2001 PLP 2370 (YLR)

Briefly stated the facts are that on 23‑1‑2000 Mukhtar Ahmad HC submitted a complaint stating that on the night in between 22/23‑1‑2000 he alongwith Muhammad Akbar Constable/610 and Ashiq Hussain Constable/146 armed rifles was present on PUL Chak No.28/NP in connection with patrolling and Nakabandi. At about 1‑45 a.m. (mid‑night) 2/3 trucks stopped due to breakage of KLP Road. A bus of Ahbab Transport also reached there and stopped behind the said trucks. The complainant and other police officials went there to inquire about the cause of stoppage of the traffic. In the meanwhile five unknown persons armed with fire‑arms started firing at police party, as a result of which the police had also resorted to firing in their defence. This made the assailants to flee away towards the fields. He alleged that the assailants had been identified in the light and he could identify them if shown .to them. On the basis of said complaint case was registered and after usual investigation challan was submitted in the trial Court.

2. A charge under sections 324/353/34, P.P.C. was framed against the accused to which they pleaded not guilty and claimed trial.

3. In order to prove its case at the trial, the prosecution examined P.W.1 Muhammad Akbar Constable, P.W.2 Mukhtar Ahmad Constable, P.W.3 Akhtar Ali A.S.‑I., P.W.4 Muhammad Hayat Constable, P.W.5 Muhammad Hanif, P.W.6 Muhammad Sharif, P.W.7 Muhammad Jameel A.S.‑I. and P.W.8 Abdul Rahman S.‑I. Thereafter the learned Deputy District Attorney closed the prosecution evidence vide his statement dated 10‑10‑2000.

4. When examined under section 342, Cr. P. C. the accused denied the prosecution version and stated that they have been implicated in this case falsely. However, none of the accused adduced any evidence in his defence.

5. After going through the evidence produced by the prosecution, the trial Court convicted the accused under section 324, P.P.C. and sentenced each of them to R.I. for ten years each and a fine of Rs.10,000 each or in default thereof to further undergo S.‑I. for 2‑1/2 years each. He further convicted the accused/appellants under section 353/34; P.P.C. and sentenced each of them to R.I. for two years and a fine of Rs.5,000 each or in default thereof to undergo S.I. for six months each. He, however, extended the benefit of section 382‑B, Cr.P.C. to each of ‑ the accused/appellants.

6. Aggrieved by their aforesaid conviction and sentence, Munir Ahmad and Rahmat Ali have filed the instant appeal (Crl. Appeal 56 of 2000), while Muhammad Pannah has preferred Criminal Appeal No.59 of 2000, whereas Ali Murad alongwith Muhammad Pannah has filed Criminal Appeal No.61 of 2000 through jail. As all these appeals arise out of the same judgment, so these are being disposed of by this single judgment.

7. Arguments have been heard and record perused.

8. Stand of the learned counsel for the appellants is that names of the appellants do not appear in the F.I.R., that even the description of the accused/appellants is missing in the F.I.R., that no identification parade was held in the instant case which was necessary as the accused/appellants were not previously known to the witnesses, that there is nothing on the record to show as to how the witnesses had identified the accused/appellants, that prosecution has not produced any evidence to prove that they had actually proceeded to the place of occurrence for effecting Nakabandi, that no crime empty was recovered from place of occurrence, that no statement of any driver or cleaner or passenger of any bus was recorded at the spot, that so‑called extra judicial confession of P.W.5 and P.W.6 being joint one is of no legal consequence. He, thus, submitted that all these facts clearly make the case of the prosecution full of doubts.

9. In support of his contention that in the instant case identification was necessary, he placed reliance upon State/Government of Sindh through Advocate‑General Sindh, Karachi and others v. Sobharo 1993 SCMR 585; Daniel Boyd (Muslim Name Saifullah) and another v. The State 1992 SCMR 196; Farman Ali v. The State 1997 SCMR 971; Khalid Shah alias Thoan Shah v. The State 1998 SCMR 1262 and Ghulam Rasool v. The State 1979 PCr.LJ.

493. Regarding effect of joint confession, he placed reliance upon Javed Rashid v. The State PLD 1992 Lahore 243; The State v. Kamal Khan alias Maloo and another 1993 SCMR 1378 and Ali Muhammad v. The State and others 1996 SCMR 501.

10. Conversely the impugned judgment has been supported by the learned State counsel.

11. According to the prosecution version, the occurrence has taken place on main road where the complainant alongwith other police officials had gone as traffic had been stopped over there. It is during this process that five persons are said to have resorted to firing upon police party. To prove its case prosecution has examined as many as eight P. Ws. Admittedly the names of the accused/appellants do not appear in the F.I.R. nor F.I.R. contains any account of their features. The prosecution mainly relies upon the statements of witnesses who are said to have identified them in the light of vehicles.' As the accused/appellants were not known to the witnesses so it was incumbent upon the prosecution to put them to identification test so as to connect them with the commission of alleged offence. Admittedly, no identification parade was ever held and the accused/appellants have been arrested in this case as they had already been arrested in some other case at Police Station Sadiqabad. Thus, there being no identification test in the instant case, prosecution has failed to collect a relevant piece of evidence connecting the accused with the commission of this offence. Again the prosecution story is that the accused had made an extra judicial confession before P.W.5 Muhammad Hanif, while he alongwith Muhammad Sharif (P.W.6) was going and the accused Munir Alamad and Rahmat Ali met them on the way and they made extra judicial confession regarding their involvement as well as involvement of their, co‑accused. As per ‑prosecution's own, version, the said extra judicial confession is a joint one which has got no legal value as held in Javid Rashid v. The State PLD 1992 Lahore 243, The State v. Kamal Khan alias Maloo and another 1993 SCMR 1378 and Ali. Muhammad v. The State and others 1996 SCMR 501 (supra). The evidence of P.W.5 and P.W.6 further reveals that there is no occasion to make extra‑judicial confession to them on the part of accused/appellant Munir Ahmad and Rahmat Ali.

12. It may also be mentioned here that accused Rahmat Ali is said to have led to the recovery of gun P‑1 from his residential house which was secured vide memo. Exh. P.B. Since no crime empty has been recovered from the place of occurrence, so the evidence of effecting any recovery loses its legal value.

13. For all these reasons, I am of the view that the prosecution has not succeeded to prove its case beyond reasonable doubt against the appellants. Result of the above discussion, is that convictions and sentences of the appellants are set aside by accepting these appeals. The appellants shall, therefore, be released forthwith, provided, of course, they are not required in any other criminal case. N.H.Q./M‑760/L Appeals accepted.