2015 PLP 2484 (YLR)

AMER RAZA NAQVI, J.-- Through this appeal conviction and sentence awarded to the appellant in Sessions Case No.565/2013 decided by 3rd Additional District and Sessions Judge, Karachi West has been impugned. Through impugned judgment appellant was convicted and awarded sentences for committing an offence punishable under section 324, P.P.C. to undergo R.I. for two years and to pay fine of Rs.2,000 along with co-accused Waheed son of Karim Bux Baluch and in case of default in payment of fine the accused persons were required to serve R.I. for two months more. Appellant was also awarded same sentence in respect of section 353, P.P.C. Both the sentences were to run concurrently, appellant was also extended benefit of section 382-B, Cr.P.C. Brief facts of the case are that an FIR being No.158/2013 under sections 353/ 324/34, P.P.C. was registered at P. S. Site-B Karachi wherein it was alleged that present appellant along with co-accused Waheed fired upon the police personel with intention to kill them and to restrict them from performing lawful duties, at opposite Ghani Chowrangi, Railway Crossing Karachi. It was also alleged that .30 bore pistols were recovered from both the accused persons. Charge was framed on 4-6-2013 by the trial court and appellant along with co-accused Waheed was charged for the above mentioned offences. Prosecution in support of their case examined three witnesses namely Muhammad Javed as P.W.1, Rafiullah as P.W.2 and Investigating Officer Jahanzaid as P.W.3. Statement of appellant was recorded under section 342, Cr.P.C. in which he denied the allegations. He opted to be examined on oath and as such gave statement on oath and he was cross-examined by the Counsel for the State. Through impugned Judgment the above referred conviction and sentence was awarded to the appellant, and co-accused Waheed. Learned counsel for the appellant has argued that P.W.1 Muhammad Jawed who is the complainant of the case was examined but no recovery was produced before the court or was shown to the witness despite of the fact that prosecution was given chances to produce the property and case was adjourned for such purpose. Learned counsel submits that the same was the position when P.W.2 Rafiullah the only Mashir was examined. Learned counsel further submits that there is no private Mashir in the matter. Per learned counsel no body from the police officers or personnels received any bullet injury. Learned counsel for the appellant pointed out that no entry in the Roznamcha regarding departure of Police Party from Police Station or their arrival was produced. Learned counsel also submits that sketch prepared by the police of allegedly recovered two pistols has not been signed by any Mashir. Learned counsel further submits that appellant is entitled for acquittal, although he has served the sentences. Learned counsel submits that the appellant has been victimized and suffered highhandedness of police and the learned trial court has awarded sentences despite the fact that there are lots of lacunas in the case of prosecution and the prosecution could not establish its case. On the other hand learned Assistant Prosecutor General has submitted that the appellant was arrested at the spot and recovery was effected from the appellant. Learned counsel for the State submits that crimes are rising in the society which are being committed with the weapons of the kind recovered from the appellant. Learned State Counsel however, concedes that weapons were not produced in the court at the time of examination of P.W.1 and P.W.2. He also submits that it is also a fact that entry regarding departure from and arrival to the P.S. has not been produced in court and empties were also not recovered from the place of incident as per challan submitted in the court. He also concedes that Mashirnama of place of incident was not produced in court by the Investigating Officer. I have heard both the learned counsel and perused the record with their, able assistance. It is an admitted position that weapons alleged to have been recovered from the appellant and co-accused. Waheed were not produced in the court when P.W.1 and P.W.2 who are eye witnesses were examined in court. The entries regarding departing from and arrival to the Police Station have not been produced by the prosecution in court. It has been held in 2002 PCr.LI 51 that in such situation accused is entitled to acquittal. I have also noted that it has been alleged that Motorcycle recovered was stolen Motorcycle but Investigating Officer has admitted in his cross-examination that he has not produced the FIR in which Motorcycle was required. In addition to above there is an interesting aspect in the case, appellant examined himself on oath and he disclosed that he along with one Baba was going at Shershah Cowk, when they reached at Shershah broken bridge police stopped them for violation of ban on double ridding on Motorcycle. He has stated that Baba's family came to Police Station and got said Baba released on payment of an amount to the police but as he could not pay any amount he was locked up and on the next day he was brought along with co-accused Waheed (not with Baba) in City Court, from where they were sent to Judicial Custody. Appellant was cross-examined by the learned counsel for the Prosecution and certain questions were put to him which were not part of the record at all. It was put to the accused that he was an Iranian, to which he replied that he was born in Pakistan. The story of Baba was not challenged by the counsel appearing for Prosecution in cross-examination. The suggestion was made to the appellant that he and his friend Baba were stopped by police and they fell down from Motorcycle. It was also suggested to him that he received injuries due to falling from Motorcycle. No question was made to him that he fired upon police personnel. It was also suggested to him that Baba was released by police without his motorcycle. It clearly shows that the basic features of the defence of the accused were not denied by the counsel for the prosecution and in fact the facts were admitted in cross-examination by way of suggestions and these facts were not mentioned in the prosecution story itself. It is very clear that the facts which were known to the Learned Counsel appearing for the State obviously must have been told to him by the Police Officials but those were not made part of FIR and Challan, therefore, in such situation appellant is entitled to be acquitted, I hereby accept the appeal and acquit the appellant from the charges. In the above facts and circumstances conviction. and sentences awarded to him are set aside. In case appellant has deposited the amount of fine of Rs.2,

000. The relevant authority shall deposit the said amount to the Nazir of this court, after such deposit appellant may apply for the release of such amount. I have heard the State counsel at length and has come to the conclusion that conviction and sentences awarded to co- accused Waheed son of Karim B,rx Baluch is also liable to be set aside, therefore, while exercising power under section 561- A, Cr.P.C. I also acquit co-accused Waheed son of Karim Bux Baluch from the charge framed against him in respect of FIR No.158/2013, under sections 353/324/34, P.P.C. of P.S. Site-B Karachi. Office is directed that in case Waheed son of Karim Bux Baluch has filed any appeal, the same may be tagged with this appeal and should be placed in court on 12-11-2014, so that this order may be endorsed in that appeal as well. Criminal Appeal No.283 of 2013 stands disposed off. HBT/S-97/Sindh Appeal allowed.