2008 PLP 2878 (YLR)

ZUBDA-TUL-HUSSAIN, J.

This Criminal Appeal No.2-ATA of 2006 (Jail Appeal) has arisen out of the judgment of conviction recorded by the learned Judge Anti-Terrorism Court Bahawalpur in case F.I.R. No.7 of 1998 under sections 302, 324, 337-A(i)353, 396, 148, 149, P.P.C. and 7-A of Anti-Terrorism Act, 1997 registered at the Police Station Darbar District Bahawalpur, whereby the appellant Muhammad Safdar alias Shabboo was sentenced as under: (i) Under section 148/149, P.P.C. Three (3) years' R.I. with a fine of Rs.10,000 (the thousand only). In default thereof he shall further undergo six (6) months' S.I. (ii) Under section 302-B/149, P.P.C. Imprisonment for life with a fine of Rs.50,000 (fifty thousand only). In default thereof he shall further undergo six (6) months' S.I. (iii) Under section 324/149, P.P.C. Ten (10) years' R.I. with a fine of Rs.20,000 (twenty thousand only). In default thereof he shall further undergo six (6) months' S.I. (iv) Under section 353/149, P.P.C. Two (2) years' R.I. with a fine of Rs.5,000 (five thousand only). In default thereof he shall further undergo six (6) months' S.I. (v) Under section 7-A of ATA, 1997 read with section 149, P.P.C. Imprisonment for life with a fine of Rs.50,000 (fifty thousand only). In default thereof he shall further undergo six (6) months' S.I.

2. It was on 3-3-1998 that a wireless message was received at Police Station Darbar giving the intimation that a gang of the criminals compromising Shahbaz alias Bajhoo Bhindar, Zulfiqar alias Nanha and Ghulam Hussain along with one unknown person were proceeding on a car which was being chased by the Yazman Police. On receipt of this information Sanaullah Constable No.927, Abdul Malik Constable No.55/C-I and Ghulam Abbas Constable 1289 approached the Kanal Bridge commonly known as "Khuthri Bangla" and started making preparation to establish Nakabandi. They were equipped with official weapons. In the meanwhile a black Car Toyota Corolla No.5999/FDT approached from Mithra side and Shahbaz alias Bajhoo Bhandar opened fire on police party with the Kalashnikov which hit Sanaullah Constable and was injured, who later on succumbed to the injuries. The accused persons also snatched the official weapons from the police party and fled away towards Chak No.107. The police incumbent who later on arrived at the spot included Qamar-uz-Zaman S.H.O. who recorded the statement of Ghulam Abbas Constable. On the basis of this statement the case F.I.R. under appeal was registered. Umer Hayat and Zulfiqar alias Nanah accused were arrested and were tried and convicted in the case. Shahbaz alias Bajhoo Bhander died in police encounter. Muhammad Safdar, the appellant was nominated as accused to supplementary statement. He, however, could not be arrested and was thus proceeded against under section 512, Cr.P.C.

3. The arrest of the absconding accused Muhammad Safdar appellant was shown on 27-10-2004 whereafter he was also tried in the case as an accused and was convicted to the sentences already mentioned above.

4. The evidence in the case, so far as, the ocular account is concerned consisting of the statement of the Abdul Malik 55-H.C. and Ghulam Abbas No.1289-C respectively as P.W.6 and P.W.7. The medical evidence is regarding the examination of the dead body and post-mortem of the same which primarily gives the details of the injuries, and cause of the death. The other evidence generally comprises of the statement of the police officials who in one way or the other remained connected with the investigation wherein besides exploring the other fact certain recoveries to which the special significant is attached, to the fire empties were also proved by them.

5. At the very outset we have very carefully examined the case of the appellant in juxtaposition of the case of the two co-accused namely Zulfiqar and Ghulam Hussain earlier convicted in this case under sections, 324, 353/149, P.P.C. and were acquitted for offence under sections 302 and 396/149, P.P.C. We have also perused the record of their case. After giving deep thought to all the relevant aspects we have arrived at a considerable opinion that the position and case of the appellant is essentially different and distinguishable on merit on various grounds, the main among them being the question of his identification. All the other three persons accused in the F.I.R. were duly identified by name and their identity was established during trial also but the appellant was neither nominated in F.I.R. nor his identity was later on established at any stage of the case. As would be seen later, even the allegation of abscondence was false, Hence, no inference could be drawn against appellant on that score too.

6. The fate of the case against the appellant essentially hinges upon the ocular account of the occurrence given by P.W.6 Abdul Malik and P.W.7, Ghulam Abbas as eye-witness. Both of them are police officials but even in this capacity they are competent witnesses and their averments cannot be excluded summarily because of their officials capacity as employees of the police. This observation, however, does not mean that the case would stand established against the appellant because the liability of the appellant is to be determined in total perspective of the statement of these P.Ws. and the other relating cognate factors.

7. It is in the F.I.R. and is also admitted fact that the appellant was not initially nominated by the complainant. Only three persons were named while the 4th was stated to be an unknown person. He was posed as Muhammad Safdar by the police during the investigation on the basis of supplementary statement.

8. The mode and the means of knowledge by which his particulars, features and names were dug out is not reasonably explained in the evidence. It is pertinent as well as strange that he was from very inception stated to be an absconder. So much so that the case was proceeded against him in his absence under section 512, Cr.P.C. as well. What is strange in this behalf is that he was in fact under arrest and confinement in another case and throughout the trial under section 512, Cr.P.C. was not only in lawful detention but had also been appearing as an under trial and under detention accused before the other concerned Court. It was at a later stage that the police could get this information, to show his arrest in the case under appeal also and submitted challan before the Court where he was tried and convicted.

9. The most important thing in determining the involvement of the appellant in this case is that he was mentioned as an unknown person in the F.I.R. After the occurrence and the registration of the case he never came across the P.Ws. No identification parade was ever held to ascertain his involvement in the case but inspite of all these factors he was implicated by the P.Ws. as an accused.

10. Where an accused is not nominated in the F.I.R. nor is otherwise, known to the eye-witnesses and no reasonable explanation or circumstances have been stated whereby his participation and identification could be established, and at the same time there is no other corroborative evidence against him as well, the sentence of conviction cannot be passed against him. No recovery has been effected in this case nor is any other kind of corroboration available to the prosecution version against the appellant. It is correct that the rule of independent corroboration is not an absolute and mandatory rule to be applied in each case rather it is a rule of abundant caution which is applicable in the case in which direct evidence is not of the standard which alone could be considered sufficient for conviction but in the instant case, as already stated, there was no direct evidence for the identification of the appellant nor at any other proper stage police took any measures to establish the identity of the appellant as an assailant in this case. The statement of the complainant could be taken as dying declaration but even that shall be of no use for the prosecution because in that statement the accused was never nominated. The rule of abundant precaution always tends to extend the benefit of doubt in favour of an accused. It was so held in Mohsin Abbas v. The State 2000 PCr.LJ 497.

11. It may also be noticed that the co-accused Umer Hayat and Zulfiqar who were tried for the same offence and the allegation also identical against them too were not found guilty for offence under sections 302 and 396, P.P.C. The role of the appellant is allegedly identical but only in as much as that as an unknown person he was also amongst the culprits who opened fire on the police. The fact that cannot be denied is that he was neither identified at the spot nor later his identification was established. Even the description of the physique and features of the accused were not given in the F.I.R.

12. There are various discrepancies also in the statement of the alleged eye-witnesses. Generally the discrepancies unless they are of glaring nature, cannot be used to shatter the prosecution evidence but where these discrepancies coupled with the other relevant facts damage the intrinsic value of the prosecution evidence, the defence can lawfully avail benefit from them. In the instant case the discrepancies and the question arising in relation to the identification of the accused certainly go to the root of the case. The story of the prosecution as it goes in the F.I.R. and in the statement of the P.Ws. shows that the atmosphere at the time of occurrence was so much charged that in the given circumstances it could not be possible for any witness to identify or to retain in his memory the features of an unknown accused. Keeping all these factors in view, we are of the considered opinion that the involvement of the appellant on the basis of his proper identification has not been established by the prosecution and on the basis of the available evidence sentence and his conviction could not be maintained.

13. As result of the above, the appeal is allowed and giving the benefit of doubt to the appellant he is acquitted of the charge in this case. He would be released forthwith if not required to be detained in any other case. N.H.Q./M-270/L Appeal allowed.