' RASHEED AHMED RAZVI, J.--- This appeal is filed by the State through Advocate-General, Sindh against the judgment, dated 21-6-1992 passed by the learned Judge, Special Court for Suppression of Terrorist Activities, Larkana, whereby the respondents were acquitted.
2. The brief facts as stated in F.I.R. 15/1990 are that during the night of 21-3-1990 the complainant Abbas Ali (P.W.1) who is a school teacher and resides at village of Jamal Khan Chandio, on the abovesaid date had invited P.Ws. Nisar Ahmed and Muhammad Paryal to his house for meals. It is further alleged that at about 2-00 a.m. Complainant woke up due to the barking of dogs. He also woke up Muhammad Paryal and Nisar Ahmed who all went towards nearby boundary wall of the complainant's house. Complainant flashed his torch and they all saw all the above respondents.
Respondents were armed with klashnikov and when complainant party approached them, respondent Lal instigated the others to open fire upon the complainant party. Owing to indiscriminate firing from the accused party, the complainant party made their escape good for fear of life. It is said that the firing continued for some time.
3. At the trial, charge for attempt to commit Qatl-i-Amd punishable under section 324/34, P.P.C.
Was read over and explained to the respondents by the trial Court to which they pleaded not guilty.
The prosecution in support of the charge examined P.W.1 Abbas All Exh.3, P.W.2 Nisar Ahmed Exh.4, P.W.3 Muhammad Paryal Exh.5 and P.W.4 Haji Abdul Hameed Exh.6. Respondents were examined under section 342, Cr.P.C. By the trial Court wherein they pleaded their innocence and claimed that they have been falsely implicated due to previous enmity. During their statement they filed copies of F.I.R. And other private complaints in support of their stand. No defence was however, led by the accused/respondents.
4. On assessm ent of relevant evidence and after hearing the parties, learned trial Court found the respondents not guilty of the charge, and acquitted them which has been impugned in this appeal.
5. We have heard Mr. Abdul Fatah Mughal, Advocate for the State and Mr. Muhammad Afzal Soomro, Advocate for the respondents. We have also gone through the case file of the trial Court to appreciate the contentions of the both the learned counsel.
6. Mr. Mughal has vehemently urged that complainant/P.W.1 and P.W3, namely, Muhammad Paryal had clearly and visibly identified all the respondents on the torch light which was sufficient for sustaining conviction of the respondents. Evidence of both these witnesses, according to learned counsel, is reliable and consistent. That recovery of empties from the place of incident also supports the prosecution case. He also urged that the learned trial Court has framed three points for determination while two points were answered in favour of prosecution case, the 3rd point ought to have been answered in favour of the prosecution.
7. On the other hand, Mr. Soomro, learned counsel for the respondents had opposed the maintainability of this appeal on the ground that section 7 of the Act, 1975 does not provide for an appeal against acquittal. He has relied upon Habib Bank Limited v. The State 1993 SCM R 1853. On merits he has supported the judgment of the trial Court.
8. This being an appeal against acquittal of the respondents, keeping in view the principles laid down by the Honourable Supreme Court in the case of Muhammad Usman and others v. The State 1992 SCM R 489 and in the case of Ghulam Sikandar and another v. The State PLD 1985 SC 11, the record of the case and contentions of both the learned counsel were examined in light of the abovesaid case-law, Mr. Afzal Soomro raised a preliminary objection as to maintainability of this acquittal appeal on the ground that section 7 of the Suppression of Terrorist Activities (Special Courts) Act, 1975, does not provide right to appeal to the State after acquittal. Contention on the face of it is misconceived and untenable. Originally, when Act, 1975 was promulgated on 1st February, 1975 there was no provision for appeal against acquittal. Subsequently, through amendment vide Act III of 1976 in section 7 of the said Act the following words after the word "passed" in subsection (1) and after word "sentence" in subsection (2) were added:--
(1) and the Provincial Government may direct any person appointed by it for the purpose to present an appeal to the High Court from an order of acquittal passed by a Special Court.
(2) .... Or order of acquittal, as the case may be.
Therefore, section 7 of the Act, 1975 as amended confers statutory right on the State to file appeal against the acquittal. The case of Habib Bank Limited v. The State 1993 SCM R 1853 is not applicable as it relates to section 10 of the Offences in Respect of Banks (Special Courts) Ordinance IX of 1984 which does not provide appeal against acquittal. We have adopted this view by following the law laid down by their Lordships of Supreme Court in the case of The State v. Qaim Ali Shah 1992 SCM R 2192 wherein at page 2204, para. 13 it was held that by virtue of amendment the Provincial Government has the right to file an appeal against the order of acquittal. Therefore, the objection of the learned counsel for the respondents is without any substance and overruled. Now, we propose to examine the prosecution evidence.
9. P.W.1/complainant Abbas Ali has deposed that he woke up due to barking of dogs whereafter he awakened P.Ws. Muhammad Paryal and Nisar Ahmed who accompanied him to the boundary wall of his house where on the light of torch they identified all the four respondents. More or less, he has supported his version as stated in the F.I.R. Exh.3-A. He further stated that after the accused party went away towards West he went to Manzoor Ahmed and complained about the incident who advised him to lodge the report.
' According to him, police registered the case and inspected the scene of Wardat and recovered 12 empties and noticed that the boundary wall of the house was damaged due to firing. During the cross-examination, he admitted that P.W. Nisar Ahmed was living four miles away from his house whereas P.W. Muhammad Paryal was living in his close neighbourhood. He conceded that he saw accused at a distance of 50/60 paces. He also admitted that accused fired upon him from the same distance. He admitted that no injury was caused by the firing from the accused party. He also admitted that there were cases pending between accused Lal and P.W. Nisar Ahmed and that accused Hakim had lodged F.I.R. Against P.W. Nisar Ahmed under section 307, P.P.Q. He also admitted that prior to lodging of F.I.R. He had made complaint against them for some other offences and that accused have also lodged some application against them.
10. P.W.2 Nisar Ahmed did not support the case of prosecution and was declared hostile. He admitted in his cross-examination that he was staying in the house of complainant but he was not awakened by the complainant. He denied to have identified accused on the torch light, or that accused Lal instigated other accused to fire upon him. He denied whether any shot was fired. He refuted the suggestion that due to influence of accused he has not supported the case of complainant. P.W.3 Muhammad Paryal has supported the version of complainant/P.W.1. In his cross, he admitted that the complainant is his cousin and that all the accused were armed with klashnikov. He admitted that one Abdul Ghafoor a close relative of accused had filed F.I.R. Against the son of complainant and against his son also. P.W.4 Haji Abdul Hameed is the Mashir of recovery of 12 empties. He produced the Mashirnama as Exh.6-A.
11. The main question for our consideration is that whether in view of the above-quoted evidence prosecution has successfully established charge of an attempt to commit Qatl-i-Amd beyond any shadow of doubt against the respondents. It is not denied by the prosecution or defence that there are several cases pending between the parties which leads to an inference that there exists old enmity between the parties. Enmity is a double-edged sword. It equally cuts both the sides and in the circumstances of the present case it can be legitimately presumed that the case may have been registered due to this enmity. Besides this strong presumption there are other aspects of the case which remain unexplained by the prosecution. These questions are as follows:--
(i) It has come in prosecution evidence that the complainant party reached near the accused party and there was distance of 50/60 paces between them which enabled the complainant party to identify the accused persons on the light of torch, despite this close range, firing from automatic weapon i,e, klashnikov did not hit any of the witnesses and instead of chasing the complainant party the accused party who were allegedly armed with deadly weapons ran away from the scene.
(ii) There is inordinate delay of nearly 10-1/2 hours in lodging the F.I.R. And no satisfactory explanation was offered by the prosecution for this delay.
(iii) Complete denial of the incident by P.W.2 Nisar Ahmed.
(iv) No evidence to prove that the empties were fired from the prohibited bore. This would be necessary for conferring jurisdiction on the Special Court.
(v) Investigating Officer was not examined at the trial without any lawful justification. No recovery of weapons was made from the respondents. Even the torch and empties were not produced during the trial.
(vi) Presence of P.W. Muhammad. Paryal who was residing in the close neighbourhood of complainant in the house of complainant on the night of occurrence.
12. Evidence relating to identification of accused in the torch light has always been treated as weak piece of evidence by superior Courts. It was held by a Division Bench of this Court in the case of Muhammad and others v. The State 1968 PCr.LJ 590 that the identification of the assailants by witness on dark night through his torch may lead to the possibility of mistaken identity and particularly in view of the previous enmity existing between the parties. In Suwali v. The State 1982 PCr.LJ 808, a Division Bench of this Court declared identification by flash of torch as highly suspicious. In the case of the State v. Fatal Muhammad and another 1970 PCr.LJ 633 it was held that the identification of the accused in the light of torch was never considered as sufficient piece of evidence. In the case reported as Shabbir Hussain Shah v. The State 1990 M LD 1055 a learned Single Judge of this Court declared the identification of accused as improbable in the following words:-- "They saw a glimpse of two or three persons running in torch light. Where people observe, under stress and emotion, an occurrence for a short space, from different angles with different capacity to observe and memory powers, the possibility of mistaken identification cannot be ruled out."
13. Analysing the evidence of P.Ws. In the light of case-law cited above, it is difficult to attach much credence to this piece of evidence which in the absence of strong corroborative and confirmatory evidence may not be sufficient to sustain a conviction.
14. Learned counsel for the appellant strenuously argued that in the cases before Special Courts the burden to prove innocence is on the accused once he is charged with the scheduled offence.
He has relied on section 8 of Act, 1975 which reads as under:-- "8. Burden of proof.---Where any person accused of having committed a scheduled offence 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 with, the commission of such offence, or is apprehended, in circumstances which tend to raise a reasonable suspicion that he has committed such offence, he shall be presumed to have committed the offence unless he can prove that he had not in fact committed the offence."
15. It will be seen that presumption as mentioned in section 8 of Act XV of 1975 is subject to two conditions, firstly that if an accused is either found in possession of, or if some article which is capable of being used for commission of a scheduled offence is found under his control, it is presumed that such person has committed offence unless contrary is proved by the C accused.
Secondly, if any person is apprehended in such circumstances which may tend to raise a reasonable suspicion that he may have committed any scheduled offence, it will be presumed that he has committed the alleged offence, unless he is able to prove otherwise. In the facts of the present case, neither any incriminating article were recovered from the possession of the respondents nor were they apprehended on the spot, therefore, heavy burden still rests on the prosecution to prove that they were guilty of the offence. We are fortified in our view by the judgment of a Division Bench of this Court consisting of Ajmal Mian and Nasir Aslam Zahid, JJ. (as their Lordships then were) in the case of Mishal Khan v. The State 1983 PCr.LJ 1628 and the case of Ghazi Khan and others v. The State PLY 1978 Criminal Cases 557. Honourable Supreme Court of Pakistan also held the same view in the case of the State v. Kazi Parvez Iqbal and others PLD 1978 SC 64. It was held as follows:-- "The offence for which Samiuddin, Kazi Parvez and Tayab were charged falls under clause (b) of the Schedule. But the section has to be construed strictly, because it is a penal provision which reverses the most cherished principle of our jurisprudence namely; that the burden of proving the guilt of the accused is on the prosecution. I have therefore no doubt, and this was also the view of the High Court, that this section is attracted only when the prosecution proves that the accused were in possession of the articles and things specified in the Schedule."
16. Learned Special Judge has scrutinised the prosecution evidence in details. We do not find any misreading, non-reading or non-appreciation of law E by the trial Court. It is settled principle of law that the Appellate Court while hearing acquittal appeal should give due weight to the appreciation of evidence by the trial Court who had the opportunity of hearing the witnesses and not to lightly dislodge the presumption of innocence in favour of acquitted person which becomes stronger after his acquittal by the trial Court. Honourable Supreme Court recently held in the case of Yar Muhammad and others v. The State 1992 SCM R 96 as follows:- "The High Court was hearing an acquittal appeal and the principles for setting aside an order of acquittal are now well-settled. Unless the judgment of the trial Court is perverse, completely illegal and on perusal of evidence no other decision can be given except that the accused is guilty or there has been complete misreading of evidence leading to miscarriage of justice, the High Court will not exercise jurisdiction under section 417, Cr.P.C. In exercising this jurisdiction the High Court is always slow unless it feels that gross injustice has been done in the administration of criminal justice."
17. After considering the arguments of both the learned counsel in details and after analysis of evidence, we are of the considered view that the prosecution was not able to bring home guilt of the respondents. Consequently, order of acquittal passed by the learned trial Court is fully justified and does not suffer from any infirmity. Accordingly, we find no reason for interference in the exercise of discretion by Special Court. Upshot of this discussion is that this appeal is dismissed.
These are the reasons for the short order passed by us on 6-6-1995 dismissing the above appeal on conclusion of hearing.