PLD 2011 Quetta 57
Before Jamal Khan Mandokhail, J
SHAH MUHAMMAD alias SHAH KHAN ---Appellant
Versus
THE STATE ---Respondent
Criminal Appeal No.23 of 2010, decided on 1st June, 2011.
(a) Penal Code (XLV of 1860) ---
----S. 225---Resistance or obstruction to lawful apprehension of another person ---
Establishment of offence ---To attract S.225, P.P.C., a lawful apprehension, was a
condition precedent ---In order to bring the case within the purview of S.225, P.P.C., the
custo dy of a person must be lawful, through a warrant of arrest, issued by a competent
court; or the person having custody of an accused must have the authority to lawfully
detain him/her.
(b) Penal Code (XLV of 1860) ---
----S. 225---Resistance or obstruc tion to lawful apprehension of another person ---
Appreciation of evidence ---No evidence had been produced to prove the fact that
prosecution had adopted a lawful means to arrest or to detain person in custody ---
Detention of said alleged escaped prisoner wit h Police Official, in circumstances, had not
been proved to be lawful ---Rescue of said person, even if believed to be true, no offence
under S.225, P.P.C. was made out F.I.R. in the case had been lodged after about 8 hours
of the alleged occurrence and no explanation was available of said delay and it seemed
that after the occurrence the complainant went to the Police Station and after consultation
and deliberation, nominated the accused in the F.I.R., being brother of said person, which
had created doubt ---F.I.R. had stated that nominated the accused along with accused
attacked and started firing upon the Police party, which had damaged the Police vehicle,
but the complainant, who appeared in the court, was not only silent about the damages
allegedly caused to the Police vehicle, but had also failed to produce the vehicle in the
court, which had belied the story narrated in the F.I.R. ---Contradiction existed on the
point of release of detained person as the complainant and the alleged eye -witness, did
not co rroborate each other on that point ---Manner, in which the story was alleged, did not
appeal to a prudent mind and it was unbelievable that after such a heavy firing, none from
either side was injured; nor any damage to the Police vehicle had been proved ---False
involvement of accused in the case, could not be ruled out in circumstances ---Impugned
judgment passed by the Trial Court was set aside and accused was acquitted of the
charge.
Public Prosecutor v. Annadham Annamalai and others AIR 1954 Mad. 321 ref.
Baz Muhammad Kakar for Appellant.
Abdul Sattar Durrani, Addl. P.G.
Date of hearing: 8th October, 2010.
JUDGMENT
JAMAL KHAN MANDOKHAIL, J. ---This appeal has been presented against the
judgment dated 9 -2-2010 passed by the Sessions Judge, L oralai, whereby, the appellant
has been convicted and sentenced under section 225, P.P.C. to suffer one year R.I., with
benefit of section 382 -B, Cr.P.C.
2. Brief facts of the case are that an F.I.R. No. 5 of 2008, under sections 324 -225-224-
427-186-353-149-148-147, P.P.C, was registered by one Wazir Khan against the
appellant and others. It is alleged that the appellant and others offered resistance, which
resulted into the release of one Ahmed Din, who was in custody of the police. The
appellant was arr ested and to his extent incomplete challan was submitted before the
Court of Sessions Judge, Loralai.
3. The prosecution in support of its case, produced six witnesses and exhibited certain
documents. The appellant was examined under section 342, Cr.P.C, who also recording
his statement on oath and produced one witness in his defense. On conclusion of the case,
the appellant was convicted as mentioned hereinabove, hence this appeal.
4. The learned counsel for the appellant submitted that the prosecution has failed to prove
the case against the appellant, but the trial Court has failed to consider the evidence and
material available on record properly, which amounts to misappreciation of the evidence.
He further argued that the story narrated by the prose cution does not appeal to a prudent
mind, as such, it is a concocted one. He stated that the F.I.R. has been registered after a
delay of about seven hours, without any explanation, which shows that it has been
recorded after consultation and deliberation, therefore, false implication of the appellant
cannot be ruled out. According to him, the impugned judgment in the circumstances, is
illegal and unlawful, therefore he requested to set -aside the same.
5. On the other hand, the learned State counsel oppose d the contention and submitted that
the appellant has been nominated in the F.I.R. with a specific role. He stated that the
witnesses remained firm on their deposition and have corroborated each ethers.
According to him, the trial Court has come to a right and just conclusion, therefore, the
appeal deserves to be dismissed.
6. I have heard the learned counsel for the parties and have perused the record. Keeping
in view the allegation, section 225 of the P.P.C. attracts, which is reproduced herein
below.
225. Resistance or obstruction to lawful apprehension of another person .--
Whoever intentionally offers any resistance or illegal obstruction to the lawful
apprehension of any. other person for an offence, or rescues or attempts to rescue
any other person from any custody in which the person is lawfully detained for an
offence, shall be punished with imprisonment of either description for a term may
extend to two years, or with fine, or with both.
7. In order to bring the case within the purview of sectio n 225, P.P.C, the custody of. a
person must be lawful, through a warrant of arrest, issued by a competent Court or the
person heaving custody of an accused, must have the authority to lawfully detain him/her.
Thus, to attract section 225, P.P.C, a lawful a pprehension is a condition precedent.
8. In the present case, it is alleged that the main accused was arrested by Duki police
officials, who handed over him to the police officials of Loralai. It is a fact that none of
the official of Duki Police Station did appear as a witness to prove the contention of the
prosecution. No evidence has been produced to prove the fact that the prosecution has
adopted a lawful means to arrest or to detain Ahmed Din in custody, therefore, the
detention of the alleged escape d prisoner with police officials had not been proved to be
lawful. Thus, rescue of Ahmed Din, if believes to be true, even then, no offence under
section 225, P.P.C. is made out. Reliance has been placed on case title Public Prosecutor
v. Annadham Annamala i and others, reported in AIR 1954 MADRAS 321 (Vol. 41,
C.N.133), relevant portion of the judgement at page -324 is reproduced herein below:
Para No.13... Therefore, the apprehension of the person in question Vasudeva was
not lawful and once the apprehens ion or detention is not lawful, it is well settled
law that his own escaping as well as the rescuing of such a person by others is no
offence. The person from whose custody the rescue is effected or escape made
must have authority to lawfully detain the pe rson rescued. Otherwise no offence is
committed in effecting the rescue.
Para No.15... This embodies only the sound rule embodied in section 80, Cr. P. C.
viz, that the Police Officer shall inform the warrantee the substance thereof and if
so required ha s got to show the warrant. This court has laid down in 'AIR 1924
Mad. 555(A)', that a person about to be arrested is entitled to show under what
power the constable is arresting him and if he specifies a certain power which the
person knows the constable h as not got, he is entitled to object to such arrest and
escape from custody, such custody not being lawful one. See also 'Ramjit v.
Emperor', AIR 1938 All, 120 (V). Thus, where an inspector of police catches hold
of the wrist of the accused without informi ng him for what offence he was being
arrested accused wrenching himself free is not guilty of any offence under the
Indian Penal Code: --'Moneshwar Bux v. Emperor', AIR 1939 Oudh 81 (W).
Para No. (16)... There is a long line of decisions that resistance t o the execution of
an unlawful order, or unlawful arrest or defective warrant making out it is 'ex
facie' illegal is no offence. Where the Sub -Inspector asked the constable to bring
the accused to thana by force and there was a scuffle, held as there was n o
direction for arrest accused was not guilty of an offence under Ss. 224, 225, 353,
I.P.C. -'Gulabi Mahto v. Emperor', AIR 1940 Pat. 361(x). Under the Madras
Gaming Act arrest of accused in a shop in the absence of proof that it was a
common gaming house led to obstruction to arrest and it was held to be no
offence -'Kandasami Thevan v. Emperor' 1934 Mad WN 616(Y). Where warrants
have not been duly signed or sealed or they are sought to be executed beyond duly
authorized and authorizeable persons obstructio n to execution of such warrants is
not unlawful provided the force used is the minimum necessary: - Jagnannath v.
Emperor', AIR 1932 All 227 (Z); -Fattu v. Emperor, AIR 1932 All 692 (ZI); --
'Subbaramiah v. Emperor', AIR 1934 Mad 206 (Z2); --In re Bhullikhan, AIR 1938
Nag. 45 (Z3) ---Bansropan Singh v. Emperor', AIR 1973 Pat. 603 (Z4).
Para No. (17). Therefore, the acquittals made by the learned Stationary Sub -
Magistrate are correct and these appeals are dismissed.
9. Considering the merits, the complainant of the case appeared as P.W. 1 and states that
the appellant in convenience of others, succeeded in helping the accused Ahmed Din to
escape. The record reflects that the incident had taken place at 11 -45 a.m., but the F.I.R.
has been lodged at 7 -30 p.m. wi thout explanation of the delayed registration of the F.I.R.
It seems that after the occurrence the complainant went to the police station and after
consultation and deliberation, nominated the appellant in the F.I.R., being brother of
Ahmed Din, which crea tes doubt.
10. Another aspect of the case is that the complainant, in the F.I.R., stated that the
nominated accused along with the appellant attacked and started firing upon the police
party which has damaged the police vehicle. When the complainant appe ared, in the
Court, he was not only silent about the damages allegedly caused to the police vehicle,
but has also failed to produce the vehicle in the Court, which belies the story narrated in
the F.I.R.
11. Muhammad Ismail appeared in the Court as P.W.2 and stated that the main accused
namely Ahmed Din, taking advantages of the firing, succeeded to pull handcuffs from him
and ran away towards nearby forest. Another alleged eye -witness appeared as P.W.3 and
stated that one Surf vehicle crossed the police vehicle and stopped, in front of it. Few
people alighted from the Surf vehicle and opened firing upon the police. According to, the
witness, those persons succeeded in releasing the escaped prisoner Ahmed Din, from the
custody of the police.
12. Perusal of the statement of the complainant and the alleged eye -witnesses, there are
contradiction on the point of release of Ahmed Din. They do not corroborate each other
on the point.
13. Even otherwise, the manner, in which the story is alleged, does not appe al to a
prudent mind. It is unbelievable that after such a heavy firing, none from either side was
injured nor any damage to the police vehicle has been proved. If it is believed that the
accused ran away, after pulling the handcuffs, then question arises as to why the police
official did not chased him, despite of the fact that they were numerous and were armed.
The unexplained delayed F.I.R. and the fact that the appellant is a brother of the main
accused, Ahmed Din, coupled with the contradictory stateme nt of prosecution witnesses,
creates doubt in the prosecution story, therefore, false involvement of the appellant
cannot be ruled out. The impugned judgment is not sustainable.
Thus, in the circumstances, the appeal accepted. The impugned judgment dated 9-2-2010,
passed by the Sessions Judge, Loralai is set, aside and the appellant is acquitted of the
charge.
H.B.T./49/Q Appeal accepteThis judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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