2012 PLP 1826 (MLD)

NAIMATULLAH PHULPOTO, J.

Through this Jail Appeal, appellants have called in question the judgment dated 5-5-2010 passed by learned 2nd Assistant Sessions Judge, Jacobabad in Sessions Case No.88 of 2010 State v. Fakir Muhammad and others, Crime No.34 of 2010 of Police Station, Civil Line, Jacobabad registered under sections 324, 353, 411, 34, P.P.C. whereby appellants were convicted and sentenced under section 324, P.P.C. for five years' R.I., under section 353, P.P.C. for one year R.I. and under section 411, P.P.C. for two years' R.I. Benefit of section 382-B, Cr.P.C. was extended to the appellants by trial Court. Brief facts of the prosecution case as disclosed in the F.I.R. are that on 26-2-2010 HC Punhal Khan Domki of Police Station Civil Line, Jacobabad left police station along with P.Cs. Khadim Hussain, Jan Muhammad, Ghulam Ali and driver HC Khuda Bux in the police mobile vide roznamcha entry No.30 for patrolling. While patrolling at various places, at 0350 hours police party reached at Girls College where HC Punhal Khan received information on his cellular phone from police station that accused Fakir Mohammad Jamali,

2. Gulzar Khoso, and

3. Zulfiqar Chandio have snatched motorcycle from one Mumtaz Ali. On such information, police party proceeded to ADC colony for the recovery of the motorcycle and started nakabandi at ADC colony bridge. During nakabandi it is alleged that PCs Wazir Ali and Arsallah also joined police party. At about 4-00 p.m. accused appeared on the road. They were identified by the police party on street light. They were Fakir Muhammad alias Hafeezullah, Gulzar and Zulfiqar. They were coming on motorcycle. Accused while seeing the police party tried to turn over the motorcycle but due to pressure of the police left motorcycle and took TT Pistols from fold of shalwars and started firing upon the police party with intention to kill. Police also fired in self defence. Cross firing continued for about six minutes where-after it is alleged that accused surrendered. From all the three accused TT Pistols of 30 bore without number were recovered for which they had no licences. Motorcycle of Crown Company Model-2010 was also recovered. Accused were arrested. Mashirnama of arrest and recovery was prepared in presence of mashris namely PC Khadim Hussain and PC Wazir Ali.

3. After usual investigation challan was submitted against the accused. Case was sent up to the court of Sessions. It was transferred to the court of 2nd Assistant Sessions Judge, Jacobabad. Charge was framed against the accused under sections 324, 353, 411, 34, P.P.C. to which they pleaded not guilty and claimed to be tried. At trial, prosecution examined before trial Court complainant HC Punhal Khan, PC Khadim Hussain, Investigating Officer Shabir Ahmed, prosecution side was closed. Statements of the accused were recorded under section 342, Cr.P.C. Thereafter learned 2nd Assistant Sessions Judge, after hearing both the parties came to the conclusion that prosecution has proved its case against the accused and recorded conviction and sentence as stated above. Thereafter appeal is preferred before this Court.

4. Mr. Faiz Muhammad Larik, learned counsel for the appellants has mainly argued that prosecution story is unnatural and unbelievable. Despite cross firing with sophisticated weapons not a single scratch was caused to either party. Identification of the accused was on street light. Person from whom motorcycle was snatched was not examined by the prosecution at trial. TT Pistols and empties were not sent to the Ballistic Expert for report. Arrival and departure entries were also not produced. There are material contradictions in the case of prosecution with regard to the actual incident and manner of recovery of weapons and motorcycle from the accused. In support of contentions, learned counsel has relied upon the case of Aamir Ali v. State 2009 YLR 2101.

5. Mr. Altaf Hussain Surahio, learned State counsel argued that all the prosecution witnesses have implicated the accused and evidence of the police officials is as good as that of any person. Contradictions are minor in nature, non-production of arrival and departure entries would not destroy the prosecution case. He has supported the judgment of the trial Court.

6. I have carefully scanned the prosecution evidence. Prosecution has utterly failed to prove its case against the appellants. It transpires that there are several circumstances in the case which create doubt in the prosecution case. Prosecution story appears to be unnatural and unbelievable. Accused were armed with TT Pistols, from close range they fired at the police party but it is unbelievable that no firearm injury was caused to police officials even no damage was caused to the police mobile. It is the case of prosecution that during patrolling complainant HC Punhal Khan received information that one motorcycle has been snatched and police party conducted nakabandi, in these circumstances, complainant was supposed to call and join independent persons of locality for making them as mashir in this case but it has not been done in this case for the reason best known to the complainant of this case. Even for the satisfaction of the court, arrival and departure entries have not been produced which cut the roots of the prosecution case. Material contradictions in the evidence of complainant and mashir with regard to the arrest of accused and recovery have come on record. Prosecution could not explain the same. TT Pistols and empties were also not sent to the Ballistic Expert for the report. Mashir PC Khadim Hussain has stated that manshirnama was prepared by Investigating Officer at 8-15 a.m. and he signed it at Police Station. Again he replied that he signed at place of incident. Investigating Officer has admitted that TT Pistols and empties were not sealed at the spot and there are hotel, houses and Masjid near place of incident but he had not recorded statements of independent persons of the locality. Moreover, from the perusal of the evidence this court is satisfied that ingredients of sections 324, 353 and 411, P.P.C. are not satisfied in spite of that appellants/accused were convicted under the above referred sections without properly appreciating the evidence in accordance with settled principles of law, I, therefore, hold that learned trial Judge had not applied his judicial mind while convicting the appellants. Mere word of police officials is not sufficient for recording conviction. It is duty of court to appreciate evidence in accordance with law. Learned counsel for the appellants has rightly relied upon the case of Aamir Ali (supra) in which this court has observed as under:- "(5) The story and the evidence of the prosecution does not inspire any confidence. The incident had taken place in thickly populated area of Larkana town but no person from the locality was examined as witness, notwithstanding the fact that the Investigating Officer had not found any mark or sign or encounter at the place of incident. It was daytime, but in the firing made by police and the appellants, which continued for about five minutes, nobody was injured and there was also no mark of any bullet on any wall of the buildings around the place of incident or the vehicle of police. The Investigating Officer could not find any empty at the place of incident. (6) Out of the two eye-witnesses, one, namely A.S.-I. Rashid Khan stated that at the time of exchange of fires, distance between police and the appellants was 20 paces, whereas according to P.C. Muhammad Sharif, the distance was about 100 paces. The A.S.-I. stated that they had warned the appellants to surrender, on which they had surrendered by raising their hands. PC Muhammad Sharif first stated in his examination-in-chief that they had warned the appellants, upon which they had surrendered by raising their hands, but in his cross-examination he changed his version by stating that they had not asked them to raise their hands. The A.S.-I. has stated that the appellants did not try to escape, while the constable stated that they had tried to flee and had covered a distance of few paces also".

7. In view of my above discussion and while respectfully relying upon the above cited authority, I have come to the conclusion that no such incident of exchange of fires had taken place. Prosecution case is highly doubtful. Benefit of doubt is extended to the appellants. Accordingly, appeal is allowed and conviction and sentences awarded to the appellants by trial Court vide judgment dated 5-5-2010 are set aside. Appellants/accused are acquitted. The bail bonds of the appellants/ accused who are present on bail stand discharged. MWA/F-18/K Appeal allowed.