' SH. MUHAMMAD ZUBAIR, J.--Out of nine accused persons, namely, Muhammad Azad alias Jada, Qurban Ali, Muhammad Tariq son of Bashir Ahmad, Muhammad Zahid, Muhammad Saeed, Nasir Latif, Haq Nawaz, Muhammad Tariq son of Shams-ud-Din and Muhammad Habib, who were tried under sections 397 and 436, P.P.C. by the learned Judge, Punjab Special Court (Suppression of Terrorist Activities) No,V, Faisalabad Division, Faisalabad, the first four named above were convicted thereunder and sentenced as under:---
(1) Seven years' R.I. plus fine of Rs,1,00,000 each or in default two years' R.I. under section 397, P.P.C.; and
(2) Ten years' R.I. and fine of Rs,1,00,000 each, or in default three years' R.I. under section 436, P.P.C.
' Both the substantive sentences were ordered to run consecutively and out of fine, if recovered, Rs,5,00,000 were ordered to be paid to the complainant as compensation. This is vide judgment of the trial Court dated 21-10-1992.
' Muhammad Azad alias Jada has filed Criminal appeal No,925 of 1992, whereas Qurban Ali, Muhammad Tariq son of Bashir Ahmad and Muhammad Zahid, have filed Criminal Appeal No,926 of 1992, against their convictions and sentences. As both the appeals arise out of the same judgment, we propose to dispose of both the appeals by this judgment.
2. As per written complaint Exh.PA., dated 4-1-1991 of Mujahid Abbas Jafari, on the basis of which formal F.I.R. Exh.PA/1 was recorded by Muhammad Khan Moharrir (P.W.2) at Polic Station City Jhang, it is alleged that he is a Bank employee. Zawar Hussain P.W.3 rang him up to reach the house immediately. Accordingly, the complainant reached the house of Zawar Hussain P.W.3 and Shamshad Hussain P.W.4, wherefrom they reached the spot and saw that he accused were lifting his household articles and the house was set on fire. The complainant recognized the accused who decamped from the spot while firing. The complainant also gave the details of articles which were taken away by the accused persons.
3. The prosecution in order to prove its case examined five witnesses. Mujahid Abbas P.W.1 is the complainant on whose complaint (Exh.PA.) Muhammad Khan Muharrir (P.W.2) recorded the formal F.I.R. Exh.PA/1. Admittedly, the complainant is not an eye-witness. Although he has supported his version as given in the complaint, yet he could not identify the accused in the Court by touching them. Muhammad Khan Moharrir (P.W.2) recorded the formal F.I.R. Exh.PA/1. Zawar Hussain the alleged eye-witness appeared as P.W.3, but he did not support the prosecution case. He was declared hostile. He was cross-examined at length by the Public Prosecutor with the permission of the Court, but nothing was brough on the record which could be of any help to the prosecution.
Shamshad Hussain (P.W.4) deposed that he was standing, on a Nulla when he saw the procession led by Muhammad Azad appellant and other accused coming towards the house of the complainant which consisted of 50/60 persons. Thereafter he partly supported the prosecution case, but conceded in cross-examination that the occurrence took place at 3-30 p.m. on 3-1-1991, whereas the report was lodged with the police on the next day and this inordinate delay in lodging the report remained unexplained. He also conceded in cross-examination:--- "It is correct that I did not disclose to the police the name of Azad alias Jada in my statement. Due to large number of people I cannot identify any accused by touching him."
' Muhammad Sharif, A.S.I. (P.W.5) investigated this case. He deposed that he took over the investigation on 4-1-1991, whereas he inspected the spot on 15-1-1991 and prepared rough site-plan Exh.P.B. He recorded the statements of the P.Ws. on 25-1-1991 and formally arrested Azad appellant from the Havalat of P.S. Jhang City on 30-1-1991.
4. Muhammad Azad appellant when examined under section 342, Cr.P.C. denied the prosecution allegations, pleaded innocence and deposed that since he belonged to Anjuman Sipahay Ashaba and the complainant and his witnesses are from Shia community, therefore, a false and fabricated case had been made out against him. Qurban Ali and Muhammad Tariq appellants deposed that the instant case is the outcome of Shia-Sunni differences, whereas Muhammad Zahid deposed that he had long-standing enmity with the complainant.
5. After recording the evidence, the learned trial Judge realising that there is very meagre evidence on the record to convict the appellants, invoked the provisions of section 8 of the Suppression of Terrorist Activities (Special Courts) Act, 1975, for convicting the appellants, on the ground that the onus was on the appellants to prove their innocence which they have miserably failed to discharge.
6. We have heard the learned counsel for the parties and have scanned the evidence with their assistance. In our opinion, the learned trial Judge while appreciating the evidence has not kept in mind the well-recognized principle of criminal jurisprudence that the prosecution must affirmatively prove its own case, the onus for which remains on it throughout. If the prosecution discharges its burden of proving the case against the accused, then the burden is shifted to the defence to disprove it. The prosecution cannot take advantage of the so-called weakness in the defence plea without proving its own. case. Interpretation placed on section 8 of the Act by the trial Judge is erroneous in law, because it comes into play only when the prosecution has prima facie proved its case against the accused persons. In order to attract the application of section 8 of the Act, the prosecution must prove; (1) that the accused person is found to be in possession of or to have under his control any article or thing which is capable of being used for or in connection wich the commission of any of the offences mentioned in the Schedule to the Act; or (2) that the accused person was apprehended in such circumstances, which tend to raise a reasonable suspicion that he had committed such offence. Unfortunately in the present case, we find there was not an iota of evidence on the record which could connect the appellants with the crime, because the investigating officer did not recover any incriminating article from the possession of the appellants, nor they were arrested in suspicious circumstances. Furthermore, the eye- witnesses were declared hostile and they failed to identify the appellants in the Court. In the presence of this evidence, the prosecution has miserably failed to prove its case against the appellants beyong reasonable doubt; hence while accepting these appeals, we set aside the convictions and sentences of the appellants and acquit them. They shall be set at liberty forthwith, if not required to be detained in any other case.