case of Asadullah v. Muhammad Ali PLD 1971 SC

541. The point as to whether mere recovery of crime‑weapon, is enough to convict the accused in the absence of ocular testimony was considered by the Honourable Supreme Court of Pakistan is a case of Saifullah v. State 1985.SCMR

410. It was observed in the said authority that even if recovery of bloodstained weapon is believed it is only a corroborative piece of evidence and when there was, no eye‑witness to be relied upon then there was nothing which could be corroborated by the recovery and it was not found enough to convict the accused. In another case of ' Mutawakil Shah v. Muhammad Din 1980 SCMR 96, it was observed that the fact of two empty cartridges matching with one gun and third with another does not fix the identity of the person who fired the fatal shots; The injuries to the deceased and witnesses likely to have been easily caused by two accused, some absconding and the other dead and the prosecution wrapped five persons from either side, even then the petition for leave to appeal was dismissed. Thus, mere short deposit of ammunition, by itself is insufficient to convict the appellant with this heinous crime.

17. Apart from the above position the appellant took the plea that on the day of incident the driver of Mobile No.6 was on leave, therefore, he was driving the vehicle and his rifle and ammunition were lying at the back of the police mobile van. This stand has been supported and corroborated by P.W.22, D.S.P. Syed Muhammad Ali Shah. His statement is further supported by D.W.2, H.C. Khan Muhammad, who was sitting with the appellant in the mobile van at the time of incident, as such the appellant took a specific plea that at the time of incident he was not having the said rifle or fired at the deceased and injured but he was sitting in the mobile van at the time of incident being its driver. The said defence has been fully supported by the prosecution's own witness P.W.22, who was senior police officer and heading the police party. As such two theories are available from the evidence brought on the record. It is well‑settled principle of law that when two theories, are emerging from the evidence then the theory favourable to the accused is to be accepted. Reference is invited to the cases of Muhammad Sultan v. Muhammad Aslam 1988 SCMR 857; Ghulam Hussain v. State PLD 1994 SC 31; Furqan Haider v. State PLD 1959 SC (Pak.) 480 and Ashiq Hussain v. State PLD 1994 SC 879.

18. After considering the material available on the record we are of the considered view that the prosecution have failed to prove their case against the appellant Muhammad Arif.

19. As regards the case of Jaseem alias Joshi, with regard to his punishment, except under section 13‑D of the Ordinance, 1965, the learned counsel for the appellant has not pressed the appeal on merits but requested for reduction 'of his sentences as co‑accused Mst. Shahnaz has been acquitted.

20. On the other hand, the learned A. A.‑G. and the Advocate for the complainant have stated that there is no justification for reduction of sentences as the trial Court had already ordered that all the sentences should run concurrently.

21. We have examined the evidence available on the record. From the evidence it is clear that the appellant had entered into the house alongwith other culprits and on gun‑point they put the complainant Asad Mirza in the car and forced him to drive the same and help them in escaping from the scene of the incident whereas Mrs. Rashida Asad and her children sat in the car. When they went outside the bungalow culprits fired at the police whereupon the police also fired at them. When the car reached a Lines Area the culprits left the car Where appellant Jaseem alias Joshi snatched golden bangles from Mrs. Rashida Asad and other witnesses. All the facts have been proved from the evidence of complainant Asad Mirza and Mrs. Rashida Asad. The appellant was correctly picked‑out by Mrs. Rashida Asad in an identification parade held before the Magistrate. All the pieces of evidence are connecting the appellant with the‑ commission of this crime. As such, the appellant Jaseem alias Joshi has been rightly convicted by the trial Court.

22. As regards the sentences, there are no mitigating circumstances which can warrant the reduction of sentences and we feel that this is not a fit case where sentences awarded by the trial Court should be reduced.

23. As regards the case of appellant Jaseem alias Joshi and Darvesh in respect of conviction under section 13‑D of Ordinance, 1965, the learned Advocate for the appellants have argued that provisions of section 103, Cr.P.C., have been violated; that the witnesses are only police officials, therefore, the recovery has not been proved in accordance with law.

24. On the other hand, the learned A.A.‑G. and the Advocate to for the complainant have argued chat there is sufficient evidence against the appellants in the shape of three witnesses, viz. P.W.12, S.‑I.P. Syed Zahid Hussain, P.W.15, S.‑I.P. Muhammad Ashraf and P.W.20, A.S.‑I.P. Inayat Marwat. They have further argued that section 103, Cr.P.C. is applicable when a house is searched but the appellants were arrested from a public place and from their possession unlicensed pistols were secured. They have also stated that police officials are as good witnesses as other persons. They have relied upon the cases of Nur Hussain v. The State 1993 SCMR 1608 and Muhammad Naeem v. State 1992 S C M R 1617.

25. In order to prove the case, the prosecution examined three witnesses, viz, P.W.12, S.‑I.P. Syed Zahid Hussain, P.W.15, S.‑I.P. Muhammad Ashraf and P.W.20, A.‑S.I.P. Inayat Marwat. They all have stated that on (sic) ‑4‑2002 at about 1‑45 p.m. they had arrested both the appellants from the road where they were present and from their personal search unlicensed pistols were secured. The statements of all these witnesses were subjected to cross‑examination but nothing has come on record to discredit their veracity. A perusal of section 103, Cr.P.C., reveals that is applicable to a search of a house but the appellants were arrested from a public, place and from their search unlicensed pistols were secured as such the provisions of section 103, Cr.P.C., are not attracted under the circumstances of the present case. Reliance is placed on State v. Muhammad Amin 1999 SCMR 1367 and State v. Muhammad Amin 1999 SCMR 1367.

26. After considering the material available on the record, we are of the considered view that the prosecution have proved their case under section 13‑D or Ordinance, 1965 against the appellants Jaseem alias Joshi and Darvesh.

27. In the light of what has been stated above no case has been made out against appellant Muhammad Arif (Special. ATA No.88 of 2001), therefore, the convictions and sentences awarded to him under the impugned judgment are set aside. The appellant is acquitted. He is in custody. He should be released forthwith if not required in any other case.

28. As regards the case of other appellants the prosecution have proved their, case against them beyond any shadow of doubt.

29. Consequently, the Appeal No.88 of 2001 is allowed, whereas Appeals Nos.102 and 103 of 2001 are dismissed. N.H.Q./M‑529/K Order accordingly.