' AQEEL AHMED ABBASI, J.---Being aggrieved and dissatisfied with the judgment dated 26-2-2013 passed by the learned Judge of Anti-Terrorism Court, Hyderabad, in .ATC Case No,40 of 2012 arising from Crime No,88 of 2012 under section 324, 353, 504 and 34, P.P.C. Read with section 6/7 of Anti- Terrorism Act, 1997, registered at Police Station Cantonment, Hyderabad, whereby the appellant Adam Hussain son of Naseer Khan Bhangwar has been convicted and sentenced to undergo R.I for Five Years with fine of Rs,15,000 and in default of payment of fine he is to further undergo six months whereas benefit of section 382-B, Cr.P.C. Was extended, the appellant has filed instant appeal under section 25 of the Anti-Terrorism Act, 1997, with the prayer to set aside the impugned judgment and to acquit the appellant in the instant crime.
2. The case of the prosecution is that on 28-5-2012 at about 11:10 hours HC -Ghullam Muhammad brought at the Police Station Cantonment one accused Adam Hussain son of Naseer Khan Bhangwar with Pistol alongwith magazine and bullets stating that on that day, he was on duty at Civil Court Hyderabad for checking of prisoners when HC Muhammad Uris with staff PC Samoo Khan LPC Amnat brought custody of one Mst. Benzair from Darul Aman Hyderabad and produced before the Civil Jude-V Hyderabad, and thereafter the Court but when reached at ground floor in front of canteen at about 10-30 a.m., complainant heard the sound of loading pistol and one person abusing fired at Benazir, but LPC Amnat pushed Benazir behind the Pillar. Complainant and HC Muhammad Uris overpowered the said person and snatched pistol on checking in chamber one Bullet was loaded while in magazine three bullets were loaded. The said person disclosed his name as Adam Hussain son of Naseer Khan Bhangwar r/o Village Mir Muhammad Bhangwar Tal.
Dour who was brought at the Police Station with weapon. The F.I.R. Was registered as Crime No, 87 of 2012 under section 13(d) A.O. And the accused was then arrested under mashirnama.
' Thereafter, at about 12-00 noon the said Mst. Benazir wife of Hadi Bux Bhangwar was brought at the Police Station whose statement was recorded on the same day, which was incorproted in F.I.R.
Being Crime No,88 of 2012. In her statement she stated that about 12 years ago, she was married with one Hadi Bux and from the wedlock four children born. Her husband Hadi Bux and brother-in- law Raza Muhammad used to maltreat her and due to such cruelty about two months ago she went to her parents house at Tando Adam. At Tando Adam her husband and other in-laws assaulted upon her but she was saved. Her parents also did not provide her shelter hence about one month ago, she went to Nawabshah Court where also in the Court her husband and other made attempt to kill her and her husband was caught at the spot. On the same day court sent her to Darul Aman. From Darul Aman she filed family suit for Khulla in Civil Court Hyderabad and it was her second date of hearing and she had come to the Court with lady police and other police men and she was produced before the Court. While they were returning and reached on ground floor in front of canteen she saw that her husband Hadi Bux, who is HC in Tando Adam Police, her brother- in-law Adam, who is also policeman, Hakim Ali son of Mir Muhammad who is also police man were standing there holding pistol. Adam abused him and told that they would not spare her today and saying so Adam fired from his pistol, but lady police pushed her, behind pillar. In the meantime, the police on security duty caught Adam with pistol while Hadi Bux and Hakim ran away. She stated that the accused persons assaulted upon her with intent to kill by making fire in the Court. F.I.R. Be registered.
' The investigation was assigned to DSP Cantonment Khawar Gul. He on completion of investigation submitted challan against the above named accused persons. The accused Adam was already in custody while accused Hadi Bux. And Hakim later on surrendered themselves and were admitted to bail. Separate challan under section 13(d) was also filed before the regular Court.
' The charge was read over to the accused persons to which they pleaded not guilty and claimed the trial.
3. Prosecution examined 7 witnesses including the complainant, whereafter the statement of appellant namely Adam Hussain along with statement of 2 co-accused persons under section 342 Cr.P.C. Namely Hadi Bux and Hakim was also recorded, wherein they denied the charges as well as recovery of the pistol and claimed innocence, however, they did not examine themselves on Oath nor produced any witness in their defence.
4. The learned Judge, Anti-Terrorism Court, Hyderabad, formulated following points for determination:-
(1) Whether on 28-5-2012 the accused persons were present at Civil Court Hyderabad, where Mst.
Benazir was brought before the Court of Vth Civil Judge Hyderabad to pursue her case?
(2) Whether the accused persons with their common intention abused Mst. Benazir and accused Adam Hussain made fire upon Benazir with intent to kill her in the premises of the Court?
(3) What offence if any of the accused has committed?
5. While, recording his finding on the aforesaid points the learned Judge, Anti-Terrorism Court, Hyderabad, in respect of two accused persons namely Hadi Bux and Hakim, held that neither their presence at the spot is proved nor the prosecution could bring any evidence against them, which may connect them with the .Alleged crime, hence acquitted both of them under section 265(H)(1)
Cr:P.C. Whereas, the appellant. Adam Hussain has been convicted for having committed offence punishable under section 7(i) of Anti-Terrorism Act, 1997 and has been sentenced to undergo R.I.
For five years with fine of Rs,15,000 and in case of default in payment of fine to further undergo for six months' S.I., whereas benefit of section 382-B Cr.P.C. Has been extended to him from the date of his arrest i.e, 28-5-2012.
6. Learned counsel for the appellant has vehemently assailed the impugned judgment and submitted that the learned Judge of Anti-Terrorism Court, Hyderabad, had no jurisdiction to decide instant matter as the case did not fall. Within. Anti-Terrorism Act, 1997 as none of the ingredients of sections 6 and 7 of Anti-Terrorism Act, 1997, are attracted in the instant matter. Per learned counsel, neither in the F.I.R. Nor in challan it has been alleged that the alleged incidence created any terror in the public, however, in spite of such fact, the appellant has been convicted under Anti-Terrorism Act, 1997. It has been further contended by the learned counsel that the impugned judgment is based on gross misreading and non-reading of the evidence, whereas the learned Judge, while convicting the appellant under section 7 of the Anti-Terrorism Act, 1997,-has placed reliance merely on the examination-in-chief of prosecution witnesses, who are all police officials, whereas the evidence of the complainant/ alleged victim namely Mst. Benazir, wherein she has exonerated the appellant namely Adam Hussain with the alleged crime has been ignored. Per learned counsel, the examination-in-chief in the absence of cross-examination has no evidential value, hence the learned Judge of Anti-Terrorism Court, has seriously erred in law and fact, while convicting the appellant in the instant crime on the basis of mere statement of police officials in their examination-in-chief. It has been further contended by the learned counsel for the appellant that the learned Judge of Anti-Terrorism Court, Hyderabad, has further erred in law and fact by taking into consideration the evidence of the complainant in piecemeal, while ignoring the entire evidence, particularly when the learned Judge himself has observed that the complainant Mst. Benazir has resiled from her statement. It has been contended by the learned counsel for appellant that once the complainant, who is the alleged victim in the instant matter, has not implicated the present appellant with the alleged crime, whereas, the evidence of the police officials is not consistent, therefore, the prosecution case could not be considered as free from doubt. It has been further argued that the entire judgment is based upon presumptions, whereas no incriminating material was placed by the prosecution, which could connect the present appellant with the alleged crime. Moreover, per learned counsel', neither any one received any injuries nor empties were recovered from the place of alleged incident, whereas no finding has been recorded by the learned Judge of Anti-Terrorism Court, Hyderabad, which may suggest that the alleged empties were fired from the pistol, which was allegedly recovered from the present appellant. Per learned counsel, even the empties were not sent to the Ballistic Expert.
Learned counsel while concluding his arguments has submitted that since the impugned judgment is erroneous in law and based on gross misreading and non-reading of the evidence, therefore, the same is liable to be set aside. It has been prayed that the appellant may be acquitted and may be directed to be released.
7. Pursuant to Court notices, the complainant Mst. Benazir daughter of Humair Khan has also shown appearance in Court and filed a statement in writing to the following effect:-- STATEMENT I, the undersigned as alleged victim in Criminal Case vide Crime No,88 of 2012, under sections 324, 353, 504, 34 P.P.C., 6/7 ATA of Police Station Cantonment Hyderabad say that the said Adam Hussain who is my brother-in-law neither fired upon me nor he had done act as alleged in the F.I.R.
By the police, I already deposed before the learned trial Court that the said Adam Hussain is not my culprit therefore I have no objection if this Honourable Court may acquit him from the charge. RTI Mst. Benazir Mst. Benazir D/o Humair Khan by caste Bhungwar, the alleged Victim Sd/- Advocate"
8. Learned A.P.-G. Though, formally supported the impugned judgment, however could not controvert the contention of the learned counsel for appellant that the prosecution has failed to establish the case against the present appellant without reasonable doubt.
9. We have heard the learned counsel for appellant and the learned A.P.-G., perused the impugned judgment and examined the prosecution witnesses with their assistance. It is evident that while convicting the present appellant the learned Judge of Anti-Terrorism Court, Hyderabad has taken into consideration the examine-inchief of the prosecution witnesses only, whereas no reference to the cross-examination by the learned counsel for appellant has been made, nor any finding thereon appears to have been recorded. We have further observed that the complainant Mst.
Benazir, who is the alleged victim in the instant case, in her evidence did not. Implicate the present appellant with the alleged crime, who was at the request of prosecution was declared as hostile, whereafter she was again cross-examined by the DDPP. From perusal of her cross-examination by the DDPP, it is noted that no question was put by the prosecution to ascertain as to whether the appellant namely Adam Hussain fired upon her with the pistol or not, particularly, when, in her examination-in-chief she has specifically stated that she did not know as to who had fired upon her. 'There is nothing on record to show that the complainant namely Mst. Benazir has resiled from her statement recorded on oath, on the contrary from perusal of her evidence it is seen that she has remained consistent in her version. As regards contents of F A.R., the complainant has categorically stated that it contains the version of police, moreover, the same cannot be considered as statement on oath or as piece of evidence. We may further observe that once the witness is declared hostile, it is nobody's evidence, and cannot be given any weight nor can be Used against an accused. Admittedly, no private mushirs of arrest and recovery have been associated inspite of the fact that, the alleged incident took place in Court premises where numbers of advocates, court staff and litigating parties are available, whereas, the matter was not even reported to the learned Judge in whose Court complainant was produced by the police. As per prosecution witness Khalid Hussain, SIP, Police Station Cantt. Empties were not sent to Ballistic Expert. It has also come on record that in the Mushirnama 4 bullets were mentioned, whereas at the time of recording evidence of prosecution witness namely Muhammad Uris, H.C. Police Station Police Lines, Hyderabad, only two bullets and one empty was produced in Court. No plausible explanation in this regard was given by the said prosecution witness. Mst. Amnat Balouch, lady P.C.
Who was present at the time of alleged incident, while cross-examined by the counsel for appellant stated that "police has returned some documents at the Police Station. My statement after 3/4 days was recorded at the Police Station Cantt." Another prosecution witness namely Ghulam Muhammad, H.C. Police Lines, Hyderabad, while cross examined by the learned counsel for appellant has deposed "I do not know as to whether the fire made by Adam Hussain was hit. It is correct that the said fire did not hit any person. I do not know as to which case was fixed on that day before the Court and against whom".
10. In view of hereinabove facts, we are of the opinion that the prosecution could not establish its case against the present appellant without reasonable doubt. On the contrary, the contradictory evidence of the prosecution witnesses and the deposition of the complainant/alleged victim namely Mst. Benazir exonerating the appellant from the alleged crime, has made the prosecution case seriously doubtful, the benefit of which was required to be extended to the appellant/ accused which, in the instant case, has wrongfully been declined by the learned Judge of Anti- Terrorism Court, Hyderabad. Mst. Benazir, the complainant and the alleged victim present in Court, has reiterated her deposition made before the learned Judge of Anti-Terrorism Court, Hyderabad, and has further stated that she has never resiled from her statement as alleged in the impugned judgment. She has also filed a statement in writing to this effect and has further stated that the appellant has no- enmity with her, whereas, she had a family dispute with her husband namely Hadi Bux which has duly been reconciled, and she is happily residing with her husband.
11. It is also pertinent to note that while awarding sentence to the appellant under section 7(i) of Anti-Terrorism Act, 1997, the learned Judge of Anti-Terrorism Court did not record any finding to the effect that alleged act of the appellant was an act of terrorism which created terror and sense of insecurity in public at large. Impugned judgment is also silent about application of section 6 of the Anti-Terrorism Act, 1997, whereas nothing has been observed by the learned Judge about the gravity of the alleged offence.
12. Accordingly, vide our short order dated 23-5-2013, we allowed the instant appeal and set aside the impugned judgment with the directions that the appellant shall be released forthwith,. If not required in any other criminal case and these are the reasons for such short order.