Syed Shahbaz Ali Rizvi, J.--Through this Criminal Appeal filed led under Section 25 of Anti-T errorism Act, 1997, Abdul Majeed alias Moacha and Allah Bachaya, appellants have assailed judgment dated 10.01.2013 passed by learned Judge, Anti Terrorism Court No. I Multan, in case F.I.R. No. 423 dated 12.09,2012, registered for offence under Sections, 324, 353, 185 & 337-F(iii), PPC, read with Section 7 of the Anti-T errorism Act, 1997, at Police Station Saddar Jalalpur Pirwala, District Multan, whereby they were convicted under Sections 186/34, PPC and sentenced to undergo imprisonment for two years along-with fine of Rs. 1500/-. each and in case of non-payment of fine, to further undergo simple imprisonment for five days, each. They were also convicted under Sections 353/34, PPC and sentenced to suffer imprisonment for two years alongwith fine of Rs. 10,000/-, each and in case of non-payment of fine, to further undergo simple imprisonment for fifteen days, each. Abdul Majeed alias Moacha was further convicted under Section 324, PPC and sentenced to undergo rigorous imprisonment for eight years alongwith fine of Rs. 40,000/- and in case of non-payment of fine, to further undergo simple imprisonment for two months. He was also convicted under Section 337-F(iii), PPC and sentenced to undergo rigorous imprisonment for three years and to pay Daman amounting to Rs. 50,000/-. He was further convicted Under Section 7-ATA and sentenced to, suffer rigorous imprisonment for eight years alongwith fine of Rs.40,000/- and in case of non- payment of fine, to further undergo simple imprisonment for two months. Allah Bachaya appellant was convicted under Sections 324/34, PPC and sentenced to undergo rigorous imprisonment for five years alongwith fine of Rs.
30,000/- and in case of non-payment of fine, to further undergo simple imprisonment for one month. He was also convicted under Sections 337-F(iii)/34, PPC and sentenced 'to suffer rigorous imprisonment for one year and to pay Daman amounting to Rs.25,000/- to Mahboob Raza, ASI. He was further convicted under Section 7-ATA and sentenced to rigorous imprisonment for five years alongwith fine of Rs.30,000/- and in case of non-payment of fine, to further undergo simple imprisonment for one month. All the sentences were ordered to run concurrently and benefit of Section 382-B, Cr .P.C. was also extended to the accused/appellants.
2. Brief facts of the case, as disclosed by Rafique Ahmad, ASI/complainant (PW-7) in his complaint (Exh.P A), on the basis of which FIR (Exh.P A/1) was registered, are that on 12.09.2012 at about 08:45 p.m. he alongwith Mahboob Raza, ASI (PW.5), Irshad Ahmad 2466/C, Allah Ditta 3113/C (given up PWs) and Ijaz Ahmad 523/C (PW- 6) on official Vehicle No. 6574/MLL was present at Haji Pul in the area of Chak No. 66/M in connection with patrolling duty and also in search, of vagabonds when three persons (features detailed in the crime report) boarded on motorbike, two armed with fire-arms, came towards the police party , who were signaled to stop their motorbike.
One of the accused armed with the repeater .12 bore opened fire which hit Mahbood Raza, ASI on front of his body and he fell down on the ground after sustaining pellet injuries. The accused persons fled away from the spot. Later on, they were identified as Abdul Majeed alias Moacha, Allah Bachaya (appellants) and Sagheer Ahmad alias Nasir (since proclaimed of fender).
3. During the investigation of case FIR No. 361/2012, registered for offence under Section 364, PPC at Police Station Saddar Jalalpur Pirwala, District Multan, the arrest of the appellants was also effected in this case by Muhammad Akhtar Islam, Inspector . (PW-8). During interrogation, both the appellants after making disclosure got recovered motorbike of unique company 70-CC (P-1) which was-taken into possession vide recovery memo (Exh.PJ). Abdul Majeed alias Moacha also got recovered repeater gun (P-2) alongwith two live cartridges (P-3/1-2) which was taken into possession vide recovery memo (Exh.PK)'. The investigation culminated into the submission of report under Section 173 of Code of Criminal Procedure, 1898. The learned trial Court framed charge against the appellants on 14.1 1.2012 to which they pleaded not guilty and claimed to be tried.
4. In order to prove its case against the appellants, the prosecution produced, in all, nine witnesses during the trial.
The ocular account was furnished by Mahboob Raza, ASI, injured (PW-5), Ijaz Ahmad 523/C (PW-6) and Rafique Ahmad, ASI/complainant (PW-7), who reiterated the episode of occurrence as already narrated in the crime report.
Ijaz Ahmad 523/C (PW-6) is also the witness of recovery of motorbike P-1 and crime weapon P-2 at the instance of the appellants. Imtiaz Ahmad 2601/HC (PW-1), on the basis of complaint (Exh.P A), chalked out formal FIR (Exh.P A/1).
Medical evidence was furnished by Dr. Shakeel Ahmad (PW-2) and Dr. Liaqu at Tareen, Member of District Standing Medical Board (PW-4). Dr. Shakeel Ahmad, medically examined Mahboob Raza, ASI (PW-5) and observed multiple small pellet wounds on his person. Dr. Liaquat Tareen, medically examined injured Mahboob Raza, ASI and found five circular fire-arm injuries, each reflecting multiple wounds, on his person. He also medically examined Abdul Majeed and Allah Bachaya appellants and found no mark of violence or injury on their persons.
Mr. Kamran Karamat, Magistrate (PW-3) conducted test identification parade of Abdul Majeed alias Moacha and Allah Bachaya appellants. Muhammad Akhtar Islam, Inspector (PW-8) and Javed Akhtar , Inspector (PW-9) are the Investigation Officers of the case. While giving up PWs, namely , Dr. Raza Mohiy-ud-Din, M.S., Civil Hospital, Multan, Dr. Shahid Mahmood Bukhari, Dr. Saeed Rabbani, Surgeon, Allah Ditta 3113/C, Irshad Hussain 2466/C, Muhammad Ismail, PQR and Dr. Arshad Ali Muhammad Khalid, being unnecessary; the prosecution closed its evidence.
5. Statements of the appellants under Section 342 of the Code of Criminal Procedure, 1898 were recorded wherein, they refuted the allegations levelled against them and professed their innocence on the ground of previous grudge and animosity of the police. The appellants did not opt to make statements on oath as their own witnesses in disproof of the allegations levelled against them as provided under Section 340(2) of the Code of Criminal Procedure, 1898. However , appellant Abdul Majeed alias Moacha after tendering documents Exh.DC to Exh.DG closed his defence while Allah Bachaya appellant did not opt to produce any defence evidence.
6. After conclusion of trial, the appellants were convicted and sentenced, as mentioned above, by the learned trial Court, hence, the instant appeal.
7. Learned counsel for the appellants contends that the appellants have falsely been implicated in this case; that there are glaring contradictions and dishonest improvements in the statements of the prosecution witnesses; that no private witness was either associated with the investigation or produced before the learned trial Court; that it was a night occurrence committed by unidentified persons; that the learned trial Court has not applied its judicious mind while convicting the appellants; that no incriminating evidence was available with the prosecution to bring home guilt of the appellants and that the recovery of motorbike P-1 is joint and planted one while the recovery of pump action .12 bore gun P-2 has also been manipulated just to strengthen the prosecution case and that the joint test identification parade being not in accordance with law, bears no worth. Lastly prays that this appeal may be accepted and the appellants may be acquitted of the charge.
8. Conversely , learned Deputy Prosecutor General vehemently Opposes the contentions raised by learned counsel for the appellants and maintains that there are no contradictions or improvements in the statements of prosecution witnesses; that the crime report describing features of the appellants for their identification was got recorded promptly; that-the police officials had no mala fide or ill will against the appellants to falsely implicate them in the instant case; that prosecution has fully proved its case, beyond shadow of a reasonable doubt, against the appellants and finally submits that the appeal in hand may be dismissed, being devoid of merits.
9. We have heard the learned counsel for the appellants, learned Deputy Prosecutor General and gone through the record with their able assistance.
10. It has been noticed that as per the prosecution's case, canvassed by the prosecution witnesses through the oral deposition as well as the documentary evidence, the night occurrence of this case took place at 08:45 p.m. by three unknown persons. Though the description/features of the culprits have been given by the complainant in the crime report Exh.P A/1 yet the fact remains that neither the site-plan Exh.PL available in evidence reflects place where the official vehicle was allegedly available in the light of which the culprits were seen by the witnesses nor any torch could be adduced in evidence that, as per the eye-witnesses, was used to see the assailants who having no previous acquaintance with police party , never stopped at the place of occurrence. The appellants have been implicated in this case when they were under investigation in another case bearing FIR No. 361/2012, registered for offence under Section 364, PPC at the same police station where, admittedly , the prosecution witnesses were also posted during the time when they were in the police custody between 04.10.2012 to 06.10.2012. In this regard at the time of identification parade, the objection was raised by the appellants. It is also an admitted fact that both the appellants were subjected to the test identification parade jointly and even at the time of their identification by the witnesses, no specific role was assigned to them PW-3, the learned Magistrate, who conducted the identification parade, during his cross-examination, also concedes that his report Exh.PD does not carry detail about the dummies. PW-7, the complainant, during his cross-examination confirms that at the time of arrest of the appellants, he completely identified the accused and similarly , he also replied in affirmative to the effect that they remained in police lockup at his police station where the other witnesses were posted. In this view of the matter , we are of the considered opinion that no sanctity can be attached to such identification of the appellants and that the evidence furnished by the prosecution in this regard is not, at all, trustworthy . The availability of documents Exh.DC and Exh.DE also reflects adverse to the credibility of identification and implication of appellant Abdul Majeed in this case.
Statement of Mahboob Raza (PW-5), the injured witness, having no grievous injury , was recorded under Section 161, Cr.P.C. for the first time on 22.10.2012 and prosecution's case is bereft of any explanation regarding his belated statement. Such belated statement recorded under Section 161, Cr.P.C. casts doubt upon the credibility of his statement. We have also observed that the statement of injured witness (PW-5) regarding the assignment of role to the appellants at the time of their identification parade is pregnant with the dishonest improvements, which stands duly got confronted by the defence. Even otherwise, the injuries available on the person of a witness no doubt, confirms his presence but cannot, at all, be -considered a stamp of truthfulness.
11. The statement of PW-6 Ijaz Ahmad 523/C also carries material and dishonest improvement regarding the source of light in which the culprits were identified by the witnesses. In his statem ent, he developed the case that the assailants were identified by the witnesses in the headlight of official vehicle as well as in the light of electric bulb installed in the "Chowk " but neither the rough site-plan (Exh.PL), prepared by the Investigation Officer (PW-8), reflects any point where the bulb was installed nor the same has been taken into possession during the investigation and similarly , no electric bulb was produced in the Court to establish the same fact. PW-7 Rafique Ahmad, ASI also improved his statemen t qua the source of light which is evident from the following reproduced extract from his statement that reads as under: "I had not stated in Ex.P A about holding of cell torch light in whose light we too identified the accused."
12. With regard to the recovery of motorcycle, it has been noticed that the same, even per prosecution's own case, was recovered at the instance of both the appellants jointly . Furthermore, no description of the motorcycle used by the culprits was given by the witnesses in their statements recorded under Sections 154 and 161, Cr.P.C. Similarly , the gun, allegedly recovered at the instance of appellant Abdul Majeed from his house from where earlier the motorcycle was recovered jointly on the pointation of both the appellants, is doubtful, coupled with the fact that the gun was never sent to the Punjab Forensic Science Agency , even to get determine d workability of the same. In this view of the matter , alleged recoveries of motorcycle P-1 as well as gun pump action .12 bore P-2 do not provide any corroboration to the ocular account, discussed, above. No crime empty could be taken into possession by the Investigation Agency from the place of occurrence.
13. In view of all circumstances, mentioned supra, we are of the opinion that the prosecution has failed to establish its case against the appellants beyond the shadow of a reasonable doubt. There is no cavil about the proposition that it is the prosecution which has to prove its case against the accused beyond the shadow of a reasonable doubt. It is by now also an established proposition that benefit of even a single, reasonable doubt is to be extended to the accused. In our view, the prosecut ion in this case remained unable to disch arge its responsibility of proving its case against both the appellants. Hence, this appeal is allowed , conviction and sentence of the appellants is hereby set aside and while extending benefit of doubt, they are acquitted of the charges, leveled against them.
Both the appellants are in custody , be released immediately , if not required to be detained in any other criminal case.