' SHAHID HAMEED DAR, J.---The record reveals that the appellant was convicted and sentenced vide judgment dated 29-7-2002, by the learned Judge, Anti-Terrorism Court, Faisalabad during trial of case FIR No,37/2001, dated 19-1-2001, under sections 279, 337-H(2), P.P.C. Read with section 7 of the Anti-Terrorism Act, 1997, registered at Police Station Peoples Colony, Faisalabad in following terms:-
(i) Under section 337-H(2) P.P.C.: to undergo rigorous imprisonment for three months with fine of Rs,5,000 or in default whereof to undergo simple imprisonment for twenty days.
(ii) Under section 7(h) ' of Anti-Terrorism Act, 1997: to undergo rigorous imprisonment for one year with fine of Rs,10,000 or in default whereof to undergo simple imprisonment for three months.
2. Precisely, the prosecution case as recorded by Falak Sher, SI (P.W.5), vide complaint (Exh.PA) is that he along with his fellow police-officials, Muhammad Latif 1684/C P.W. (not produced), Maqsood Ahmad 4567/C (P.W.2) and Farman Ali 362/C P.W. (not produced) reached site of industrial exhibition, near Dattha Pull at 8.45 p.m. On 19-1-2001, where they, all of a sudden, heard report of reckless firing from the side of swings; the people present there ran to all directions in fear; some of them lay on the ground; he along with his companions went to the spot and saw Muhammad Arif Butt (appellant) and two others, whose names he learnt later on as Daood and Saqi, fleeing the spot aboard a white colour Suzuki car No,5554-FDV, after having made firing there.
The complaint (Exh.PA) resulted into registration of FIR (Exh.PA/1) at 9.40 p.m., the same day.
3. Falak Sher SI (P.W.5) conducted investigation of this case. He, after necessary formalities, prepared report under section 173, Cr.P.C. And submitted it before the court for trial of the accused.
The learned trial court indicted the accused, Muhammad Irfan Butt alias Arif Butt (appellant), Saqib Hussain (since acquitted) and Daood (since acquitted) on 18-7-2002 under three heads and asked the prosecution to lead evidence in support of its case. The prosecution produced five witnesses at trial, Muhammad Iqbal ASI (P.W.1), Maqsood Ahmad 4567/C (P.W.2), Muhammad Iqbal (P.W.3), Shahid Ali SI (P.W.4) and Falak Sher SI (P.W.5). On closure of prosecution case, the appellant and his acquitted co-accused were recorded under section 342, Cr.P.C. They all professed their innocence and contended that they had been falsely involved in this case by the police conspiratorially. The appellant, however, also contended that his brother Muhammad Abdullah was involved in case FIR No,184/89 and to cause his arrest Falak Sher, SI (P.W.5) raided his house, where he exchanged hot and bitter words with him, resultantly he was arrested and falsely involved in this case.
4. The learned trial court after hearing both the sides and having gone through the record convicted and sentenced the appellant, in mentioned terms. The co-accused of the appellant, named as above, were however acquitted of the charges.
5. The appellant challenged his conviction/sentence through the titled appeal within the period of limitation. His sentence was suspended by this court vide order dated 19-8-2002, consequently he was set at liberty. He, however, did not appear when this appeal was fixed for hearing on 20-6-2012.
The learned counsel appearing on his behalf gave an undertaking on the said occasion that the appellant would appear before the court on the next date. He, however, is not in attendance. We, with a view to assess, if his presence is necessitated by the record, have decided to scan it and hear the learned counsel for the parties with their consent.
6. Learned counsel for the appellant has submitted that it is a case of no evidence and impugned judgment has been passed by the trial court gratuitously; the prosecution did not succeed at all in bringing home guilt of the appellant beyond any reasonable shadow of doubt, but learned trial court overlooked the fallacy of the prosecution case and delivered a whimsical and conjectural verdict against the appellant.
7. Learned Deputy Prosecutor General Punjab is also of the same viewpoint and he believes that the case against the appellant did not warrant the treatment, meted out to him, vide the impugned judgment, by the trial court.
8. After hearing learned counsel for the parties and perusing the record with their able assistance, we find that the prosecution produced only one independent witness, Muhammad Iqbal (P.W.3) during A trial, who flatly disowned the prosecution case and deposed that he did not hear any report of firing nor he saw the accused present there. He was declared hostile (backed out) and examined as such. The cross-examination faced by P.W.3 from the public prosecutor did not generate any positive circumstance in favour of the prosecution and he adhesively stuck to the stance that he did not see the accused, including the appellant at the spot nor he saw them firing there. Maqsood Ahmad 4567/C (P.W.2)''also did little good to the prosecution case in his testimony as he stated that he along with other police pfficials reached the place of incident within 2/2-1/2 minutes where people told them the names of the accused. He further testified that Messrs Shakeel and Javed told them that the accused had decamped in Suzuki car No,5554. This lone deposition of the prosecution witness is sufficient to hold that the police-party under the command of Falak Sher SI (P.W.5) reached the spot, after the incident was over. Falak Sher SI (P.W.5), however, did his best to support complaint (Exh.PA) when he contended that he saw three accused, namely, Irfan Butt (appellant), Daood and Saqib present at the spot and they fled in a Suzuki car. He admitted in his testimony' that he along with his companions was present at a distance of about one acre from Dattha Pull, when he heard report of firing, whereon he reached there within 2/2-1/2 minutes, where Javed and Shakeel told them about the factum of firing. He, however, claimed to have seen the accused, leaving the spot in .a car. His testimony contains a leading question by the defence, if he saw the accused firing at the spot with his own \eyes, to which he answered in the affirmative. It may have been a crucial circumstance for the learned trial court to assess the guilt of the appellant, had other circumstances, available on the record, not sharply gone against the said fact. The putting of above leading question by the defence and an affirmative reply by the prosecution witness may be due to a mindless act of the defence counsel, but we have to remember that there is more than one circumstance, which categorically negate the prosecution case in entirety. Falak Sher SI (P.W.5) has not scribed in complaint (Exh.PA) that he himself saw the accused firing at the spot. It may be inferred from the FIR that the accused including the appellant had driven away their car from the place of occurrence, but the act of firing could certainly not be attributed to them from the text of the complaint in any manner. The ocular account furnished by Maqsood Ahmad 4567/C (P.W.2), Muhammad Iqbal (P.W.3) and Falak Sher SI (P.W.5) lead to only irresistible conclusion that the prosecution had failed to establish that the appellant had committed the crime, he was charged with. The ocular account, therefore, is brushed aside being discrepant and unreliable.
9. So far as recovery of three crime empties (P1/1-3) vide memo Exh.PB is concerned, it could form a crucial evidence, had they been sent to the office of Forensic Science Laboratory together with the pistol 30-bore (P2) allegedly recovered from the appellant on 21-1-2001 vide memo Exh.PC. In absence of the expert report from the Forensic Science Laboratory, the recovery of crime empties and that of the pistol means little to the prosecution case. The other evidence needs not be discussed being trivial and of formal nature, which cannot strengthen the prosecution case in any manner after rejection of the aforesaid crucial accounts.
10. A nutshell of the above discussion is that the prosecution has badly failed to prove its case against the appellant beyond any shadow of doubt. The only irresistible conclusion oozing from the evidence available on the record is the acquittal of the appellant. In such a situation, personal appearance of the appellant may not be important at all, as envisaged by section 366(2), Cr.P.C.
We allow this appeal, set aside conviction/sentence of the appellant awarded to him by the learned trial court and acquit him of the charges. His surety stands relieved of his liability, which he incurred by submitting bail bond on his (appellant) behalf, when he was confined in jail as a convict.