2013 PLP 491 (YLR)

SHAHID HAMEED DAR, J.

Muhammad Khan, Farrukh Javed and Zafar lqbal appellants were convicted under sections 224, 225, 149, 148/149, 353/149, 337-L(2)/149 P.P.C., read with section 7(h) of the Anti-Terrorism Act, 1997/149 P.P.C. and sentenced by learned Special Judge, Anti Terrorism Court, Sargodha vide judgment dated 17-4-2007 as under:-- Farrukh Javed (Appellant). (i) Convicted under section 224, P.P.C. for intentional resistance and obstruction to his lawful apprehension and sentenced to undergo two years' R.I. Muhammad Khan and Zafar lqbal (Appellants). (i) Both appellants were convicted under section 225/149, P.P.C. for showing resistance and obstructing lawful apprehension of Farrukh Javed (appellant) who was required in a criminal case under section 365(B), P.P.C. and sentenced to undergo three years' R.I. each with a fine of Rs.10,000 each, in default whereof to further undergo six months' S.I. each. (ii) Both were also convicted under section 148/149, P.P.C. and sentenced to three years' R.I. each. Farrukh Javed, Muhammad Khan and Zafar Iqbal (appellants). (i) All three convicted under sec-tions 353/149, P.P.C. for using criminal force to deter police force from discharge of their duty and sentenced to undergo two years' R.I. each. (ii) All three convicted under sec-tions 337-L(2)/149, P.P.C. for causing an injury to Wali Muhammad (P.W.2) and sentenced to two years' R.I. each. (iii) All three were convicted under section 7(h) of the Anti-Terrorism Act, 1997 read with 149, P.P.C. and sentenced to undergo five years' R.I. each with a fine of Rs.10,000 each, in default thereof to further undergo six months' S.I. each.

2. Vide the aforesaid judgment the co-accused Muhammad Abdullah was acquitted of all the charges. The convicts have filed (Criminal Appeal No.610 of 2007) against their conviction and sentence which shall be disposed of by this judgment.

3. The occurrence had taken place in a street, running in front of the house of Farrukh Javed (appellant) in the area of Chak No.165/North, 27 km away from Police Station Shah Nakdar, District Sargodha at 4-30 p.m. on 31-10-2007.

4. Muhammad Shafiq S.-I. (P.W.1) was the Investigating Officer of case F.I.R. No.24, dated 22-1-2007, under section 365(B), P.P.C., registered at police station Shehzad Town, Islamabad which related to the abduction of Mst.Ambreen Akhtar daughter of Ali Muhammad and it transpired that she was in the unlawful custody of Farrukh Javed (appellant) resident of Chak No.165/North, District Sargodha, so, to effect the recovery of the alleged abductee, Muhammad Shafiq S.-I. joined by Muhammad Arif 6150/HC, Muhammad Tufail 5853/C P.Ws. (not produced) reached Police Station Shah Nakdar (Sargodha) wherefrom his team was re-enforced when Ghulam Hussain A.S.-I., Muhammad Riaz 1665/HC P.Ws. (not produced), Wali Muhammad 1785/C (P.W.2) and Ahmad Hayat 231/C P.W. (not produced) joined their raiding party which aboard the official vehicles assisted by 'mobile-3' arrived at a street in Chak No.165/North and knocked at the door of: the house of Farrukh Javed (appellant); besides, his name was also called loudly, in response to which he appeared at the outer gate and was overpowered by the police; in the meantime Muhammad Khan (appellant), Abdullah (since acquitted), Muhammad Ejaz (since P.O), Zafar Iqbal (appellant) and Shahbaz (since P.O) whose names were allegedly learnt by the police on a query; joined by nine unknown persons, all armed with fire arms besides two ladies emerged in the street while shouting at the police party, Farrukh Javed (appellant) raised lalkara and tortured Ghulam Hussain S.-I. P.W. (not produced); he was attempted to be rescued by the fellow police officials but their efforts were frustrated as Muhammad Khan (appellant) father of Farrukh Javed gave butt blows of his gun on the left arm of Wali Muhammad 1785/C (P.W.2) while rest of the attackers having obstructed the police, created an opportunity for Farrukh Javed (appellant) to escape from the custody of the police, who within the view of the police, sped away with Mst.Ambreen Akhtar occupying the rear seat of his motorcycle; all the accused made good their escape after the occurrence.

5. Muhammad Shafiq S.-I. (P.W.1) prepared complaint Exh.PB and sent the same to Police Station Shah Nakdar, through Muhammad Riaz 1665/C P.W. (not produced) for registration of a case, where formal F.I.R. Exh.PB/1 was recorded by Muhammad Altaf Hussain A.S.-I. (P.W.5). Muhammad Shafiq S.-I. (P.W.1) also prepared injury statement (Exh.PA) of Wali Muhammad constable (P.W.2) and, sent him to RHC Sillanwali for medical examination under the escort of Muhammad Iqbal constable P.W. (not produced).

6. The investigation was initially conducted by Muhammad Nazir S.-I. (P.W.6) who reached the place of occurrence on 31-1-2007, caused inspection thereof and prepared visual site plan (Exh.PB) besides recording the statements of witnesses under section

161. Cr.P.C.; obtained non-bailable warrants of arrest Exh.PH/1 to Exh.PH/6 of the accused on 3-2-2007 and entrusted them to Ghulam Hussain A.S.-I. P.W. (not produced) for execution; also obtained proclamations Exh.PI/1 to Exh.PI/6 of all the accused and deputed Allah Dad constable P.W. (not produced) for execution, arrested appellants Farrukh Javed, Muhammad Khan, Zafar Iqbal and also Abdullah accused (since acquitted); Muhammad Khan (appellant) led to the recovery of .12 bore gun P-1 and two cartridges P-2/1-2 in pursuance to his disclosure from a room of his house which were taken into possession by the Investigating Officer vide memo Exh.PC; Abdullah accused (since acquitted) got recovered .12 bore gun P-3 and five live cartridges P-4/1-5 from a room of his house vide memo of recovery Exh.PD; the points of recovery of above said weapons were shown in site plan Exh.PC/1 and Exh.PD/1 Zafar Iqbal (appellant) led to the recovery of a danda P-5 on 6-3-2007 from his house vide memo of recovery Exh.PE, the site plan whereof is Exh.PE/1; on completion of investigation, he challaned the arrested accused.

7. Dr. Aman Ullah Qazi (P.W.4) presented the medical evidence with the contention that he medically examined Wali Muhammad constable at 9-15 a.m. on 1-2-2007 vide MLR (Exh.PF) and found following injury on his person. "(i) A contused swelling 15 x 10 cm on front lateral lower 1/3rd of left upper arm involving elbow joint". The medical officer referred the injured to DHQ Hospital, Sargodha for management and X-rays of his injuries. The medical officer declared the above said injury as 337-L(2) P.P.C. by consulting the X-ray film report. The duration of the injury was noticed as "within 24 hours". It was a blunt weapon injury.

9. The public prosecutor gave up some of the prosecution witnesses being unnecessary and announced the prosecution case closed on 29-3-2007.

10. The defence plea taken up by Muhammad Khan (appellant) was adopted by all the appellants as well as by the acquitted co-accused which is re-produced hereunder:-- "Police made illegal proceedings. Police entered in my house where it dragged women-folk and brought them out from the house. This was an illegal raid. I had objected and warned police employees that I would make complaint to D.P.O. Sargodha against them on which they were annoyed and then with a false story they involved me and my co-accused in this case. Farrukh Javed accused and Mst.Ambreen were not present there but in another village and similarly Abdullah and Zafar accused too were not present there. On the same day I moved an application to D.P.O. with a prayer that a case be registered against police employees. All of us are innocent in this case."

11. None of the accused-appellants appeared as his own witness to repel the charges against him under section 340(2), Cr,P.C. nor anyone of them led any oral defence evidence. Muhammad Khan appellant however tendered in defence certain documents including copy of complaint titled "Mst.Ambreen Akhtar v. Aftab and others" (Exh.DB), copy of statement of Mst.Ambreen Akhtar recorded by a learned Magistrate at Sargodha (Exh.DC), copy of nikahnama showing marriage between Mst.Ambreen and Farrukh Javed (Exh.DD), copy of F.I.R. No.24 dated 22-1-2007 registered at Police Station Shehzad Town, Islamabad (Exh.DF), copy of order dated 21-2-2007 passed in above said writ petition (Exh.DG) and copy of application moved to the DPO Sargodha (Mark-A) and closed the defence evidence.

12. Disbelieving the defence plea, the learned trial Court proceeded to convict the appellants on the basis of ocular account furnished by the members of the raiding party which stood corroborated by motive and medical evidence. The learned defence counsel however has assailed the above noted items of evidence which impressed the learned trial Court and canvassed that the defence plea had the element of credence and correctness.

13. The occurrence took place in the scenario that Muhammad Shafiq (P.W.1), while investigating case F.I.R. No.24 supra learnt that Mst.Ambreen Akhtar, the alleged abductee/victim was in the unlawful custody of the abductors, Farrukh Javed (appellant) being one of them, hence, he prepared a raiding party comprising the aforementioned members and reached Police Station Shah Nakdari (Sargodha) for the dual purpose of fetching re-enforcement and conducting raid on the abode of Farrukh Javed (appellant) which was situated in Chak No.165/North, falling in the territorial jurisdiction of Police Station Shah Nakdar. The raiding team was fortified by the addition of certain other police officials, belonging to the said police station, which included Wali Muhammad constable (P.W.2) who is an injured witness of this case. According to the prosecution case, the police party knocked at the door of the house of Farrukh Javed (appellant) and also called loudly his name which caused his appearance at the threshold of the outer gate of his house. It was the point, when trouble started. Farrukh Javed (appellant) was immediately taken into custody by the police and they had hardly started interrogating him so as to learn about the whereabouts of Mst.Ambreen Akhtar, when they were attacked by Muhammad Khan (appellant), Abdullah (since acquitted), Zafar Iqbal (appellant), Muhammad Ijaz (since P.O.), Shahbaz (since P.O.) joined by two female characters and nine unknown culprits who were armed with firearms and dandas etc. On the lalkara of Farrukh Javed appellant, the police party was targeted of aggression by the above said attackers who snatched Farrukh Javed (appellant) from the custody of the police and assisted him in fleeing the place of occurrence on a motorcycle along with Mst. Ambreen Akhtar Wali Muhammad constable (P.W.2) was inflicted injuries by Muhammad Khan (appellant) as he hurled his rifle at the said police official from its butt side.

14. No evidence, either verbal or documentary has been led by the prosecution to prove that the raid on the house of Farrukh Javed (appellant) had been conducted in a lawful manner or it was the requirement of the investigation of case F.I.R. No.24 supra to conduct a raid for the recovery of Mst.Ambreen Akhtar nor any Rapat Roznamcha (case diary) of Police Station Shah Nakdar was tendered before the trial Court during the course of trial. It was a strong contingent of the police which had gone to the house of Farrukh Javed (appellant) to accomplish the mission of recovery of Mst.Ambreen Akhtar, members whereof showed such cowardice, as if they were just nothing and proved themselves to be less than nothing against those who were the common villagers. Search warrant was also not produced to justify that the raid of the police was conducted in a legal and regular manner. The defence plea in fact is, that the police conducted an illegal raid, dragged women folk, molested their chastity and brought them out of their house which act of the police was objected to by Muhammad Khan (appellant) who warned the police employees of lodging complaint against them with DPO Sargodha, whereupon they got annoyed and lodged a false case with a cooked up version against the appellants and their co-accused. Muhammad Khan (appellant) further contended. statement under section 342, Cr.P.C., which was relied upon by his co-convicts, that Farrukh Javed (appellant) and Mst. Ambreen Akhtar were not present at the scene of occurrence at the relevant time and similarly Abdullah (since acquitted) and Zafar Iqbal (appellant) were also not present there. He concluded that he had moved an application to DPO Sargodha with the prayer that a case be registered against the said police employees. The possibility of the correctness of the said version is not ruled out for a variety of reasons, discussed herein.

15. The medical evidence also does not lend complete corroboration to the eye-witness account rendered by Muhammad Shafiq S.-I. (P.W.1) and Wali Muhammad constable (P.W.2) as the testimony of Dr. Aman Ullah Qazi (P.W.4) reveals only one blunt weapon injury (337-L(2) P.P.C.) at the locale of front lateral lower 1/3rd left upper arm with measurement of 15 cm x 10 cm. The time of occurrence is 4-30 p.m. on 31-1-2007 and medical examination of P.W.2 is delayed by about 17 hours for which no explanation has been offered by the prosecution. The other alleged injured witness of the occurrence Ghulam Hussain S.-I. was withheld by the prosecution and given up as unnecessary. The statement of the medical officer (P.W.4) however does not show that Ghulam Hussain S.-I. was ever medically examined by him as an injured witness of the occurrence.

16. The depositions made by Muhammad Shafiq S.-I. (P.W.1) and Wali Muhammad constable (P.W.2) in their testimonies show that Wali Muhammad constable had received multiple injuries on his person at the hands of Muhammad Khan (appellant) but testimony of P.W.4 discloses only one blunt weapon injury on his person. It appears from the testimony of Wali Muhammad constable (P.W.2) that the police party was heavily armed at the time of occurrence which surprises us as to the ease whereby they surrendered before a few disorganized and disjointed villagers. Sufficient reasons exist to believe that Farrukh Javed (appellant) was not present at the relevant time of occurrence nor he had been taken into custody by the police and the version of the prosecution in this regard does not seem more than a Mere gossip or exaggeration. The probability that a distorted story had been fabricated by the prosecution witnesses to give coverage to their unlawful act of having raided the house of Muhammad Khan (appellant), without fulfilment of the requisite legal requirements of law, cannot be ruled out This give rise to a strong impression as to the correctness of the defence version, preferred by the appellant during their statements under section 342, Cr.P.C.

17. The line of cross-examination on the above said P.Ws., by the defence is also consonant with the defence plea of the accused. The ocular account is in direct conflict with the medical evidence as discussed supra. The motive of the incident has also riot been honestly setout by the prosecution. The police had failed to justify the action of raid and in the absence of corroboratory evidence, we do not feel inclined to place implicit reliance upon the ocular evidence.

18. In these circumstances, we are constrained to accept this appeal, set aside the conviction and sentences of the appellants and acquit them by extending benefit of doubt. They are on bail. Their sureties are discharged. NHQ/M-11/L Appeal accepted.