1. ' RAHMAT HUSSAIN JAFFERI, J.---Brief facts giving rise to the present appeal are that on 4-3-2001 the complainant S.H.O. Syed Mushtaq Ali received information that a gang of dacoits of Dhani Bux was available in the Banana Garden of Allandad Burdi near Piryaloi. He conveyed the message to higher officials therefore the DSPs of various areas of Khairpur District were deputed to raid the forest and arrest the dacoits. They all reached at the pointed place. Four parties were formed headed by DSPs of City, Headquarter, Keti Pir Sahab Pagaro and Pir Goth. The said parties surrendered the required area of forest. The complainant was in the party of D.S.P. City, Khairpur.
2. Other members of the said party were PC Amanullah, PC Zamir Hussain, injured PC Muhammad Yousuf, PC Zulfiqar Ali, PC Azizullah and other police constables. The said party reached in the garden when suddenly dacoits started firing at the police party. The police party also fired at the dacoits. The encounter continued for about 20 minutes and then the dacoits ran away. P.Ws.
3. Amanullah and Zamir Hussain informed the higher officials that they had identified the dacoits who were 12 in number. They disclosed the names of dacoits as Shadoo Narejo, Aziz Ulro, Dhani Bux Shaikh appellant Leemon, Khadim Ulro, Nadir Ulro. Ali Gul Narejo, Karim Bux, Shaikh Munir Misrani and two other unknown persons. They were armed with Kalashnikovs, guns and Rocket Launchers.
4. After the departure of the culprits they saw PCs Zulfiqar, Muhammad Yousuf, Azizullah lying injured whereas PC Muhammad Rafiq was lying dead. The injured and dead-body were referred to hospital. The complainant lodged the report at 7 p.m. During the investigation accused Khadim Ulro was arrested. The P.Ws.. Amanullah and Zamir did not identify him to be the culprit, therefore, the police released him and his name was put in Column No,2 of the challan. The appellant Leemon was confined in jail in some other case, therefore, he was arrested. After completing the investigation, the police challaned the appellant in the Court of law showing the remaining accused persons as absconders.
5. ' The learned Judge, Anti-Terrorism Court-II, Sukkur and Larkana Divisions at Sukkur tried, convicted the appellant for offences punishable under sections 302(b), 324, 337-F(i), (iv), 353, P.P.C. Read with section 149, P.P.C., section 7(a) of Anti-Terrorism Act, 1997 (In short "Act, 1997") and sentenced him to suffer imprisonment for life and various other terms of the imprisonment with fine and benefit of section 382-B, Cr.P.C. Under the impugned judgment dated 3-11-2003.
6. ' As the incident took place on 4-3-2001, therefore, the offence would fall under section 7(i)(a) of Act, 1997 that carried the punishment death only, therefore, notice was issued to the appellant for enhancement of sentence. The learned counsel for the appellant waived the notice on behalf of the appellant. He stated that he had already prepared the brief; therefore, he would argue the appeal without filing any objections. At the request of learned counsel for the appellant, the appeal was heard.
7. ' We have heard the counsel for the appellant, A.A.-G. For the State and perused the record of this case very carefully.
8. ' The learned counsel for the appellant has stated that the case rests upon one witness only who had allegedly identified the appellant and other co-accused as the other P.Ws. Did not identify any of the culprits though they had supported the incident. He has further stated that the evidence of P.W.2 Amanullah who had identified the culprits is untrustworthy and unbelievable as he had identified one of the accused Khadim Ulro but after his arrest, the police released him on the ground that P.Ws. Amanullah and Zamir did not identify, him; that the culprits were at a distance of about 500 paces away from the P.Ws in a thick Banana Garden, therefore, it was not possible for the witnesses to have seen and identified the 12 culprits who were armed with deadly weapons and encounter continued for about 20 minutes. He has further stated that the ocular testimony is in conflict with the medical evidence; that the case of prosecution is highly doubtful with regard to the involvement of the appellant.
9. ' Conversely, the learned A.A.-G. Has stated that the P.Ws. Have supported the case of prosecution; that the P.W. Amamillah has implicated the appellant who was identified by him at the time of incident and that his evidence is sufficient to prove the guilt against the appellant.
10. ' We have given due consideration to the arguments, gone through the evidence with the assistance of learned counsel for the appellant and found that the prosecution examined eight witnesses. Out of them seven witnesses are police officers who were either injured and members of police party or the investigating officers. The members of the police party P.Ws. 2 to 6 gave the same details of the incident as mentioned in the earlier part of the judgment; therefore, need not to be repeated. Except P.W.2 Amanullah, the other witnesses did not identify the culprits at the place of incident. The prosecution alleged that P.W.2 Amanullah and Zamir Hussain, who has not been examined had identified the culprits including the appellant and they gave their names to the police officers; therefore, their names were mentioned in the F.I.R. P.W. Amanullah stated that he had identified the culprits while they were running away. He admitted that they were about 150 paces away from him. The P.Ws. 4 and 5 also stated that the culprits were 100 paces away from them. Their evidence further reveals that Banana Garden was very thick and they concealed themselves at the time of encounter as they put themselves on the ground. There were 12 culprits who were armed with Kalashnikov, Rocket Launchers and other fire-arm weapons. The encounter continue for about 20 minutes. During that period the culprits and police were tiring upon each other in the thick Banana Garden which was spread in large portion of area. In these circumstances it appears that the identification of the culprits with specific arms in their hands appears to be highly doubtful and there is possibility of error inidentifying the culprits. The said view has been confirmed from the fact that P.W. Amanullah gave the name of accused Khadim Ulro as one of the culprits who fired at the police party and identified by him. His name appears in the F.I.R.
11. All the witnesses disclosed that P.W.2 told them the name of said accused, therefore, they named in their depositions. But subsequently when Khadim Ulro was arrested and the P.W.7, TPO showed the said accused to P.W. Amanullah and Zamir Shar, they did not identify him therefore he was released. From the above facts it is clear that the observation of P.W. Amanullah at the place of incident was faulty as he gave the name of an innocent person to the police officers who disclosed his name in the F.I.R. And subsequently he was arrested. This discrepancy in the identification of accused Khadim Ulro appears to be due to above mentioned reasons. As such P.W.2 erred in identifying the culprits at the place of incident. Thus no implicit reliance can be placed on such type of evidence; therefore, possibility of error in identifying the appellant cannot be ruled out.
12. ' Apart from the above facts the second important witness was PC Zamir Shar. The prosecution did not examine him in the Court by making a statement that his evidence was identical to that of P.W.
13. Amanullah. This was not a valid ground for giving up such an important witness as the entire case hinges upon the evidence of P.W. Amanullah and Zamir Shar as they were the two persons who had identified the culprits at the place of incident. Therefore, the prosecution was having best piece of evidence with them in the shape of abovementioned two P.Ws. Out of them only one was examined but his observation was found to be incorrect and faulty; therefore, his evidence has been discarded with regard to the identification of appellant. We are left with the second best piece of evidence that was of P.W. Zamir but the prosecution withheld such piece of evidence for the reasons best known to them. It is well settled principle of law that if a party has a best piece of evidence with him and the same is withheld then it is presumed that the party had some sinister motive behind it. In such circumstances, an adverse inference can be taken that had the said piece of evidence been presented before the Court, it would have been unfavourable to them.
14. Such presumption can be raised by invoking the provision of Article 129 (g) of Qanun-e-Shahadat Order, 1984.
15. ' In the present case the best piece of D evidence on the identity of the appellant was the evidence of PC Zamir Shar but the prosecution withheld the said piece of evidence; therefore, adverse inference as required under Article 129 (g) Qanun-e-Shahadat Order can be raised that had the P.W. Zamir been examined in Court, he would have not supported the prosecution case. Thus, there is no convincing, reliable and confidence inspiring evidence available on the record on the point of identity of the appellant; as such the prosecution has failed to prove the identity of the appellant at the place of incident. Furthermore, P.W.2 Zulfiqar stated that he received the injury from fire-arm weapon but the medical officer did not find any fire-arm injury on the person of injured Zulfiqar as he found a lacerated wound caused by hard and blunt substance.
16. ' Thus, the ocular testimony of P.W. Zulfiqar is in direct conflict with the medical evidence.
17. ' After considering the material available on the record, we are of the considered view that the prosecution has failed to prove the case against the appellant beyond any reasonable doubt; therefore, the appellant is entitled to the benefit of doubt which was accordingly given to him at the time of passing short order dated 5-9-2006 by which we had allowed the appeal. These are the reasons of said short order.