ABDUL RAUF Versus STATE
MIAN ABDUL KHALIQ, J. --- Abdul Rauf son of Abdul Hamid and Javid Afzal son of Muhammad Shafique appellants were tried by the learned Judge, Punjab Special Court (Suppression of Terrorist Activities), Bahawalpur Division, Bahawalpur, who vide his impugned judgment, dated 29-9-1993 for the murder of Ghulam Ahmad, Constable convicted and sentenced them under section 302/34, P.P.C. for committing Qatl-i-Amd. Abdul Rauf appellant was sentenced to death as Tazir and was directed to pay Rs.1,00,000 as compensation to the heirs of the deceased under section 544-A, Cr.P.C. in default whereof to suffer imprisonment for 6 months. Javid Afzal appellant was awarded imprisonment for life as Tazir and was also directed to pay Rs.50,000 as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. and in case of default, he was directed to suffer imprisonment for a period of 6 months. They were also convicted under section 324/34, P.P.C. for making murderous assault and attempt to commit Qatl-i-Amd on the police party and sentenced to undergo 7 years' R.I. each and a fine of Rs.30,000 each and in default thereof to suffer further R.I. for 2 years. It was also directed that in case of recovery of fine from both the appellants, the same shall be paid to the police department as compensation for causing damage to the police vehicle. To assail their conviction and sentence, they have come up in appeal.
2. The prosecution case in brief as unfolded in the F.I.R. Exh.P.A./1 recorded on the basis of statement of Exh.PA. of P.W.7 Hamid Hassan A.S.I. at Police Station City Chishtian at 11-00 p.m. on 12-1-1993, was to the effect that on the night of 12-1-1993, the complainant alongwith P.W.4 Muhammad Shaft, Constable, Muhammad Akhtar Constable (given up), Muhammad Shafique (P.W.9) and Muhammad Nawaz Constable (given up) was on State owned vehicle Hi-Lux driven by Ghulam Ahmad deceased constable. The complainant alongwith P,W.4 were sitting on the front seat with the deceased driver, whereas Muhammad Akhtar Constable P.W. (given up), Muhammad Shafi (C) (P.W.4) and Muhammad Nawaz Constable P.W. (given up) were sitting on the back seat of the driver and were present on patrol duty on Sugar Mills Road near Satiana Hospital. They received a wireless message that in a Suzuki Car No.265-800 Karachi Anguri coloured, two persons after committing a murder were proceeding-on Ford Wah Canal and they should be chased and arrested, on which they immediately went towards Ford Wah canal and witnessed that a Suzuki car on the embankment of the canal was proceeding speedily towards old Chishtian which was chased, while proceeding on the embankment, the Suzuki car after crossing Darbarwali Pulli reached from old Chishtian towards the Sugar Mills road. Since the police vehicle reached near their car, and the accused who was later on identified as Abdul Rauf appellant, sitting on the back seat, started firing with Klashnikov and the bullets had hit on the front screen of the police vehicle, pierced through it and a bullet had hit on the head of the deceased Driver Ghulam Ahmad, who died and the vehicle had collided with the telephone pole and thereafter entangled in the tyres lying in front of the shop and stopped. The complainant alongwith the P.Ws. alighted and in its defence the police party fired on the Suzuki car which became unserviceable, on which the appellants came out from it and started firing on the police party and when the ammunition of the accused was finished, they ran towards the right side street, who were chased, apprehended and from Abdul Rauf Klashnikov P.6 alongwith an empty magazine was recovered and secured vide memo. Exh.P.D. and from Javid Afzal appellant pistol .30 bore P.7 was secured vide memo. Exh.P.E., whereas from the Suzuki car left behind by the appellants 146 bullets of Klashnikov P.8/1-146, 4 bullets of .30 bore pistol P.10/1-4, a magazine of Klashnikov containing 14 bullets P_11/1-14 and from around the car 10 empties of Klashnikov P.9/1-10 were recovered and secured vide memo. Exh.P.F. 3 empties of Klashnikov P.12/1-3 were also secured vide, memo. Exh.P.G. Suzuki Car P.15 was also secured vide memo. Exh.PJ. Ghulam Ahmad Constable/Drivei died at the spot and a case under section 302/34, 353/427, P.P.C. was made out, whereas separate proceedings were to be initiated for the recovery of the arms. The complaint Exh.P.A. was sent through Muhammad Shafi Constable (P.W.4) to the police station where on its basis formal F.I.R. Exh.PA./1 was recorded by Yousuf Ali S.I. (P.W,1).
3. The appellants were charged under sections 302/34 and 324/34, P.P.C. to which they denied and claimed trial.
4. The prosecution examined 13 P.Ws. in all to substantiate its case.
5. P.W.6 Dr. Muhammad Afzal Saqib on 13-1-1993 conducted autopsy on the dead body of Ghulam Ahmad deceased at 10-00 a.m. and found the following injury on his person:--
"A lacerated wound present over frontal region of the head over central part. Size 3 x 4 c.m. x deep going pieces of bone x embedded in brain matter. Skull bone fractured up the root of the nose. A bullet was recovered from the brain matter."
In his opinion the cause of death was cardiorespiratory failure due to injury No.l which was sufficient m the ordinary course of nature to cause death. The injury was ante-mortem in nature and was caused with a fire-arm. Probable time between injury and death was instantaneous and between death and post?mortem within 12 hours.
6. P.W.7 Hamid Hassan A.S.I. P.W.8 Muhammad Shafi H.C. and P.W.9 Muhammad Shafique Coqstable stated the ocular account of the occurrence. They had also witnessed the recoveries. P.W.13 Haji Muhammad Ali S.H.O. investigated the case, formally arrested the appellants on the night between 12/13-1-1993 when they were produced before him by P.W.7 Hamid Hassan, A.S.I. complainant. He also secured Klashnikov P.6 received from P.W. 7 Hamid Hassan A.S.I. which he had recovered from Abdul Rauf appellant. The same was secured vide memo. Exh.P.D. P.W.7 Hamid Hassan also handed over pistol .30 bore P.7 to P.W.13 which was recovered from Javid Afzal and the same was secured vide memo. Exh.P.E. P.W.13 had prepared sealed parcels of P.6 and P.7. P.W.7 Hamid Hassan A.S.I. also, produced before him other articles relating to Klashnikov and pistol. Moreover, P.W.7 produced 5 empties of service revolver P.16/1-5 which he used in self-defence before P.W.13 Muhammad Ali, Inspector/S.H.O. who secured the same vide memo. Exh.P.L. m presence of Muhammad Shaft H.C. (P.W.8) and Muhammad Akhtar Constable P.W. (given up). P.W.7 also produced 10 empties of Semi?China Rifle P.17/1-lG and the same were secured by P.W.13 vide memo. Exh.P.M. P.W.13 took into possession blood-stained seat Poshish P.18 of the police vehicle and secured the same vide memo. Exh.P.N. P.W.13 also secured blood-stained mat P.20 and blood-stained cover of the seat of police vehicle P.21 and secured the same vide memo. Exh.P.P. After completion of the investigation he had challaned the appellants.
7. The appellants when examined under section 342, Cr.P.C. denied the prosecution evidence against them, the recovery of incriminating articles and in answer to a question "Why this case against you and why the P.Ws. have deposed against you?" they replied:--
"We have been falsely involved in the case inter alia for the reasons that Sana Ullah deceased of the connected murder case was our friend. The fact of the matter is that police encounter took between Sana Ullah and others with police when the police party were chasing them and as a result of that Sana Ullah deceased of the connected murder case) and Ghulam Ahmad C. Driver deceased of the case in hand died and as Sana Ullah deceased was our friend, therefore, the police arrested us on the suspicion that we might be his companion. All the P.Ws. are police officials and as they are themselves involved ? in the murder of Sana Ullah deceased of the connected murder case, therefore, they falsely deposed against us in order to save their skin.? and further stated that they were not arrested from the place of occurrence. However, they were arrested at about 4/5-00 a.m. between the night 12/13-1-1993 from the house of Muhammad Ali, Reader to E.A.C. Chishtian in his presence as well as in the presence of Maqbool Ahmad Langah. E.A.C. Chishtian and other neighbours of Muhammad Ali, Reader viz. Muhammad Amin, Muhammad Saleem, Muhammad Latif etc. They also stated that all the recoveries were planted against them in order to strengthen the 'case of prosecution. They neither produced evidence m defence nor made statement on oath as envisaged under section 540(2), CrY.C.
8. The learned trial Court after evaluating evidence on record had convicted and sentenced the appellants.
9. We have heard the learned counsel for the appellants, who have Taken us through the evidence and criticised each and every piece of prosecution evidence.
10. P.W.13 Haji Muhammad Ali, S.H.O. recorded F.I.R. No.10 of 1993 at 12-1-1993 at 11-00 p.m. on the complaint of one Hakim Abdul Majid at Police Station City Chishtian, while coming on a motorcycle alongwith Haji Muhammad Adib, had witnessed the appellants standing near the car quarrelling-with an unknown person. Abdul Rauf appellant was armed with Klashnikov and Javid Afzal appellant was armed with a pistol .30 bore. The unknown person was demanding money from them and within the view of complainant Hakim Abdul Majid, appellant Javid Afzal fired with the pistol on the. unknown person on his chest, who died at the spot. His dead body was loaded in the car and then they escaped towards Old Chishtian Road. P.W. 13 Haji Muhammad Ali S.H.O. is stated to have immediately passed a wireless message to Hamid Hassan, A.S.I. (P.W.7), complainant of the present case, who was on patrol duty alongwith P.W.4 Muhammad Shafi Constable, P.W.8 Muhammad Shaft H.C. and other police officials on a State-owned vehicle at about 11-05 p.m. and allegedly they chased the green coloured car from wherein Abdul Rauf appellant while sitting on the rear seat started firing on the police vehicle and a bullet pierced through the mirror and hit the head of Ghulam Ahmad deceased /driver who died at the spot. The police vehicle struck with the telephone pole and entangled in the tyres. The police party in `its defence also fired on which the appellants alighted from the Suzuki and started firing on the police party and when their ammunition was finished, they ran in the street and were chased and arrested. Klashnikov P.6 was recovered from Abdul Rauf appellant and a pistol .30 bore P.7 from Javid Afzal appellant. The complainant also secured 10 empties of Klashnikov P.9/1-10, 146 bullets of Klashnikov P.8/1-146, a loaded magazine of Klashnikov containing 14 bullets P.11/1-14 and 4 live bullets of .30 bore pistol P.10/1-4 and had produced the same before P.W.13 Haji Muhammad Ali S.H.O. when reached the spot, secured the same vide memo. Exh.P.F. P.W.13 also secured Suzuki car bearing Registration No.265-800 Karachi vide memo. Exh.P.J. attested by P.W.7 Hamid Hassan A.S.I. and P.W.8 Muhammad Shafi H.C. He also secured registration book P.15 and Insurance documents from the car, vide memo. Exh.P.J. He also arranged a photographer Ashiq Hussain (P.w.10) who prepared photographs from the spot and produced 13 photographs before the Investigating Officer. He also prepared photo of car etc. The complainant of case F.I.R. No.10/93 had not supported the prosecution case:
11. The eye-witnesses are police officials. The appellants are alleged to have placed the dead body of deceased Sana Ullah in their car and escaped, but surprisingly the same was thrown at a distance of 15/20 feet near the roadside. P.Ws.7, 8 and 9 stated that after the ammunition of the appellants had exhausted, they had .alighted from the car and were chased and apprehended, but on the other hand, the police had found 10 empties of Klashnikov, 146 live bullets of Klashnikov alongwith a loaded magazine and 4 live bullets of .30 bore pistol, which clearly shows that if the appellants wanted, they could continue firing on the police party and save themselves from arrest and could escape easily from the spot. P.Ws.6, 7 and 8 stated that the tyres of Suzuki car were burst whereupon it stopped, but surprisingly there is no mention of the burst of the tyres of the car when it was secured by P.W.13 Haji Muhammad Ali S.H.O. vide memo. Exh.PJ. Moreover, the photographs taken by P.W.10 Ashiq Hussain also proves that none of the tyres of the car was burst. A case F.I.R. No.ll/93 was registered on 11-1-1993 at Police Station Sadar Chishtian Exh.D.D. on the complaint of Abdul Habib under sections 392 and 342, P.P.C. and the police was after the accused of the case. P.W.7 Hamid Hassan A.S.I./complainant alongwith other P.Ws. was on patrol duty in a police vehicle and they suspected a car going with the accused of case F.I.R. No.11/93, chased it and the accused travelling in the car fired at the police party, who retaliated and returned the fire on which the back and front screen of the ear was smashed. The co-accused escaped and the deceased Sana Ullah kept sitting in the car, continued firing and was killed, who was heavily armed which clearly shows from the recovery of 146 live bullets of Klashnikov and 4 bullets of pistol from the car. The circumstances of the evidence on record clearly shows that he was killed by the police party, and Sana Ullah deceased had also fired at the police party, during which Ghulam Ahmad Constable/Driver was killed. The appellants could not escape the fire-arm injuries at the hands of the police party when they were being chased by it and '" alleged alighted from the car, P.Ws.6, 7 and 8 are the eye-witnesses as well as the recovery witnesses. There is no independent corroboration of their statements. It is in evidence that immediately after the first incident of the alleged murder of Sana Ullah, a wireless message was passed by P.W.13 to P.W.6 who was on patrol duty alongwith other eye-witnesses and police officials who allegedly chased the accused and an encounter took place. The state of affairs shows that if the police claims encounter, then the matter is not subjected to scrutiny by any Court of law, but is investigated in a formal manner by the police themselves. There is no warrant of law or legal justification of police encounter. It is apparent that undue advantage was taken of the situatipn by the police. The police cannot be given a free licence to kill any person they want and then to manipulate a story of their.
12. Pursuant to the above discussion, we are of the view that the prosecution has failed to prove its case beyond doubt against the appellants and giving them benefit of doubt, they are acquitted of the charge. They are in jail, they shall be released forthwith if not required in any other case.
N.H.Q./A-648/L ????????????????????????????????????????????????????????????????????????????????? Appeal allowed.