NEELO Versus STATE
QAISAR AHMAD HAM.IDI, J.‑‑‑ Appellant Neelo son of Hemlo, by caste Kolhi, was tried by Mr. Allah Bux Memon, Judge, Special Court, Suppression of Terrorist Activities, Hyderabad, for the offence under section 307/34, P.P.C., who found him guilty and vide judgment, dated 27th March, 1991, sentenced him to suffer R.I. for three years and to pay a fine of Rs.300 or in default to suffer R.I. for three months more. By this appeal filed under section 7 of the Suppression of Terrorist Activities (Special Courts) Act, 1975, the appellant has challenged his conviction and sentence.
2. The facts are 'simple and may be briefly summed up. On 8‑5‑1996 Qadir Dad S.I.P. Piyaro Lund P.P left the police post at 6 a.m. alongwith his subordinate staff and members of law enforcing agency for the investigation of Crime No.129 of 1990 under sections 147‑387‑506‑504/149, P.P.C. in an official van. When the police party reached at Hakro bridge they learnt that accused Wahido son of Muhammad Rahim, Hakro, who was wanted in the above crime was available on the tube‑well of Imamuddin Qaimkhani. At about 7‑15 a.m. the police party reached to that spot and as soon as they reached there accused Wahido (since acquitted) who was armed with a Klashnikov started firing towards them. Appellant Neelo who was sitting in a Morcha duly armed with a gun also opened fire. The police party took position and they started firing, with the result that accused Wahido (since acquitted) slipped away, while the appellant surrendered before the police. Qadir Dad S.I.P. secured empty shells of bullets and empty cartridges from the place of incident and such inventory was prepared in presence of Mashirs Khamoon and Muhammad Hayat H.C. The appellant was then brought to Tando Allahyar P.S. where Qadir Dad S.I.P. lodged F.I.R. on behalf of State. During the course of investigation accused Wahido was also arrested and after usual investigation both the accused were challaned to stand trial for the above offence.
3. Both the accused pleaded not guilty when charge was read out to them and claimed a trial. At the trial the prosecution examined Muhammad Hayat H.C. (P.W.1), Qadir Dad S.I.P. (P.W.2) and Khamoon (P.W.3).
4. The accused met the charge with a denial. Accused Wahido alleged enmity with Qaimkhani Zamindar, who got him involved in this case falsely. The defence of the appellant in his own words is as follows:‑‑
"Amjad Qaimkhani has got enmity with Imamuddin. I am Hari of Imamuddin. Due to these differences between Zamindars, I have been involved."
5. The appellant examined his Zamindar Imamuddin (D.W.l), while co -accused Wahido examined Faiz‑ul‑IIaque in defence. Both the accused did not step into the witness‑box in disproof of the charge.
6. On the assessment of evidence available on record the learned judge acquitted the main accused, viz. Wahido, but found the present appellant guilty for the offence with which he was charged and convicted him accordingly. It is in these circumstances that the present appeal has been filed.
7. It is a case of ineffective firing and none from both the sides was inured. The case of the prosecution mainly hinges upon the evidence of nadir Dad, S:I.P. (P.W.2), arid Muhammad Hayat H.(:. (P.W.0, which is further corroborated by Khamoon (P.W.3) who has acted as Mashir of Wardat.
8. Qadir Dad S.I.P. (P.W.2) has testified the facts leading to this incident. His evidence shows that the members of law‑enforcing agency were also with the police party when they had gone for patrolling and investigation of Crime No.129 of 1990. According to his evidence accused Wahido (since acquitted) fired at the police party from the Klashnikov and appellant fired towards them by means of a gun after taking position. The evidence of Qadir Dad S.I.P. (P.W.2) further reveals that the firing had started while the police party was still in the van. Muhammad Hayat H.C. (P.W.1) who was one of the members of the police party is, however, silent about the presence of members of law enforcing agency. His evidence does not show that the` culprits had fired towards the police party in an attempt to kill them. He has also admitted in clear terms that the van in which they were sitting was not hit by the pellets or bullets.
9. Khamoon (P.W.3) who was admittedly picked up from Hakro Bridge has simply testified about the contents of Mashirnamas (Exh.7 and Exh.8). He has not uttered a word about the encounter although the same must have taken place in his presence.
10. On a close examination of the evidence, we have noticed that the version of the prosecution witnesses even if accepted in its entirety, will not make out a case of murderous assault. Muhammad Hayat H.C. (P.W.1), although speaks of firing by both the accused persons, but his evidence does not indicate an existence of an intent on the part of the accused and the steps taken towards it. Khamoon (P.W.3) is completely silent about the encounter and he has confined himself to the inventories prepared at the place of incident. Qadir Dad S.I.P. (P.W.2), although testified that the shots were fired towards the police party while they were sitting in van, has spared no effort to exaggerate the case of the prosecution. It may be recalled that according to Muhammad Hayat H.C. (P.W.1) none of the shots hit the body of police van.
11. There can be no presumption that the appellant intended to cause; death of the members of the police party simply because he used a fire‑arm. The intention of the accused has to be gathered from the surrounding circumstances. Admittedly accused Wahido was wanted in Crime No.129 of 1990 and the police party had gone to apprehend him. The anxiety of accused Wahido (since acquitted) was to escape from being arrested and not to commit murder of the members of police party. Likewise on the allegations made against the appellant no intent to commit murder of the members of police party could be inferred. The shots were obviously fired in the air just to scare' the police party and this explains as to why the body of police can was not hit. In this view of the matter, it is extremely unwise to accept anything from the lips of (nadir Dad S.I.P. (P.W.2) about the intention to commit murder of members of police party unless it is fully corroborated by independent evidence of reliable nature.
12. One of the important pronouncements on this point is to be found in the case of Dhani Bux v. The State reported in P L D 1964 Kar. 264, wherein a learned Single Judge of this Court observed as follows:‑‑‑
"From the mere fact that a pistol shot was fired it cannot be said that the only inference which follows is that the intention was to kill. Such a shot can be fired in a fit of temper; it can also be used in the same way for causing merely hurt; it may even be used in self‑defence without any intention to kill and so on."
13. On going through the record most carefully and weighing the evidence produced on both sides, we are disposed to think that there was no justification to convict the appellant on almost the same evidence on the basis of which main accused Wahido was acquitted. The evidence of witnesses who were not believed in respect of co‑accused Wahido is prima facie unreliable and it was highly unsafe to accept it against the appellant. Thus, from whatever point of view the matter may be looked at, it is difficult to follow the reasoning of the learned Judge.
14. Considering these facts, we have been led to the conclusion that the appellant's conviction is not warranted by the evidence produced against him in this case. Accordingly, we allow the appeal, acquitting him and setting aside his conviction and sentence. The appellant who is in custody shall be released forthwith, if not required in any other case.
N.H.Q./N‑411/K Appeal allowed.