TARIQ Versus State

TARIQ PARVEZ, J.- On 5-3-1997 at 7-45 p.m. Police party under the supervision of DSP (Crimes) but from Police Station East Cannt. Were on routine Gasht when four persons were sighted near army flats they were asked to stop, instead the said four persons started firing at the police party and also threw hand grenades. The police party also fired in self-defence and the ultimate result of cross firing was that two police, constables namely Safarash Khan and Shahzad sustained fire-arm injuries whereas the present appellant Tariq has also received fire-arm injuries and they were, therefore, arrested on the spot.

From the possession of appellant one Klashnikov with 5 live rounds and the barrel of the rifle giving smell of fresh discharge besides 75 rounds of Klashnikov, a pistol of .30 bore and 3 live rounds of such bore and also a hand grenade was recovered.

2. The presence of Tariq appellant on the spot cannot be denied and has not been denied under section 342, Cr.P.C. By him. His only stance is that he was not possessed of any fire-arm nor ammunition nor the hand grenade but was an innocent passerby.

3. On trial by the learned Judge Anti-Terrorism Court appellant has been convicted as under:

Under section 353/34, P.P.C. Read with section 7 of the Anti-Terrorism Act, to two year R.I. With a fine of Rs.1,000, in default to suffer further three months R.I.

Under section 324/34, P.P.C. Read with section 7 of the Anti-Terrorism Act to seven years R.I. With a fine of Rs.3,000, in default to suffer further one years R.I.

Under section 13 Arms Ordinance to seven years R.I. With a fine of Rs.3,000, in default to suffer further two months R.I.

Under section 5 of the Explosive Substances Act to seven years R.I.

All the sentences were ordered to run concurrently with benefit of section 382-B, Cr.P.C. Extended.

4. Regarding conviction and sentence under section 324, P.P.C. The effectiveness of the shot fired by appellant is not certain because four persons are said to have fired which has caused one entry wound each on the person of two constables. The two constables who sustained fire-arm injuries though appeared in the witness-box but to prove their injuries no doctor was examined by the prosecution, therefore, on this score conviction and sentence recorded would not be maintainable and the same is set aside.

5. The appellant belongs to village Kajuri from Tribal Area and he could not tender any plausible explanation about his presence in the vicinity of the crime nor he has in any manner successfully challenged the statement of the Investigating Officer and the two police constables but with regard to his apprehension, he has been found injured and the recovery of arms ammunition from him.

6. We are informed that appellant is in custody since 5-3-1997 till date, thus he has already undergone his substantive sentences of imprisonment. He is probably now confined in jail but for non-payment of fine imposed on him.

7. Because we have set aside his conviction and sentence under section 324/34, P.P.C., therefore, his retention for non-payment of the fine of Rs.3,000 would be illegal.

He has been fined to Rs.1,000 under section 353, P.P.C. And Rs.3,000 under section 13 Arms Ordinance. We, keeping in view facts that appellant has already undergone more than the substantive period of his imprisonment, remit the fine on all chares.

8. This appeal is partially allowed with direction to the Superintendent Jail that he shall calculate that if the appellant has alreadyundergone his sentence he shall be released forthwith, if not required in any other case.

H.B.T./226/P Appeal partly allowed.