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Criminal Revision Application No. 19 of 1972, decided 21st July 1976..,

-- Ss. 148 & 332-Benefit of doubt-Accused allegedly armed with knife but not using same---No independent witness examined though number of persons present at Scene occurrence-Seven persons attaching complainant but role played by each person not ascertainable-Presence of accused at scene of occurrence, held, doubtful in circumstances of case-Criminal Procedure Code (V of 1898), S. 435,439. - [Revision (criminal)-Benefit of doubt].

Ch. Iftikhar Ahmad for Applicant.

Manzoor Hussain for the State

Date of hearing : 21st July 1976.

This is a revision filed against the order of the Learned III Additional Sessions Judge, Karachi, dated 10th November, 1971, who partially upheld the order of the learned VII Additional City Magistrate, Karachi, dated 31st July 1970.

2. The brief facts of the case are that the petitioner and six other persons were challaned under sections 148 and 332, P. P. C. on the allegation that on 24th April, 1966 at about 3 p. m. they voluntarily caused hurt to three constables of Abkari Police in order to deter them from performing their duties. The Abkari Police Head Hawaldar Mohammad Ayub Siddiqui had received a spy information that "charas" was being sold by one Shaukat Ali who, is petitioner's nephew in Bailal Colony, Landhi. The Abkari Police took P. Ws. Sattar and Ishaque as mashirs alongwith them and arrested Shaukat Ali. When they were taking the accused to the police station in a taxi the petitioners and six others tried to get the accused released. These persons attacked the police with knives and lathis. In course of attack injuries were caused to three constables. The injuries appeared to have been caused by blunt weapon and not by sharp-cutting weapon. Subsequently, a report was lodged in police post Landhi and all the petitioner and six other persons who had allegdly attacked the Abkari Police were challaned. One of them is still absconding whereas each of the petitioners and five others were tried and convicted to two years' rigorous imprisonment and a fine of Rs. 500.00 or in default further rigorous imprisonment for six months. One of the accused in this case was acquitted. An appeal filed against the conviction was partially allowed and except the petitioner the rest of the accused persons were acquitted.

3. The prosecution has examined nine witnesses of which three are the injured constables, one is Head Constable, two witnesses are mashirs. Apart from them the doctor who examined the injured persons and issued medical certificate and the investigating officers were also examined. From the evidence it transpires that the petitioner did not use the knife therefore the role ascribed to him is uncalled for. The police has a1so failed to examine any independent witness, although the driver in whose taxi accused Shaukat was being taken to the police station was one of the eye-witnesses of the incident. It is also alleged that several persons had gathered at tile wardat who saw the incident but none of them was examined. In these circumstances when the petitioner did not use knife and no independent witness was examined a doubt is created as to very presence of the petitioner at the scene of occurrence. The learned counsel for the petitioner has further argued that there is no evidence on record to show that any case was registered against Shaukat, therefore it cannot be said that the three constables of Abkari Police were injured in order to deter them in the performance of their public duties. This argument has no force because it was not necessary for the prosecution to have produced any evidence to show that Shaukat had been challaned. It is sufficient that the police had gone to arrest Shaukat on receipt of the spy information that lie Novas possessing charas"' illegally. However, since there were seven persons who attacked the police party, it cannot be said as to what role was played by each one of the assailants and also whether each one of them assaulted the Olive or not. In these circumstances a genuine doubt is created about the part assigned to the petitioner particularly when the allegation against him is that he had a knife in his hand but it has been well established that he did not use it. It is quite possible that he might not have participated in the offence.

4. The learned counsel for the State has not contested the revision which is accordingly allowed and the conviction of the petitioner is set aside. He is on bail and his bail bonds stand discharged.

Revision accepted.

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