' SAGHIR AHMAD, J.--- This appeal is directed against the judgment, dated 23-2-2006 whereby the learned Judge, Anti-Terrorism Court on the conclusion of the trial of case F.I.R. No,255, dated 14-7- 2005 convicted the appellant as under:---
(i) Under section 302/34, P.P.C. Sentenced to life imprisonment with a compensation of Rs,1,00,000 in default to further suffer six months' S.I.;
(ii) Under section 324/34, P.P.C. Sentenced to ten years' R.I. With a fine of Rs,10,000 in default thereof to further undergo six months' S.I.
(iii) Under section 353/34, P.P.C., sentenced to two years' R.I.;
(iv) Under section 7-H of A.T.A., 1997 sentenced to seven years' R.I. With a fine of Rs,10,000 in default of payment of fine to further suffer six months' S.I.; and
(v) Under section 7-A of A.T.A., 1997 sentenced to imprisonment for life with a fine of Rs,50,000 in default to suffer, further S.I. For six months.
' All the sentences were ordered to run concurrently and benefit of section 382-B, Cr.P.C. Was also extended.
2. Briefly the prosecution case as reported by Shahbaz Ahmad Inspector P.W.2 is that Irshad Ali, A.S.-I. On the fateful day and time along with other police contingent was chasing accused of case F.I.R. No,105 in the area of Mouza Bella Singh Kokara in connection with investigation of the said case, he noticed that two persons Muhammad Javed and Muhammad Hanif (whose actual names were Muhammad Akram and Muhammad Yousaf) were firing upon the police party. One of the fire hit Tariq Bashir Constable. The police party also fired in self-defence. Tariq Bashir succumbed to the injuries.
3. During investigation on 28-7-2004 Muhammad Akram (appellant) was arrested, however, second accused Muhammad Yousaf remained absconder. After performing usual investigation and finding Muhammad Akram as accused, challan was sent up against the appellant.
4. In the course of trial, the prosecution examined fourteen witnesses in all, which include Dr. Noor Khan Tareen who conducted post-mortem examination of deceased Tariq Bashir; Shahbaz Ahmad Inspector P.W.2 who conducted investigation of the case; Muhammad Irshad A.S.-I. P.W.6 and Muhammad Ubaid Ullah P.W.9 another Investigation Officer, whereas, the remaining witnesses are all formal in nature and deposed lout various formalities performed by them towards completion of the investigation. The prosecution case when put to the accused, was denied by him and in answer to question as to why this case against him, he came up with the version that he had family terms with Muhammad Yousaf (absconding accused) and with his family had come to the house of Muhammad Yousaf, when police conducted raid and arrested him on mere suspicion to substitute the real culprits. On the conclusion of the trial, the learned Judge, Anti-Terrorism Court, vide judgment, dated 23-2-2006 convicted and sentenced the appellant as detailed in the opening paragraph of this judgment.
5. The learned counsel for the appellant initiated arguments by contending that name of the appellant does not figure in the F.I.R.; that when the real culprits could not be traced, the appellant was involved by the police to demonstrate its efficiency; that when the complainant himself had deposed that both the accused namely Umar and Muhammad Javed were known to him and he specifically named them also but later on twisted his stance and came up with the version that in fact the accused persons were Muhammad Akram (appellant) and Muhammad Yousaf (absconding accused), this circumstance itself is sufficient to disbelieve the prosecution case. It is lastly argued that in fact the learned trial Court has passed the impugned judgment of conviction and sentence on surmises and conjectures, otherwise, the prosecution has not been able to prove the charge against the appellant.
6. On the contrary, learned counsel for the complainant has opposed this appeal by contending that police had no previous enmity with the accused appellant to have falsely implicated him in the instant case to substitute the real culprits; that the ocular account was fully supported by the medical evidence and the recoveries, therefore, the judgment of learned trial Court is based on correct and proper appreciation of evidence.
7. We have considered the arguments of learned counsel for the parties and have also gone through the entire record with their assistance.
8. Shahbaz Ahmad Cheema, Inspector P.W.2 in the witness-box deposed that accused persons were making firing at the police party while hiding themselves in DHAB and in the meanwhile, one fire by the accused persons hit Tariq Bashir who fell down and became unconscious. He also deposed that they could not arrest the accused because they had hidden themselves in thickly bushes of DHAB spreading over an area of miles. This witness also deposed that fire exchange between the police and the accused took place from a distance of half acre and that some persons from the public variously armed with fire-arms were also present at the spot. To place corroboration to the above ocular account the prosecution examined Dr. Noor Khan P.W.1 who conducted the postmortem on the deceased Tariq Bashir, but during cross-examination the doctor admitted that this injury had been caused from a distance of more than three yards, whereas, according to P.W.2 the fire exchange between the accused and the police party took place from a distance of half acre and that accused could not be arrested because they had hiding themselves in DHAB spreading over an area of about ten miles. Thus, so far as the distance of injury is concerned, the ocular and the medical evidence run against each other.
9. We further note that P.W. Was an important witness but he said not a single word about what kind of weapon was carried by which of the accused, rather stated that accused were making firing and one of the fire hit Tariq Bashir which resulted in his death. Thus, the fatal shot on the deceased cannot specifically be attributed to the appellant, especially when according to the Forensic Science Report Exh.P.N. The crime-empty of .30 bore marked as C-1 was sent without precussion cap, which is the place where most of the identifiable data is available, hence nothing could be opined as to whether or not the crime-empty of .30 bore marked as C-1 had been fired from the pistol of .30 bore body signed.
10. To substantiate the factum of recovery of pistol from Muhammad Akram, the prosecution examined Khizar Hayat Constable P.W.7 according to whose statement the accused Muhammad Akram was arrested on 28-7-2004 and on his personal search the crime weapon i.e. .30 bore pistol was recovered. The occurrence in the instant case admittedly took place on 14-7-2004. In these circumstances, it is beyond one's comprehension that an accused would keep the crime weapon with him even after fourteen days of the occurrence, to be used as a tool against him.
11. Further undoubtedly there was confusion in the prosecution itself about the identity of the accused persons and that was the reason that earlier the prosecution had named the accused as Muhammad Javed and Muhammad Umar but afterwards, they came up with the version that in fact accused persons were Muhammad Akram (appellant) and Muhammad Yousaf (absconder).
In these circumstances, it was imperative for the prosecution to have got the accused identified to remove any sort of confusion, but no such exercise has been undertaken by the prosecution, which is a legal and substantial flaw in the prosecution case.
12. It is also available on the record that entire prosecution case has been sought to be got proved through the statements of police officials who had also deposed against the appellant in another F.I.R. No,105 of the same date. For this reason also, their statements required very careful appraisal, and from deep analysis the above pointed contradictions in their statements are quite apparent.
13. There is yet another circumstance that according to the prosecution witnesses the exchange of fire continued for about one and half hour from both the sides i.e. The accused as well as police party, yet only two empties were collected from the spot one of .12 bore and the other .30 bore pistol, which fact shows that prosecution was just keen to get the empty of .30 bore pistol compared from Chemical Examiner to be used against the appellant but as discussed above, the Forensic Science report is inconclusive on this point.
14. We also note that empties were recovered from the spot, according to the Investigating Officer on the same day of occurrence i.e. 14-7-2004, whereas those were sent to the office of Forensic Science Laboratory on 17-8-2004 and similarly, the pistol was allegedly recovered from appellant Muhammad Akram on 28-7-2004 but the same was dispatched to the laboratory for matching on 9-9-2004. This undue delay in sending the empty as well as crime weapon for comparison, G without there being any explanation, also creates doubt in the prosecution case.
15. For what has been discussed above, we are of the view that the prosecution has not been able to prove the charge against the appellant by producing solid and convincing evidence and even the identity of the appellant remains shrouded in mystery and thus, ample doubt is created in the prosecution case about involvement of the appellant in the instant case. Resultantly, by following rule of abundant precaution, we allow this appeal and set aside the conviction as well sentence as recorded by the learned trial Court against the appellant.