SHAKEEL AHMED BALOCH, J.---This common judgment disposes of Criminal Appeal No.318 of 2011 filed by the appellant Nabeel Son of Haji Rasool Bakhsh against his conviction and Criminal Acquittal Appeal No.121 of 2014 filed by the State against the acquittal of accused Sohail Son of Murad Jan, Haji Rasool Bakhsh son of Mir Essa (accused faced trial), Qadir Son of Hassan and Haleem son of Abdul Rauf (absconding accused), arising out of the judgment dated 16th December, 2011 (hereinafter referred as, "the impugned judgment") passed by the Special Judge Anti-Terrorism Mekran at Turbat (hereinafter referred as, "the trial Court"), whereby the appellant Nabeel was convicted under section 302(b) Q&D, P.P.C. Read with section 7 of A.T.A., 1997 and sentenced to suffer R.I. For life as Tazir and to pay Rs.200,000 (Rupees Two Lac) as compensation under section 544-A, Cr.P.C., which in case of recovery was directed to be paid to the legal heirs of deceased Naik Umar Akram and in default thereof to further suffer one year S.I.; he was also convicted under section 324, Q&D read with section 7 of A.T.A., 1997 and sentenced to suffer seven years' R.I. With fine of Rs.50,000 (Rupees Fifty Thousand) and in default to further suffer six months'
S.I. And under section 353, P.P.C. For two years' R.I. With fine of Rs.10,000 and in default thereof to further suffer one month's S.I., with the benefit of section 382-B, Cr.P.C. Whereas the accused Sohail and Haji Rasool Bakhsh along wit absconding accused Haleem son of Abdul Rauf and Qadir Bakhsh were acquitted of the charge.
2. Facts of the case are that on 1st February, 2011 the complainant Anwar Jan, Naib Sobedar HQ Wing Mekran Scouts Turbat, lodged FIR No.8/2011 at Police Station City Turbat under sections 302, 324, 353, 34, P.P.C. Read with section 7 of A.T.A., 1997, stating therein that on the said date at about 3-30 a.m. The patrolling party of Mekran Scouts under his supervision were coming from D-Baloch Company towards F.C. Camp Turbat, when they reached near Gokdan, four persons riding on two motorcycles made firing upon them with pistol and escaped towards Gokdan village, hence they were chased. In the meantime one motorcycle entered in a house, while the other escaped in a street the house was cordoned by the patrolling party and when the patrolling party tried to enter in the house, firing was made upon them from inside the house with pistol and automatic weapons, due to which Naik Umar Akram died at the spot, while Sepoy Muhammad Manzoor and Gul Baz became injured. The F.C. Personnel made firing upon them in retaliation with official arms.
At about 7-00 a.m. Police reached at the spot, who entered in the house where Nabeel and Fazeela were found in injured condition, who were sent to the hospital. On inquiring query it came to their knowledge that the house belongs to Haji Rasool Bakhsh. During search, arms and ammunition were recovered from the room of Nabeel. Accused Sohail son of Murad Jan was apprehended along with one .9 MM Pistol and Haji Rasool Bakhsh, who was wearing ladies clothes attempted to escape, but was apprehended and one .9 MM pistol was recovered from the possession of Sohail and one motorcycle was also taken into possession from outside the house.
3. In pursuance of the above FIR, investigation was conducted by P.W.8 Murad Bakhsh, who during investigation visited the hospital and carried the proceedings under section 174, Cr.P.C.; prepared inquest report of deceased Umer Akram Exh.P/8-B; took into possession the ladies clothes worn by the acquitted accused Rasool Bakhsh; recorded the statements of witnesses under section 161, Cr.P.C.; inspected the site and prepared the site sketch Exh.P/8-C; recovered two empties of .9 MM from the first site, thereafter proceeded to second site and prepared site sketch Exh.P/8-D; recovered .9 mm pistol, one repeater along with other arms and ammunition; took into possession bloodstained earth of deceased Umer Akram from the site through seizure memo. Exh.P/3-A; took into possession the motorcycle used in the crime Exh.P/6-C; arrested the accused Rasool Bakhsh and Sohail; after discharge of accused Nabeel from hospital arrested him on 22nd February, 2011; recorded his disclosure memo. Exh.P/5-A; obtained medical certificates and death certificate of F.C. Personal Exh.P/7-B to Exh.P/7-D; obtained FSL report of fire arms Exh.P/8-G and on completion of investigation submitted challans against the accused.
At the trial the accused Haleem and Qadir Bakhsh remained absconders, as such, they were declared as proclaimed offenders.
4. At the trial, the prosecution produced eight witnesses. The accused were examined under section 342, Cr.P.C. But they did not record their statement on oath under section 340(2), Cr.P.C.
However produced a witness in their defence. On conclusion of trial and after hearing arguments, the appellant was convicted and sentenced as mentioned above in para No.1, while the accused Sohail Son of Murad Jan and Haji Rasool Bakhsh as well as the absconding accused Haleem son of Abdul Rauf and Qadir son of Hassan were acquitted of the charge. On 20th December, 2011 the appellant Nabeel has preferred Criminal Appeal No.318/2011, while on 5th May, 2014 the State through Prosecutor General preferred Criminal Acquittal Appeal No.121 of 2014 against the acquitted accused/respondents Sohail, Rasool Bakhsh and Qadir, whereas no appeal was filed against the acquittal of absconding accused Haleem.
5. Learned counsel for the appellant stated that the case of the prosecution is doubtful as all the prosecution witnesses made contradictory statements; that the injured witnesses were dropped by the prosecution; that since the accused were not known to the complainant party, therefore, identification parade of accused was necessary, but the same was not conducted; that the story with regard to alleged occurrence so narrated by the prosecution witnesses is highly doubtful; that no separate FIR under the Arms Ordinance with regard to allegedly recovered arms and ammunition was registered; that the impugned judgment is suffering from misreading and mis- appreciation of evidence; that no independent corroboration was available in support of the ocular testimony; that the motive behind the occurrence has not been established; that the criminal acquittal appeal has been filed after a delay of 3-1/2 years without any explanation.
6. Learned Deputy Prosecutor General while supporting the conviction stated that the prosecution through consistent and confidence inspiring evidence has proved the charge against the appellant as well as against the acquitted accused beyond any shadow of doubt; that all the witnesses remain firm in their deposition and no major contradiction has come on record; that the recovery of crime weapon and the disclosure of the appellant with regard to his guilt has also been proved through independent witness; that the impugned judgment is based on proper appraisal of evidence by the trial Court.
7. Heard the learned counsel for parties and perused the available record. Perusal of fard-e-bayan Exh.P/2-A reveals that basically two incidents had occurred. First when the accused party made firing upon the patrolling party of Mekran Scouts and escaped and secondly when they attempted to enter in the house, the accused persons made firing upon them, which resulted into death of deceased Naik Umer Akram and injuring Manzoor and Sepoy Gul Baz. The complainant of the case appeared as P.W.2. In his cross-examination P.W.2 admitted that about 16 F.C. Personnel were patrolling in armed condition in two official vehicles when firing was made upon them, but it is astonishing that no counter firing was made upon the accused by the F.C. Personnel and only they chased them. Such fact was admitted by the complainant of the case in his cross-examination that they only chased the accused party and did not make firing upon them. The assertion of complainant is unnatural and not believable and same is not rational as despite being attacked/fired upon, the sixteen armed persons of law enforcing personnel of F.C. Armed with sophisticated weapons did not retaliate by firing upon the assailants, who had ambushed them and they escaped unhurt from the scene of the occurrence. The trial Court has rightly disbelieved the prosecution story to that extent.
8. According to the contents of FIR/fard-e-bayan in the alleged incident Naik Umer lost his life, while the Sepoy Manzoor and Sepoy Gul Baz were injured, but the injured witnesses were dropped by the prosecution without any plausible reason or justification, whereas the evidence of said injured was the best piece of the evidence, which the prosecution could have relied upon for proving the case, but for the reasons not known, their evidence was withheld and they were not examined. Presumption under Illustration (g) of Article 129 of Qanun-eShandat Order, 1984 can fairly be drawn that had the said witnesses been examined in the Court their evidence would have been unfavorable to the prosecution. Although, the prosecution was not bound to produce each and every witness, but if the prosecution failed to produce such witnesses who were star witnesses and the whole story was allegedly witnessed by them, it makes the prosecution story doubtful.
Reliance in this regard is placed on the case of Hunar Shah alias Anar Shah and another v. Khan Zad Gul and another, 2014 YLR 1180. The relevant portion' is reproduced herein below: "The inference regarding non-production of this important independent witness would go against the prosecution that had he been produced his statement wouldn't have been favourable to prosecution. It would also reflect that prosecution wanted to suppress material evidence."
Similar view was also taken in the case of Khalid and 2 others v. The State, 2012 SCMR 327, whereby it was held as under: "The prosecution has not, for the reasons best known to it, produced Mst. Jannat Bibi, an injured witness, from which an inference could be drawn against the prosecution that if she is produced she would have not supported the prosecution version. We, therefore, find that the ocular account is not of such a character which could be relied upon in in order to convict a person on a capital charge when the same is not corroborated by any other independent evidence as the presence of both the eye-witnesses at the place and time of occurrence is not established as their statements have been disbelieved by the learned appellate court regarding Sultan Mehmood acquitted accused."
9. With regard to the identification of the accused, suffice to observe here that the alleged incident took place at the dark night at about 3-30 p.m., the F.C. Personnel did not know the accused nor they knew their names or even no description of such accused persons was mentioned in the FIR and even no specific role was assigned by the witnesses to the appellant/acquitted accused, hence after the arrest of the accused, their identification parade was essential to be conducted in view of the facts and circumstances of the case, in absence of identification parade the identity and involvement of the convict-appellant in the commission of offence is doubtful. Reliance, in this regard is placed on the case of Khalil Ahmed v. The State, 2015 MLD 236, Khawar v. The State, 2014 YLR
10. The record is silent with regard to motive behind the occurrence. The prosecution has failed to collect any material showing that the appellant and acquitted co-accused either belonged to any criminal gang or banned organization or there was any personal enmity or grudge between the accused and the F.C. Personnel. Hence, there was no occasion for the accused to make firing upon the F.C. Personnel by endangering their lives just for nothing.. The case of prosecution is lacking motive. False implication of accused cannot be ruled out of consideration.
11. We are conscious of the fact that even in a case without any motive, the accused persons have been convicted by the Courts, but the facts of the instant case are quite different from other cases as in such like incidents no one can dare to fight with F.C. Personnel having no motive or cause.
Therefore, the implication of the accused in the present case is highly doubtful.
12. Now diverting to the disclosure of accused made during police custody, suffice to observe that the said disclosure Exh.P/5-A does not discover new facts and even no recovery was followed by the said disclosure memo., thus under the Qanun-e-Shahadat Order, 1984, the said disclosure being inadmissible piece of evidence, is discarded from consideration.
13. At the time of arrest of the appellant and acquitted co-accused, sufficient arms and ammunitions were allegedly recovered from the said house, but the prosecution has failed to lodge a separate FIR under the Arms Ordinance, 1965 nor any evidence was produced showing the recovery of the arms from any person, thus the said arms and ammunition cannot be linked with the appellant.
14. It has further come on record that the prosecution has failed to ascribe any specific role to any of the accused. The appellant Nabeel was arrested from his house in injured and unconscious condition, thus it could not be determined as to who made firing. Even otherwise, at the trial the prosecution witnesses have failed to identify the accused persons as assailants. Further, no one saw the appellant having weapon in his hand or making firing upon the F.C. Even otherwise, it has come on record that one lady namely Fazeela was also injured in the said incident, but neither her medical certificate was produced in the Court nor the prosecution made her as witness of the occurrence.
15. The acquittal appeal against the acquitted co-accused was filed after the lapse of about 3-1/2 years without any explanation. The unexplained delay in filing the acquittal appeal cannot be condoned.
16. According to settled law, any doubt arising in the prosecution case must be resolved in favour of the accused. The evidence available on record is not of such a character which could be relied upon to convict a person on a charge having capital punishment. The learned trial Court has rightly appreciated the facts and circumstances of the case to the extent of acquitted co-accused, but has mis-appreciated the same to the extent of appellant Nabeel.
17. Re-appraisal of the evidence on record reveals that the prosecution has failed to prove the charge not only against the acquitted co- accused, but it has also failed to bring home the charge against the appellant Nabeel beyond any shadow of doubt, therefore, his conviction cannot be maintained.
18. All the above infirmities and contradictions, lead us to the conclusion that the prosecution has failed to bring home the charge against the appellant beyond any shadow of doubt and that the acquittal of the co-accused is neither arbitrary nor perverse or contrary to the evidence available on record.
For the above reasons, the Criminal Appeal No.318 of 2011 is accepted. The impugned judgment dated 16th December, 2011 passed by the Special Judge Anti-Terrorism Mekran at Turbat, is set aside and the appellant/convict Nabeel son of Haji Rasool Bakhsh, is acquitted of the charge under sections 302, 324, 353, 34, P.P.C. Read with section 7, A.T.A., 1997. The appellant being in custody, is ordered to be released forthwith, if not required in any other case.
The Criminal Acquittal Appeal No. 121 of 2014 being devoid of merits and being time barred is dismissed.