2026 PLP 428 (YLR)

Ijaz Anwar, J.

This appeal has been filed under section 25 of the Anti Terrorism Act, 1997 by appellant Faisal son of Murad Khan against the judgement dated 28.11.2020, passed by learned Judge, Anti Terrorism Court-1, Peshawar in case FIR No. 31 dated 16.05.20196, registered under sections 324/353/337-F(iii)/34 P.P.C read with section 7 ATA, 1997 of Police Station CTD, Peshawar whereby he was convicted as under: (i) under section 324/34 P.P.C to 10 years R.I with a fine of Rs. 15000/- or in default to suffer 40 days S.I. (ii) under section 7 (C) ATA, 1997 to 10 years R.I with a fine of Rs. 15000/- or in default to suffer 40 days S.I. (iii) under section 353/34 P.P.C to suffer 02 years R.I with a fine of Rs. 5000/- or in default to suffer 15 days S.I. (iv) under section 7 (h) of the ATA 1997, to suffer 02 years R.I with a fine of Rs. 5000/- or in default to suffer 15 days S.I and (v) under sections 337-F (iii)/34 P.P.C to suffer 02 years R.I and a fine of Rs. 5000/- or in default to suffer 15 days S.I with benefit of section 382-B Cr.P.C.

2. Brief facts of the case are that on 16.5.2019, Arbab Naeem Haider Khan SHO, Police Station Chamkani who was present in the area for the purpose of patrol duty, on receipt of information regarding the occurrence reached LRH, Peshawar where in Trauma Room, complainant Khan Zeb constable in injured condition reported the matter stating that he along with constable Fazal Rabi while on duty were standing at the main gate of P.S Chamkani, when in the meanwhile three unknown persons duly armed with fire arms riding a motorcycle came and one of them started firing at them for the purpose of terrorism, as a result whereof he got injured whereas his companion constable Fazal Rabi escaped unhurt. Constable Fazal Rabi also returned fire in self defense. Thereafter the accused decamped from the spot. The case was registered against unknown accused.

3. On 17.5.2019, police personnel of P.S Pahari Pura during a check, arrested accused Faisal son of Murad Khan, Umar son of Liaquat and Umar son of Amjad. From possession of accused Faisal, a 30 bore pistol with six live rounds while from possession of accused Umar son of Liaquat, one 30 bore pistol with five live rounds of the same were recovered regarding which, case FIR No. 781 dated 17.5.2019 under section 15-AA was registered at Police Station Pahari Pura, Peshawar and thus they were also arrested in the instant FIR. On 01.6.2019, Fazal Rabi whereas on 18.6.2019 complainant Khan Zeb recorded their statements under section 164 Cr.P.C wherein charged the present accused/appellant along with co-accused for the commission of offence.

4. Faisal, the appellant herein along with co-accused faced trial before the trial Court. The trial resulted into conviction of the appellant as referred in para-1 of this judgement. Feeling aggrieved, appellant Faisal has filed instant appeal.

5. Arguments of learned counsel for the parties heard and record perused with their able assistance.

6. The case of prosecution is that complainant Khan Zeb constable along with constable Fazal Rabi while on duty and were standing at the main gate of P.S Chamkani, when in the meanwhile three unknown persons duly armed with fire arms riding a motorcycle came and one of them started firing at them for the purpose of terrorism, as a result of which he got injured whereas his companion constable Fazal Rabi escaped unhurt.

7. We would first scrutinize the ocular account furnished by the injured complainant Khanzaib and the eye-witness Fazal Rabi who have been examined before the Court as PW-14 and PW-13. A look at the contents of the Murasila would show that the complainant while lodging the report, stated that "three persons came on motorcycle out of whom, one fired at us" however, when he was examined before the Court as PW-14, in his cross-examination negated his earlier statement by stating that "No sooner did I lit the torch and attempted to stop them, they at once started firing at us". In his cross-examination, he stated that "I noticed the accused form a distance of six feet". On the other hand, the eye-witness namely Fazal Rabi (PW-13) stated in his cross-examination that "I saw the accused at a distance of around 15/20 paces. At the time of firing, the distance in between me and accused facing trial was around 15/16 feet". PW-14 stated that "at the time of occurrence, Fazal Rabi was standing with me and he was in possession of torch and K.K". However, PW Fazal Rabi did not state that he was in possession of a torch. PW-14 in his statement stated that "My body did not bleed externally on the spot" whereas PW-13 stated that "injured Khanzaib lay on the spot around 2/3 minutes and was bleeding". PW-13 Fazal Rabi stated that "after arrest of the accused facing trial, I was satisfied that they were the persons who had committed the offence. Similarly, PW-14 Khanzaib stated that "I got satisfaction when I identified the accused in central jail Peshawar that the accused are the same whom I had seen at the time of occurrence."

8. The above resort to the statements of the star witnesses of the prosecution clearly shows that they have contradicted each other on material points giving rise to doubt that either PW Fazal Rabi was not present at the time of occurrence or the occurrence has not taken place in the mode and manner as narrated by the complainant in the Murasila. Thus their inconsistent testimony is not worth reliance.

9. Injured complainant Khanzaib was medically examined on 16.5.2019 at 10:45 P.M by Dr. Akhtar Munir. The doctor appeared before the Court as PW-12 who in his cross-examination stated that the injured was discharged on 17.5.2019, however, the injured complainant stated in his cross-examination that he remained hospitalized for six days and was discharged from hospital on 22.5.2019. PW-13 Fazal Rabi sated in his cross-examination that "the accused confronted us face to face". Similarly, PW-14 stated in his cross-examination that "as per site plan and my statement, accused facing trial were in front of me". In view of his position at the time of occurrence, he should have sustained injury on front side of his body, but to the contrary, in the later part of his cross-examination, complainant stated "I sustained one bullet injury on the back side." Thus the medical evidence too does not support the prosecution case.

10. As per the narration of complainant Khanzaib in the Murasila, Fazal Rabi fired at the accused in self defense, however, he did not state that any one of the accused were injured with the said firing. Fazal Rabi (PW-13) in his Court statement stated that "It is correct that I started firing at them after their firing which missed." The occurrence has taken place on 16.05.2019, whereas the accused/ appellant herein along with the co-accused were arrested on 17.5.2019 by the police of P.S Pahari Pura. Ijaz Ullah Khan S.I/Inspector examined before the Court as PW-6 stated in his "on cursory examination in chief that interrogation, two of them Umar son of Amjid and Umar son of Liaqat were injured". He also admitted in cross-examination that "At the time of arrest of accused, two of them were in injured condition." The statement of this PW clearly contradicts the statement of PW-13 Fazal Rabi who stated that though he fired in self defense but missed. It is again not believable that the above named two accused were roaming on motorcycle for the whole night and next day till 1140 hours in injured condition in the same clothes.

11. The I.O of the case namely Hassan Zameer Inspector has been examined as PW-15. In his examination in chief, he stated that "accused were arrested by local police of P.S Pahari Pura in case FIR No. 780 dated 16.5.2019 under section 394/324/427/34 P.P.C/15-AA and were confined in Central Jail Peshawar, therefore, vide application Ex.PW 15/3, I applied for Zamima Bay which was issued accordingly. I formally arrested the accused and prepared their card of arrest....I vide recovery memo. already Ex. PW 5/3 took into possession the blood stained clothes of Umar son of Liaqat and vide recovery memo. Ex.PW 5/4, I took into possession blood stained clothes of Umar son of Amjid Ali" The above mentioned two recovery memos Ex.PW 5/3 and Ex.PW 5/4 are available on record bearing the date of its preparation as 24.5.2019 showing recovery of blood stained clothes of co-accused namely Umar son of Liaqat and Umar son of Amjid Ali consisting of Qamees Shalwar which bore two bullet cut marks. The contents of these recovery memos show that "the accused were taken out from Central Jail through Zamima Bay and on search of the accused, both the accused were having shopping bags containing their blood stained clothes." It is again not appealable to a prudent mind that why their clothes were not taken vide into possession when they were arrested on 17.5.2019 in Case FIR No.781 under section 15-AA and also in case FIR 780 dated 16.5.2019 under section 394, 324, 427 and 34 P.P.C/150-AA by the police of P.S Pahari Pura. It has also been noted that no injury sheets of the injured co-accused were prepared by the police after their arrest neither they were medically examined. The Investigation Officer (PW-15) in his cross-examination admitted that "I have not obtained medical examination report of injured accused. Further volunteered that I have produced the accused facing trial at the time of obtaining their custody who were found fit." Thus the statements of PW-6, PW-13 and PW-15 are not consistent on the point of the two accused being injured which has created further dent in the prosecution case.

12. Another aspect of the case is that 30 bore pistol was recovered from accused/appellant Faisal FIR No. 781 dated 17.9.20219 which was also taken into possession in this case as weapon used in the commission of offence vide recovery memo. The said pistol along with the pistol recovered from co-accused Umar son of Liaqat were sent to FSL for matching with the two empties recovered from the place of accused and the FSL reported that two each empty was fired from each pistol. According to the narration of complainant in the Murasila, three accused came on motorcycle out of whom, one fired at them, thus in such scenario the positive FSL report has lost its evidentiary value. Even otherwise, the opinion of the Expert has a corroborative value only and is useful for ascertaining whether the direct evidence is true or not. Reliance is placed on case of Noor Muhammad v. The State 2010 SCMR 97, wherein it has been held that the recovery of crime empty, rifle with matching report of FSL is a corroborated piece of evidence which by itself is not sufficient to convict the accused in the absence of substantive evidence. Reliance is also placed on case titled Zeeshan v. The State 2012 SCMR 428 and Nasir Javaid and another v. the State 2016 SCMR 1144.

13. Coming to the Identification parade of the accused/appellant. Perusing the contents of the Murasila/FIR, the complainant did not disclose the features or description (hulya) of the assailant (s). In his Court statement too, recorded as PW-14, he admitted that "I have not given description/feature/complexion in my report as well as in my statement under section 164 Cr.P.C." The august Supreme Court of Pakistan has held that where no description of the accused is given in the FIR, identification parade loses its evidentiary value. Reliance is placed on case titled "State/Government of Sindh through Advocate General Sindh Karachi v. Subharo" reported as 1993 SCMR-585 wherein it was held that: "Identification test has no evidentiary value for the reason that description of respondent was not given by the witnesses in their police statements" Furthermore, neither in the Murasila nor in their statements under section 164 Cr.P.C specific role has been attributed to the accused/appellant. In the case of Muhammad Fayyaz v. The State (2012 SCMR 522), the Hon'ble Supreme Court of Pakistan rendered the identification test of no legal significance, in which the accused was not identified in reference to the role played by him in the commission of crime. The observation of the apex Court is as under:- "After his arrest the appellant was put to a test identification parade and although he had been correctly picked up by the eye-witnesses yet indisputably such identification had been made without any reference to the role allegedly played by the appellant during the incident in issue. The law is by now settled that evidentiary value of such an identification in a test identification is next to nothing". Likewise, the card of arrest of accused/appellant shows that he was taken out on Zamima Bay and arrested in the instant case on 24.5.2019. On the same date, he was produced before the Judge, ATC-III, Peshawar for procuring physical custody. As per the statement of I.O, accused/appellant also made pointation of the place of occurrence. The pointation memo. Ex.PW 7/1 bears the date as 28.5.2019 whereas the identification parade was conducted on 25.6.2019 after a month's time. The probability cannot be ruled out that when the accused/appellant was produced before the Court for obtaining his custody or at the time of pointation, he was shown to the complainant and the eye-witness. The accused/appellant in his statement under section 342 Cr.P.C replied to question No. 15 that "It is incorrect, Before conducting of the alleged ID parade I was shown to the injured PW/complainant Khanzaib constable and other PWs". This fact has also been confirmed by Muhammad Farooq Ahmad, Judicial Magistrate-I, Peshawar (PW-11) in the following words written in shape of a Note at the end of Identification Parade Report: "After conclusion of all the three rounds of identification parade, accused alleged that the identifier/complainant have seen him during his custody." In case titled Amanullah v. Muhammad Ashfaq and another (2018 YLR Note Peshawar 169), it was held that: "Of course, there is an identification parade of the appellants by identifier Muhammad Abbas (PW-11) but such identification parade has. no evidentiary worth as same had taken place on 22.11.2012 and prior to holding the identification parade, the appellants were produced before the learned Judge Anti Terrorism Court-II, Peshawar on 01.11.2012 and the possibility of their showing to the identifier cannot be ruled out, therefore, no importance could be attached to the identification parade."

14. Accused/appellant has been examined under section 342 Cr.P.C wherein he denied the allegations and stated that he has falsely been charged. He remained in police custody but made no confession before any competent Court of law.

15. The crux of the above discussion is that the prosecution badly failed to prove the charges against the accused/appellant beyond shadow of doubt. It is well settled by now that a single doubt created in the prosecution case is sufficient to be resolved in favour of the accused. The august Supreme Court of Pakistan in case titled "Tariq Pervez v. The State" reported as (1995 SCMR-1345) held as under: "For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right. On such evidence, this Court has already acquitted the co-accused namely Umar son of Liaqat and Umar son of Amjid vide consolidated judgement dated 21.1.2020 of the charges in the instant case.

16. For what has been discussed above, we allow the instant appeal.

17. These are the reasons for our short order even dated which is reproduced below: "For the reasons to be recorded later, the instant appeal is allowed. The conviction and sentence awarded to the appellant Faisal son of Murad Khan by the learned Judge, ATC-1, Peshawar vide judgement dated 28.11.2020 in case FIR No. 31 dated 16.05.2019 under sections 324, 353 and 337-F(iii)/34 P.P.C read with section 7 ATA, 1997 of Police Station CTD, Peshawar is set aside and he is acquitted of the charges levelled against him. He be set free forthwith if not required in any other case. JK/170/P Appeal allowed.