1994 P Cr (PLP)

SH. RIAZ AHMAD, J.

The appellants Ghulam Haider, Ijaz Ahmad, Sajjad Mehmood, Liaqat Ali, Muqaddas and Shabbir Hussain were tried on charges under section 365-A, P.P.C. and section 324, Qisas and Diyat Ordinance, 1990, by a Court constituted under the Suppression of Terrorist Activities Act; 1975 at Gujranwala.

2. Vide judgment dated 22nd of May, 1991, the learned trial Judge acquitted all the appellants on the charge under section 365-A., P.P.C. but found all the appellants guilty on the charge under section 324 of the Qisas and Diyat Ordinance, 1990, and thus, the appellants were convicted and sentenced to undergo rigorous imprisonment for a term of eight years each and to pay a. fine of Rs.5,000 each or in default thereof to suffer one year further rigorous imprisonment. However, they were given benefit of section 382-B, Cr.P.C.

3. Aggrieved by their conviction, the appellants have preferred this appeal which shall be disposed of through this judgment.

4. The prosecution case in brief is that on 4th of December, 1990 at about 1-30 p.m. Rashid Ahmad, S.I. (P.W.3) was present at Police Post Pucci Ghari Ghias, District Sialkot alongwith Muhammad Yousuf, A.S.I., P.W.6 and other police constables when he was informed that some dacoits were committing the dacoity in the bus on the metalled road near village Kot Khuda Yar, only 3/4 acres away from the police post. On the receipt of this information, Rashid Ahmad, A.S.I. and Muhammad Yousuf, S.I. immediately rushed to the site alongwith other police officials and as soon as they reached the metalled road, they saw Bus No.STB/5385 parked on the roadside and the passengers were also present around the bus. As they reached near the bus, they found the appellants sitting in the car which had been parked in front of the bus to block the road. As soon as the appellants saw the police, they started firing at the police party from their car. At this development, the police party, in exercise of right of self-defence fired at the appellants and also fired at the tyres of the car bursting the same. At this stage, when all the appellants emerged out of the car, the police noticed that appellants Ghulam Haider and Ijaz were armed with Klashnikovs, Liaqat Ali and Muqaddas were armed with revolvers while Shabbir Hussain was armed with carbine and Sajid was armed with .12 bore gun. The appellants while firing took to their heels towards the Village Kot Qadir Dad through the fields. The police party also chased them and at that time, they saw Maqsood Ahmad, driver, coming out of the car and proceeding towards the bus. The appellants then entered the fields of village Kot Merith. At that time, Mr. Muhammad Kalyar, C.W.1, D.S.P. Wazirabad, who had been informed about the occurrence on the wireless also reached there with the police party. Tassaddaq Hussain, S.I. Police Station Begowala also reached in the meantime, alongwith the police force. The exchange of fire continued between the appellants and the police party and during this exchange, of firing, one Muhammad Arif, P.W., who was working in the nearby field received the fire shot and was thus, injured. The appellants then entered the field of Village Begowala when in the meanwhile, the police from Sambrial Daska and Bambanwala Police Stations also reached there on the receipt of the information of the occurrence and thus, the police party encircled the appellants which led the appellants to surrender at about 4 p.m.

5. Tassaddaq Hussain, S.I./S.H.O., P.W.9 arrested Ghulam Haider and secured Klashnikov P.1 alongwith 8 live cartridges in its magazine, Jhola, P.2, spare magazine P.3 containing 10 live cartridges P.4/1-8 vide memo. Exh.P.D. attested by Rashid Ahmad Head Constable and Sadaqat, Constable (given up) besides the Investigating Officer. The S.H.O. also arrested Ijaz Ahmad and secured Klashnikov P.5 loaded with magazine P.6 containing 8 live cartridges P.7/I-8, spare magazine containing 6 live cartridges, a licence in the name of Shabbir Ahmad. P.14 and a wrist watch P.8, vide memo. Exh.P.E. attested by if!,: aforesaid witnesses. Muhammad Ishaq, A.S.I., Police Station Begowala arrested Sajjid Mehmood and secured .12 bore gun P.9 alongwith Gatra and 12 live cartridges, wrist watch P.5 vide memo. Exh.P.F. attested by Zafar Ahmad and Maqsood Ahmad, Constables (given up). He also arrested Liaqat Ali appellant and secured revolver P.10 alongwith two live cartridges vide memo. Exh.P.G. attested by Zafar Ahmad and Javed Iqbal (Constables) both were given up as being unnecessary. Muhammad Nawaz, A.S.I. P.W.8, arrested Muqadas and secured revolver P.11 containing foul live cartridges vide memo. Exh.P.H. attested by Muhammad Ishaq P.W and Javed Iqbal (given up). The A.S.I. also secured .12 bore carbine P.12 containing 4 live cartridges from Shabir who had been arrested and the recovery was taken into possession vide memo. Exh.P.I. attested by Muhammad Ishaq P.W. and Muhammad Akbar (given up).

6. Tasaddaq Hussain, S.H ;O. P.W.9 then scribed the complaint Exh:P.B. at 4-30 p.m. and sent the same to the police station for registration of a case. The S.H.O. then recorded the statements of the witnesses and proceeded to the metalled toad near the Pucci Garhi Police Post where the occurrence had taken place and found the bus as well as car. He secured the' car vide memo. Exh.P.K. attested by A.S.I. Mansha and Zafar Ahmad (Constable) given up. The S.H.O. interrogated the appellants and came to know that the car was also a stolen property. The S.H.O. then traced the owner of the car.

7. During the investigation, it transpired that the Driver of the bus Maqsood Ahmad, P.W.4, in fact, had been abducted by the appellants for ransom and on seeing the police, the appellants had resorted to firing in order to avoid their arrest and separate cases under the Arms ordinance were also registered against the appellants.

8. To prove its case at the trial, the prosecution placed reliance upon the ocular testimony furnished by A.S.I. Rashid Ahmad P.W.3, Maqsood Ahmad, Driver of the bus, P.W.4 injured cultivator, Muhammad Arif P.W.5, Muhammad Yousuf, A.S.I. P.W.6, Muhammad Ishaq, A.S.I. P.W.7, S.I. Muhammad Nawaz P.W.8 and Tasaddaq Hussain, S.H.O. P.W.9. Mr. Ghulam Muhammad Kalyar, D.S.P. Wazirabad was summoned by the trial Court who also supported the prosecution case and proved the ocular testimony. The ocular testimony is consistent, particularly to the extent of the police officials but Maqsood Ahmad, P.W.4, driver of the bus and Muhammad Arif, injured cultivator refused to support the prosecution case and were declared hostile and cross-examined. Maqsood Ahmad, P.W.4 stated that the car had been collided with his bus, whereupon, an altercation took place with the occupants of the car over the compensation of damage caused to his bus. Maqsood Ahmad P.W.4 refused to identify the appellants or the persons who had quarrelled with him Muhammad Arif, P.W.6, however, admitted that there had been exchange of firing; between the dacoits and the police in which he was injured. It is stated that there were 5/6 dacoits and the police was chasing them and during the exchange of firing by both sides, a stray pellet hit him yet he refused to identify the appellants.

9. The appellants were examined under section 342, Cr.P.C. but they denied the charge and refused to be examined under section 340(2), Cr.P.C.

10. The appellant Ghulam Haider stated that he had been involved falsely due to party faction, he and other appellants were proceeding in .a car which had collided with the bus of Maqsood Ahmad driver and then a quarrel arose because Maqsood Ahmad was demanding Rs.5W as compensation when the police also arrived there and arrested them and thus they were falsely implicated.

11. With the assistance of the learned counsel for the appellants and the State, we have carefully perused the entire evidence on the record and have heard the various contentions raised by both sides. The learned counsel for the appellants argued that since star witness Maqsood Ahmad and Muhammad Arif, P.Ws. had not supported the prosecution case, therefore, the participation of the appellants in the crime and particularly, the evidence being discrepant on the question of their identification, the prosecution has not been able to prove its case.

12. After anxious consideration of the entire evidence on the record, we are afraid, we cannot agree with the learned counsel for the defence that no doubt the prosecution case and the ocular testimony were consisted of the police officials but in the circumstances of the case, any witness from public could not have been made to join the investigation, particularly, when the police was chasing the appellants and there was exchange of firing at each other. There could be no time with the- police to ask any witness from the public to join the investigation and thus, even otherwise, no person from the public could have joined them on account of fear of life. Rashid Ahmad, A.S.L; P.W.3, and Muhammad Yousuf, A.S.I., P.W.6 were posted at Police Post Pacci Garhi Ghias, while Tasaddaq Hussain, S.I. P.W.9, and Muhammad Nawaz, S.L; P.W.8 were posted at Police Station Beguwala and the four Police Officers A have made consistent statements and although they were cross-examined yet nothing could be elicited so as to make the prosecution case doubtful. We are not prepared to believe that the Police Officers of different police stations would join hands to involve the appellants falsely in this case particularly when they had no personal enmity with any of the appellants. Ghulam Muhammad Kalyar D.S.P., C.W.1 had also no axe of his own to grind. He also supported all the four eye-witnesses because he had received the information on wireless about the occurrence which made him to reach at the spot.

13. Nothing turns upon the statement of Maqsood Ahmad, bus driver, as he failed to identify any of the appellants and furthermore, it is clear that he had been, won over. He admitted that the occurrence did take place in broad daylight and also admitted that quarrel continued for 10 minutes but we have already observed that his testimony could hardly demolish the prosecution case.

14. As far as Muhammad Arif, P.W.5, injured cultivator, is concerned, he is an independent and disinterested witness. Although, he failed to identify any of the appellants yet, his evidence only to the extent that dacoits were chased by the police and there was exchange of firing between the dacoits and police cannot be easily brushed aside and he thus corroborates the story of the prosecution that the appellants were chased by the police and there was exchange of firing.

15. The upshot of the above discussion is that the appellants in a reckless manner, in order. to escape had fired at the law enforcing agencies and, therefore, their act cannot be taken lightly. The eye-witnesses i.e. the police party satisfactorily explained as to how, they remained safe, inasmuch as they would lie down on the ground or would hide themselves in the sugarcane and maiz plants. In this view of the matter, this appeal has no merits and is, therefore, dismissed. . As far as the question of sentence is concerned, the sentence of eight years is severe in the circumstances of the case and therefore, we reduce it to five years' rigorous imprisonment. Now each of the appellants shall suffer rigorous imprisonment for a term of five years. The sentence of fine is also maintained. N.H.Q./G-181/L Conviction upheld /sentence reduced.