Zubda-tul-Hussain, J.--This Criminal Appeal No, 2-ATA-2006 (Jail Appeal) has arisen out of the judgment of conviction recorded by the learned Judge Anti-terrorism Court Bahawalpur in case FIR No, 7/98 under Sections 302, 324, 337-A(i)/353, 396, 148, 149 PPC and 7-A of Anti Terrorism Act, 1997 registered at the Police Station Darbar District Bahwalpur, whereby the appellant Muhammad Safdar alias Shabboo was sentenced as under:--
(i) U/S. 148/149 PP Three (3) years R.I. with a fine of Rs, 10,000/- (ten thousand only). In default thereof he shall further undergo six (6) months S.I.
(ii) U/S. 302-B/149 PPC Imprisonment for life with a fine of Rs, 50,000/- (fifty thousand only). In default thereof he shall further undergo six (6) months S.I.
(iii) U/S. 324/149 PPC Ten (10) years R.I. with a fine of Rs, 20,000/- (twenty thousand only). In default thereof he shall further undergo six (6) months S.I.
(iv) U/S. 353/149 PPC Two (2) years R.I. with a fine of Rs, 5,000/- (five thousand only). In default thereof he shall further undergo six (6) months S.I.
(v) U/S. 7-A of ATA, 1997 read with Section 149 PPC Imprisonment for life with a fine of Rs, 50,000/- (fifty thousand only). In default thereof he shall further undergo six (6) months S.I.
2. It was on 3.3.1998 that a wireless message was received at Police Station Darbar giving the intimation that the a gang of the criminals compromising Shahbaz alias Bajhoo Bhindar, Zulfiqar alias Nanha and Ghulam Hussain along with one un-known person were proceeding on a car which was being chased by the Yazman police. On receipt of this information Sana Ullah Constable No, 927, Abdul Malik Constable No, 55/C-I and Ghulam Abbas Constable 1289 approached the Kanal Bridge commonly known as "Khuthri Bangla' and started making preparation to establish Nakabandi. They were equipped with official weapons. In the meanwhile a black Car Toyota Corolla No, 5999/FDT approached from Mithra side and Shahbaz alias Bjhoo Bhandar opened fire on police party with the kalashinkove which hit Sana Ullah Constable and was injured, who later on succumbed to the injuries. The accused persons also snatched the official weapons from the police party and fled away inwards Chak No,
107. The police incumbent who later on arrived at the spot included Qamar-uz-Zaman SHO who recorded the statement of Ghulam Abbas. Constable.
On the basis of this statement the case FIR under appeal was registered. Umer Hayat and Zulfiqar alias Nanah accused were arrested and were tried and convicted in the case. Shahbaz alias Bajhoo Bhandar died in police encounter. Muhammad Safdar, the appellant was nominated as accused to supplementary statement. He, however, could not be arrested and was thus proceeded against under Section 512 Cr.P.C.
3. The arrest of the absconding accused Muhammad Safdar appellant was shown on 27.10.2004 where after he was also tried in the case as an accused and was convicted to the sentences already mentioned above.
4. The evidence in the case, so far as, the ocular account is concerned consisting of the statement of the Abdul Malik 55-H.0 and Ghulam Abbas No, 1289-C respectively as PW. 6 and PW.7. The medical evidence is regarding the examination of the dead body and the postmortem of the same which primarily gives the details of the injuries, and cause of the death. The other evidence generally comprises of the statement of the police official who in one way or the other remained connected with the investigation wherein besides exploring the other fact certain recoveries to which the special significant is attached, to the fire empties were also proved by them.
5. At the very outset we have very carefully examined the case of the appellant in juxtaposition of the case of the two co-accused namely Zulfiqar and Ghulam Hussain earlier convicted in this case under Sections 324, 353/149 PPC and were acquitted for offence under Sections 302 and 396/149 PPC. We have also, perused the record of their case. After giving deep thought to all the relevant aspects we nave arrived at a considered opinion that the position and case of the appellant is essentially different and distinguishable on merit on various grounds, the main among them living the question of his identification. All the other three persons accused in the FIR were duly identified by name and their identify was established during trial also but the appellant was neither nominated in FIR nor his identity was later on established at any stage of the case. As would be seen later, even the allegation of abscondence was false. Hence, no inference could be drawn against appellant on that score too.
6.The fate of the case against the appellant essentially hinges upon the ocular account of the occurrence given by PW.6 Abdul Malik and PW.7, Ghulam Abbas as eye-witness, Both of them are police officials but even in this capacity they are competent witnesses and their averments cannot be excluded summarily because of their official capacity as employees of the police. This observation, however, does not mean that the case would stand established against the appellant because the liability of the appellant is to be determined in total perspective of the statement of these PWs and the other relating cognate factors.
7. It is in the FIR and is also admitted fact that the appellant was not initially nominated by the complainant. Only three persons were named while the 4th was stated to be an un-known person.
He was 5 posed as Muhammad Safdar by the police during the investigation on the basis of supplementary statement.
8. The mode and the means of knowledge by which his particulars, features and names were dug out is not reasonably explained in the evidence. It is pertinent as well as strange that he was C from very inception stated to be an absconder. So much so that the case was proceeded against him in his absence under Section 512 Cr.P.0 as 'Well. What is strange in this behalf is that he was in feet under arrest and confinement in another case and through out the trial under Section 512 Cr.P.O was not only in lawful detention but had also been appearing as an under trial and under detention accused before the other concerned Court. It was at a. later stage that the police could get this information, to show his arrest in the case under appeal also and submitted challan before the Court where he was tried and convicted.
9. The most important thing in determining the involvement of the appellant in this case is that he was mentioned as an un-known person in the FIR. After the occurrence and the registration of the case he never came across the PWs. No identification parade was ever held to ascertain his involvement in the case but inspite of all these factors he was implicated by the PWs as an accused.
10. Where an accused is not nominated in the FIR nor is otherwise, known to the eye-witnesses and no. reasonable explanation or circumstances have been stated whereby his participation and identification could be established, and at the same time there is no other corroborative evidence against him as well, the sentence of conviction cannot be passed against him. No recovery has been effected in this case nor is any other kind of corroboration available to the prosecution version against the appellant. It is correct that the rule of independent corroboration is not an absolute and mandatory rule to be applied in each case rather it is a rule of abundant caution which is applicable in the case in which direct evidence is not of the standard which alone could be considered sufficient for conviction but in the instant case, as already stated, there was no direct evidence for the identification of the appellant nor at any other proper stage police took any measures to establish the identity of the appellant as an assailant in this case. The statement of the complainant could be taken as dying declaration but even that shall be of no vise for the prosecution because in that statement the accused was never nominated. The rule of abandoned pre-caution always lends to extend the benefit of doubt in favour of an accused. It was so held in Mohsin Abbas Versus the State (2000 P.Cr.L.J. 497).
11. It may also be noticed that the co-accused Urner Hayat and Zulfiqar who were tried for the same offence and the allegation also identical against them too were not found guilty for offence under Sections 302, 396 PPC. The role of the appellant is allegedly identical but only in as much as that as an un-known person he was also amongst the culprits who opened fire, on the police. The fact that cannot be denied is that he was neither identified at the spot nor later his identification was established. Even the description of the physique and features of the accused were not given in the FIR.
12. There are various discrepancies also in the statement of the alleged eye-witnesses. Generally the discrepancies unless they are of glaring nature, cannot be used to shatter the prosecution evidence but where these discrepancies coupled with the other relevant facts damage the intrinsic value of the prosecution evidence, the defence can lawfully avail benefit from them. In the instant case the discrepancies and the question arising in relation to the identification of the accused certainly go to the root of the case. The story of the prosecution as it goes in the FIR and in the statement of the PWs shows that the atmosphere at the time of occurrence was so much charged that in the given circumstances it could not be possible for any witness to identify or to retain in his memory the features of an unknown accused. Keeping all these factors in view, we are of the considered opinion that the involvement of the appellant on the basis of his proper identification has not been established by the prosecution and on the basis of the available evidence sentence and his conviction could not be maintained.
13. As result of the above, the appeal is allowed and giving the benefit of doubt to the appellant he is acquitted of the charge in this case. He would be released forthwith if not required to be detained in any other case.