GUL DAST KHAN vs THE STATE

' IJAZ-UL-HASSAN KHAN, J.--- Appellant Gul Dast Khan son of Abdul Muhammad, aged about 65 years, resident of Sher Kera, District Peshawar, was tried by learned Judge, Anti-Terrorism Court, Dera Ghazi Khan, on the allegations of having, on 14-2-2007, at about 11-30 p.m., made murderous assault on the members of police party and found in possession of arms and ammunitions. On completion of trial, learned trial Judge, vide judgment, dated 19-7-2007, convicted the appellant under section 353, P.P.C. Read with section 7 of Anti-Terrorism Act, 1997 and sentenced him to suffer two years' R.I. The appellant was also convicted under section 13(2) of the Arms Ordinance (XX of 1965) and sentenced to undergo seven years' R.I. Both the sentences were directed to run concurrently with benefit of section 382, Cr.P.C. However, the appellant was extended benefit of doubt and acquitted of the charge under section 324, P.P.C.

2. The appellant, challenged his convictions and sentences through Criminal Appeal No,49 of 2007 in the Lahore High Court, Multan Bench, Multan, which was dismissed per judgment impugned.Herein, giving rise to the filing of instant appeal, with leave of the Court granted on 17-9- 2008.

3. The prosecution story in brief is, that on 14-2-2007, a police party headed by A.S.-I. Muhammad Amjad Khalid and others laid "Nakabandi" on Muzaffar Garh-Jhang Road. In the meanwhile, a motor car bearing Registration No,IDB-3743, was sighted coming. The driver of the car was given signal to stop but instead of slowing down the speed, he accelerated the same. The car was chased. The car riders resorted to firing. The police party also fired in retaliation. The motor car was intercepted at some distance. The driver of the car later on, identified as Muhammad Javed son of Jan Muhammad resident of Dara Adam Khail, Peshawar, alighted from the car and made good his escape and disappeared in the nearby sugarcane fields. An old man of 65 years of age, was found sitting on front seat, on asking he disclosed his named as Gul Dast Khan. The search of the car led to the recovery of huge quantity of arms and ammunitions, detailed in the report. The Investigating Officer seized the arms and ammunitions and the car through recovery memos. Exh.P.B. And Exh.P.C. The accused was arrested and a case was registered vide F.I.R. No,18 of 2007 dated 15-2- 2007, at Police Station Rungpur District Muzaffar Garh, under sections 324/353/186, P.P.C., section 13(2) of the Arms Ordinance, 1965 read with section 7 of Anti-Terrorism Act, 1997. After finalization of the investigation, accused was challaned to Court to face trial. The accused denied the charges, professed innocence and claimed trial. The prosecution in order to prove its case examined four witnesses namely S.-I. Atta Hussain, (P.W.1), A.S.-I. Muhammad Amjad Khalid, (P.W .2), constable Shahzad Nazir, (P.W.3) and S.H.O. Ashiq Hussain (P.W.4). The accused in his statement under section 342, Cr.P.C., denied the whole incriminating material put to him and maintained that he had no knowledge of arms and ammunitions being kept in the secret cavities of the motor car. He also denied having fired at the police party. The accused did not appear in the witness-box in terms of section 340(2), Cr.P.C. And produced his pensionary papers etc. In defence.

4. Mr. Nazir Ahmad Bhutta, Advocate for the appellant, in support of the appeal, assailed the impugned judgment on the ground that the trial Court as well as High Court, have not properly appreciated the evidence and in consequence thereto, a wrong conclusion qua the guilt of the appellant as drawn; that there was no cogent or concrete evidence produced by the prosecution whereby the appellant could be convicted; that appellant had no nexus with the transportation of arms and ammunitions and took lift from Muhammad Javed, driver of car to reach his destination; that there is nothing on the file to show that appellant being associate in the crime, had the knowledge of arms being kept in the secret cavities of the vehicle; that the provisions of section 103, Cr.P.C. Had been seriously violated and that in the light of facts and circumstances of the case, the prosecution has not been able to prove the case against the appellant beyond any reasonable doubt.

5. Mian Asif Mumtaz, learned Deputy Prosecutor-General for the State, on the other hand, controverted the arguments of learned appellant's counsel supported the impugned judgment on all counts maintaining that prosecution has brought sufficient material on file connecting the appellant with the commission of crime; that appellant has failed to show any or motive on the part of the police to falsely implicate him in the case and that keeping in view the huge quantity of arms and ammunitions from the car in question, it cannot be said that the same were planted by the police. The learned counsel also contended that the plea raised by the appellant, regarding taking lift, stands belied by host of circumstances and has been rightly disbelieved. Concluding the arguments, learned counsel submitted that both the Courts below have properly appreciated the evidence and came to the right conclusion, calling for no interference by this Court.

6. We have given due consideration to the arguments of learned counsel for the parties and have pursued the evidence with their able assistance.

7. No doubt it is true that apprehension of the appellant at the spot and recovery of huge quantity of arms and ammunitions from secret cavities of the motor car in question, has not been denied but it is equally true that mere presence of the appellant in motor car is not sufficient to connect him with the offence unless the prosecution brings material that he had the knowledge of concealment of illicit arms and ammunitions in car. The possibility of the appellant having no hand in the affair and taken lift from Muhammad Javed, driver of the motor car, cannot be excluded in the circumstances of the case. It may be noted here that driver of the motor car is stated to have stepped down the car and succeeded to make good his escape and take refuge in the nearby sugarcane field. The raiding party surrounded the field for three days, but failed to apprehend the driver. This conduct on the part of the police is highly deplorable and not beyond approach. It leads to no other conclusion except holding that real culprit was let off by the police and the appellant was implicated in the case, for reasons not far to seek.

8. There is another element in the case, which creates even great difficulty namely omission on the part of the Investigating Officer to find out the owner of the car, from which the alleged weapons have been recovered. No explanation for such omission has been furnished. The Investigating Officer in law was required to find out the whereabouts of the owner of the car, which he has failed to do so for reasons best known to him. It may not be out of place to mention here that case property has neither been exhibited nor produced at the trial, causing dent in the prosecution case.

9. Adverting to the objection regarding non-compliance of the provisions of section 103, Cr.P.C., we find that violation of requirement of section 103, Cr.P.C., would make recovery unreliable. Arms and ammunitions recovered, were not sent to Fire-Arm Expert to ascertain as to whether they were in serviceable condition or not. Such lapse on the B part of Investigation Officer was also fatal to prosecution case and would nullify entire exercise. Truly, where circumstances of the case make it impossible to procure two private persons from public and the evidence of policemen does not suffer from any legal or factual infirmity the same can be accepted, but in the present case, situation is all together different. Despite prior information, independent and disinterested witnesses from locality have not been associated with recovery proceedings. Mst. Bakht Bano and another v. Allah Yar and others 1986 SCM R 1483 and State through Advocate-General, Sindh v.

Bashir and others PLD 1997 SC 408.

10. During chase of the motor car, the occupants of the car are alleged to have fired at the police party in order to foil bid of the police to apprehend them. The police party also fired in self-defence.

Surprisingly, both the vehicles have not been hit. No one has sustained injuries from either side and no empty has been recovered from spot. It may be pertinently mentioned here that after apprehension, personal search of the appellant was made and nothing was recovered from his possession, however, subsequently, a bullet was shown to have been recovered from the pocket of the appellant. This is a clear padding on the part of the prosecution, which cannot be lost sight of.

This improvement has been made for no other reason, but to persuade the Court that appellant had joined hands with the principal accused Muhammad Javed in the firing at the police party.

11. Pursuant to the above discussion, the prosecution has miserably failed to bring charges home to the appellant beyond any reasonable doubt, therefore, benefit of slightest doubt must be extended to the appellant without any reservation. The impugned judgment is outcome of misreading and non-reading of evidence and learned trial Court as well as learned High Court have failed to appreciate the evidence in its true perspective. The appeal is allowed, as a result whereof the appellant is directed to be released forthwith, if not required or involved in any other criminal case.

12. Above are the detailed reasons of our short order, dated 7-11-2008.