' ABDUL LATIF KHAN J.---This appeal has been preferred against judgment and order dated 24.4.2012 passed by learned Judge, Anti-Terrorism Court-III, Peshawar whereby the appellant involved in case FIR No,317 dated 4.7.2011 under sections 302/324/353/34, P.P.C. Read with 13, A.0/7, A.T.A., P.S. Gulberg Peshawar, was convicted and sentenced as under: "Under section 7(a) of Anti-Terrorism Act, 1997 to undergo life imprisonment and fine of Rs,2,00,000/- and in default thereof to undergo further two years' SI; ' Under section 7(c) of Anti-Terrorism Act, 1997 for causing injuries to complainant and passerby's to undergo 10 years on three counts for each injured and fine of Rs,50,000/- and in default thereof to undergo further six months' SI; ' Under section 7(h) of Anti-Terrorism Act, 1997 for obstructing/resisting police in discharge of their official duties, to undergo 5 years and fine of Rs,30,000/- and in default thereof to undergo further two months' SI; ' Under section 13, A.0, for a term of 2 years' R.I, all the sentences shall run concurrently and benefit of section 382-B, Cr. P. C. Was extended to the appellant."
2. As per prosecution case, complainant Adnan constable (PW.13) along with Khan Gul LHC were going in connection with Rider duty when they saw three persons riding on motorcycle from opposite side who was chased by them on the basis of suspicion but when they reached the place of occurrence, there the accused started firing at complainant party as a result of which Khan Gul constable sustained injuries. The complainant also fired at the accused in self defence due to which one of them sustained injuries and the complainant tried to catch hold of the accused by grappling with them and snatched two pistols from accused while the third person started firing at him as a result of which he sustained injuries on his head. From the said firing two passersby were also hit. The injured were shifted to the hospital where PW.13 lodged report against unknown accused. Later on appellant was arrested in injured condition so he along with absconding co- accused were involved in the instant case for commission of offence.
3. After completion. Of investigation, complete challan against accused was submitted in the trial Court where proceedings under section 512, Cr.P.C. Were initiated against absconding co-accused while after framing of charge against appellant, the prosecution in order to prove its case, examined the following 18 witnesses:- ' PW.1 Arib Ullah constable is marginal witness to recovery memo Ex.PW.1/1 vide which the blood stained garments of injured passerby brought by Najeeb Ullah were taken into possession and he also produced uniform of complainant to the 1.0; PW.2 Muhammad Zahid Constable was accompanying the PW. Mumtaz Khan SHO at the time of arrest of appellant and recovery. Of crime weapon from his possession; PW.3 Mumtaz Khan CIO has conducted investigation in the instant case; PW.4 Danish Khan Afridi JMIC has conducted identification parade of appellant in jail premises; PW.5 Dr. Nasir Ali CMO, has examined the appellant and submitted his report Ex.PW.5/1; PW.6 Mumtaz Khan SHO, has arrested the appellant in injured condition and recovered crime pistol from his possession; PW.7 DI. Shameem CMO has examined complainant and injured Asad Ullah and Daulat Khan; PW.8 Dr. Khalid CMO, has conducted on the dead body of decade: Khan Gul and submitted his report Ex.PM; PW.9 Reqab Gul Khan SI has reduced the report of complainant in the shape of murasila Ex.PA/1, prepared injury sheets of injured; PW.10 Razi Khan SI is marginal witness to recovery memos Ex.PW.3/1 to Ex.PW.3/5; PW.11 Abdullah Jan ASI has registered the case on receipt of murasila vide FIR Ex.PA; PW.12 Daulat Khan injured deposed regarding injuries received by him; PW.13 Adnan Constable is complainant and injured in the instant case who narrated the whole story of the occurrence as per his report Ex.PA/1; PW.14 Raheem Dad constable identified the dead body of decided Khan Gul before police as well as before doctor at the time of P.M. Examination; PW.15 Kareem Khan is marginal witness to recovery memo Ex.PW.15/1 vide which the two pistols produced by complainant to the I.0, allegedly taken from accused; PW.16 Waris Khan SI took into possession two pistols handed over to him by complainant allegedly snatched from accused, vide memo Ex.PW.15/1; PW.17 Gul Shahzada SI prepared injury sheet of complainant Ex.PW.17/1, injury sheet of deceased Ex.PW.17/3 and inquest report Ex.PW.17/2; PW.18 Raheem Gul being father of deceased Khan Gul, charged the accused for commission of offence;
4. At conclusion of trial, the learned trial Court vide impugned judgment dated 24.4.2012, convicted and sentenced the appellant, hence the instant Criminal Appeal filed by appellant for his acquittal.
' Arguments heard, record perused.
5. In the instant case the star witnesses of prosecution are Daulat Khan (PW.12) and PW.13 Adnan constable (complainant) who were allegedly present on the spot at relevant time and sustained injuries from the firing of accused but their statements are not trustworthy and confidence inspiring as according to PW.12, there was firing between two personnel of police and three culprits due to which he sustained injuries. He has not attributed any role of firing to the accused as to with whose firing he along with other injured Asad Ullah were hit meaning thereby that he was not sure about the actual person fired at him and whether he sustained injury from the firing of police or accused but even then he charged none for sustaining injury. The prosecution has also failed to conduct identification parade of appellant through said injured Daulat Khan who was allegedly present on the spot at the time of occurrence so identification of appellant through PW.12, was essential for strengthening the version of complainant but it was not done by the I.O. For the reasons best known to him.
6. So far as PW.13 is concerned, there are lot of improvements and contradictions in his report, supplementary statement under section 164. Cr.P.C. And Court statement because in his report Ex.PA/1 he stated that the accused were coming from opposite side who were chased by deceased on the basis of suspicion but in his statement before Magistrate under section 164, Cr.P.C., he stated that they signaled the accused to stop but they resisted and fired at the complainant party whereas in his statement before trial Court as PW.13, he again concealed this fact of. Signaling the accused and their resistance. PW.13 deposed that he snatched two pistols from two accused and the third person fired at him but it has not been mentioned in his report as well as his supplementary statement under section 164, Cr.P.C., recorded after arrest of appellant as from which accused he snatched pistols and which accused fired at him though the appellant was arrested on 7.7.2011 while supplementary statement of PW.13 was recorded on 15.7.2011, after about 8 days of arrest of appellant but even then he did not mention the role of appellant in the said statement nor his name was mentioned specifically but in his Court statement for the first time he introduced the story that from firing of accused Khan Gul sustained injuries "being in front of me on motorcycle" and as a result of firing "the accused facing trial whose name was later on known to me as Izaat Khan also received injuries on his leg". He also improved his statement: by introducing for the first time that "grappling started in between myself. And two absconding accused while accused facing trial due to injury shot sat on the ground. During said grappling I took the two pistols from the absconding accused and over powered both of them in the meanwhile accused facing trial Izzat Khan started firing at me as a result of which I sustained injury on my head." But this fact is neither mentioned in murasila nor in the supplementary statement recorded under section 164, Cr.P.C. On 15.7.2011, after arrest and identification parade of appellant conducted on 14.7.2011 which makes his version doubtful. He stated in his supplementary statement under section 164, Cr.P.C., that the "accused boarded the injured person on the motorcycle and decamped from the spot" but this fact is neither mentioned in his report Ex.PA/1 nor Court statement (PW.13) which contradicts his version and also shatters its credibility.
7. There are also material contradictions in the statements of other prosecution witnesses as according to PW.16 at the time of handing over the weapon to him by complainant, the deceased was not dead whereas PW.15 accompanying PW.16 at relevant time deposed that when he reached to the spot, Khan Gul was dead. According to. PW.13 and PW.16, two pistols of accused and one official Klashnikov were handed over to PW.16 but as per PW.15, with above articles, the pistol of deceased was also handed over to PW.16 on the spot and stated that it was not taken into possession through recovery memo by PW.16. Admittedly the time of occurrence has been mentioned in the report Ex.PA/1 as 19.37 PM and according to supplementary statement of PW.13, he along with deceased were on rider gasht at 17.37 PM when accused coming from opposite side were signaled to stop, who resisted and started firing at them but in report Ex.PA/1 and statement before trial Court, he stated that they chased the accused whereas according to PW.15, the pistols were handed over to PW.16 by complainant at 7.30 PM, meaning thereby that the occurrence had taken place prior to 7.30. PM which is allegedly mentioned as time of occurrence in murasila, creating doubt regarding the mode and manner of the occurrence.
6(sic.) The arrest of appellant is also doubtful as no source of satisfaction has been given by the PW.2 and PW.6 as to who informed D them about coming of appellant and how they identified him when he was not personally known to them prior to the occurrence nor they were present at the time of occurrence. They have not mentioned presence of informer with them at the time of arrest of appellant. Besides, as per cross-examination of PW.2, the accused had not made confession of previous offence in his presence but according to PW.6, the appellant had confessed on the spot that he has committed the offence dated 4.7.2011. According to PW.6, he prepared recovery memo, card of arrest, injury sheet of appellant on the spot but as per marginal witness (PW.2) he signed the recovery memo in the P.S, which also creates doubt in the arrest on the spot as well as recovery of alleged pistol from his possession. PW.2 deposed that they checked four Rikshaws prior to arrest of appellant but as per PW.6, he did not remember the number of vehicles/Rikshaws checked by them. The prosecution has not examined the Rikshaw driver from whose rikshaw the appellant was allegedly arrested in order to strengthen the prosecution meaning thereby that the appellant has not been arrested from the Rikshaw rather he was arrested from another place. Apart from above, regarding receiving injuries by appellant, a case vide FIR No,545 dated 5.7.2011 under section 325, P.P.C. Has also been registered at Police Station Par Hoti, on his report by stating that he had attempted to commit suicide, which also creates doubt in the prosecution case.
7. So far as identification parade of appellant is concerned, the same has got no value as it has been conducted on 14.7,2011 after 7 days of arrest of the appellant who was admitted in the LRH Peshawar from 7.7.2011 to 13.7.2011, meaning thereby that the appellant was shown to the complainant prior to identification parade which lends support from the objection made by appellant as per identification report of Judicial Magistrate, wherein at the bottom it has been mentioned by PW.4, that "the accused objected that the identifier had seen him several times in police station". No explanation was offered by prosecution for delay in conducting of identification parade and thus without explanation by prosecution itself is fatal. Reliance is made on the case of "Bhani Bakhsh v. The State" 2006 PCr.LJ 1671. Memories fade and visions get blurred with passage of time. Thus, an identification test, where an unexplained and unreasonable long period has intervened between the occurrence and the identification proceedings, should be viewed with suspicion. Therefore, an identification parade to inspire confidence must be held at the earliest possible opportunity after the occurrence. A test identification, where the possibility of the witness having seen the accused persons after their arrest cannot be ruled out, is worth nothing at all. It is therefore, imperative to eliminate all such possibilities. It should be ensured that, after their arrest the suspects are put to identification tests as early as possible. Such suspects should, preferably not be remanded to police custody in the first instance and should be kept in judicial custody till the identification proceedings are held. This is to avoid the possibility of over-zealous Investigation Officers showing the suspects to the witnesses while they are in police custody. Even when these accused persons are of necessity, to be taken to Courts for remand etc., they must be warned to cover their faces if they so choose that no witness could see them. Reliance is placed on the case of "Ghulam Hussain and others v. The State" 2005 YLR 405. In the instant case the appellant was kept for 7 days in hospital, seen by the complainant and then he was formally identified in identification parade so possibility of showing him to the identifier cannot be ruled out with special reference to circumstances of the case that complainant and deceased were police officials and there was sufficient time between the occurrence and identification parade. No explanation has been given about the delay caused in conducting identification test. Besides, appellant was in injured conditions and the dummies produced along with him during identification parade were not having bandage, then it was also easy for the identify the person having bandage/injury on his leg while the dummies without bandage which was also admitted by PW.4 who conducted identification parade by stating that there is no mention in his report Ex.FW.4/2 that the other dummies of identification parade were also injured by leg which means that the identification parade has not been conducted properly and in accordance with law.
8. Admittedly the kind of weapon has not been mentioned by complainant in his report though he was serving in police department and was well acquainted with every type of weapon but failed to mention it in his report. Non-specification of weapon in the hands of accused reflected doubt regarding the presence of complainant on the spot. Had he present on the spot and actually sustained injuries from the hand of appellant, definitely he could have specified the weapon of offence. Though 15 empties were recovered from the places of accused and it is not clear as to with whose fire shot the deceased was hit as role of indiscriminate firing was given by the complainant to the accused. As per medical report, the deceased had received three entry wound but as per report of FSL, two bullets were allegedly fired the pistol recovered from appellant while seven empties were fired from one pistol and 5 empties were fired from other pistol which were allegedly snatched. By complainant from accused, so it is not clear as to with whose firing the deceased was hit. It is also pertinent to mention that 15 empties were recovered from the places of accused on 4.7.2011 but the same were not sent on the same day rather they were sent along with pistol recovered from possession appellant on 7.7.2014 but the same were received in the FSL on 9.7.2011. Even if it be presumed that the said crime empties were in fact available at the sot and had been rightly recovered by the Investigation Officer, it is a pity that the said crime empties had been retained in the Police Station for three days and has been sent to FSL which were received there on 9.7.2011, along with pistol recovered other pistols allegedly recovered from accused and pistol allegedly recovered from possession of appellant at the time of his arrest on 7.7.2011. No explanation had been offered as to why the crime empties had not been dispatched immediately to the Forensic Science Laboratory when FSL laboratory is available in Peshawar therefore the delay had destroyed the evidential value of such piece of evidence and the recoveries could not offer any corroboration to the ocular testimony. Besides, no finger prints on the pistols recovered have been found nor the same were sent to the Finger Prints Expert for opinion in order to strengthen the prosecution case. Likewise the blood of accused and that of recovered from spot has also not been sent for comparison/matching the same in order to dig out the actual truth.
9. No specific point of appellant has been mentioned in the site plan. Neither his name is mentioned in the site plan which could establish his presence on the spot at relevant time nor any amendment in the same has been made after arrest of appellant.
10. It is also very strange to observe that besides injured Daulat Khan one Asad Ullah had also received injuries in the occurrence but in supplementary statement of complainant under section 164, Cr.P.C. He has not mentioned their receiving injuries in the occurrence nor their names have been mentioned in the same which is contradictory to his initial report as well as Court statement as PW.13. The injured Daulat Khan was examined as PW.12 but he did not utter a word regarding receiving injuries from the firing of appellant rather he stated that there was firing between two personnel of police and three culprits due to which he sustained injuries so being eye-witness of the occurrence he did not support the prosecution case and it can be presumed that he might have received injuries from firing of police party and that is why the other injured Asad Ullah has not been examined in support of prosecution meaning thereby that the prosecution has withheld its best evidence. Non-production of said witness further makes the story of prosecution dubious. It is well-settled principle of law that if a best piece of evidence is available with a party and the same is withheld by him, then it is presumed that the party has some evil motive behind it in not producing the said evidence. Even otherwise, a presumption under illustration (g) to Article 129 of Qanun-e-Shahadat Order can fairly be drawn in matter.
11. Apart from above, there are many other material contradictions and loop holes in the prosecution case mentioning of which would be a K futile exercise. No evidence is available on record to connect the accused with the commission of offence which is admittedly doubtful and cannot be safely relied upon for conviction of accused in capital offence. The defence plea taken by accused that on the same date and time he was injured in an incident at Mardan and to this effect FIR Ex.PW.3/X-1 was registered at Police Station Par Hoti, Mardan while deposing as DW, he stated that his brother has fired at him though the accused failed to prove his plea raised in the defence however it cannot reduce the burden of prosecution to prove its case against him beyond reasonable shadow of doubt nor can be taken into consideration in support-of prosecution case.
The plea taken in defense cast doubt on the credibility of prosecution case despite the fact that the plea taken was doubtful. Reliance in this respect is placed on the case of "Ashiq Hussain v. The State" reported in 1993 SCM R 417 wherein it has observed that "even if the plea taken by defence is not proved, was sufficient to cast doubt on the credibility of prosecution case which was even other was also doubtful and accused was acquitted on the benefit of doubt in the circumstances."
12. Though numerous FIRs have been brought on file against the appellant but in none of the cases, the conviction has been recorded. Mere registration of case cannot be based for conviction in capital offence when otherwise no strong, confidence and corroborative evidence are available against the accused which makes the case of appellant that of further inquiry. The prosecution case is full of doubt the benefit of which would go to the accused as for creating doubt single circumstance is sufficient and not many circumstances for creating doubt in the prosecution case.
Therefore the learned trial Court has not properly appreciated the evidence available before him by convicting the appellant through impugned judgment which needs interference by this Court.
13. For the aforesaid reasons, while extending the benefit of doubt, we accept the appeal filed by the appellant/convict by setting aside his conviction and sentence, passed through impugned judgment by learned trial Court and acquit him of the charges leveled against him. He, is in custody, be released forthwith if not wanted in any other case.
' These are the reasons of our short order of even date.