REHMAN alias MANI Versus State Prince Rehan Iftikhar Sheikh
Rehman alias Mani (appellant) along with Shahzad alias Mano was tried in case First Information Report (FIR) No.371 (PC/1) recorded on 01.06.2016 under Sections 324/353/186/34, P.P.C. read with section 7 of the Anti-Terrorism Act, 1997 (Act) at Police Station Ghalla Mandi district Sahiwal. On conclusion of trial vide judgment dated 27.07.2017 passed by the learned Judge Anti-Terrorism Court Sahiwal (ATC) appellant was convicted and sentenced as under:- i. Under section 324, P.P.C. to undergo 10 years R.I. with fine of Rs. 100000/- (one lac). In default of payment of fine he was ordered to further undergo six months S.I. ii Under section 353, P.P.C. to undergo two years R.I. iii. Under Section 7(c) of the Act to undergo 10 years R.I and fine of Rs. 50000/- (fifty thousand). In default of payment of fine he was ordered to further undergo six months S.I.
2. It was directed that all the sentences of appellant shall run concurrently and the benefit of section 382-B, Cr.P.C. shall also be available to him. On the basis of same judgment Shahzad alias Mano was acquitted.
3. According to complaint (PC) prosecution's case was that on 01.06.2016 police party compromised of Jawwad Afzal SI, Ahmad Hassan SI, Zakir Hussain ASI, Muhammad Akram ASI (Pw-6), Muhammad Akram ASI/1165, Tahir Javed ASI, Riaz Ahmad Constable (Pw-5), Nazar Muhammad Constable (Pw-8), Muhammad Anwar Constable, Waheed Akhtar Constable, Shahzad Ahmad Constable, Shabbir Ahmad Constable, Naveed Akhtar Constable and Zubair Ahmad Constable headed by Nazir Ahmad SI (Pw-3) on official vehicle SLK-9603 being driven by Habib Ahmad Constable after searching of accused of case FIR No. 370 of 2016 were returning to Police Station Ghalla Mandi; when they reached at Chowk Ghalla Mandi, there emerged Muhammad Rehman alias Mani (appellant) and two unknown persons; appellant raised a 'Lalkara' to kill all of them because of registration of case; appellant with his pistol started firing on police employees; one fire hit on the right side of back of Riaz Ahmad Constable (Pw-5); two unknown assailants made straight firing on the police and one fire hit on the right elbow of Riaz Ahmad Constable (Pw-5) who being injured fell down; at that time the street lights were on therefore they had identified Rehman alias Mani; on firing made by assailants, the police also took position and made firing in response; accused had also been firing which resulted into terror in the market and area; the citizens sleeping while taking shelter in their houses saved them whereas assailants were succeeded to escape.
4. The above complaint recorded on 01.06.2016 at about 01:05 am was sent to Police Station through Bashir Ahmad Constable on the basis of which FIR (PC/1) was recorded by Muhammad Nawaz HC (Pw-2).
5. On 24.06.2016 through a supplementary statement Shahzad alias Mano and Shah Zaib (Juvenile) were nominated as accused. Shahzad was arrested on 29.12.2016 by Nazir Ahmad SI (Pw-3) who was sent to jail and his identification parade took place on 29.01.2017. During investigation Shahzad got recovered a pistol on 01.01.2017 from an iron box lying in his residential house.
6. Appellant was arrested in this case on 03.07.2016 by Imdad Hussain Inspector who on 12.07.2016 got recovered a pistol (P-4) lying in an iron box of the Baithak of his house.
7. On conclusion of investigation report under Section 173, Cr.P.C. (Challan) was submitted in ATC.
8. Initially on 05.10.2016 charge was framed against appellant however later on Shahzad was arrested and to his extent supplementary report under Section 173, Cr.P.C. was also submitted, so on 25.05.2017 a charge under sections 324/353/186, P.P.C. read with section 7 of the Act was framed against appellant and his co-accused for which they pleaded not guilty and demanded their trial.
9. In support of its case prosecution had produced the following witnesses:--
Pw-1 Muhammad Iqbal ASI is a witness to proclamation of Shahzad and Shah Zaib.
Pw-2 Muhammad Nawaz HC is author of FIR who being Moharrar also kept case properties in Malkhana and transmitted to PFSA.
Pw-3 Nazir Ahmad S.I. is the complainant and an eye-witness.
Pw-4 Muhammad Sharif HC/Moharrar also received the case properties and kept in Malkhana and transmitted to the office of PFSA.
Pw-5 Riaz Ahmad Constable is an injured eye-witness.
Pw-6 Muhammad Akram ASI is an eye-witness,
Pw-7 Muhammad Afzal Constable had deposited the parcels in the office of PFSA.
Pw-8 Nazar Muhammad Constable is a witness to securing the blood stained shirt of Riaz Ahmad Constable.
Pw-9 Kashir Ali SI made part investigation.
Pw-10 Dr. Umar Rehman had medically examined Riaz Ahmad Constable.
Pw-11 Imdad Hussain Inspector is one of the Investigating Officers.
Pw-12 Mahr Ali Constable is a witness to the recovery of pistol at the instance of Shah Zaib (Juvenile)
Pw-13 Iftikhar Ahmad Inspector made initial investigation.
Pw-14 Suleman is a witness to the arrest of Shahzad accused.
10. Tahir Javed ASI, Ahmad Hassan SI, Ehsan Constable and Muhammad Imran were given up being unnecessary by the learned Deputy District Public Prosecutor who thereafter closed the prosecution's evidence.
11. In his examination made under section 342, Cr.P.C. version of appellant was as under:--
"I am innocent. I have no connection with this case. It is a concocted story which is tailed by all police officials/witnesses. Injured PW have not any knowledge about his injuries. He made different statements from the story narrated by complainant in complaint. He has no knowledge about his injuries from where these were given to him. He also could not make any truthful statement before any forum. All the PWs are police officials. They gave their false statements just to strengthen the prosecution story. No private PW has given his evidence against me. There are contradictions in the statements of PWs which make this case false and frivolous. The PWs of police officials are closely related to the complainant and injured of FIR No. 370/16 under sections 324/ 365/148/149, P.P.C. Police Station Ghalla Mandi which is falsely registered against me.
I was not nominated in the FIR. No motive was attributed to me. My identification parade was not conducted. I am innocent. I have no connection with this occurrence"
12. Appellant opted not to appear in terms of section 340(2), Cr.P.C. or to produce defence evidence.
13. Learned counsel for appellant contended that prosecution's story is the victim of contradictions, self conflictions, infirmities, inherent defects and abnormalities therefore same could not be relied upon by the learned trial court.
14. On the other hand learned Deputy Prosecutor General contended that appellant was specifically nominated in FIR; he was known to the witnesses of this occurrence; there was source of light available so his identification was not a challenge for the witnesses; considerable number of empties were secured on spot inspection which confirmed the fact that firing was made on police party; there is no question to disbelieve the injured eye-witness; defence despite its best efforts could not shatter the confidence and credibility of the witnesses during process of cross-examination. He finally added that on the basis of a well reasoned judgment appellant has been rightly convicted by the learned trial court and said decision does not require any interference.
15. HEARD.
16. The FIR is completely silent that at what time the occurrence had taken place and even the witnesses during cross-examination were not able to tell the exact or approximate time and if they told it, that was in contradiction to each other.
17. It was mid night when the occurrence had taken place and this time can be gathered on perusal of compliant where time of recording of complaint is 01:05 a.m. It was stated that the street lights were on but in the entire investigation no blub was taken into possession so as to corroborate the prosecution's version.
18. The firing was made after the Talkara' raised by appellant. The story narrated by police officials appears to be unnatural when it was claimed that the fire of appellant hit to Muhammad Akram ASI. In such situation when the police officials came under attack there was no question at all to identify and to say that fire of which assailants hit to whom?
19. It is a recognized principle of law that man can tell a lie but circumstance not. According to complaint (PC) as a whole the police party was comprised sixteen members including the complainant. The statement of Nazir Ahmad SI/complainant (Pw-3) shows that after hearing the report of fire they also made firing in retaliation in order to ward off the aggression of the accused and that the police officials were armed with SMG, G-3 rifle and pistols. He also responded that almost all the police officials made firing on the accused however he cannot tell the exact number thereof.
20. It is surprising that on spot inspection as admitted by Iftikhar Ahmad Inspector (Pw-13) he did not find any empty of official weapons. The more surprising fact is that the empties those were of the fires made by appellant and his co-accused was available there and duly taken into possession. As a whole 12 empties were taken into possession from three different places. It is not understandable that if the crime scene was under the guard and supervision of men in uniforms and the empties allegedly belongings to assailants were recovered then why the empties of the fires made by police officials from officials were not there? Here the prosecution stands still with no answer at all.
21. According to Nazir Ahmad SI/ compliant 12/13 police officials were on one police van and two were on motorcycle but this was contradicted by Muhammad Akram ASI (Pw-6) who maintained that none of police constables was on motorcycle.
22. We are conscious of the fact that the police employee sustained the injuries in this occurrence and the injured witness is also there. But we cannot ignore the settled principles that because of injuries on the person of a witness a certificate of truth cannot be issued to him and his testimony has to be discussed and appreciated in the same manners as any other witness.
23. Although Shahzad was not nominated in the FIR but later on he was implicated and identified during the identification parade proceedings and against him there was also the allegation of firing but once he is acquitted from the case it means that the witnesses have been disbelieved by the learned trial court to his extent. It is worth mentioning that his acquittal has not been taken to any exception by the prosecution therefore when the witnesses have been disbelieved qua Shahzad, their credibility cannot be accepted to the extent of appellant also.
24. We therefore declare that prosecution has badly failed to prove its case beyond reasonable doubt against Rehman alias Mani (appellant) hence this criminal appeal is allowed. Impugned judgment is set aside. Rehman alias Mani (appellant) is acquitted from the case. He is in custody and shall be released forthwith if not required in any other case. The case property shall be dealt with in the same manners as directed by the learned trial Court.
JK/R-22/L Appeal allowed.