2002 PLP 3576 (YLR)

(i) That no such occurrence had taken place and all that has been alleged in the F.I.R. is a patent falsehood and the case has been got registered by the police in absolutely false premises. (ii) That only the police witnesses have been produced to substantiate charges against the appellants. (iii) That evidence was not appreciated in its true perspective and as such requires reappraisal. (iv) That Muhammad Ali alias Shahzad appellant was not carrying any weapon and had not participated in the occurrence by tiring at‑the police party, so he deserves acquittal. (v) That in any case sentence awarded to the appellants is severe.

11. On the contrary, learned counsel for the State strenuously argued that the police had no personal enmity with the appellants, so possibility of fabricating a false case is ruled out of consideration: that story is natural and rings true; that it is a case of spot arrest alongwith the weapons; That the act of firing is supported by the seizure of empties from the spot; that as none was attracted to the spot because of excessive firing, so no false witness was introduced by the police; and that the prosecution had successfully brought guilt home to the appellants. He ends his arguments with the submission that case of Muhammad Ali alias Shahzad appellants is somewhat doubtful.

12. I have courteously heard and soberly considered arguments of learned counsel for the parties and have gone through the record with their able assistance.

13. The backdrop of the prosecution story is the following:‑ Police on receipt information that Nadeem alias Nedo alongwith other terrorist had dropped in the area of Nawan Kot, Lahore from Karachi to indulge into terrorist activities. The police become alert on receipt of this information and started thinking of ways and means to capture them. Zafar Iqbal (P.W.2), constable was deputed to collect relevant information qua this gang. Accordingly a raiding party headed by Muhammad Waris Bharwana, Inspector/S.H.O. (P.W.7) under the supervision of Deputy Superintendent of Police, Nawan Kot arrived at graveyard situate in B‑Block, Sabza Zar. It was about 5‑00 a.m. then. The appellants and their co accused resorted to indiscriminate firing at the police party. This firing was done with the intent to kill them. The police took necessary precautionary measures. They also filed at them in the exercise of right of self‑defence. Both the sides exchanged firing for about 20/25 minutes, but none was injured. Weapons of the accused then become silent and the police successfully arrested Nadeem alias Nedo, Sarwar, Tahir Mahmood, Shahbaz, Asif and Shahzad two of them, namely, Atta and Riaz made good their escape. Nadeem alias Nedo and Sarwar belonged to Karachi. They both were armed with rifles at that time. Tahir Mahmood, Shahbaz, Asif and Shahzad belonged to Lahore. Tahir Mahmood, Shahbaz and Asif were armed with pistols, whereas Muhammad Ali alias Shahzad was empty handed at the time of arrest. They were arrested alongwith their respective weapons and ammunition. Contents of recovery memo. (Exh.P.C) amply prove, the factum of firing at the spot. Nadeem alias Nedo and Sarwar belong to Karachi. They must have been accommodated by their co‑accused at Lahore. Otherwise, there was no fun to be present in Lahore. They are not related to the accused at Lahore. They are tied together through element of criminality. Their presence together in the early hours of the morning in a graveyard alongwith extra‑ordinary quantity of arms and ammunition clearly indicates that their intentions were not noble. Why they should be available in the graveyard with arms. The matter does not rest here. On catching sight of the police party, they indulged into firing in quick succession. It is to the sheer good luck of the contingent of the police that they escaped unhurt. All the witnesses have wholeheartedly supported prosecution story. Prosecution version is cent percent corroborated by their spot arrest and recoveries of arms and ammunition from their possession: Recovery witnesses fully supported the recoveries. The contents of the report under section 173, Cr.P.C. tells us that Muhammad Sarwar, Shahbaz alias Daini and Tahir Mahmood alias Chand met their death in a police encounter.

14. Critical analysis of entire evidence reveals that the police party did not have the slightest reason to rope the appellants falsely in such a case. It can be definitely said that the police party was not actuated with malice, aforethought. None from the vicinity of crime was attracted to the place of occurrence, so the police did not set up false witnesses of the occurrence. Non‑production of any public witness in a case of this nature cannot be considered fatal to the prosecution case. I have no reason to doubt credibility of the witnesses produced by the prosecution to establish charges against the appellants in their entirety.

15. Plea of the appellants was that they were already in police custody and had not committed crime in question. They vehemently controverted accusations brought against. them and professed their absolute innocence in the matter. They produced Sole Masih (D.W.1) and Muhammad Rafiq (D.W.2) in their defence. Both the witnesses were not available at the place of occurrence at the time of occurrence and as such they had no knowledge about it. They were contacted by the learned defence counsel to make statements. Their statements are absurd, vague and meaningless. The appellants failed to produce a single witness to prove that prior to the alleged occurrence they were in police custody. The defence version has fallen like a house of cards. No reliance can be placed on such a spurious plea, which stands discarded.

16. I have gone through the statements of the witnesses. There are no serious defects or laws in the same. The defence has not been able to create a serious dent in their statements. The prosecution story appears to be legitimate and probable one. I am of the firm view that the appellants except Muhammad Ali alias Shahzad were rightly adjudged guilty by the learned trial Judge.

17. As far as case of Muhammad Ali alias Shahzad appellants is concerned, nothing was recovered from him although he was arrested at the spot. He made no firing at the police party, so his participation appears to be somewhat doubtful. He may be present with his co‑accused, but his participation is not proved through evidence. Accordingly, I accept his appeal bearing Criminal Appeal No.694 of 2000 and acquit him of the charges by giving him the benefit of doubt. He is directed to be released from custody forthwith, if not required to be detained in any other case.

18. Now I advert to the quantum of sentences awarded to Muhammad Nadeem alias Nedo and Muhammad Asif appellants. Different legal aspects are involved in this matter. I do not think that conviction of these two appellants under section 186, P.P.C. is legal, because section 186 provide that:‑ "186 Obstructing public servant in discharge of public functions: Whoever voluntarily obstructs any public servant in the discharge of his public functions, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both." Provisions of section

353. P.P.C. read as under:‑ "353 Assault or criminal force to deter public servant from discharge of his duty:‑ Whoever assaults or uses criminal force to any person being a public servant in the execution of his duty as such public servant, or with intent to prevent or deter that person from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by such person in the lawful discharge of his duty as such public o servant, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine or with both". After going through the abovesaid provisions, I am of the firm view that the appellants stood rightly convicted under section 353, P.P.C., so their conviction under section 353, P.P.C. is maintained and that under section 186, P.P.C. is set aside. In this case, none suffered injuries. The appellants have been awarded rigorous imprisonment for ten years each under section 324, P.P.C. with a fine of Rs.50,000 each or in default thereof to further undergo simpler imprisonment for three months each. This sentence also appears to be sever and for that reason their sentence is reduced to rigorous imprisonment for five years each with a fine of Rs.10,000 each or in default thereof to further undergo simple imprisonment for three months. The appellants have been ordered to undergo imprisonment for life under section 7 of the Anti‑Terrorism Act, 1997 with a fine of Rs.1,00,000 each or in default thereof to suffer simple imprisonment for six months each. This judgment was pronounced on 19‑5‑2000 and the law as stood on that day was as under:‑ "7 Punishment for terrorist act.‑‑ Whoever commits a terrorist act. (i) referred to in paragraph (a) of section 6, shall‑‑‑ (a) if such act has resulted in the death of any person be punished with death; and (b) in any other case, be punishable with imprisonment for a term which shall not be less than seven years but may extent to life imprisonment, and shall also be liable to fine." Under the abovesaid provisions, minimum sentence provided is seven years, whereas the maximum penalty is imprisonment for life. As it is a case of ineffective firing, I do not agree with the quantum of sentence awarded to the appellant, by the learned trial Judge, so that sentence is reduced to rigorous imprisonment for seven years each under section 7(b) of the Anti‑Terrorism Act, 1997 alongwith fine of Rs.20,000 each or in default thereof to further undergo Simple imprisonment for six months each. Sentence awarded to the appellant under sections 148/149, P.P.C. is maintained. All the sentences are ordered to run concurrently. Benefit of section 382‑B, Cr.P.C. is however accorded to the appellants.

19. With the above modifications their appeals bearing Criminal Appeals Nos. 778 and 779 of 2000 are dismissed. H.B.T./M-1432/L Order accordingly