1990 P Cr (PLP)

Date of hearing 2nd December 1982. The appellants above named, being aggrieved by common judgment, dated 25th August, 1975, of the learned Sessions Judge, Nawabshah; in Sessions Cases Nos. 17, 18, 19, 20, 21 and 22 of 1975, whereby appellants have been convicted under sections 307, 353, 148 read with section 149, P.P.C. and also under section 13(d) of Arms Ordinance and sentenced to 3 years' R.I. under section 307, P.P.C., 1 year's R.I. under section 353, P.P.C. one year's R.I. under section 148/149, P.P.C. and one year's R.I. under section 13(d), Arms Ordinance each, have preferred the above appeals on the following facts and grounds:

2. The facts of the prosecution case are that, on 8‑6‑1974 at 7 p.m. S.H.O. Ayaz Ahmed of Police Station Moro left the police station for patrolling and Nakabandi: He was accompanied by his subordinate staff, consisting; of H.C. Abdullah Khan, H.C. Rasool Bux, P.C. Shamsdin, P.C. Ghulam Rasool, P.C. Piaro Khan and P.C. Khair Muhammad. They went, by jeep, to village Bhooro Machi, at a distance of 5 or 6 miles from the police station, where they reached at about 8 p.m. from there they started on foot, and, crossing the river reached the village Piral‑Jo‑Bhan, at about 10 p.m. They stayed the night there. In that village, the S.H.O. received spy information that 5 armed persons were present in the Bhoro ofthe old bed of the river. Therefore, at 4 a.m. on the following morning, i.e. 9‑6‑197.1, the S.H.O. and his subordinate staff left for the place, taking with them two private persons namely Muhammad Siddique and Rano to act as Mashirs. They crossed the old bed of the river, which is at a distance of 3 miles from village Piral Jo Bhan and while they were in the Ghoro (out‑let of the river bed) they saw five persons going along the bank of Dhoro, at a distance of about 60 or 70 paces from them. Those persons who were armed with fire arms, started firing; at the police party on seeing them. The police party also took .the position in the Dhoro and started firing at those persons in self‑defence. The exchange of fire continued for about one hour, but none from either party was injured. Thereafter, those persons stopped the firing and one of them shouted, that they were ready to surrender. The S.H.O. asked them to lay down their arms. The ‑police party then went upto them and asked each one of them to pick up the arm, which he was carrying. They were the five persons. Appellant Ghulam Rasoaol had a mark 5 rifle, in which .303 bullet is used, appellant Ali Sher had a single barrel gun, appellant Ahmed Rehman and Rasool Bux had double barrel gun each, and appellant Ghulam Hussain had a country made pistol. The S.H.O. enquired from them about the licences, but none could produce any. Therefore, the S.H.O. put the appellant under arrest and secured the arms from each of the appellants in presence of Mashir Siddique and Rano. He also secured five empty .303 bullets and 45 empty cartridges of .12 bore from the place, where the appellants had fired and 7 empty cartridges from the place where the police party had fired at the appellants. The S.H.O prepared the Mashirnama, which was read over to the Mashirs and signed by them. The appellants and the fire‑arms recovered from them, were brought to the police station by the same route, where they reached at 4 p.m. 1'hc S.H.O. then lodged the report under sections 307, 353, 148 read with 149, PRC against all the appellants and under section 13(d) of tile Arms Ordinance against each appellant separately. After usual investigation, the appellants were sent up to the Court of Civil Judge and F.C.M. Moro, on 'd‑‑0‑ 1974, who committed them for their trial to the trial Court in all six cases.

3. All the appellants had denied, that they were found going armed with fire-arms at the Dhoro or that they had fired at the police party in furtherance of file common object the unlawful assembly or any un-licensed arms were recoded from their possession. They stated that they have been falsely involved at the instance of Wadero Salch Bughio. Appellants Ghulam Rasool, Ali Sher and Abdul Rehman further stated, that they are Haris of Taj Moliarnmad Shah, who had dispute over land with Wadero Saleh Bughio, who is an influential zamindar. The latter had brought the police party to eject them from tile land and I give possession thereof to him. These three appellants were present in the land alongwith Rabhan Shall and Khehar Shah, who had their licensed D.B. runs with them. The police arrested them and foisted the guns of Rabban and Kehar Shah on them. The case of appellants Rasool Bux and Ghulam Hussain is, that they were Hairs of Wardero Salch Bughio, but were Murecds of Taj Nloharnmad Shall, and visited the latter often. Wadero Moliamrnad Salch Bughio was annoyed with them on can that account and has falsely involved them in this case by getting the fire-arms foisted on them.

4. The learned trial Court taking into consideration the evidence adduced before it, by impugned common judgment convicted all the appellants, as hereinbefore mentioned and consequently appellants have filed the above appeals, on the mentioned in their respective memo of appeals.

5. The learned advocate for the appellants, Ghulam Rasool, All Slier and Abdul Rehman is absent today in spite of notices of appeals in question sent to him as far back as lath November. 1982, and since these appeals arc pending right from 1975 and are connected with the appeals of appellant Rasool Bux and Ghulam Hussain and since common questions of facts and law arc involved in all these appeals, I decided to dispose of all said appeals with the assistance of learned advocate liar the appellants Rasool Bux and Ghulam 11rr5S1rlrl and the State counsel by this common judgment.

6. Mr. Azizullah K. Sheikh, the learned advocate for the appellants Rasool Bux and Ghulam Hussain submitted, that there was no independent, witness of the alleged incident as well as recovery of the weapons from any of the appellants, although such witnesses were easily available in the village from where the police party on its alleged spy information proceeded to the forest. The learned advocate submitted, that P.W. 2 Muhammad Siddiqi, the Mashir of the incident and recoveries is admittedly related to Wadero Saleh Bughio, with whom Syed Tai Mohammad Shah, who is landlord of appellants Abdur Rehman, Ali Slier and Ghulam Rasool had an enmity over the land dispute and as such .no reliance can he placed on the evidence of such Mashir and in support of his contentions the learned advocate for the appellants relied upon cases reported in 1977 P Cr. L J 6(,2 1971 P Cr. L J 52 and 1980 S C M R 225 as well as on P L D 1981 Kar. l and P L D 1973 SC

321. The learned Advocate further submitted, that the rejection or the statements of D.W s. by the learned trial Court is without any cogent reasons. In view of all these facts the learned advocate for the appellants submitted, that the prosecution has failed to prove its case beyond reasonable doubt, against all the appellants in the above appeals.

7. The learned advocate appearing for the State on the other hand submitted, that on merits he was supporting the impugned judgments, but the judgment in question suffers from legal lacunae and as such the same may be set aside and the case maybe remanded back to the learned trial Court for decision in respect of each appellant separately.

8. I have carefully considered the above submissions made by the learned advocate for the appellants Rasool Bux and Ghulam Hussain and Slate counsel and have gone through R&P of the learned trial Court as well as through impugned judgment and cases cited by the learned advocate for the appellants Rasool Bux and Ghulam Hussain.

9. Prosecution case against all the appellants rests upon the statements of P.W. Rasool Bux (Head Constable), P.W. Mohammad Siddiq (Mashir of arrests and recoveries) and P.W. Aijaz Ahmed S.H.O. (1.0.), whereas appellants produced D.W.I Jurial Shah and D.W.2 Kellar Shah in order to establish enmity between Wadero Saleh Bughio and Syed Taj Mohammad, the landlord of appellants Abdul Rehman, Ali Slier and Ghulam Rasool and for proving the defence version that all appellants were arrested from the lands of Syed Taj Mohammad on the day of the alleged incident and possession of the said land was handed over by P.W.3 Aijaz Ahmed S.H.O. to Wadero Saleh Bughio and weapons were foisted upon the appellants.

10. I have carefully gone through the statements of P.Ws. as well as D.W s. I P.W.1 and P.W.3 are police officials, whereas P.W.2 Mohammad Siddiq Mashir is' admittedly relation of Wadero Saleh Bughio. 1t is also admitted position, that A police party, night before the alleged incident, resided at the Otak of Haji Piral who is also related to Wadero Salch Bughio, according to the replies given by P.W.1 Mohammad Siddiq (Mashir) in his cross‑examination. Keeping in view these facts on record and the statements of appellants under section 342, Cr.P.C., given before the learned trial Court, which are prima facie supported by the statements of D.W. s prosecution case against the appellants becomes doubtful in my opinion. Statements of D.W. s are straightforward and convincing, as the same are supported by documentary evidence produced by D.W. 1 regarding enmity between his father Taj Mohammad and Wadero Bhugio, in respect of land. It may further be noted, that according to P.W Aijaz Ahmed there taken from such Dhoras. According to prosecution witnesses firing went on for about one hour and empties were secured from appellants were not sent to Ballistic Expert to establish that the empties allegedly recovered from vardat were in fact fired from these weapons. It may also be mentioned that no one on either side received any injuries from alleged firing, which went on for nearly one hour. Keeping all these facts in view, I am of the opinion that prosecution has failed to establish its case beyond reasonable doubt against all the appellants.

11. Since the case in question relates to June, 1974, and above appeals are pending since 1975, it would not be in the interest of justice to remand back case, on technical grounds as suggested by the learned counsel for the State in view of my above conclusions.

12. Therefore I allow, all the above appeals and set aside convictions of the appellants and sentences awarded to appellants under impugned judgment dated 25-8-1975 and acquit them giving them benefit of doubt and discharge the bail bonds executed by all the appellants. N.H.Q./R-108/K Appeal allowed.