M.A. ZAFAR, J. --- This judgment will dispose of Criminal Appeal No. 1702 of 2006 filed by Irfan and Salman, appellants who were convicted by learned Special Judge Anti-Terrorism Court No. 1, Gujranwala vide judgment dated 31.10.2006 and sentenced as under:- Three years' RI and to pay a fine of Rs. 5,000/- in default two months SI each under Section 324/34, PPC and Two years' RI each under Section 353/34, PPC.
Benefit of Section 382-B, Cr.P.C. Was extended in favour of the appellants.
2. Brief facts of the case as disclosed in the' complaint, Ex.PB, are that on 18.11.2005, Police on receipt of spy information about presence of the accused in a case under Section 392, PPC registered with PS Sadar Wazirabad, conducted raid and as a result thereof, Irfan came out running from inside Sheeran motors and started straight firing at the Police party. Allegedly the Police party in order to save themselves took the position when in the meanwhile, Salman armed with rifle also came out of Sheeran motors and started running behind Irfan and on seeing the Police party, fired straight at the Police party. It was further alleged that due to firing of Salman, one fire shot hit Irfan his co- accused. Both the accused were allegedly apprehended at the spot. At the time of their surrender, Irfan accused was carrying a 30-bore pistol while Salman was armed with rifle 44 bore.
3. Muhammad Sarwar Baloch, SI PW 6 investigated. He inspected the spot; prepared rough site plan Ex.PE and from the spot, took into possession two crime empties of rifle 44 P-5/1-2 vide memo.
Ex.PA and after completion of all formal investigation, both the accused were sent to face the trial.
4. At the trial prosecution produced 6 witnesses in all. PW 1 Nazaqat Ali FC deposed about recovery of crime empties from the spot; PW 2 Masoom Ali, ASI recoded formal F.I.R Ex.PB; PW 3 Tahir Mahmood, SI was member of raiding party, PW 4 Altaf Ahmad, SI was member of the raiding party, PW 5 Muhammad Ramzan Inspector was also member of police party when encounter took place.
The Investigating Officer Muhammad Sarwar Baloch, SI appeared as PW 6 during the trial. The learned Public Prosecutor closed the prosecution evidence. Accused in their statements under Section 342, Gr.P.C. Pleaded false implication and appeared as their own witnesses in defence as DWs. 1 and 2. However, after conclusion of the trial the accused were convicted and sentenced as above.
5. Learned counsel for the appellants submits that F.I.R. Was recorded after due deliberation and consultation; there is no independent witness in this case and all the witnesses are Police officials, they have made dishonest improvements while appearing before the Trial Court; that in fact the Police party fired upon the person of Irfan and that the recoveries are fake and planted. Lastly submits that the prosecution has miserably failed to prove the case against the appellants and they are entitled to acquittal.
6. On the other hand, learned Additional Prosecutor General supports the impugned judgment and submits that prosecution has fully proved its case against the appellants beyond any shadow of doubt; the appellants were apprehended at the spot and no exception can be taken to the well- reasoned judgment rendered by the learned Trial Court.
7. We have heard learned counsel for the parties at considerable length and have gone through the evidence on record.
8. In the instant case the occurrence had taken place at 4.30 p.m. On 18.11.2005 at a distance of one kilometer from Police Station Cantt., Gujranwala while the matter was reported to the Police on the same day at 04.30 p.m. Through written complaint Ex.PB/1 made by Muhammad Ramzan Inspector PW 5 and formal F.I.R. Ex.PB was recorded by Masoom Ali, ASI at 4.50 p.m.
9. The injured in this case is Salman, convict. He was got medically examined by the Police, on 18.11.2005, The doctor who medically examined the injured found one fire-arm entry wound on the left buttock making its exit below umbilicus. The said doctor was never produced as a PW.
According to case of the prosecution, both the appellants fired at the Police party but none from the Police contingent received even a scratch on his person. It was also the case of the prosecution that Irfan appellant made straight firing upon the Police with 30-bore pistol but no crime empty of 30-bore pistol was recovered from the spot. The crime empties of 44-bore rifle were secured from the spot but there being no wedding report of the Fire-arms Expert, mere recovery of the rifle and also of the empties is of no avail to the prosecution.
In the FIR, the complainant alleged that when the' accused made straight firing, the Police party only took up the position and there is no mention that there was any Police encounter but during cross-examination, Tahir Mehmootf, SI (PW.3) deposed as under:- "Police party also made defensive firing."
"We made aerial firing and not aimed one."
"The Police encounter/cross-firing continued for about 10 minutes."
Apart from the fact that the PW while appearing before the Trial Court made dishonest improvements but his deposition is contradicted by the fact that no crime empty of the fire-arms which the Police party was carrying was recovered from the spot.
Again, Tahir Mehmood, SI PW.3 before the Trial Court in cross-examination deposed that Salman accused made only 1/2 fires and further stated in cross-examination "Members of our raiding party had approximately made 2/3 fires each."
Altaf Ahmad PW. 4 stated that Salman accused issued 8/10 fires and during cross-examination he deposed that members of the Police party issued 10/12 fires but no crime empty of the fire-arms in possession of the Police party were taken into possession from the spot.
Again this PW deposed that the Police party made direct firing towards the accused while PW. 3 had deposed that they made aerial firing.
Similarly, Inspector Muhammad Ramzan contradicted other PWs on material points. He was the complainant. In the complaint he did not mention of any firing by the Police party but before the Trial Court he deposed that constables made 5/6 fires each -and that Police of Police Station Ghakkar also made 14 fire. He also deposed that cross firing continued for 4/5 minutes. In fact, the complainant contradicted himself.
Merely the appellants were apprehended at the spot alone cannot be made a ground to record or maintain conviction when the PWs have contradicted each other on all material points. We have serious doubts about occurrence having taken place in the manner as alleged by the prosecution.
The settled law is that even a single doubt is sufficient to create dents in the story set up by the prosecution.
After having analyzed the entire prosecution evidence and attending to the submissions made by learned counsel for the appellants we are of the considered view that there are doubts in the prosecution case so while extending the benefit of doubt we accept the appeal filed by the convict appellants.