Sardar Muhammad Raza Khan, J.--Umar Farooque son of Muhammad Farooque, through this jail petition; seeks leave to appeal against judgment dated 22.9.2003 whereby his appeal against conviction was dismissed. The conviction and sentence recorded by the learned Judge Special Court IV Lahore was as follows:-- Under section 7 of the Anti Terrorism Act,1997to life imprisoment and also to pay fine of Rs. 50,000/- and in default thereof to futher undergo six months S.I; and Under section 7 (h) of the Anti Terrorism Act,1997To undergo 7 years R.I and fine of RS. 10.000/- and in default to undergo 6 months S.I.
2. The facts narrated by Mumtaz. Ahmed constable, in FIR # 62 dated 1.2.2002 of Police Station Iqbal Town Lahore, are that Muhammad Azam, Inspector/SHO alongwith police party was on patrol duty when he received a secret information that four unknown and duly armed person have gathered at Doongi Ground Khyber Block Allama Iqbal Town and are conspiring to commit some offence.
The police party reached the place at 11:15 a.m. They saw four persons sitting together under the sun in the open ground near Shadab Institute of Training. Seeing the police party, all the four ran away and took shelter behind a wall of the training institute.
3. They, from the said shelter, opened fire at police. Muhammad Azam Inspector/SHO and Ameer Ali constable got injured. The police and the accused exchanged fire during the occurrence in which one of the suspects, subsequently known to be Adil, died on the spot. The remaining three made got their escape.
4.The police started investigation and searched for the accused. The occurrence having taken place on 1.2.2002, the suspects were apprehended on 11.2.2002, eleven days after the occurrence from the same spot in Doongi Ground. Their test identification parade was conducted on 2.3.2002 where Muhammad Azam, Ameer Ali and Arif happened to identify them. They were indicated to face trial under section 7(c) and 7(h) of the Anti-Terrorism Act of 1997. Babar Shehzad is reported to be an absconder while Talat Mehmood has been acquitted. Umar Farooque is the only petitioner before us. It may be mentioned at this juncture that the accused also have examined as many as four witnesses in defence, pleading mainly that the accused belonging to Wah had no business at all to do at Doongi Ground Iqbal Town Lahore, that they were never present at the spot, that they were arrested long before the given date from Wah and that the story of their apprehension on 11.2.2002 from the same spot at Doongi Ground is altogether fictitious and concocted.
5.The prosecution, in nutshell, relies upon the ocular testimony of police witnesses, the apprehension of the accused on 11/2/2002 from the same spot and the test identification parade conducted on 2.3.2002 wherein they were identified by the witnesses. In that behalf, when one reverts to the prosecution evidence, it becomes clear from the very FIR that on seeing the police party, the culprits had run away and had taken positions behind a wall. It is any body's guess as to how the witnesses could have identified the culprits when, while running they had their backs towards the police and while firing, they admittedly were behind a wall. Except that the accused left a dead body behind, there was no occasion at all for them to have disclosed their identity because from behind the wall, they had succeeded in running away.
6.It does not appeal to common sense as to why the police should run after some people about whom it is not known as to what offence they were about to commit and why at all should they be conspiring in an open ground at broad day light. One cannot comprehend, without a pinch of salt, as to why the same culprits who lost one of their companions would get together again at the same spot eleven days after the occurrence and would be apprehended like sitting ducks not attacking police to avenge the killing of their companion. It is amazing to note that when they had no reason so to do, they opened fire at police and when, they had all the reasons, they surrendered so peacefully. Their apprehension from the spot on 11.2.2002 does not appeal to common sense as well as reason. In that behalf one cannot overrule the defence version that they had already been arrested from Wah Cantt, and a fake arrest of 11.2.2002 was shown on record.
7. Coming to the circumstantial evidence of test identification parade, it may be remarked that this one is the strongest piece of evidence used against them It is an admitted fact that right from the day of their physical apprehension they were brought to the police station. They must have been produced before the Magistrate for remand during investigation and it was after twenty days from their arrest that they were produced before Mr. Muhammad Iqbal Magistrate for identification parade. It has been proved beyond doubt that during these days they remained under custody of same police which had registered a case against them and the members whereof were to appear against them as eye-witnesses. They were, subsequently, identified by the same witnesses under whose custody or under the custody of whose colleagues, they remained throughout. There cannot be a false identification parade than the one in hand. No conviction at all can be based on an identification which is witnessed by police officials in a case where police itself is a complainant and the accused remained in the custody of that very police for about or more than twenty days.
8.At one time, it is said that they were separately arrested but at the other, it is said that they were arrested together. In between the time of arrest and the identification parade, three dates were adjourned for the purpose and on the last date the parade was conducted. It is also on record that men from police were also arrayed in the parade alongwith accused so as to be conveniently excluded by the police witnesses.
9.On exactly the same evidence and in view of the joint charge, it is not comprehendible, as to how, Talat Mehmood could be acquitted and on the same assertions of the witnesses, Umar Farooque could be convicted.
10. After having thoroughly gone through the evidence, we are of the firm view that police party had not been able to identify the culprits at the time of occurrence. That their arrest is highly doubtful and the circumstances provide reasonable inference that the defence evidence in that behalf could be most probable. That the identification parade was totally fake and illegal providing no chances for the prosecution to rely thereupon as a circumstantial evidence. The petitioner is, therefore, entitled to the benefit of doubt.
11.The instant petition after conversion into appeal is allowed and the petitioner Umar Farooque is hereby acquitted of the charges under sections 7(c) and 7(h) of the Anti-Terrorism Act of 1997. The conviction and sentence recorded through the final impugned judgment is hereby set aside. The petitioner, if not required to be detained in any other cause, is directed to be released forthwith.