ABDUL MOBEEN LAKHO, J.---Wahaj Ali and Muhammad Junaid Aslam were tried by Learned Judge Anti-Terrorism Court-XIX, for offences under sections 353/324/427/34, P.P.C, read with section 7 of Anti-Terrorism Act, 1997. After full-fledged trial, vide judgment dated 08.02.2020, appellants were convicted under section 7(h) of Anti-Terrorism Act, 1997 read with Section 353/324, P.P.C. to suffer R.I. for five years and to pay fine of Rs.50,000/- each. In case of default in payment of fine, they were ordered to suffer one year R.I. Appellant Muhammad Junaid was also convicted under Sections 337-F(iii)/ 337-F(vi), P.P.C. to suffer R.I. for two years and to pay fine of Rs.5000/- and in case of default, he was ordered to suffer R.I. for six months. All the sentences were directed to run concurrently and appellant were extended benefit of section 382-B, Cr.P.C.
2. The brief facts of the prosecution as disclosed by the complainant ASI Ch. Ghulam Mustafa in his statement recorded under section 154, Cr.P.C., are that on 11.09.2017, a police party headed by ASI Ch. Ghulam Mustafa along with his subordinate staff PCs Arz Muhammad, Pehlwan Khan, Shan Safdar and driver Muhammad Jawaid left the Police Station Rizvia in police Mobile No.SPB-281, whereas HC Muhammad Amir, PCs Muhammad Asif, Sirajuddin, Mukhtiar Ahmed and Abdul Jabbar were in police Mobile No.4 bearing No.SPA-819 left PS and were busy in patrolling. Police Mobiles reached at Jahangirabad service road opposite Senior Grammar School-B road Nazimabad No.1, Karachi and started snap checking, in the meanwhile, two suspected persons on a motorbike coming from inside road Nazimabad No.1 were signaled to stop by PC Sirajuddin but they did not stop and person sitting on backside of the motorbike started firing from his pistol which hit PCs Sirajuddin on his hip and Shan Safdar on his face both the constables fell down. The accused ran away from the place of incident. Both the injured were shifted to the Abbasi Shaheed Hospital for treatment and highups were informed about incident. MLC of both the injured were received. PC Sirajuddin was admitted in the Hospital whereas PC Shan Safdar was shifted to Aga Khan Hospital.
First Information Report bearing Crime No. 151/2017 for offences under Sections 353/324/34, P.P.C. read with Section 7 of Anti-Terrorism Act, 1997 was lodged on behalf of state against two unknown persons.
3. Investigation was entrusted to Inspector Ch. Arif Hussain on 12.09.2017, copy of the FIR and Medico legal certificates of injured PCs and blood stained cloths. I.O. inspected the place of wardat on the pointation of ASI Ghulam Mustafa. Mashirnama of inspection of place of wardat was prepared in presence of mashirs ASI Ghulam Mustafa and HC Amir, prepared sketch, collected USB of camera affixed from School and Bakery, recorded 161, Cr.P.C. statements of P.Ws. On 13.09.2017 recorded statement of injured PC Sirajuddin and sent damaged police mobile for FSL. On 15.09.2017 recorded statement' of injured PC Shan Safdar and sent blood stained clothes and mud for FSL and received positive report. On 20.09.2017 received message regarding arrest of accused Wahaj in Crime No. 238/2017, he thereafter proceeded to PS Rizvia and arrested the accused in presence of mashirs.
On 22.09.2017, he received message of Inspector Muhammad Afzal of PS Rizvia regarding arrest of co-accused Junaid, he proceeded to the PS Rizvia and arrested the accused in the present case in presence of mashirs. I.O. received report of FSL regarding empties collected from the place of incident. He collected CRO of both the accused. On 25.09.2017 identification of both the accused was held before concerned Judicial Magistrate through injured PCs Sirajuddin and Shan Safdar. On the conclusion of the investigation, challan was submitted against the accused before the learned Judge, Anti-Terrorism Court at Karachi under the above referred sections.
4. Trial Court framed charge against accused at Exs.4/A and 4/B, to which accused pleaded not guilty and claimed to be tried.
5. At trial, prosecution examined 12 prosecution witnesses, thereafter, prose-cution side was closed vide statement at Ex.18.
6. Statements of the accused were recorded under section 342, Cr.P.C. at Exs.19 and 20 respectively, in which they claimed their false implication in this case and denied the allegations levelled. against them. Accused neither examined themselves on oath in disproof of the prosecution allegations as required under Section 340(2), Cr.P.C., nor led any evidence in defense.
7. Learned trial Court after hearing the learned counsel for the parties and assessment of the evidence, vide the Judgment dated 08.02.2020, convicted and sentenced the appellants as stated above. Hence, the appellants filed separate appeals against the common judgment. Being bound by common thread, we intend to dispose both the above captioned appeals through this single judgment.
8. The evidence has already been produced by the trial Court, which finds an elaborate mention in the Judgment dated 08.02.2020 passed by the learned trial Court, therefore, in order to avoid unnecessary repetition, the same is not reproduced here.
9. Mr. Nasrullah Korai, learned counsel for the appellants mainly argued that according to prosecution case two persons on a motorcycle were signaled to stop by the police, but they made fires upon the police resultantly two P.Cs. Sirajuddin and Shan Safdar received injuries, however, it an admitted position that the time of incident was shown as 2030 hours and no source of light has been disclosed in the FIR; that even no description/hulia or the features of the accused have been mentioned by the complainant in the FIR; that no departure entry of police station has been produced in order to substantiate the availability of the police party at the place of incident; that though there were more than one police mobiles at the time of incident and it was not possible for the accused to drive their motorcycle away if the incident would have been the genuine one; that on 20.09.2017, appellant Wahaj was arrested by the police in Crime No.238/2017 under Sections 4/5 of Explosive Substances Act and under Section 23(1)(a) of Sindh Arms Act and on 22.09.2017 accused Junaid was arrested by the police of same police station in FIR Nos.247 and 248 of 2017 in police encounter case; that defective Identification parade of both the accused was held on 25.09.2017 after 4/2 days of arrest of both the accused, respectively, hence cannot be relied upon.
Learned counsel for the appellants relied upon the cases reported as Noor Islam v. Ghani ur Rehman and another (2020 SCMR 310), State/Government of Sindh v. Sobharo (1993 SCMR 585) and Muhammad Nawaz and another v. The State and others (PLD 2005 SC 40).
10. Conversely, learned DPG argued that prosecution has successfully proved its' case beyond reasonable doubt; that trustworthy and confidence inspiring evidence has been given by the prosecution witnesses and all the P.Ws have supported the case of prosecution; that no enmity or mala fide on the part of police officials has been brought on record; that the identification parade was held by the concerned Judicial Magistrate in accordance with the law wherein both the appellants were correctly identified by the injured P.Ws with the specific roles, therefore, he 'prayed for dismissal of the Appeals.
11. We have carefully heard learned counsel for the parties and scanned the entire evidence.
12. After evaluating and assessing the evidence available on the record, we have come to the conclusion that prosecution has failed to prove its case against the appellants for the reasons that evidence of police officials does not inspire confidence. The incident took place at night time i.e. 2030 hours and no source of light was mentioned in the FIR. It is further observed that a sudden encounter took place, in the spur of the moment wherein the accused resorted to firing and fled away from the crime scene, immediately thereafter by causing injuries to two Police constables.
Admitetly no roznamcha entry or departure or arrival was produced/exhibited in the evidence, this lapse on the part of the prosecution cuts the roots of the prosecution and also cuts the roots of the prosecution case. Reliance is placed upon the case of Abdul Sattar and others v. The State (2002 PCr.LJ 51). In this case, only piece of evidence on which the prosecution relied upon is the identification parade conducted before the Judicial Magistrate where the appellants were identified by the injured witnesses. In our consideration view, such identification of the appellants in the test identification parade, was laconic, besides being the weakest piece of evidence. It loses its judicial efficacy because the complexion, height, weight and features etc. were not given in the report. Reason being that a brief assault during the night would certainly leave a little space to the witnesses to meticulously capture details thereof, particularly descriptive features of the assailants in the absence of a source of light conspicuously missing in the crime report. In a number of cases it has been laid down by Honorable Supreme Court that identification test in the absence of description of the accused in the FIR is of no value. Reference in this regard may be made to the cases report as Noor Islam v. Ghani ur Rehman and another (2020 SCMR 310) and State/Government of Sindh v. Sobharo (1993 SCMR 585) and identification of and by PWs/eye- witnesses before the trial Court is unsafe for maintaining conviction as held in the case Majeed alias Majeediand others v. The State (2019 SCMR 301). It is further very surprising to note here that though two police mobiles were parked but not a single one chased the culprits after the incident and further P.W PC Muhammad Asif in his cross-examination deposed that one police mobile brought the injured at Hospital whereas other remained there. It is very shocking that an incident in which two police constables where shot but not a single police mobile chased the culprits, which also creates doubt in the prudent mind regarding the mode and manner of the occurrence and alleged in the FIR. We have further noted that though appellants were interrogated by the police but neither crime weapon nor the motorcycle used in the commission of crime could be recovered by the police.
13. There are a number infirmities/ circumstance and contradictions creating doubts in the prosecution case. It is a known principle of appreciation of evidence that benefit of all favorable circumstances in the prosecution evidence must go to the accused regardless of whether he has taken any such plea or not. In the case of Muhammad Nawaz and another v. The State and others (PLD 2005 SC 40), the Honourable Supreme Court has held as under: "It is a known principle of appreciation of evidence that the benefit of all favourable instances in the prosecution evidence must go to the accused regardless of whether he has taken any such plea or not."
14. In the view of above discussion, we have come to the conclusion that the prosecution has failed to prove the aforesaid cases against the appellants beyond any shadow of doubt, therefore, we extend benefit of doubt to the appellants and allow Special Criminal Anti-Terrorism Jail Appeals Nos.53 and 189 of 2020 are allowed. Conviction and sentence recorded by the trial court in Special Case No.61 of 2018, arising out of I-IR No.151 of 2017, for offence under sections 353, 324, 427, 34, P.P.C. read with Section 7 of the Anti-Terrorism Act, 1997 of Police Station CTD, Karachi are set aside.
Appellants Wahaj Ali son of Mumtaz Ali and Muhammad Junaid son of Muhammad Aslam shall be released forthwith, if not required in some other case. These are the reasons for the short order announced on 19.01.2021