' SH. RIAZ AHMAD, J.--- The appellant Maqsood son of Jalal Din resident of village Dandi Loharan, District Gujranwala was tried by a learned Judge, Special Court constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975 at Gujranwala on the charges under sections 3 and 5 of the Explosive Substances Act, 1908 (hereinafter to be stated as the Act). The appellant however was found guilty under sections 3 and 5-A of the Act. He was sentenced under section 3 of the Act to undergo life imprisonment. Likewise on the charge under section 216, P.P.C. He was convicted and sentenced to undergo three years' R.I. His entire property was ordered to be confiscated to the State under section 5-A of the Act. The sentences were ordered to run concurrently. The appellant- convict assails his aforesaid conviction and sentences through this appeal, which shall be disposed of through this judgment.
2. Prosecution case, in brief, is that on 2-6-1984 at about 11 a.m. a secret information was received by Banaras Khan A.S.I. P.W.1 which disclosed that Bashir alias Bashira and Fazal Karim alias Phhala, proclaimed offenders, were present in the house of the appellant situated in village Dandi Loharan within the jurisdiction of Police Station Sarai Alamgir. On receipt of this information, Banaras Khan, A.S.I. Formed a raiding party consisting of Muhammad Siddique and Muhammad Hanif, both public witnesses and residents of the aforesaid village and other police officers. They thereafter reached the house of the appellant. Door of the Haveli of the appellant was chained from inside, therefore, the raiding party called out the appellant, whereupon, Bashir alias and d Fazal Karim both P.Os.
Started firing at the raiding party. In the exercise of right of self-defence, the raiding party also returned the fire. Exchange of firing continued from both sides for about half an hour. It is stated that after some time, Fazal Karim threw a hand-grenade which hit a wall and exploded. Taking advantage of this explosion, the appellant and his co-. Accused escaped from the house. It is also disclosed that alongwith the said accused there was another person armed with a rifle, who also ran away from the spot alongwith his companions. Banaras Khan A.S.I a member of the raiding party then drew the complaint Exh.P.E., and sent it to the police station, where the formal F.I.R.
Exh.P.E./1 was drawn by Muhammad Banaras Sub-Inspector P.W.3. During the spot inspection, Muhammad Banaras S.I./S.H.O. P.W.3 recovered and took into possession pieces of the exploded hand-grenade P.1, liver P.2 and spring P.3 vide memo. Exh.P.F. The recovery was attested by Muhammad Siddique and Muhammad Hanif P.Ws.
3. To prove its case at the trial, the prosecution placed reliance upon the statements of Banaras Khan A.S.I. P.W.1, Muhammad Banaras S.I./S.H.O. P.W.3 and Muhammad Siddique.
4. With the assistance of the learned counsel for the appellant and the State, we have perused the entire evidence available on the record. We have also heard the learned counsel for the parties at length. At the very outset, we may observe without any hesitation that Muhammad Siddique P.W.2 was disposed of inimically towards the appellant inasmuch as he had the motive to falsely implicate the appellant in this case. It was clearly admitted by the witness that in various criminal cases, he as well as the appellant had been appearing as witnesses against each other in criminal Courts. It is stated that the appellant was injured by P.W.2, and in consequence a case under section 307, P.P.C. Was registered against him in which, the appellant had to appear as a star witness against him. It is also mentioned that during the pendency of this criminal case, a brother of appellant was done to death by Muhammad Siddique P.W.2. In this view of the matter, we have been persuaded to discard his testimony. We are new only left with the evidence of Banaras A.S.I.
And the S.I./S.H.O. And a constable, as already stated above. After having gone through the facts of this case very carefully, we are reluctant to believe the prosecution case. We have also carefully seen the site plan, and have also perused the cross-examination of both the witnesses about the place of occurrence, width of the street and the door of the Haveli of the appellant. It is established on the record that the appellant had only one leg, and according to the police party, he had escaped from the scene of occurrence on a mare. The crucial question in this context, which the prosecution ought to have explained was the route from which the appellant escaped while riding on the mare. The site plan shows that on the northern side of the house, there is no exit from the house. According to the site plan, the house of the appellant is situated within the village Abadi, and there is only one exit. If the police were firing from outside, it was absolutely impossible for the appellant to escape therefrom while sitting on a mare, and particularly, in the sight of the raiding party. We do believe that if the appellant was present at the place, he could have easily been apprehended by firing at the mare. Apart from the above, we do not believe that the appellant could run away with one leg. The evidence shows that no such attempt was made by the raiding party to apprehend the mare or the rider by firing at them. This lacuna in the evidence would make the case of the prosecution wholly doubtful.
5. We have also noticed serious discrepancies in the statements of the police witnesses. According to Muhammad Ashraf H.C. P.W.5, the police party was inside the house, while the other witness namely Banaras Khan A.S.I. P.W.1 stated that the police party was standing outside the Haveli. It was impossible in both the situations to believe the escape of the appellant in the manner as already described by the prosecution. This aspect of the case was not at all adverted to by the learned trial Judge in his judgment. We would also observe that the identification of the appellant and his co- accused really was a difficult task in such a situation. It is not the case of the prosecution that the policemen already knew the accused by face. It is in the evidence that the Haveli of the appellant was admittedly chained from inside and the firing was being made from outside. In the absence of reliable evidence that the police knew them before the occurrence it would not at all be possible to believe the participation of the appellant in this case without holding any identification parade under the law. In consequence, we have no option but to allow this appeal. The conviction and sentence of the appellant are hereby set aside. He shall be released forthwith if not required in any other case.