2007 PLP 2378 (YLR)

MRS. YASMIN ABBASEY, J

Appellant Ghulam Hussain, who was convicted under section 393, P.P.C. for a period of 5 years' R.I. and a fine of Rs.10,

000. In default thereof to go further S.I. for two 2 months, has preferred this appeal. Facts leading to this case are that on 154, Cr.P.C. statement of the complainant Muhammad Amir that on 11-12-2004 at 10-00 a.m. he was running in a Suzuki loading vehicle along with.loaders Iqbal Ismail and driver Jehangir and when at Nishter Road near Sati Sweet Mart due to traffic jam driver stopped his Suzuki soon then one person whose name subsequently came to know as Ghulam Hussain son of Faquir Muhammad after opening door forcibly tried to sit therein. According to complainant at first he,kicked him and due to that pressure accused fell down on the ground. According to complainant taking advantage of fall of accused on ground he immediately came out from the vehicle and rushed towards an agency situated nearby. Soon he left the vehicle accused succeeded in controlling driver and had taken him from the place towards K.M.C. Workshop Nishter Road loader Iqbal, who followed complainant soon thereafter, with one Security Guard Ameer Iqbal chased that Suzuki Loaderafter taking lift from the passerby motorcyclist. Complainant also said to had chased the accused with one Khursheed on motorcycle. At about 1-45 p.m. Security Guard Ameer Iqbal tried to stop Suzuki near Saint Francis church Rilgium Road but as accused did not allow to stop the vehicle therefore, the said Security Guard opened fire with his 7 MM rifle from back towards accused, he sustained injury. Police noticed that short arrived there and had taken accused as well as that pistol in possession of accused in their custody, subsequently it came to know that it was a toy pistol. On the basis of this 154, Cr.P.C. statement F.I.R. was registered. Matter was investigated. After completing investigation it was challenged in Court. Charge was framed on 24-1-2005 to which accused pleaded not guilty and claimed to be tried. Prosecution examined in all five witnesses namely Muhammad Amir .the complainant. Jehangir Loader Ameer Iqbal Security Guard, SIP Niqar Ahmed. and SIP Chaadhary Nazeer Ahmed. Accused examined himself under section 342, Cr.P.C. and had stated that he is innocent and had been falsely implicated by the police. Nothing was recovered from his possession. It is alleged by him that in order to save the Security Guard who had opened fire on him and had caused injury, this false case has been setup against him. Mr. Khawaja Naveed Ahmed learned counsel for the appellant while challenging the impugned judgment with reference to the prosecution witnesses has argued that appellant was just passerby and in an incident happened on 14-12-2004 he carne in between and received fire-arm injury. He argues that in order to save the security ,guard of the company who had unnecessarily opened fire on him. This false case has been registered which is evident from the contradictory statements of the prosecution witnesses. None of them inspire any confidence nor anything incriminating was recovered from his possession. Learned counsel pointed out that according to prosecution the incident took place in a public area where presence of hundreds of persons cannot be disputed but in spite of that not a single person out of them who had witnessed the incident was taken. No reason for not calling them is also on record. Nor it is the caste of prosecution witnesses that they ever attempted to take any private person who were present at that moment and they refused, neither there is anything on record that if such incident had happened whether any notice as required under subsection 5 of section 103, Cr.P.C. was ever served on them. In order to scrutinize the facts that whether the appellant was guilty of offence or not I have gone through the statements of prosecution witnesses and found that the prosecution story to the extent that appellant forcibly tried to ride in Suzuki loader and he was pushed down by the complainant and when he was lying on the ground complainant after getting out from the Suzuki loader ran away to Habib Agency situated nearby. In the meanwhile accused took Suzuki Loader along with driver. Then complainant along with Iqbal Security Guard chased Suzuki Loader and when they reached near Church at first that security guard Iqbal signaled to stop that Suzuki Loader but when no notice of it was taken he fired from the back side, which hit to accused. Police came there and took the accused to Civil Hospital in the same Suzuki Loader to some extent has been supported by other P.Ws. Jehangir Driver of the very Suzuki with further addition that after running away of the complainant from Suzuki that accused by putting his hand in his naifa directed him to proceed as if he had some weapon with him. Due to fear he drove Suzuki Loader. Security Guard Ameer Iqbal also in his statement had deposed that on the day of incident at about 2-00 p.m. complainant came to him and informed him about the incident happened with him. He along with complainant chased that Suzuki on a motorcycle with one 7 MM rifle given' by the company. According to him when Suzuki reached Church there was traffic jam but in spite of that the appellant with Suzuki tried to proceed further. However, he on the pointation of the complainant directly hit on the culprit, which hit him on the side of abdomen in the meanwhile taking notice of fire-arm shots police arrived there and taken the accused in there custody. Though the statement of all three prosecution witnesses support to each other but there' are certain facts which makes the case of prosecution doubtful. As it is an unbelievable fact that as per statement of the complainant, when accused/appellant forcibly tried to ride in the Suzuki Loader and on a push he fell down on the ground but in spite of that complainant in company of two more persons instead of coming overpower on the accused had left themselves at his mercy. Though in such disconcerted position of accused it was not impossible for three persons to caught hold one empty hand person. Anyhow if, it is taken as deposed by the prosecution witnesses that accused/appellant by putting his hand inside his Naifa pretended that he was in possession of some deadly weapon, which terrified the complainant and driver and forced the complainant to run out from the Suzuki Loader and seek help of Security Guard then again a contradictory statement with reference to firing on accused is appearing in between complainant and security guard Ameer-Iqbal. At first it is deposed ` by Ameer Iqbal that on the pointation of complainant, he had fired on accused from back side, the same statement has been deposed by complainant but in his cross-examination that security guard Ameer Iqbal had tried to improve his . case that he signaled to appellant/accused from front side but as he tired to run away he made fire on ' him. This contradictory statement of the complainant that signaling of accused from front side and then firing from backside creates doubt, particularly because as per contents of Medico-legal Certificate both' the injuries sustained by appellant were from front side on right side of his chest. It is also pertinent to not that medical officer who had examined appellant had not been examined in Court to further confirm that whether the injuries sustained to appellant were from front side or back side. It is further observed that according to complainant, as deposed in Court, police on the noise of fire-arm shots immediately came there and had arrested the accused but according to complainant police had not taken search of him because he was in injured condition. However, when police was taking him in custody a pistol has fallen down from Naifa therefore, he came to know that police had recovered pistol from the possession of the accused. Whereas in his 154, Cr.P.C. statement recorded at Civil Hospital on the basis of which F.I.R. was lodged he had stated about seizing the pistol from appellant's custody and thereafter, he was shifted to hospital. While a third version is appearing from the mouth of SIP Niqar Ahmed, who deposed that complainant had handed over toy pistol recovered from the possession of accused to him meaning thereby that nothing was recovered by police from appellant and it was complainant who had produced that toy pistol to police. The memo. of arrest prepared at Civil Hospital also refutes the statement of the complainant that toy pistol was recovered by police at the very place of incident. Although P.W.2 driver Jehangir had also not supported the statement of police officer pistol was produced by the complainant to them but his statement in the light of two contradictory statements discussed above, further creates a contusing portion. As P.W. Jehangir the driver who was in company of accused for long time than to complainant neither identified the case property stating that at that time pistol was in the Naifa of the accused therefore, he could not see it, nor had correctly identified accused who was present in Court along with two other persons in single handcuffed condition. The other aspect of case is as per statement of security guard Ameer Iqbal after receiving information from complainant he immediately reached at main road and asked to a motorcyclist to lift him on his motorcycle to chase the disputed loader. Complainant also sought help from other motorcyclists but in spite of availability of these two private persons i.e. motorcyclists none of them were produced as witness to support their case. If it is taken that other public witnesses of first place of incident had not agreed to be witnesses of incident then at least these would had been the best witnesses of the case, as the person who had such courage to take danger of chasing an accused would definitely be should enough be witness of incident of arrest and recovery of pistol frpm his possession and also to state the incident taken place in his presence. Investigating Officer SIP Ch. Nazeer Ahmed to whom police papers were handed over for further investigation had admitted that even at the time of inspection of place of occurrence in spite of shops, surrounding there he had not enquired from the shopkeepers about happening ofI incident. With reference to the toy pistol to be in custody of accused/appellant it is stated that HC Rauf had deposed in his 161, Cr.P.C. statement that toy pistol was recovered from the possession of the accused but subsequently it was handed over to him by the complainant also is contusing statement ever otherwise HC Rauf' has not been examined to clarify the position. During investigation of the case prosecution has totally overlooked the fact that Ameer Iqbal may be security guard of any agency but he is not supported to take the law in his hand by opening fire. The proper course for the complainant as well as for the security guard was to immediately inform police on "15", as gathered from the prosecution evidence that police was in the near vicinity and had reached there on attracting fire-arm shots therefore, if complainant of the said Security Guard had contacted to police immediately after happening of incident there was no question of not having any help from police. Anyhow if it is taken that in harsh such step was taken then no 7 MMrifle from which fire was shot on accused was produced. Under these circumstances, defence taken up by the accused that just to save their security guard said agency in collusion with the complainant had falsely lodged this F.I.R. against him though in fact he was just a passerby and had no connection with the incident if any happened as per prosecution story. In view of above discussion. I found prosecution has not been able to produce satisfactory evidence against the appellant. There are contradictions in the statements of the prosecution witnesses as discussed above benefit of doubt of which goes to the appellant. In view of above discussion appeal of the appellant is allowed. Conviction order is set aside the accused is on bail he is discharged from bail bond. H.B.T. /G-17/K?????????????????????????????????????????????????????????????????????????????????? Appeal allowed.