' ABDUL QADIR MENGAL, J.---This criminal acquittal appeal under section 25(4) of Anti-Terrorism Act, 1997 has been preferred against the judgment dated 20th December, 2006 passed by the learned Special Judge, Anti-Terrorism Court-II, Quetta, whereby the respondents Nos.1 to 3 were acquitted from the offence under sections 302, 324, 147, 148, 149, P.P.C. Read with section 7, Anti- Terrorism Act, 1997 with a prayer that the trial Court failed to apply its judicial mind in respect of the facts and circumstances of the case and confined itself to a concocted or arranged material.
2. Brief facts of the instant criminal acquittal appeal are that one Dr. Zafarullah son of Abdul Aziz, caste Kakar Panezai, resident of Killi Khanan Bostan on 1st March, 2006 lodged report with Police Station Bostan at about 9-25 a.m. Stating therein that at about 9-00 a.m. He along with his brother Nasrullah, and his gunman Abdul Nabi in a Toyota Surf vehicle bearing Registration No,QAR-2729 proceeded towards Quetta, after covering 200 yards, the accused Muhammad Hashim Khan son of Abdul Aziz, Abdul Qadeem Khan, Abdul Ghani sons of Abdul Qadir, caste Kakar, residents of Killi Khanan Bostan along with four other persons, already ambushed, emerged and they encircled them. Muhammad Hashim having :303 Rifle, while all the other persons were armed with Kalashnikovs, they shouted to them that they today would not be spared, whereupon all started firing. He hid himself under the seat, whereas due to receiving bullet shots Nasrullah lost his breath.
In the meanwhile the gunman of Nasrullah namely Abdul Nabi also fired in self-defence, which hit Abdul Ghani and he fell on the spot. On hearing fire shots one of their relatives Abdullah Khan also came on the site. The motive behind the act was a property dispute with Muhammad Hashim Khan, Abdul Qadeem and Abdul Ghani, who along with unknown persons after blocking their way killed his brother.
3. After registration of the F.I.R. And usual investigation, the matter was challaned before the court of Special Judge, Anti-Terrorism Court-II, Quetta, where the charge was framed against the accused, to which they pleaded not guilty and claimed trial. The learned Special Judge ATC-II, Quetta examined as many as ten (10) witnesses, whereafter on conclusion of the prosecution side, examination of the accused persons was conducted under section 340(2), Cr.P.C. Whereas only accused Muhammad Hashim recorded his statement on oath under section 342, Cr.P.C. And also produced defence witnesses Dr. Qazi Taqi-ud-Din Adil, Consultant Physician Cardiology National Medical Centre Karachi as D.W.1, Ahsan Ali Travel, Chief Executive Shara-eAdalat as D.W.2, Irian Gabol SHO as D.W.3 to disprove allegation levelled against him: The Special Judge, ATC-II, Quetta through impugned judgment dated 20th December, 2006 acquitted the respondents from the alleged charge, against which the instant appeal had been filed.
4. We have heard Malik Sultan Mehmood, Special Prosecutor ATA for the appellant, while Messrs Muhammad Qahir Shah, Iqbal Ahmed Kasi and Barrister Amir Muhammad Lehri, Advocates for the respondents.
5. After hearing both the sides we also perused the record of the case. Learned counsel for the appellant contended that record shows that the offence was committed at 9-00 a.m. And the same was reported within 25 minutes without any loss of time whereby mentioning the role of each of the respondent/accused. Therefore, there was no chance of false implication of any of the accused person in the alleged offence nor the said F.I.R. Was the result of any due deliberation or consultation. Further learned Judge, ATC without any justification ignored the evidence of the complainant, who was present on the site and whose presence also has not been shaken from the defence side. Learned counsel while taking in discussion the rest of the evidence stressed that the statement of complainant fully shows that deceased was shot fire by accused Muhammad Hashim through rifle .303 after forcibly opening the door of the vehicle. This fact has been corroborated by the recovery of the rifle and empties, as such, there was no justification for the court to discard the evidence of P.W.1 or the evidence of rest of the prosecution witnesses. The discarding of the evidence of P.W.1 and the rest of the eye-witnesses on the ground that the said prosecution witnesses being eye-witnesses narrated in their evidences that the accused Muhammad Hashim fired upon the chest of the deceased at close distance but the doctor did not corroborate the statement of eye-witnesses on this point because there was no burning or blackening spots on the chest of the deceased.
6. Learned counsel further argued that learned Special Judge, Anti-Terrorism Court-II, Quetta only confined himself with the statement of the respondent/accused Muhammad Hashim that he was not present on the site, and falsely implicated in the case. Learned counsel while arguing the point contended that learned Judge wrongly given benefit of plea of non-presence to the respondent No,1 Muhammad Hashim on the basis of irrelevant, concocted and arranged record. There was no justification to rely upon the evidence so produced in defence. Learned counsel in this respect emphasizes that this fact has come on record that the respondent Muhammad Hashim was permanently residing at Karachi and rarely visit his house situated at Killi Khanan Bostan. Further he (Muhammad Hashim) himself admitted that he was present on the day prior to the incident at Killi Khanan Bostan and there is nothing on record that who had seen him to travel from Killi Khanan to Quetta and get a ticket on 27th February, 2006, so receiving a ticket from a Travel Agency not at all proves that he had travelled on 27th February, 2006. As admittedly Ahsan All D.W.2/representative of Travel Agency himself has stated that anybody can come and get a ticket for anyone. If the contention of the respondent/accused No,1 would have been correct then he surely would have brought the officials of Airline and list of the passengers that he actually travelled on 27th February, 2006. Admittedly the respondent claims himself elder of his tribe and a known figure, so if on 27th February, 2006 would he had travelled by air, he surely would have brought a single passenger to show that he had travelled with them on the day or he was sitting next to such person, failure of him, meaning thereby that this ticket was forged and fake. Learned counsel again emphasizes that the accused had brought a piece of fallen or torn boarding card and admittedly there is no stamp on it, which itself shows that the said piece of the boarding card is also arranged one. The learned counsel contended that the Special Judge, Anti-Terrorism Court- II, Quetta failed to consider these facts and record findings which did not get support from the material on record.
7. The learned counsel again while adverting our attention towards the F.I.R. No,8 of 2006 of Police Station Gabol Town Gulberg Area Karachi, which supposedly registered by Muhammad Hashim contended that the contents of F.I.R. Itself disclosed that the respondent No,1 was fully aware of his involvement in the alleged offence, and he tried his level best to collect false and bogus record to save his skin. In this connection learned counsel adverting our attention to the F.I.R.; pointing out that the respondent if would have interested to go and register a case for commission of theft, then he naturally would have to follow up the same, but his own statement produced by the I.O. Shows that after lodging the report, the complainant Muhammad Hashim never visited the Police Station nor got recorded his own statement, neither gave any importance to that case. Therefore, from the conduct adopted it appeared that this F.I.R. Was lodged with the connivance and collaboration of the officials of said Police Station with mala fides. Learned counsel also attacked the certificate of Doctor Exh.P/5-A, who was described as friend of respondent/accused Muhammad Hashim, It was contended that from the contents of the certificate it is apparent that it was issued on one and the same date i,e, 1st March, 2006. He further contended that it was neither possible nor logical that the respondent Muhammad Hashim after recording of F.I.R. Visited his doctor for check-up with his wife. But these facts were overlooked by the trial Court and benefit of this bogus and concocted material was given to respondent/accused Muhammad Hashim and his other co-accused, thereby acquitted them which was neither legal nor just. Further, the learned counsel discussing on many aspects of the case also raised contention that Investigating Officer (I.0.) on behest of accused persons purposely conducted the investigation of the matter improperly.
8. The counsel for the respondents argued the matter stating that it was the responsibility of the prosecution to prove the case beyond any reasonable doubt, whereas if a single doubt from the record appears in favour of any of the accused persons, it would be enough for making an acquittal order in his favour. Learned counsel while discussing the evidence in detail tried to show that the alleged eye-witnesses were not present at the site, as such, the learned Special Judge, Anti-Terrorism Court-II, Quetta rightly has passed a sound and reasonable judgment, which is not liable to be interfered. Learned counsel further argued that in case of acquittal double presumption of innocence arises in favour of the accused persons, therefore, even if, the view of this Court is contrary to the trial Court, need not to be interfered because an appeal against acquittal is to be dealt of different footings then to the appeal against conviction. In this respect the learned counsel presented on several authorities in favour of their contention, as such, the detail of the same is as under:--
(1) 'Abdul Khaliq v. The State' 1996 SCM R 1553
(2) Riaz Masih alias Mithoo v. The State' 1995 SCM R 1730
(3) Adrees v. The State' 2002 SCM R 1439
(4) Jaffar Ali Khan Durani v. The State' 2004 PCr.LJ 1740
(5) 2001 PCr.LJ 1564
(6) 'Lal Khan v. The State' 2006 SCM R 1846
(7) `Saeedullah v. Shah Nazar' 2001 PCr.LJ 1740
(8) Eiaquat Ali v. The State' 2008 SCM R 95
(9) Dholu v. The State' 2002 PCr.LJ 690
(10) Hameed-ur-Rehman v. Said Rehman' 2005 PCr.LJ 53
(11) 'Allah Nawaz v. The State' 2004 PCr.LJ 1564
(12) 2002 SCMR 4139
9. After hearing both the sides, and perusing the record of the case we have observed that the contents of F.I.R. Disclosed presence of eyewitnesses at the site. One of them namely Abdullah Jan was cited as witness, but the most important witness was Abdul Nabi, whose name not appeared in calendar of witnesses. It was duty of the Investigating Officer during course of investigation to give the names of eye-witnesses or other material witnesses in the list of the prosecution witnesses, and make efforts to locate them, and procure their attendance before the court, which was not done. Even the trial Court also failed to adopt the legal course neither issued summons thereby calling the material and eye-witnesses to get acquainted with the real aspect of the case and to administer justice. The trial Court overlooked this aspect of the case that it was evident from the contents of F.I.R. That the gunman of the deceased was also present with him (deceased), but at the same time he fired in his defence, and killed one of the assailants namely Abdul Ghani.
Further, presence of one Abdullah, who immediately reached at the site and witnessed the incident, was specifically asserted, who though was cited as witness but not produced. The trial Court in the circumstances was duty bound to call the material witnesses and record their statements. But to this extent no efforts were made, which was an error on part of the trial Court.
10. We again may mention here that under section 265-F, Cr.P.C. It is the duty of the court to ascertain from the Public Prosecutor or, from 'the complainant, as the case may be, the names of any person likely to be acquainted with the facts of the case and to be able to give evidence for the prosecution, and the court shall summon such person to give evidence before it. Legally all the witnesses which are essential to the unfolding of the narrative on which the prosecution is based, must, of course be called by the prosecution, whether in the result the effect of their testimony is for or against the case for the prosecution. The subsection (2) of section 265-F of the Criminal Procedure Code empowers the trial Court to ensure that proper witnesses, who are acquainted with the facts of the prosecution case are produced before it. But this was not done in present case. The trial Court completely failed to fulfil its liability. Therefore, in absence of material witnesses, no decision can be arrived in case in hand.
' As such, in view of the forgoing reasons, we have no other option but to set aside the acquittal judgment dated 20-12-2006 and remand the case for re-trial by calling the necessary witnesses of both the parties and whereafter decide the case afresh in accordance with law.