' This judgment will dispose of Criminal Appeal No, 964 of 2003 directed against the judgment, dated 11-12-2002 passed by learned Special Judge, Anti Terrorism Court, whereby he convicted both the appellants as under:- ' Under section 216/149, P.P.C. Ijaz appellant was sentenced to undergo imprisonment which he had already undergone while Mehboob appellant was sentenced to undergo 2 years' R.I.
' Under sections 148/149, P.P.0 they both were sentenced to undergo imprisonment which they had already undergone.
' Under section 7(i), ATA, 1997 Mehboob was sentenced to undergo five years' R.I. With fine of Rs,1,00,000 or in default 2 years more, while Ijaz appellnat under said section was sentenced to undergo the sentence which he had already undergone ' All the sentences were ordered to run concurrently with the benefit of section 382-B, Cr.P.C.
2. The brief facts as narrated by the complainant in the F.I.R. Are that as per spy information a raiding party was constituted and Haveli of Muhammad Siddique was encircled. Two accused/ appellants alongwith Waheed alias Kaka and Zaheer Rizwan were sleeping on the top of the room while 3/4 unknown persons were also sleeping on the northern side of the same roof. On the commotion caused by the police all the sleeping persons including accused persons woke up.
Cross-firing started between the police and the accused party till 6 p.m. Next evening. Taking benefit of stormy wind all the accused made good their escape. After stoppage of firing police found one dead body of Muhammad Ilyas P.W. Another dead body of Waheed alias Kaka was found lying there while third dead body of Faiz Rasool alias Billi was found lying near the mosque.
Different types of weapons with cartridges, bullets etc. Were also recovered from near the dead bodies of the deceased. Investigation of the instant case was conducted by Muhammad Rashid, Inspector who visited the spot. He prepared inquest reports relating to all the deceased vide memos. Exh P. W .11/2 to Exh. P. W.11/4. He collected blood-stained earth from places of all the deceased vide memo. Exh.P.W.11/11 to Exh. P.W. 11/13. Last-worn clothes of all the deceased were received by him. On 8-2-2002 their formal arrest was made by Muhammad Yousaf, S.-I. After bringing them out from Jail. Ulatimately on 21-4-2002 challan against the accused was submitted by Muhammad Tariq, S.-I.
3. Prosecution in order to prove its case has produced as many as 12 witnesses including Investigating Officers, Doctor, eye-witnesses and other formal witnesses. After tendering in evidence report of Chemical examiner Exh.PP/1, Exh. PP./2 and the report of F.S. Lab. Exh.PP/3 and report of Chemical Examiner Exh.PP/5 and copy of F.I.R. 338 of 2001 Exh.PP/4. Learned Public Prosecutor closed the prosecution evidence. Thereafter statements of the accused were recorded under section 342, Cr.P.C. In which they pleaded their innocence. After taking into consideration all the facts of the learned trial Court convicted and sentenced the appellants as mentioned above.
Hence this appeal.
4. Learned counsel for the appellants in support of this appeal submits that no charge under sections 246, 216, P.P.C. Was framed against the appellants, that there is no evidence even in this regard, that the place where the occurrence had taken place that did not belong to the appellants, that the conviction under section 216, P.P.C. Awarded to the appellants by the learned trial Court is liable to be set aside. Learned counsel submits that section 324, P.P.C. Is also not made out because the presence of the present appellants has not been proved by the prosecution. Learned counsel submits that the appellants could not have been identified in the dark hours of night. Adds that both P.W.4 and P.W.5 have categorically stated that it was pitch dark night when the occurrence had taken place, that no weapon of offence was recovered from the appellants during their physical remand. Learned counsel submits that from the places wherefrom the weapons of offence were allegedly lying near the dead bodies of the deceased, were taken into possession there was no crime empty. Learned counsel submits that identification was not possible. Learned counsel adds that according to the prosecution version the appellants were present while lying on the cots on the roof top of the house and it was not possible for the P.Ws. Who were on the ground to identify them, that all the weapons which were allegedly recovered by the police were taken into possession before the arrest of the appellants. P.W. 10 had stated before the learned trial Court that he did not take remand of the appellants as the recoveries were already effected from the place of occurrence. Learned counsel submits that although, reckless firing was made by the appellants and their co-accused but none from police side received a single scratch on their bodies but from the side of the appellants three persons namely Waheed alias Kaka, Faiz Rasool alias Billi and Muhammad Ilyas were killed, that it was a fake police econounter, that no occurrence had taken place as has been stated by the first informant, that the prosecution has failed to prove its case against the appellants.
5. On the other hand learned State Counsel submits that appellants were named in the F.I.R., they have been named by the eye-witnesses during the trial, that the prosecution has proved its case against the appellants beyond any shadow of doubt. He supports the judgment of the learned trial Court.
6. I have heard the learned counsel for the parties. In the instant case the occurrence had started at 3 a.m. It is a case where there is a detailed F.I.R. Consisting of three to four pages. There is no mention of any electric light or any other source of light in whole of the F.I.R, under which the eye- witnesses had identified the accused persons. Present appellants were not known to the raiding party prior to the occurrence and according to the first informant the names of the appellants came into their knowledge after the occurrence, through what source, prosecution does not say anything in this regard. After the arrest of the appellants no identification parade was held. During the course of investigation no incriminating weapon was recovered from the appellants, none from the appellants' side received a single scratch on their bodies, although, they were in large number while on the other hand three co-accused of the appellants namely Waheed alias Kaka, Faiz Rasool alias Billi and Muhammad Ilyas were killed in police encounter. It is a case where identification of the appellant was very difficult for the P. Ws. Because according to the prosecution case the appellants were present on the roof top of the house while the police party was on the ground and there was no source of light, so the identification of the appellants at the time of occurrence is highly doubtful. In this view of the matter, I am of the opinion that prosecution has failed to prove its case .\against the appellants so while granting benefit of doubt, I accept this appeal and set aside the conviction and sentence awarded to the appellants by the learned trial Court. The appellants shall be released forthwith if they are not required in any other case.