ABDUL QADIR MENGAL, J.---This Criminal Acquittal Appeal, under section 417(2), Cr.P.C. Has been filed against the judgment dated 30-3-2010, passed by the learned Special Judge Anti Terrorism Court, Khuzdar whereby the respondent No.1/accused was acquitted of the charge.
2. Facts in brief are that an F.I.R. No.5 of 2007 was registered on the complaint of Habibullah under section 302/34, P.P.C., read with sections 3, 4 and 5 of the Explosive Substances Act read with section 7 of the Anti-Terrorism Act, 1997. In his complaint, the complainant alleged that on 28-4- 2007, at about 12-10 p.m., an explosion took place in a room of his house, resulting into, the death of his three (3) children, namely Bibi Shakira, Imdadullah and Naseebullah According to the complainant, he, thereafter, went outside his house and saw Muhammad Yousaf, Wahid Bakhsh and Muhammad Raffique near Mashallah Hotel, proceeded towards main road on a motorcycle, whereas, on another motorcycle, he saw three other persons, but could not identify them.
3. The investigation in the case was entrusted to I.P/SHO Muhammad Murad, who recorded the statements of the witnesses, out of whom, the statements of Muhammad Alam and Habibullah were recorded on 8-9-2007. Both of them claimed to be the eye-witnesses of the occurrence, nominating the respondent No.1, consequently, the respondent was arrested. The Investigating Officer, after completion of the investigation, submitted an incomplete challan to the extent of the respondent No.1 before the trial Court.
4. The prosecution in support of its case, produced the following witnesses and exhibited certain documents:- P.W.1 Habibullah, the complainant of the case, who lodged the report, Exh.P/9-B.
P.W.2 Muhammad Alam, an eye-witness.
P.W.3 Muhammad Akbar, an eye-witness.
P.W.4 Haji Muhammad Azam, Constable, a recovery witness.
P.W.5 Muhammad Anwar, also a recovery witness.
P.W.6 Dr. Abdul Sattar, Medical Officers P.W.7 Abdul Basit, a recovery witness of blood-stained clothes.
P.W.8 Dr. Fareeda, Lady Medical Officer.
P.W.9 Muhammad Murad, I.P./SHO, who investigated the matter.
P.W.10 Ghulam Qadir, recovery witness of Medical Certificates and amended challan Exh.P/10-A.
After conclusion of the case, the trial Court acquitted the respondent/accused from the alleged offence, hence this criminal acquittal appeal.
5. Mr. Abdul Ghani Mashwani Advocate, learned counsel for the appellant mainly contended that the Special Judge Anti-Terrorism Court, ignored the evidence of the eye-witnesses, which amounts to misappreciation and is an illegality. He further argued that the learned Special Judge Anti- Terrorism Court, Khuzdar also ignored the fact that a serious nature of offence has been committed by the respondent and has wrongly acquitted him.
6. We have heard the learned counsel for the appellant and have perused the record. The case of the prosecution hinges upon the statements of the alleged eye-witnesses, namely Muhammad Alam and Muhammad Akbar. It is to be noted that the complainant in his statement, stated that after explosion, when he came out of his house, he saw three persons, namely Muhammad Yousaf, Wahid Bakhsh and Muhammad Raffique. He did not disclose the name of the respondent, however, he stated that three other persons were also accompanied with the above named persons, but he could not identify them.
7. The Investigating Officer recorded the statements of Muhammad Alam and Muhammad Akbar under section 161, Cr.P.C, who later on appeared as P.W.2 and P.W.3, respectively, before the trial Court. In their statements, both the witnesses stated that they were on their way, when two (2) motorcycles overtook them. According to the witnesses, one motorcycle was riding by three persons, namely Muhammad Yousaf, Wahid Bakhsh and Muhammad Raffique, whereas, on the other motorcycle, there were Rehmat Ullah, Muhammad Hussain and Ghulam Sarwar (the respondent). It is alleged that Muhammad. Hussain was having Kalashnikov in his hand, out of these six persons. Muhammad Hussain, Ghulam Sarwar and Rehmat Ullah stopped near a vacant house, while Muhammad Yousaf, Wahid Bakhsh and Muhammad Raffique, proceeded further and stopped near the house of the complainant. According to the witnesses, Muhammad Yousaf pulled out something from his packet and threw it into one of the rooms, which followed by an explosion. It is further alleged that Muhammad Yousaf signaled his companion to move, thereafter, all of them fled away. According to the witnesses, they immediately reached at the house of the complainant and saw three children were lying dead, therefore, due to sadness, they came out of the house. The witnesses stated that after four days of the occurrence, the complainant sent a message to them to come and record their statements before the Investigating Officer, which they did.
8. To a question, the witnesses replied that they did not inform, the complainant about the name of the respondent. They also admitted the fact that they did not accompany the complainant for registration of the F.I.R., nor helped him for taking the dead bodies of the injured to the hospital. The witness P.W.3 stated that he did not know the family members of the complainant Habibullah, however, he knows that the brothers, sisters, and parents were residing with Habibullah. To a question P.W.3 admitted the fact that he and P.W.2, Muhammad Alam, recorded their statements before the Investigating Officer after consultation with the complainant.
9. Perusal of the statements of the complainant and the alleged eyewitnesses (P.W.2 and 3), it is evident that for the first time, the respondent was nominated by the alleged eye-witnesses in their statement recorded under section 161, Cr.P.C., and that too, after four (4) days of the occurrence.
The witnesses alleged that they immediately went to the B house of the complainant after the explosion took place, but surprisingly they did not disclose the name of the respondent to the complainant. Admittedly, the F.I.R. Was registered after the arrival of the witnesses, but still the respondent was not named therein. If the presence of the witnesses at the time of the occurrence is believed, then question arises, as to why they remained silent and did not disclose the name of the respondent to the complainant so as to register the case against them. Similarly, if they were present and immediately reached the house of the complainant, then why their names were not mentioned as witnesses, in the F.I.R.
10. Without prejudice to above, even otherwise, if for the sake of arguments, the statements of the witnesses are believed, even then, it was necessary for the Investigating Officer to have conducted the identification parade of the respondent through the complainant because he did not nominate the respondent. In his compliant, the complainant stated that he saw three persons, but could not identify them.
11. The statements of P.W.2 and P.W.3 do not appeal to a prudent mind for the reason that neither they disclosed the name of the respondent to the complainant, nor they associated him for the registration of the F.I.R., as well as, did not help him to take the dead bodies or the injured to the hospital. Even otherwise, the witnesses admitted the fact that they recorded their statements after four days of the occurrence without explanation. P.W.3 further admitted the fact that C they recorded their statements after consultation and deliberation with the complainant, therefore, in such view of the matter, the presence of the P.W.2 and 3 at the spot is highly doubtful, therefore, their statements are ruled out from consideration. Moreover, the allegation levelled against the respondent is that he along with two others were riding a motorcycle, who overtook the motorcycle of the witnesses and stopped near a vacant house. According to the witnesses, other motorcycle, ridden by Muhammad Yousaf and others, proceeded further and Muhammad Yousaf threw something into the room of the complainant, which resulted into explosion. If the statements of eye-witnesses are believed in toto, even then, they have failed to prove the association of the respondent with the main accused, namely Muhammad Yousaf and two others.
12. From the statements available on record, no role has been assigned to the respondent and his involvement in the case is shrouded in mystery. Simply saying that, the motorcycle of the appellant overtook the motorcycle of the witnesses and stopped in front of a vacant house, did not constitute the offence. The witnesses are also such on the point as to whether after the explosion, the respondent accompanied Muhammad Yousaf or he remain stayed there. The prosecution has failed to link the association of the respondent with culprits.
13. We are of the view that the evidence on a capital charge must come from unimpeachable source or supported from strong circumstances. In this regard, we have placed our reliance on SCM R 1999 (1030). It may further be pointed out that failure to examine independent witnesses raises adverse inference against the prosecution, as admittedly the evidence of Ameer Hamza, Abdullah and Muhammad Ismail were recorded under section 161, Cr.P.C., but none of these eyewitnesses, who were present at the site were produced. Legally non-production of an- independent witness present on the site, gives adverse presumption against the prosecution. In this regard, we have benefited our view from SCM R 1972 (572).
14. Admittedly the complainant has not nominated the respondent/accused in the F.I.R. Nor the other witnesses have corroborated the evidence of P.W.2 and P.W.3, therefore, we see no any illegality and impropriety in the impugned judgment dated 30-3-2010, passed by Special Judge Anti-Terrorism Court, Khuzdar. The trial Court (Special Judge Anti-Terrorism Court, Khuzdar) after proper evaluation and assessm ent has acquitted the respondent/accused, as such this criminal acquittal appeal has no force and the same is dismissed in limine.