ABDUL RASHID Versus STATE

MIAN ABDUL KHALIQ, J: -- Appellants Abdul Rashid son of Ghulam Sadiq, Murid Ahmad son of Saeed Ahmad and Muhammad Iqbal son of Muhammad Murad were tried by the learned Judge, Special Court constituted under the Suppression of Terrorist Activities Act, 1975, Bahawalpur Division, Bahawalpur on a charge under section 324/149, P.P.C. Vide impugned judgment, dated 31-10-1992 the appellants were found guilty on the aforesaid charge and were accordingly convicted and sentenced to undergo 5 years' R.I. each, and to pay a fine of Rs.10,000 each, or in default whereof to suffer R.I. for a further term of one year each. The fine, if realised, was to be paid to the police department under section 544-A, Cr.P.C.

2. The prosecution story as unfolded in the F.I.R. Exh.P.E./1 recorded on the basis of complaint Exh.P.E. made by P.W.15 Haji Bashir Ahmad, D.S.P. on 27-4-1992 at 2-00 p.m. briefly stated was that he alongwith other police officials on receipt of information proceeded to arrest Saeed Ahmad, Abdul Rashid and Muhammad Iqbal, absconders of case F.I.R. No.40/92 registered under section 109/302/34, P.P.C. at Police Station Sadar Alipur, District Muzaffargarh alongwith two other persons from the area of Police Station Sadar, Ahmadpur Sharqia. P.W.15 alongwith other police officials were on State-owned vehicle. The other police officials also joined them including the P.Ws. P.W.15 was informed that the, accused while firing continuously were proceeding on a tractor towards Mauza Ali Muhammad Wala. The police party chased the accused and when reached near Mauza Ali Muhammad Wala, the appellants alongwith Abdul Rashid Korai, son of Abdul Ghafoor and Saeed Ahmad Chacher were witnessed going on a tractor, who while witnessing the police party reaching nearby took positions besides the tractor and started firing on the police party, which retaliated and in its defence took positions. P.W.15 D.S.P./complainant by aloud voice warned the accused that they were proclaimed offenders and had been encircled by the police. They should surrender, but all the three accused continued straight firing on the police party. The police party in self-defence returned the fire with Klashnikov, pistols and guns and due to the said firing by the police party, Saeed Ahmad Chaclier, Abdul Rashid son of Abdul Ghafoor and appellant Abdul Rashid son of Ghulam Sadiq were injured and fell down. Saeed Ahmad Chacher and Abdul Rashid Korai succumbed to their injuries at the spot, whereas appellant Abdul Rashid in injured condition and the other accused were apprehended. The police had recovered fire-arms and ammunition from the appellants which were secured by P.W.15 vide memos. Exhs.P.G., P.H., PJ. and P.K. attested by P.W.4 Abdul Ghana, P.W.12 Muhammad Younus, A.S.I., P.W.13 Muhammad Ramzan, S.I. and P.W.14 Sh. Muhammad Aziz, S.I. The appellants were challaned and sent up for trial and a charge under section 324/149, P,P.C. was framed, to which they denied and claimed trial.

3. The prosecution examined 15 P.Ws. in all to substantiate its case, P.W.1. Dr. Faizullah Hijazi on 27-4-1992 at 6-00 p.m. had medically examined appellant Abdul Rashid and, found two injuries on his person caused with fire arms, which were declared simple.

4. P.W.5 Dr. Amir Hussain Leghari on 28-4-1992 at about 10-00 a.m. conducted autopsy on the dead body of Saeed Ahmad and found three injuries on his person caused with fire-arms. In the opinion of the doctor all the injuries were ante-mortem and homicidal in nature. Injury No.l was sufficient to cause death in the ordinary course of life. It resulted in rupturing the main blood vessel of left middle lobe of the lung, causing excessive bleeding, shock and death. The time between injuries and death was about 2/3 minutes while the time between post-mortem examination and death was about 22 to 24 hours.

On the same d the same doctor (P.W.51 at about il p.m. conducted post-mortem examination the dead body of Abdul Rashid Korai Balouch and found two injuries on his person caused by fire arm. In the opinion of the doctor the injuries were ante-mortem and homicidal. Injury No.l was sufficient to cause death in the ordinary course of life as it ruptured the femoral blood vessel due to excessive sudden bleeding and death occurred after Hypovolmic shu,k. The time between injuries and death was about 2/5 minutes while the time between death and post-mortem was about 22 to 24 hours.

5. P.W.2 Guljan, motor mechanic had examined Jeep Toyota No.BRD/2207 of P.W.15 Haji Bashir Ahmad, D.S.P. and submitted his report Exh.P.B. He also examined Tractor No.DGB/4745 and his report is Exh.P.C. On the same day he also examined police vehicle No.BRB/7405 and his report is Exh.P.D. P.W.3 Akhtar Hussain Malik, A.S.I. had drafted formal F.I.R. Exh.P.E./l. P.W.4 Abdul Ghani on 27-4-1992 accompanied police party in a police vehicle and on the way Sh. Muhammad Aziz, S.I./S.H.O. (P.W.14) who informed P.W.15 Haji Bashir Ahmad, D.S.P. about forcible snatching of Fiat Tractor 640 by the accused and they were going towards the north. The police party alongwith P.W.4 followed the accused and witnessed five persons going on the tractor. Meanwhile other police officials and police motor-cyclists joined them. The accused Saeed Ahmad Chacher, Abdul Rashid Korai Balouch (both deceased), Abdul Rashid, Muhammad Iqbal and Murid Ahmad appellants were armed with .12 bore double barrel gun, carbine, Klashnikov, rifle .7 mm and rifle .7 mm, respectively. They started firing at the police party. The police party also fired in their self-defence. P.W.15 warned the accused to surrender because they were proclaimed offenders, but the accused continued firing at the police party. The accused and their companions in that encounter covered distance of about 6/7 KMs. Near the bridge at Kundi Parhar Canal, a fire from the accused side had broken the mirror of the police vehicle and in the area of Ali Muhammad Wala, a tyre of the tractor was burst. The accused took position under the cover of the tractor and continued firing at the police party. The police party returned the fire and the firing continued for about an hour at that place. The police party after crawling reached near the tractor and found the appellants alongwith their deceased accomplices. Saeed Ahmad Chacher and Abdul Rashid Korai were died. Abdul Rashid appellant was injured. The accused-appellants were arrested and fire-arms were secured (crime property) from Abdul Rashid appellant, P.1 to P.3 vide memo. Exh.P.G., from Muhammad Iqbal appellant P.5 to P.7 vide memo. Exh.P.H. P.W.15 D.S.P. also secured from P.8 to P.9 from Murid Ahmad appellant vide memo. Exh.P.I. and had prepared the sealed parcels of the case property. P.W.4 had attested the memos. P.W.15 also secured .12 bore double barrel gun P.11, eight bullets P.12/1-8. Bandolier P.13 from near the dead body of Saeed Ahmad Chacher vide memo. Exh.PJ. and carbine P.14 with loaded cartridge P.15 from near the dead body of Abdul Rashid Korai vide memo. Exh.P.K The memos Exhs.P.J. and P.K. were attested by P.W.4. P.W.15 also secured blood-stained earth from near the dead bodies of Saeed Ahmad Chacher and Abdul Rashid Korai vide memos Exhs.P.L. and P.M. as well as 89 empties of Klashnikov P.16/1-89, 40 empties of 7 mm P.17/1-40, 12 empties of .12 bore P.18/1-12 prepared sealed parcel of the same vide memo. Exh.P.N. attested by P.W.4. P.W.6 Manzoor Ahmad, A.S.I. had escorted the dead bodies of Saeed Ahmad Chacher and Abdul Rashid Korai to the mortuary. After conducting autopsy the doctors had handed him over the last-worn clothes of deceased Saeed Ahmad Chacher P.19 to P.21 and of Abdul Rashid Korai P.22 to P.24, which he produced before P.W.15, who secured the same vide memos. Exhs.P.Q. and P.R. attested by him. P.W.7 Muhammad Aslam, , H.C. had handed over the sealed parcels containing Klashnikov, .12 bore gun, carbine, rifle .7 mm and rifle .7 mm Klashnikov type and empties pertaining to the case in hand in tact, to AzizuI Haq, A.S.I. (P.W.8) on 11-3-1992, which he delivered intact in the office of S.P. Technical Services, Lahore on 12-5-1992. P.W.9 Nazar Abbas, Inspector, Police Station Saddar Ahmadpur East had recorded statements of P.Ws. under section 161, Cr.P.C. P.W.10 Musharaf Hussain, H.C./Reader to D.S.P. was handed over 5 sealed parcels by P.W.15 containing fire-arms, one sealed parcel of empties and two sealed parcels having blood-stained earth alongwith 400 live bullets of Klashnikov and spare magazine in a parachute bag for keeping them safe in the Malkhana, and on his transfer on 8-5-1992 he handed over the same to Muhammad Aslam, P.W. P.W.11 Ch. Muhammad Tufail Wattoo, S.H.O. had prepared report under section 173, Cr.P.C. and challaned the accused. P.W.12 Muhammad Younis, A.S.I. is another eye-witness. P.W.12, P.W.13, Muhammad Ramzan, S.I. and P.W.14 Sh. Muhammad Aziz, S.I. are eye-witnesses of the present occurrence, who have supported and corroborated the statement of P.W.4 Abdul Ghani, P.W.15 Haji Bashir Ahmad, D.S.P. is the complainant of the present case who supported the contents of complaint Exh.P.E.

6. The appellants when examined under section 342, Cr.P.C. denied the prosecution evidence against them. Appellant Abdul Rashid in answer to the question "why this case against you and why the P.Ws. have deposed against you?" stated that P.W. Abdul Ghani was the police tout and the other P.Ws. were police officials and they had falsely deposed against him under the influence of late Malik Ahmad Yar, Ex-M.PA. with whom the appellant had election rivalry as he was supporter of other party. He further stated that he was innocent and did not know anything about the occurrence and he alongwith his Phoophizad was arrested from his house by the police. He was fired at and injured by P.W.15. Appellant Murid Ahmad denied the prosecution evidence against him and stated that he alongwith his co-accused Abdul Rashid and Muhammad Iqbal who were his Mamoozad were arrested from his house. The D.S.P. had asked them to run away, but they did not run and P.W.15 had injured Abdul Rashid appellant. Appellant Muhammad Iqbal supported the statements of his co-appellants. The appellants had not produced evidence in defence, however, they made statements on oath to the effect that they did not want to add anything else to their statements recorded under section 342, Cr.P.C. and the same be read as part of their statements.

7. The appellants were found guilty by the learned trial Judge and were convicted and sentenced accordingly.

8. We have heard the learned counsel for the parties at length and have perused the record. The learned counsel appearing for the appellants has vehemently contended that the allegations against the appellants are false and frivolous. They had been arrested from their houses, and the police had killed Abdul Rashid Korai and Saeed Ahmad Chacher in false police Moqabla (encounter) and to save their skin have fabricated the present case. The appellants have been falsely involved and in spite of long chase of the appellants by the police party, indiscriminate firing by the appellants for a long time, none from the police party was injured.' Moreover, neither the police vehicles nor the tractor were found to have any pellet or bullet mark. P.Ws. 4, 12, 13, 14 and 15 are eye-witnesses and have unanimously stated that the accused/appellants continued firing on the police party for quite a long time i.e. more than an hour. P.W.15 Haji Bashir Ahmad, D.S.P. after coming to know about the killing of co-accused had apprehended the accused. The accused continued firing on the police party, but surprisingly no member of the police party was injured during the firing. The accused were allegedly armed with Klashnikov, 7 mm rifle, .12 bore double barrel gun, carbine, and 7 mm rifle of Klashnikov type. The police party consisted of more than 60 police officials, but surprisingly none from amongst them was slightly injured in the encounter. P.W.2 Guljan, a motor mechanic had examined the police vehicles and the tractor ... submitted his reports Exhs.P.B., P.C. and P.D. and ... opined vide Exh.P.B. that left side of the mirror of police vehicle Registration No.BRD.2'760 was broken with a fire-shot. Vide Exh.P.C. he opined that typre of right side and mudguard of the tractor was damaged and vide Exh.P.D. he opined that front beam of police vehicle No.BRB.7405, left side mudguard, front bumper, both the safety guards and aerial wireless set had been destroyed. During cross-examination he stated that he was not a qualified motor mechanic and Manzoor Ahmad, Sub-Inspector alongwith one police constable and one Head Constable who were armed came to him and under their direction he proceeded to the police station Ahmadpur East on his own jeep where he examined the vehicles. It is pertinent to mention here that in spite of long duration of firing by the accused, no firing/pellet marks had been '8 found on the vehicles by P.W.2.

9. P.W.7 delivered six sealed parcels containing six sealed parcels containing Klashnikov etc. to P.W.8 who delivered the same in the office of S.P. Technical Services, Lahore in tact, but surprisingly the report of Forensic Science Laboratory, Lahore Exh.P.T. clearly states that the parcels were received from the S.P. Muzaffargarh which contradicts the statements of P.W.7 C and P.W.8 about the handing over of sealed parcels by them and its delivery in the office of Forensic Science Laboratory, Lahore.

10. Pursuant to the above discussion, we are of the view that the prosecution has failed to establish its case beyond reasonable doubt against the D appellants and giving them benefit of doubt, we acquit them of the charge. The appellants are in jail, who shall be released forthwith if not required in any other case.

N.H.Q./A-M7/L Appeal accepted.