2018 PLP 287 (YLRN)

FAHIM AHMED SIDDIQUI, J

The appellants, through the instant criminal appeal assailed the Order of learned Presiding Officer of ATC, Mirpurkhas passed on 31-10-2012, whereby they were convicted under Section 27 Anti-Terrorism Act, 1997 and sentenced to undergo S.I. for 4 months and fine of Rs. 25,000/- each. It is further ordered that in case of default in payment of fine, they should suffer SI for one month more.

2. The facts epitomize in the memo of appeal are that the police party of PS Digree headed by SHO was on routine patrolling on 12-01-2011, when they arrested one Aslam, who is a absconder in FIR No. 01/2011 under Sections 379, 386, 506(ii), P.P.C. When the police party was returning back to the police station with arrested accused, about 50/60 persons blocked the road and encircled the police mobile. Some of the leading persons of the mob were identified by the police party, they attacked on the police party and also made fire upon the police. The police party was beaten by the mob and the mob succeeded to get free the arrested accused. The police party went to hospital for treatment and then came back to the police station, where FIR was lodged.

3. After lodging the FIR, the investigation was handed over to Zulfiqar Ali (appellant No. 2), who conducted the investigation and submitted a Final Report before the trial Court (ATC Mirpurkhas). After trial, the learned presiding officer acquitted accused and in the acquittal judgment opined that all the members of police party, including investigation officer are responsible for a defective investigation and liable to be penalized under Section 27 of the ATA, and such show cause notices were issued. The appellants and other members of the police party submitted their replies to show cause, but the trial Court framed the charge and after recording statements under Section 342, Cr.P.C. was recorded and subsequently, the impugned order was passed.

4. The appellants prefer to argue the matter and submit that they are innocent and there is no negligence on their part. According to them, at the scene of the incident, there was a huge crowd, which empowered the police party and it was not possible for them to identify each and every member of the mob with their roles. According to them, every member of the police party received injuries and they were examined by medical officer, who appeared before the trial Court and supported the version of the police party regarding injuries.

5. The learned DPG submits that under Section 27 ATA, the trial Court may convict the investigation officer for faulty investigation. However, he submits that the learned presiding officer of ATC in the impugned judgment has discussed about the contradictions of witnesses in main case, which is not warranted for pronouncement of sentence under section 27 ATA.

6. After hearing the arguments, we have examined the entire material available in the record of the case. We have also gone through the record and proceedings of main case, which have provided a basis for the proceedings under Section 27 ATA and pronouncement of the impugned order. Before discussing further, we think it proper to reproduce Section 27 Anti-Terrorism Act, 1997, which reads as under: "

27. Punishment for defective investigation.

If a Special Court or "a High Court" comes to conclusion during the course of or at the conclusion of the trial that the investigating officer, or other concerned officers have failed to pursue the case property and in breach of their duties it shall be lawful for such Court or, as the case may be "High Court" to punish the delinquent officers with imprisonment which may extend to two years, or with fine or with both by resort to summary proceedings." From the above provision of law, it is clear that the proceedings against the investigation officer and other concerned officers can only be initiated in case of failure to pursue the case properly and breach of their duties. In the instant case, the learned trial judge has proceeded against the entire police party, including police constables, who were beaten by the mob in black and blue and also got treatment. We are of the view that in case of contradictions during trial, the provision of Section 27 of ATA cannot be invoked. The language of law is very much clear that investigation officer and other concerned officers may be charged and tried summarily, on account of their failure to pursue the prosecution case before the Anti-Terrorism Court. We are of the view that taking action against the official witnesses (policemen) only because of the contradictions amounts to force them to tell lies during the trial in order to fetch conviction. It is our considered opinion that it is not the scheme of law that such proceedings be initiated only because the testimony of police witnesses is contradictory.

7. While passing the impugned order, the learned presiding officer has observed that the investigation officer has not recorded the statements of all the members of the police party under Section 161, Cr.P.C. In this respect, our observation is that it is not necessary for an investigation officer to record the statements of every Tom, Dick and Harry but it is necessary that only the relevant and confidence inspiring evidence should be brought on record. It transpires from the FIR that a mob of 50/60 persons encircled the police party and started beating them with batons, brickbats and even used firearm weapons. In such a situation it cannot be considered that each and every member of police party must have witnessed the entire episode and remembered the same with photogenic memory. Besides, it is also the rule of production of evidence that the best available evidence should be preserved and produced in the Court. It is also a rule of evidence that the cumulative evidence is not produced in the Court to avoid the possibility of contradictions. In such a situation, we are of the view that non-recording of 161 statements of some of the persons of the police party cannot be termed as a failure on the part of investigation officer.

8. The upshot of the above discussion is that the charge against the appellants under Section 27 ATA was not established as such they are acquitted of the same. The appellants are presently on bail; their bail bond is cancelled and a surety is discharged. JK/G-13/Sindh Appeal allowed.