2017 PLP 258 (YLRN)

ABDUL SAMI KHAN, J.

Through this appeal under section 410, Cr.P.C. read with section 25 of Anti-Terrorism Act, 1997 Umar Draz appellant has called in question the judgment dated 05.01.2010 handed down by the learned Judge, Anti-Terrorism Court, Faisalabad through which the appellant was convicted for an offence under section 148, P.P.C. and he was sentenced to undergo rigorous imprisonment for 3 years. He was further convicted for an offence under section 324, P.P.C. read with section 149, P.P.C. and he was sentenced to undergo rigorous imprisonment for 10 years along with fine of Rs. 20,000/- or in default of payment of fine to further undergo simple imprisonment for one years. The appellant was also convicted for an offence under section 337-L(2), P.P.C. and he was sentenced to undergo rigorous imprisonment for 2 years. He was also convicted under section 353, P.P.C. read with section 149, P.P.C. and was sentenced to undergo rigorous imprisonment for 2 years. The appellant was also convicted for an offence under section 186, P.P.C. read with section 149, P.P.C. and he was sentenced to undergo rigorous imprison-ment for 3 months. The appellant was further convicted under section 7(c) of Anti-Terrorism Act, 1997 and he was sentenced to undergo rigorous imprisonment for 10 years along with fine of Rs. 20,000/- or in default of payment of fine to further undergo simple imprisonment for one years each. Through the same judgment the appellant was also convicted under section 13 of Arms Ordinance XX of 1965 and he was sentenced to undergo rigorous imprisonment for 3 years. It was ordered by the learned trial court that all the sentences shall run concurrently and the benefit of section 382-B, Cr.P.C. was extended in favour of the appellant. The appellant has filed the instant appeal against his convictions and sentences before this Court.

2. The prosecution story unfastened from the FIR is that on 22.03.2008 at about 2.30 pm Muhammad Saeed, ASI/ complainant was on patrol duty along with Manzar Abbas, Naseer Ahmad, Muhammad Ramzan, Wajid Ali, Zafar Iqbal, Constables and driver Muhammad Anwar, Constable at Adda Bhawana when he received a spy information that Umer Draz, Imran alias Mani, Aman Ullah alias Mani, Jaffar, Waris and Zafar alias Kernel, all Proclaimed Offenders, involved in murder and dacoity cases; armed with Kalashnikovs as well as other firearms were present in the house of Mst. Azra widow of Muhammad Ali and Imran. The informant disclosed that the above mentioned Proclaimed Offenders could be arrested if a raid is immediately conducted at the house of Mst. Azra. After receiving information the complainant along with other police contingent reached the house of Mst. Azra and made announcement and directed the Proclaimed Offenders to surrender before the police but the Proclaimed Offenders who were armed with firearms started firing at police raiding party for which the police party also started firing in their self-defence. A fire made by Umer Draz landed on left shoulder of one of the members of police raiding party, i.e. Muhammad Anwar, C-995 who fell down on the ground in injured condition. In the meanwhile Muhammad Iqbal, ASI, Aziz-ur-Rehman, ASI, Zahid Hassan, ASI, Zulfiqar Ali, HC-1055 also reached the spot who too started firing in their self-defence. During firing a sense of panic prevailed in the vicinity among people and children. The firing from both sides continued for one hour and when the firing stopped it transpired that one accused namely Umer Draz was found in injured condition at the spot and he was holding rifle 8 mm in his right hand which was also taken into possession and after unloading the same three live bullets, one in the chamber and two in magazine have been recovered. One pistol 30 bore was also recovered from the spot which was unloaded and two live bullets were recovered along with empty magazine. It is also mentioned in the FIR that from the spot 11 crime-empties of 8mm, 9 crime-empties of pistol 30 bore, 17 crime-empties of Kalashnikov whereas the empties fired by the police raiding party, i.e. 11 crime-empties of Semi-Automatic, 13 crime-empties of G-3, 21 crime-empties of Kalashnikov have been recovered which have been taken into custody through separate recovery memos. Injured constable Muhammad Anwar and injured accused Umer Draz were shifted to Medical Health Centre, Bhawana. Upon complaint moved by the complainant formal FIR No. 166/ 2008, dated 22.03.2008 was registered at Police Station Bhawana, District Jhang in respect of offences under sections 324/353/ 186/216/148/149, P.P.C. read with section 7 of Anti-Terrorism Act, 1997 as well as section 13 of Arms Ordinance XX, 1965.

3. To substantiate its version before the learned trial court, the prosecution produced as many as nine prosecution witnesses before the learned trial court. The ocular account was furnished by Muhammad Saeed, ASI/complainant (PW2), Muhammad Ramzan, C-1614 (PW3) and Muhammad Anwar, C-995 injured victim (PW5). Ahmad Nawaz, SI (PW7) is the investigating officer of the instant case who has stated about various steps taken by him during the investigation of this case. The medical evidence has been furnished by Dr. Mumtaz Hussain Sial (PW9), Medical Superintendent, District Headquarter Hospital, Jhang who had medically examined Muhammad Anwar, Constable (PW5). Rest of the evidence adduced by the prosecution is more or less formal in nature.

4. The appellant in his statement recorded under section 342, Cr.P.C. professed his innocence and he has not opted to appear under section 340(2), Cr.P.C. in his defence to disproof of allegations leveled against him by the Prosecution. He has also not opted to produce any defence evidence.

5. At the end of the trial, after thrashing the entire evidence and evaluating the arguments advanced by the learned counsel for the parties in support of their respective versions, learned trial Court proceeded to convict and sentence the appellant as mentioned in paragraph No.1 of this judgment whereas it has acquitted 3 co- accused of the appellant namely Imran, Muhammad Waris and Mst. Azra Bibi. Hence, this appeal before this Court.

6. Learned counsel for the appellant contends that the prosecution has miserably failed to prove the case against the appellant beyond any shadow of reasonable doubt. On the other hand learned Deputy Prosecutor General submits that the prosecution has proved the guilt of the appellant to the hilt by producing cogent evidence, including statement of injured victim.

7. We have heard the learned counsel for the parties at length, have given our anxious consideration to their arguments and have also scanned the record with their able assistance.

8. The occurrence in this case has taken place on 22.03.2008 at 2.30 pm and the same was reported to the police through an application moved by the complainant (Ex. PA) upon which FIR has been registered at Police Station Bhawana, District Jhang on the same day at 3.45 pm, i.e. within a short span of one hour and fifteen minutes. Thus, we are quite confident in observing that there was no occasion for the complainant to get assistance from any legal expert so as to carve story narrated in the FIR with consultation or deliberations.

9. The ocular account in this case has been furnished by Muhammad Saeed, ASI/complainant (PW2), Muhammad Ramzan, C-1614 (PW3) and Muhammad Anwar, C-995/injured victim (PW5). Admittedly the occurrence in this case has taken place in a broad daylight wherein the appellant was duly named in the FIR and specific role of inflicting firearm injury on the left shoulder of Muhammad Anwar, C-995/injured victim (PW5). This is a case where the appellant and his co-accused have opened firing at police raiding party at a time when the police had raided to apprehend them because they were Proclaimed Offender and required by the police in connection with some cases of murder and dacoity. The appellant was belonged to a group of hardened and desperate criminals and apprehending his arrest at the spot he along with his co-accused resorted to firing at police party. The exchange of firing between the appellant and his co-accused and the police raiding party continued for one hour and thereafter the other accused fled away from the spot. It is significant to point out here that during cross-firing the appellant himself had received firearm injury on his person and he was apprehended by the police at the spot at a time when his co-accused after leaving him escaped from the scene of crime. When the police arrested the injured appellant at the spot he was holding rifle 8 mm (P-1) in his left hand with three live bullets, one in the chamber and two in the magazine (P-2/1-3) which were taken into custody by the police. Beside this weapon one pistol 30 bore (P-3) was also found near the appellant which too was taken into custody and from examination two live bullets (P-4/1-2) and empty-magazine (P-5) were also recovered which was also taken into possession by the police. Thus, it is a case where the appellant was not only arrested at the spot but recoveries of firearms used by him were also taken into possession by the police.

10. To prove the ocular account all the eye-witnesses mentioned above had explained time, date, place of occurrence, specification of weapons of offence inasmuch as each and every segment of the occurrence in a straightforward and clear-cut manner during their statements adduced before the learned trial court in addition to that they had also explained the mode and manner of taking place the occurrence. Although they had to endure a lengthy cross-examination by the defence wherein the learned counsel for the defence had asked multiple questions to shatter their credibility yet all of them remained consistence on all material points and remained stick to their stance that the appellant along with his co-accused fired at the spot and caused injury to Muhammad Anwar, C-995 (PW5) and also that he himself received firearm injury during the occurrence. During their evidence they had sufficiently proved their presence at the place of occurrence at relevant time and witnessing the occurrence vis- -vis identifying the appellant at the spot. All the eye-witnesses have shown their natural conduct at the place of occurrence and they have brought the true story in the same manner as they have witnessed at the spot.

11. During the course of arguments learned counsel for the appellant laid great emphasis on the point that injury attributed to the appellant is a self-inflicted injury to the injured victim to prove the story cared by the prosecution in the FIR. We, however, remained unable to appreciate this arguments raised by learned counsel for the appellant because nobody dare to inflicted firearm injury on his shoulder which is vital part of body just to prove police encounter or to involve an injured accused who was arrested at the spot by the police party. It goes without saying here that the injury attributed to the appellant at the left shoulder of injured Muhammad Anwar, C-995(PW5) is not disputed which is an entry wound and the same has not been attributed to anybody else except the appellant.

12. Another important fact in this case is that the eye-witnesses, i.e. Muhammad Anwar, C-995 (PW5) who is an independent injured witness of the occurrence has also received fire-arm injuries on his left shoulder at the hands of the appellant. He is also a natural witness in this case because occurrence has taken place just to apprehend some Proclaimed Offenders on spy information and being member of the police raiding party he was on duty with the complainant and was present in police van. Admittedly during firing on the police party he has received injuries at the hands of the appellant so token of receipt of injury on his person itself proves his presence at the place of occurrence at relevant time. He has categorically pointed accusing fingers towards the appellant as the assailant who had fired with his rifle at him and has caused injuries to him. So the ocular account in this case has been furnished by injured victim and his testimony of course does not leave any possibility of false implication of the appellant in this case especially when he himself has no axe to grind against the appellant. Thus, his evidence cannot be disbelieved by us. The minor discrepancies, highlighted by learned counsel for the appellant in the statements of the eye-witnesses, is a result of passage of time between the occurrence and statements recorded before the learned trial court by the eye-witnesses which have no vital effect on the case of prosecution.

13. Another significant feature in this case needs to be discussed here is that the appellant was a member of dacoits who were fugitive from justice and required by the police in connection with certain criminal cases. He was accompanying his co-accused namely Imran, Aman Ullah, Muhammad Waris, Mazhar and Jafar who have taken shelter in the house of Mst. Azra Bibi and their proclamations have been affixed by Nasir Ali, C-217 (PW8) who had sufficiently explained this fact before the learned trial court at the time of adducing evidence in this case. Even during the trial the appellant could not bring any material on record to discard his presence at the scene of crime at relevant time except the prosecution has narrated in the FIR. It may not be out of place to point out here that all the prosecution witnesses are police officials and they have no previous ill-will or bitterness with the appellant or his co-accused to falsely implicate him in a case of this nature where a police official has received firearm injury on his person. Law has now quite settled on the point that the police officers/officials are as good witnesses as private witnesses especially when they have no axe to grind with the accused person prior to taking place of occurrence.

14. The medical evidence in this case has been furnished by Dr. Mumtaz Hussain Sial, Medical Superintendent, District Jhang (PW9) who has medically examined Muhammad Anwar, C-995/injured victim (PW5) and found one forearm injury on upper part of his left shoulder. This injury has also been borne out from his medico-legal certificate (Ex. PN). He while appearing before the learned trial court has sufficiently explained time, date, seat of injury and weapon used for committing the injury by the appellant. The doctor has categorically stated that injury No. 1 (attributed to the appellant) sustained by the injured was an entry would 0.8 cm x 0.8 cm through and through on the front of left shoulder upper part with inverted margin where colour of abrasion was present. The injury left an exit wound 1.5 cm x 1 cm on the back of left shoulder upper part with averted margin. Thus, we have no manner of doubt in our mind to observe that the medical evidence in this case is absolutely in line with the ocular account and the same provides full support to the ocular account in this case.

15. On the fateful day the appellant was apprehended at the spot and weapons of offence, i.e. Rifle 8 mm (P-1), 3 live bullets (P2/1-3) one from chamber and two from magazine which has been taken into custody vide recovery memo (Ex. PB) and pistol .30 bore (P-3) which has been taken into custody along with two live bullets (P4/1-2) as well as empty magazine (P-5) by the investigating officer vide recovery memo Ex. PC were also recovered from him. The appellant had used these weapons for firing at police raiding party but unfortunately he had also received injuries and for that reason he could not escape from the scene of crime on the day of occurrence. Thus, the recoveries effected from the appellants provide sufficient corroborations to the ocular account.

16. The appellant and his co-accused have made firing at police raiding party at a time when they felt apprehension of their arrest and in this way they have taken law into their own hands. The exchange of firing had been continued between the appellant's party and the police for one hour and during such firing a police constable has received firearm injury on his left shoulder at the hands of the appellant for which a sense of panic and fear prevailed on vicinity especially on the inhabitants of locality and on their children. The appellant has acted in a desperate manner at the spot by firing and had tried to commit murder of police officials and one of them Muhammad Anwar, C-995(PW5) luckily survived after sustaining firearm injury on his shoulder. Thus, the provisions of section 6 (m) & (n) punishable under section 7(e) of Anti-Terrorism Act, 1997 are fully attracted in this case.

17. For what has been discussed above the prosecution has proved the case against the appellant beyond any reasonable doubt through confidence inspiring evidence in shape of ocular account (furnished by injured victim), recoveries and medical evidence. The learned trial court after assessing and evaluating the evidence has rightly passed conviction upon the appellant and we have not found any occasion to interfere into the logical conclusions arrived at by the learned trial court. Criminal Appeal No. 1369 of 2011 is, therefore, dismissed. JK/U-2/L Appeal dismissed.