MUHAMMAD IQBAL KALHORO, J.---This appeal is directed against judgment dated 30.12.2015 passed by Anti-Terrorism Court No.VI, Karachi, whereby the appellant has been convicted under sections 3/4, Explosive Substance Act read with sections 6(2)(ee) and 7(1)(ff), Anti-Terrorism Act, 1997 and sentenced to suffer RI for 14 years with forfeiture of property with benefit of section 382-B, Cr.P.C. duly extended to him.
2. As per prosecution case, on 11.05.2011 H.C. Naseer Ahmed along with P.C. Ashfaque Ahmed and PC Muhammad Farooq were deployed at check post Saudi Consulate situated at Khayaban- eHafiz Phase-V, DHA Karachi, where FC and Rangers personnel were also deputed. At 1505 hours, two persons came on 125 motorcycle, stopped it and one of them after alighting from the motorcycle lobbed two hand grenades towards Saudi Consulate consecutively, one hit the gate and the other landed inside the Consulate, and resultantly explosions took place. The police party comprising the complainant and other law enforcement agencies meanwhile took the position but the culprits fled away. Such facts were narrated by HC Naseer Ahmed the complainant on the basis of which present FIR was registered.
3. The appellant was arrested on 20.11.2011 at 11.00 p.m. in crime No.269/2011 of P.S. Eidgah, and during interrogation in the said crime and offence, he admitted his involvement in the present crime. On 24.11.2011, when the appellant was present at Police Station Gizri and set to be taken to the court for identification purpose, P.Ws HC Naseer Ahmed, PC Ashfaque and PC Farooque arrived there and identified him to be the culprit of this crime. On 12.12.2011 identification parade of the appellant was held before the learned Judicial Magistrate IV-Karachi South, wherein P.W.2 Abdul Latif identified him and said that he had thrown grenades to Saudi Consulate. On the basis of such material, the challan against the appellant was submitted.
4. In the trial, a formal Charge against the appellant was framed at Ex.3 to which he pleaded not guilty and claimed trial, during which the prosecution has examined P.W.1 SI Ghulam Rasool at Ex.5, who recorded statement of P.W. HC Naseer Ahmed so also the FIR, PW.2 Inayatullah, Civil Judge and Judicial Magistrate at Ex.6, P.W.3 Abdul Latif at Ex.7, P.W.4 SI Rana Asghar Ali at Ex.8, P.W.5 ASI Muhammad Irfan at Ex.9, P.W.6 ASI Abid Farooq at Ex.11, P.W.7 Syed Waqar Ali at Ex.12, P.W.8 SI Noor Sabir at Ex.13, P.W.9 ASI Qadeer Ahmed at Ex.14, P.W.10 PC Muhammad Farooq at Ex.15, and P.W.11 Inspector Ateeq-ur-Rehman at Ex.18. They have produced all the necessary documents including FIR, memos of place of incident, arrest of appellant, identification parade of appellant, etc. Statement of appellant under section 342, Cr.P.C. was recorded at Ex.20 in which he has denied the allegations and claimed innocence. At the conclusion of the trial, the learned trial court convicted and sentenced the appellant in the terms as stated above and through the instant appeal, the appellant has challenged the same.
5. Learned defence counsel has contended that the entire prosecution case is based on the evidence of P.W.3 Abdul Latif, who allegedly was present at the time of incident, and had identified the appellant subsequently in the identification parade but the said witness is a chance witness and has not been able to establish his presence at the spot at the relevant time through confidence inspiring evidence; that the presence of the said P.W. at the spot, who claims to be Estate Agent and resident of Baldia town, Karachi is highly unlikely; that the appellant was arrested in another crime on 20.11.2012, whereas his identification parade was held on 12.12.2011, after about 22 days of his arrest, as such the same is of no evidentiary value; that the prosecution has failed to examine the complainant, who is alleged to be eyewitness of the incident and is a police official which has caused a serious blow to the prosecution case; that in the FIR it is alleged that the complainant, other police officials and Rangers personnel were present at the spot and they had seen the incident, but strangely the I.O. instead of getting the appellant identified by them introduced a chance witness for the purpose of identification of the appellant; that the conduct of the police officials and other personnel present at the relevant time is strange and unbecoming of the call of duty because it has come on record that they had seen the appellant and other accused coming on motorcycle, the appellant alighting from it and hurling two hand grenades to Saudi Consulate consecutively, but they did not do anything, they did not try to follow or apprehend the accused, nor they fired a single bullet to the accused, and simply saw them fleeing from the place of incident, which is unbelievable; that P.W PC Muhammad Farooq in his evidence has stated that they had seen the appellant at police station and had identified him to be the culprit of the crime, but such piece of evidence is inadmissible in law. He has further contended that the only incriminating evidence against the appellant is his alleged identification firstly at Police Station by P.Ws HC Naseer Ahmed, PC Ashfaque Ahmed and PC Muhammad Farooq, and secondly before learned Judicial Magistrate on 12.12.2011 by P.W. Abdul Latif but in the statement of the appellant under section 342, Cr.P.C., the same incriminating evidence was not put to him for the purpose of his explanation which has seriously prejudiced him in the trial and such lacuna being incurable, the benefit of which has to be given to the appellant as a matter of right. Learned counsel in support of his arguments has relied upon 2002 SCM R 1795, PLD 1981 SC 142, 1997 PCr.LJ 280, 1989 PCr.LJ 2227, 2011 SCM R 806, PLD 2002 SC 56, 2011 SCM R 646, 1985 SCM R 1834 and 2006 SCM R 1846.
6. On the other hand, learned DPO has supported the impugned judgment and has contended that the prosecution through unimpeachable evidence has been able to prove its case against the appellant beyond any reasonable doubt.
7. We have considered the submissions of the parties, perused the material available on record and have taken guidance from the case law relied upon by learned defence counsel in his arguments. The prosecution has examined in all 11 witnesses to prove charge against the appellant.
As per record on the day of incident, the appellant along with co-accused, who later on was killed in an encounter with police came on a motorcycle, stopped and after alighting from it lobbed two hand grenades consecutively to Saudi Consulate, out of which one hit the gate and the other landed inside the Consulate. However, no loss in terms of human causality was caused. Although the complainant and other P.Ws PC Ashfaque Ahmed and PC Muhammad Farooq and FC and Rangers personnel were present but strangely they did not act to either apprehend the accused or to try to chase them; they even did not fire a single bullet to them. Such conduct of the said police and other officials alleged to be present at the spot does not appeal to a prudent mind. It reinforces an impression that they were not present at the relevant time, for, there would be no other explanation for the accused to escape un-scathed without any resistance or retaliation mounted by law enforcement agencies. This impression is further fortified from the fact that the prosecution has not submitted any document i.e. daily dairy etc. to establish the duty of the said police officials and others at Saudi Consulate on the relevant date of the incident. In cross examination, the I.O. ASI Muhammad Irfan Ex.09, has admitted that the police officials who had identified the appellant at Police Station Gizri were posted at P.S. Gizri on the day of incident. During the arguments, we asked a specific question from learned DPG that when the prosecution witness himself has admitted posting of said police officials at Police Station Gizri, then how their presence can be assumed at the place of incident B without any documentary evidence to show their deployment there, his reply was that since Saudi Consulate comes within the Police Station Gizri, therefore, they were present there. Manifestly this argument cannot be taken to satisfy judicial conscience and to establish presence of said police officials at the place of incident at the relevant time. In our view, the prosecution has miserably failed to lead confidence inspiring evidence to establish presence of the complainant and other witnesses namely PC Muhammad Farooq and PC Ashfaque Ahmed at the spot on IC the relevant date.
8. In our estimation P.W.3 Abdul Latif appears to be a chance witness, he has not been able to satisfactorily prove his presence at the spot on the relevant date. His claim to be an Estate Agent/Property Dealer is not proved either. His version that he had come to the area of place of incident with his client to show him some Bungalow is not established. He has not spoken of any details in his evidence about exact area where he had gone along with his client. He has not disclosed name of his client and the exact location of his visit with him. The Bungalow number, name of its owner and the fact whether his client wanted to see Bungalow for rent or for purchasing the same has not been disclosed by him in the evidence either. The prosecution in the trial did not attempt to examine the said client of P.W.3 Abdul Latif to seek corroboration of his version and to establish beyond a reasonable doubt the fact of his presence in the subject area on the date of incident. As the prosecution evidence stands, it suggests that this incident had happened within a very short time on 11.05.2011, whereas the identification parade of the appellant took place on 12.12.2011, after about seven months. For the said PW to remember the appellant vividly and to identify him after such a long time is not humanly possible. This is relevant because in his statement under section 161, Cr.P.C., the said witness has not given specific description of the appellant. Evidence of this witness in respect of number of dummies is also contradictory to the number mentioned in the memo of Identification Parade. He stated there were 22 dummies as against 10 dummies disclosed in the memo of Identification Parade. The record also reflects that the appellant was arrested on 20.11.2011 in another crime but his identification parade was held on 12.12.2011, after about 22 days of his arrest. During that period he remained in police custody and as the evidence of I.O. indicates that on the very first day of his arrest, he had admitted his involvement in the commission of offence but strangely he was got identified only after 22 days of his arrest by a witness, who from the very first day of the incident was available with the prosecution. The identification parade of the appellant at Police Station by P.Ws P.Ws HC Naseer Ahmed, PC Ashfaque and PC Farooque is inadmissible in law. It is also strange to note that although the prosecution had the police officials as eyewitnesses of the incident but the I.O. instead of getting the appellant identified from them chose to get him identified by a witness, who happens to beat the place of incident by a chance. In view of above foregoing reasons in our view, the identification parade of the appellant by the said witness cannot be relied upon.
9. We have also noted that the trial court has not recorded statement of appellant under section 342, Cr.P.C. properly. The scope and import of section 342, Cr.P.C. is that every incriminating piece of evidence has to be put to the accused in order to seek his explanation thereon. Provisions of section 342, Cr.P.C. are mandatory in nature and if they are not adhered to, a serious prejudice to the accused in explaining his point of view regarding the evidence against him would be caused. In the statement under section 342, Cr.P.C. the appellant has not been confronted with the identification parade held either before the Judicial' Magistrate on 12.12.2011; or even his alleged identification at police Station by P.Ws HC Naseer Ahmed, PC Ashfaque and PC Farooque on 24.11.2011. The alleged identification parade being the only incriminating evidence against the appellant, it was incumbent on the trial court to put the same to the appellant for his explanation. It is a well settled principle of law by now that any incriminating piece of evidence, which is not put to the accused in his statement under section 342, Cr.P.C. cannot be relied upon for the purpose of convicting the accused. Reliance in this regard can be placed on an unreported judgment of honourable Supreme Court in case of Nawab alias Muhammad Nawaz v. The State (Criminal Appeal No. 456/2012). In the present case, the trial court in its judgment has heavily relied upon the identification parade without considering that this piece of evidence was not put to the appellant in his statement under section 342, Cr.P.C. and thus could not have been considered as a circumstance against him for the purpose of his conviction.
10. For the foregoing discussion, we are of the view that the prosecution has not been able to prove its case against the appellant beyond a reasonable doubt. It is a cardinal principle of criminal administration of justice, that if there is a single circumstance creating a reasonable doubt over the prosecution case, the benefit thereof is to be extended to the accused not as a matter of grace but as a matter of right. In the present case as discussed above, we have found many discrepancies, which reflect adversely on the prosecution case. We in the fads and circumstances, allow this appeal, acquit the appellant of the charge alleged against him by extending him a benefit of doubt and order his release forthwith if he is not required in any other case.
These are the reasons in support of our short order passed, whereby the appeal was allowed.