' ABDUL LATIF KHAN, J.---This appeal has been preferred against the judgment dated 29.01.2014, passed by learned Judge, Anti Terrorism Court, Mardan, whereby the respondent involved in case FIR No.541 dated 27.8.2004 under sections 302/324/353/34, P.P.C. 7 ATA P.S. Katlang, Mardan, was acquitted of the charges leveled against him.
2. As per prosecution case, on spy information regarding proceedings of Proclaimed Offenders Rahim Shah (respondent), Lal Bahadar & Abdul Qadir (absconding co-accused) to Kunj, the local police conducted Nakabandi on the spot when in the meanwhile the above accused descended from the nearby hills who were identified in the moon light. They were called to surrender but they started firing at the police party as a result of which Abdur Rashid Khan AS1 sustained injuries. The police party also retaliated in self defence but the accused disappeared in the nearby village Abadi. The injured was shifted to the hospital and the report vide FIR was registered against accused. However on next day the injured succumbed to his injuries and Section 302, P.P.C. Was also added in the FIR.
3. After completion of investigation initially challan was submitted against accused under section 512, Cr.P.C. Where on conclusion of trial in absence of accused, they were declared Proclaimed Offenders and Perpetual Warrants of arrest were ordered to be issued against them vide judgment/order dated 7.9.2005. However after arrest of respondent, supplementary challan was submitted against him in the trial Court where in order to prove its case the prosecution examined 12 witnesses and at conclusion of trial the learned trial Court, acquitted the respondent from the charges leveled against him, hence the instant Criminal Appeal has been filed by the State through Advocate General KPK, Peshawar.
' Arguments heard and record perused.
4. Admittedly the respondent has not been arrested on the spot rather he along with other co- accused allegedly decamped from the spot after commission of the occurrence. The occurrence took place at dark night time i.e., 11.00 p.m. But source of light has been mentioned to be the moon light in which the police party allegedly identified the respondent and other co-accused but this version of complainant was later on contradicted by him while appearing in Court as PW.7, by stating that he had not seen the moon or its size but added that there was light and further improved his statement by stating that he used tracer gun for identification of accused which fact is not mentioned in his initial report and for the first time it was introduced by him in order to strengthen the prosecution version regarding identification of accused, which makes the prosecution case doubtful.
5. According to PW.7 (complainant) and other witnesses the information regarding accused was received by complainant (PW.7) but as per D.D. No.17 dated 28.8.2004, copy of which is available on file, the information was received by Faiz-ur-Rehman SI however the said Faizur Rehman, Si. (P.W.8) has denied this fact of receiving information by him. He admitted that point-B where from the empties of police personnel were recovered is at the back of the deceased, which lend support from medical report that the deceased was hit from behind and not from the front while according to site plan the deceased was facing towards the accused at the time of occurrence, meaning thereby that the deceased might be hit from the firing of his colleagues/police official which fact is also supported by the PW.8 by stating that there was general rumors that Abdur Rashid Khan ASI was hit with the fire shots of his colleagues.
6. Admittedly there was indiscriminate firing between the accused and police party and no specific role of firing has been given to any of the accused as to with whose fire shots the deceased was hit nor the kind/type of weapon used by accused has been mentioned by the complainant in his report though according to him he allegedly identified the accused in the moon light but only mentioned firearms which creates doubt in the prudent mind as he being police official is fully acquainted with every type of weapon being taught to them during their training.
7. So far as identification parade is concerned, normally identification parade parade is required to be conducted in those cases where identification is doubtful but when the complainant was sure about identification of respondent in the light of moon, then there was no need of conducting identification parade and no reason for conducting the same has been advanced. Besides, respondent was already known to the complainant party/police as they were by name charged in the FIR so reasons for identification parade in respect of respondent should have been mentioned which is not done in the instant case, meaning thereby that the complainant was not sure about identification of respondent, making the prosecution case doubtful.
8. Apart from above, for single injury three persons have been charged and it is not clear as to with whose fire shots the deceased was hit though possibility is there that he might have been hit with the firing of his colleagues/police personnel as he was hit from back. The empty shells recovered from the places of accused have not been sent to the FSL in order to ascertain as to whether these were fired from one weapon or different weapons though no crime weapon has been effected from personal possession of respondent. Despite remaining in police custody, he has made no confession before the competent Court. The prosecution has mentioned regarding involvement of respondent in other criminal cases but failed to bring any evidence/documents in respect of his conviction in those cases, so mere involvement of a person in a case is not sufficient to establish his guilt rather the same could be established after conducting trial so this plea of prosecution is of no help to the prosecution case.
9. It is also a settled law that after earning the acquittal from the E trial Court, double presumption of innocence is acquired by an accused.
' While Court sitting in appeal against acquittal must be slow in reversing the judgment of acquittal, unless it is found to be arbitrary fanciful and capricious on the face of it or is the result of bare misreading or non-reading of any material evidence. In the instant case, no such infirmity has been found in the impugned judgment. The prosecution case is full of doubt, the benefit of which must go to the respondent therefore the learned trial Court has rightly acquitted the respondent/accused by extending him benefit of doubt, after proper appraisal of evidence for which no exception can be taken.
' For the aforesaid reasons, the instant Criminal appeal is dismissed.