Kasam Ali @ Kasu and ors. vs State of Punjab

Ajit Singh Bains, J.

Kasam Ali alias Kasu, Ahmed Yar alias Amman and Hakam AD appellants (all Pak nationals) were convicted for the offence under section 307 read with section 34, Indian Penal Code, and each one of them was sentenced to undergo rigorous imprisonment for four years and to pay a fine of Rs. 200/ or in default of payment of fine, to undergo further rigorous imprisonment for two months by the learned Additional Sessions Judge, Ferozepur vide his judgment and order dated 19th October, 1982. They have challenged there conviction and sentence by way of Crl. A. No. 746SB of 1982. They were separately tried for the offence under section 25 of the Arms Act and were convicted and sentenced for the said offence to undergo rigorous imprisonment for one year, which was ordered to run concurrently with the sentence awarded to them in the main case under section 307/34, Indian Penal Code. They have challenged their conviction and sentence under the Arms Act by way of Criminal Appeals No. 747SB, 748SB and 749SB of 1982 respectively. As all the four appeals arise out of the same incident, these will be disposed of by this common judgment.

The prosecution case as set up at the trial was that on the night intervening of 25th/29th April, 1982, Inspector Harbans Lal organised four naka parties and the party headed by S.I. Behari Lal (PW.4) joined Tek Singh and Karnail Singh (PW1) with them. The naka was started on the Abohar Hindumal Kot road at 0.15 a.m. on 26th April, 1982. All the four naka parties held nakabandi on that road within the area of Police Station City Abohar.

It is alleged that at about 4 a.m. on 26th April, 1982, all the three appellants were found coming on foot on that road from the side of Hindumal Kot. S.I. Behari Lal (PW4) alerted the member of the party and asked the appellants to stop as the police was holding a naka. One of the appellants fired a pucca shot towards the police party, but none by hit was that shot. Then on the direction of S.I. Behari Lal PW H.C. Jarnail Singh and Constables Surjit Singh and Ranjit Singh fired one shot each from their service rifles. All the appellants then took shelter on the left side of the road in a pit. The appellants again fired a shot containing bullet towards the police party. A.S.I. Gurdial Singh, Incharge of the other naka party asked the appellants that they had been surrounded by police on all the four sides. It is alleged that the appellants again fired a shot towards the police party S.I. Behari Lal (PW4) again got one shot fired each from H.C. Jarnail Singh and Constables Surjit Singh and Ranjit Singh in self defence. On the asking of S.I. Behari Lal (PW4), the appellants raised there hands reversed their arms and surrendered to the police party headed by S.I. Behari Lal PW.

On the personal search of the appellants one Pathani rifle of 303 bore (Ex. P.1) was recovered from the right hand of Kasam Ali Appellant. One empty cartridge (Ex. P.2) was recovered from the chamber of the rifle and one empty cartridge (Ex. P.3) was recovered from near the place of occurrence. Seven live cartridges which were missed of 303 bore were recovered from the pocket of the shirt of Kasam Ali appellant. The said article one made into there parcels and were taken into possession vide memo attested by the PWs. 10 kgs of Opium was recovered from each of the appellants and from Kasam Ali appellant seven watches were also recovered. From the right hand of Ahmad Yar appellant one country made 12 bore pistol was recovered and one empty from the pistol was also recovered. Two live cartridges of the same bore were also recovered from the pocket of Amhad Yar appellant. Sketch of the pistol was prepared and the pistol and the cartridges were made into three parcels and were taken into possession vide memo attested by the PWs. One country made 12 bore pistol and there live cartridges were also recovered from Hakim Ali appellant and they were taken into possession after making them into sealed parcles. Rs. 40/, Rs. 20/ and Rs. 15/ in Indian currency were also recovered from the appellants respectively. As the rifle and the pistol were found to be in working order by S.I. Behari Lal (PW4), so the appellants were arrested. On the basis of the ruqa sent by the SubInspector Behari Lal PW, the case against the appellants were registered at Police Station City Abohar vide F.I.R. No. 168, dated 26th April, 1982, under section 307 read with section 34, Indian Penal Code.

At the trial, the appellants denied the prosecution allegations and claimed that on 22nd April, 1982, they had come in search of their missing cattle and they were apprehended by the Boarder Security Force personnel and were handed over to the Fazilka Police and then they were falsely implicated in this case by the Abohar Police. However, they did not lead any evidence in defence.

The prosecution case rests on the testimony of S.I. Behari Lal (P.W.4), A.S.I. Hardial Singh (PW2) and Karnail Singh (PW1). These witnesses have supported the prosecution version as given in the earlier part of the judgment. But, their testimony does not inspire confidence. Tek Singh, another independent witness, is not produced by the prosecution for the reasons best known to him. Karnail SIngh (PW1) seems to be a stock witness of the Police. The prosecution story seems to be concocted. There is no evidence on the record to show that there was light where the alleged occurrence took place. The occurrence took place at about 4 a.m. on 26th April, 1982. Thus, in the absence of light it cannot be said with certainty that the shots were fired by the appellants towards the police party or in the air. Karnail Singh (PW1) has stated that the shots were fired in the air. Firing of subsequent two shots was not mentioned even in ruqa Ex. PB, on the basis of which the case was registered against the appellants.

Even the firing of shots seems to be concocted one. It is highly improbable that the appellants, who are nationals of Pakistan, will come on foot with weapons on the main road during night. If they had come to this side for smuggling purposes, then they would not walk on the main metaled road on foot. Although fires were exchanged between the appellants and members of the police party, but none of the members of the parties was injured. It is alleged that the fires were exchanged from a distance of 10/15 karms with the pucca rifles. Even if it may be assumed that the shots were fired, it cannot be said that these were aimed at the police party. It might be that the shots were fired to create confusion. The trial Court has observed in its judgment that no question was put to any of the prosecution witnesses whether it was dark at the time of the occurrence and that due to the darkness, the direction of the shots could not be ascertained. The omission to pay any such question on the point whether there was light at the spot or not by the appellants cannot be used against them as the prosecution has to stand on its own legs. It was not for the appellants to prove that there was darkness. It was for the prosecution to prove that there was light and in the absence of any evidence on the point it is to be presumed that it was dark at that time. Reference may be made to a Supreme Court authority reported as Hazara Singh and others v. State of Punjab, 1971(1) SCC 529, where the same view in similar circumstances is taken, although in the Supreme Court case the accused were Indian nationals and they wanted to cross the international border towards Pakistan in order to indulge in smuggling.

The weapons and the cartridges recovered from the appellants were not sent to the ballistic expert for opinion. It is in the evidence of Karnail Singh (PW1) that no shots were fired after the weapons were seized by the police from the appellants. Thus, it cannot be said with certainty that whether the weapons recovered were in working order or not or any shots were fired from those weapons.

The statements of the prosecution witness are also discrepant on material points. According to PW1 Karnail Singh, the maka party was organised at the spot were naka was held but according to PW4 S.I. Behari Lal, the naka parties were organised at a distance of about 50 feet from the Octroi Post, which is far away from the place of occurrence. According to PW1 Karnail Singh, the naka party was sitting in the field of wheat crop, but according to PW 4 S.I. Behari Lal the naka party was sitting at point `B'' shown in the site plan Ex. PA/1, where no wheat crop is shown. None of the prosecution witnesses has stated that any attempt was made by any of the appellants to use any force violence on any member of the police party except firing the shots in a direction which could not be determined. It is incumbent on the prosecution to prove that when the appellants fired shot from there weapons. It was intended to be fired at the members of the police party, because it may be that the shots were fired in the air or in some other direction with a view to create confusion and not to kill the members of the police party. The defence version seems to be probable that the appellants came to this side of the international border in search of their missing and stayed cattle and were apprehended by the B.S.F. and handed over the Police. It is a matter of common knowledge that cattle to stray across the borders as the fields of both the countries adjoin and there is no natural boundary such as a river or mountion on that part of the territory of India and Pakistan.

For the reasons recorded I am of the view that it is not safe to maintain the conviction of the appellants. Accordingly they were given the benefit of the doubt and acquitted of the charge under section 307 read with Section 34, Indian Penal Code. For the same reason they are also acquitted of the charge under section 25 of the Arms Act, as no reliance can be placed on the evidence of the prosecution witnesses that the weapons in question were recovered from them.

Of late it has come to our notice that the police has started indulging in showing fake encounters. As observed earlier, in the present case if the appellants who were Pak nationals has come to India for smuggling purpose or any other purpose, they would have just walk on the main matalled road but they would conceal themselves and would try to adopt circuitous route in order to avoid encounter.

In the result all the four appeals are allowed and the conviction and sentence as recorded by the trial Court are set aside.