MUHAMMAD HAYAT Versus THE STATE

This is an appeal by Muhammad Hayat convict against a judgment dated 25-6-1992 of a learned Additional Sessions Judge at Mianwali whereby Muhammad Hayat and his two co-accused persons, namely, Rafiullah and Habibullah had been convicted under section 223 in pursuance of which conviction each one of them had been sentenced to one year's S.I.

2. Muhammad Hayat, while posted as an A.S.I., was heading the -police party which was escorting two under-trial prisoners, namely, Ayyub and Anwar from Police Station Moch to the District Courts of Mianwali in a police wagon. Muhammad Hayat appellant, while armed with a service revolver, was sitting with the driver on the front seat; Rafiullah F.C. convict (not an appellant herein) armed with a service rifle and Habibullah F.C. convict not an appellant herein) was holding the chain with which the said two under-trial prisoners had been hand-cuffed and had tied the said chain with his belt.

3. It was alleged by Abdur Razzaq F.C. who was the driver of the said wagon that while they had reached near Dandi More Khawaja Abad Road within the area of Mauza Dandi and while he had slowed down the wagon in order to negotiate a sharp turn, one Sajjad Ahmad armed with a rifle, Asghar, Wajadullah and Farooq armed with pistols appeared there and signalled the vehicle to stop whereafter the said Asghar fired a shot hitting the tyre of the vehicle which punctured the said tyre. Farooq accused then fired a shot which did not hit any one. Wajadullah accused took out his pistol and threatened them all with death whereupon the said under-trial prisoners, namely, Ayyub and Anwar assaulted the above-mentioned police officials snatched the rile and the key of the hand-cuffs from Rafiullah and Habibullah F.Cs. and after managing their liberation, disappeared from the place of occurrence.

4. When confronted with the prosecution case, Muhammad Hayat appellant admitted the accusations as levelled by the prosecution but added that he and his two companion F.Cs. had put up resistance but were helpless. He had added that he had sent a wireless message to the S.P.'s office as a result of which Abdul Ghafoor S.I./S.H.O. immediately reached the spot. He had further claimed that thereafter all of them chased the above-mentioned accused persons and managed to recover the service rifle which the above mentioned accused had taken away but had thrown down during the course of their escape from the place of occurrence.

5. It is not denied that while the above-mentioned accused persons, who had come to rescue Ayyub and Anwar under-trials, were standing in the open when they had stopped the police wagon. Hayat appellant was sitting inside the said vehicle and was protected from all sides. He never fired a single shot at any of the assailants despite the protection thus available to him and in fact let them snatch not only the service rifle of one of the F.Cs. but also suffered the escape of the two under-trial prisoners whom he was escorting alongwith the two F.Cs.

6. Having faced this situation, the learned counsel for the appellant elected not to contest the conviction recorded against him but prayed that the sentence of imprisonment awarded to the appellant be reduced on the ground that departmental action had already been taken against the appellant and he had been departmentally punished for the same; that he had remained in custody for about five months; that the under-trial prisoners in question and the accused persons had since been arrested and finally that the appellant who was not in collusion With the assailants, deserved leniency.

7. The submissions made by the learned counsel are not without force.

8. Consequently, while maintaining the conviction of Muhammad Hayatl appellant under section 223, P.P.C., the sentence of one year's S.I. awarded to him therefore is reduced to the term of imprisonment already undergone by him. He shall be set at liberty forthwith if not required to be detained in any other case.

9. Criminal Appeal No.541 of 1992 stands disposed of in the above terms.

N.H.Q./M-722/L Sentence reduced