' QAISER RASHID KHAN, J.---This criminal (jail) appeal is directed against the judgment dated 26-2- 2010 passed by the learned Additional Sessions Judge Tank, in case F.I.R. No,85 dated 28-6-2005 of Police Station Gomal, District Tank, registered under sections 302/324/353/337-F(v)/120-B/216- A/34, P.P.C., whereby the appellant, namely, Munawar Khan son of Qadir Khan, has been convicted and sentenced as under:-
(i) under section 302(b), P.P.C. To life imprisonment with Diyat amount of rupees 9,30,000 payable to the legal heirs of the deceased Us man
(ii) under section 324, P.P.C. To ten years' imprisonment;
(iii) under section 337-F(ii), P.P.C. To three years and to pay Daman of rupees 1,00,000 to the injured Amin Shah LAC and,
(iv) under section 353, P. P.C. To two years' imprisonment.
' All the sentences have been ordered to run concurrently and the benefit under section, 382-B, Cr.P.C. Has been extended to the appellant/convict.
2. The prosecution story as narrated by the complainant/SHO Abdul Haee Khan in his initial report (Exh.PA/1) is to the effect that on 28-6-2005 at about 19.20 hours while in police station on receipt of information about the presence of proclaimed offender, namely, Attaullah along with Munawar Khan, Said Ghulam, Wali Muhammad Mehsood in the baithak of Master Atta Muhammad, he rushed there and was busy in directing the police party for encircling the baithak when in the meanwhile, four accused named above succeeded in going out of the baithak through its back door and started effective firing at the police party present in the street with their Kalashnikovs with which Usman Ghani, LHC/170 was hit on his chest and right arm, while Amin Shah LHC No,188 was injured on the right leg. The police party also retaliated and fired at the accused in self-defence, but they succeeded in decamping from the spot. When the police party tried to get hold of the two injured, Usman Ghani LHC/170 had already breathed his last, whose dead body along with the injured Amin Shah were shifted to the civil hospital Tank under the police escort. The accused left a rocket launcher along with its two shells on the spot. On the basis of such report/murasila of the complainant, the F.I.R. (Exh.PA) was registered against all the four accused.
3. At the first instance, all the accused absconded, but subsequently the co-accused, Master Atta Muhammad, was arrested on 4-7-2005, against whom complete challan was put in court on 23-8- 2005. He was summoned to the court and after fulfilling the required formalities was formally charge-sheeted but he did not plead guilty to the charge, professed innocence and claimed trial.
4. The prosecution in order to prove its case against him, produced and examined seven witnesses.
Meanwhile, the appellant/convict, Munawar Khan was also arrested on 17-5-2009. After completion of investigation, supplementary challan was put against him before the court where he was summoned and, the requisite formalities were fulfilled. He was thus charge-sheeted for the offence, but he too did not plead guilty to the charge and claimed trial. As such, the trial started de novo during which the prosecution produced ten witnesses in support of its case.
5. Thereafter, statements of the accused were recorded under section 342, Cr.P.C. Wherein they denied the allegations in toto, professed innocence and false implication in the case. The co- accused, Master Atta Muhammad, neither opted to examine himself on oath nor wished to produce any evidence in defence. However, the convict/ appellant, Munawar Khan though offered to examine himself on oath in terms of section 340(2), Cr.P.C., but did not wish to produce any evidence in defence.
6. The learned trial Judge, on evaluating the evidence brought on record and considering the arguments addressed at the bar by the learned counsel for the parties acquitted the co-accused Master Atta Muhammad and found Munawar Khan guilty of the offence charged with and thus on conviction sentenced him through the judgment which is now under challenge by the convict through this jail appeal.
7. Learned counsel for the appellant vehemently criticized the impugned conviction and sentences of the appellant on the grounds that he is totally innocent and falsely involved in the case; that the prosecution had not been able to prove its case against him beyond any shadow of reasonable doubt; that the medical evidence is not in consonance with the site plan prepared in the case; that the ocular testimony of the prosecution witnesses is not in conformity with each other and that the impugned conclusion of the learned trial judge is the result of non-appraisal of material evidence available, on record which is liable to' be set at naught entitling the convict/appellant to outright acquittal.
8. On the other hand, the learned Additional Advocate-General representing the State assisted by the learned counsel for the complainant resisted the appeal on the grounds that the convict/appellant was directly charged by the complainant along with his co-accused; the report was lodged with all reasonable promptitude; the occurrence had taken place in a day light and thus there was no question of mistaken' identity; that through the evidence brought on record, the prosecution had successfully proved its case against the convict/appellant; that the site plan prepared in the case fully corroborates the eye-witness account of the occurrence; that the medical evidence is in consonance with 'the prosecution version and that the learned trial Judge had rightly appraised the evidence available on record while drawing the impugned conclusion which needs no interference.
9. Arguments heard and record perused. The gist of the prosecution evidence is as under:-- ' P.W.1, Mumtaz Ali DFC of Police Station Gomal was entrusted the search warrant against the convict/appellant Munawar Khan under section 204, Cr.P.C. Which was returned unexecuted, vide report Exh.P.W.1/1, due to his non-availability in the village and other surrounding area after recording the statements of the people of the locality. Similarly, the notice under section 87, Cr.P.C.
Marked to him after execution was returned by him along with his report Exh. P. W. 1/2.
' P.W.2, Inspector Kausar Ali Khan, being the SHO of Police Station Gomal had arrested the' convict/appellant Munawar Khan and after completion of investigation submitted supplementary challan against him on 23-5-2009 which is Exh.P.W.2/1.
' P.W.3, Salim Shah, Investigating Officer, interrogated the convict/appellant and recorded his statement under section 161, Cr.P.C.
' P.W.4 Mehtab Ali Moharrir on receipt of the murasila (Exh.PA/1) had incorporated its contents into the F.I.R. (Exh.PA).
' P.W.5 Muhammad Hussain, Inspector Police Station Tank had arrested the appellant Munwar Khan on 17-5-2009 and issued his card of arrest Exh. P W 5/1 .
' P.W.6 Abdul. Aziz IHC on receipt of blood-stained shirt/patloon (official uniform) of the deceased having cut marks had handed over the same to the Investigating Officer vide memo Exh.P.W.2/4.
' P.W.7 Rahmatullah alias Sanjy Pahlawan has heard the reports of fire shots and seen the accused Attaullah, Munawar Khan and Said Ghulatn running along with Kalashnikovs and carrying an unknown injured person.
' P.W.8 Abdul Hayee Khan Inspector/SHO of Police Station Gomal Tank had affirmed the contents of the F.I.R. Exh.PA/1. He took into possession rocket launcher (Exh.P 5), two shells of rocket launcher (Exh.P-6), two fuses (Exh.P-7). On his pointation, the I.O. Prepared the site plan (Exh.PB), submitted complete challan (Exh.P.W.8/2), received and placed on file FSL report (Exh.PK) as well as the report of the Bomb Disposal Squad as Exh. P. W . 8/3).
' P.W.9 Amin Shah IHC had accompanied the P.W.8 at the time of occurrence was injured and his statement under section 161, Cr.P.C. Was recorded by the I.O.
' P.W.10 Hussain Bakhsh Sub Inspector had conducted investigation of the case and prepared the injury sheet of the injured constable Amin Shah as Exh.P.W.10/1) and injury sheet and inquest .Report of the deceased Usman Ghani which are Exh.P.W.10/2 and Exh. P. W W. 10/3.
10. The prosecution evidence primarily hinges on the ocular account as furnished by the complainant Abdul Hayee Khan (P.W.8) and injured Amin Shah (P.W.9), recoveries, medical evidence and lastly the abscondence of the appellant. As per P.W.8, while present in the police station, he was informed by an informer that Attaullah, proclaimed offender, along with the convict-appellant, absconding accused Said Ghulam and Wali Muhammad were present in the baithak of Master Atta Muhammad. He thus reached near the baithak of Master Atta Muhammad and was busy in encircling the baithak when the accused left it from its back side and while running started firing at the police party resulting into the death of constable Usman Ghani and injuries to constable Amin Shah. However, except the information furnished by the informer, no evidence has been brought forth to the effect that it was the appellant Munawar Khan who was present in the baithak of Master Atta Muhammad. Munawar Khan while recording his statement under section 342, Cr.P.C. Expressed his wish to be examined on oath under section 340(2), Cr.P.C.
He thus recorded his statement, as D.W.1, wherein he stated that he was a musician/dancer by profession and used to perform music and dancing programs on demand. He candidly admitted that the acquitted accused Master Atta Muhammad etc.; had invited him for the said purpose and he along with Ustad Sarwar and Ustad Karim Dad went to his baithak and after keeping their instruments in the baithak left for the bazar when in the meanwhile the police raided the baithak and the occurrence took place as a consequence. It is an uncommon feature in the local culture milieu that musicians and dancers are called by the people to their hujras for performance and thus the statement of the convict-appellant Munawar Khan in this respect to a certain extent can be taken into consideration. Moreover, no specific recoveries of empties have been made from the spot assigned to the convict-appellant in the site plan. The case of the prosecution is not based on the true account and laxity, indifference and neglect stand out as the hallmarks of the entire prosecution version. Amin Shah though injured in the occurrence which took place on 28-6-2005, but his statement was recorded by the I.O. After two months, i.e, on 22-8-2005. This in itself puts the prosecution version doubtful on account of recording of evidence of the star injured witness at such a belated stage. Amin Shah further spilled the beans when to a question during his cross- examination stated that "both the accused Attaullah and Atta Muhammad were present in the baithak and on seeing the police party, they decamped from the spot". To another question, he stated that "at the time of firing, the accused were facing towards the western side from me, while I was on eastern side and we were facing each other. I made firing of about 30 rounds upon the accused". This aspect too tells much about the incident and how the true account of the occurrence was withheld by the prosecution, when Amin Shah (P.W.9) as a police constable in eye ball to eye ball confrontation with the accused party, missed them despite exhausting the full magazine of his Kalashnikov. This prima facie suggests that there is more to it than meets the eye and thereby makes the site plan doubtful.
11. As discussed above, the I.O. Namely, Hussain Bakhsh (P.W.10) had recorded the statement of the injured Amin Shah after two months of the occurrence, but the same Amin Shah during cross- examination replied to a question that "he went to the spot along with the I:O. For spot inspection- after about one month of the occurrence". Why the I.O. Delayed the recording of his statement for one good month even when Amin Shah had recovered from his injuries leaves much to be desired as far as the prosecution account is concerned.
12. Moreover, Doctor Falaknaz, who had recorded his statement way back on 12-9-2007 as P.W.3 during the trial of co-accused (Master Atta Muhammad, since acquitted), but was not examined during the de novo trial of Master Atta Muhammad and the convict-appellant after the arrest of the latter on 17-5-2009. The said doctor had not only examined the injured Amin Shah, but had also conducted autopsy on the dead body of constable Usman Ghani. Why such important piece of evidence as withheld by the prosecution speaks volunies for the conduct of the prosecution.
Similarly, the defence also missed an opportunity to cross-examine the said doctor viz: the Medico-legal Report of the injured Amin Shah (Exh.P.W.3/1) and his discharge slip (Exh.P.W.3/2).
Likewise, he was also not cross-examined with regard to the injury sheet, inquest and post mortem reports of the deceased constable Usman Ghani (Exh.P.W.3/3 to Exh.P.W.3/5), though the said exhibits were duly considered by the learned trial Judge while convicting the appellant, despite the fact that they had lost their evidentiary value due to.The non-examination of their maker/scribe, i.e, Dr. Falaknaz.
13. Given the material contradictions in the ocular account, the site plan, the recoveries of empties from the spot and above all, the non-examination of the doctor on the Medico-legal Report of the injured Amin Shah and postmortem report of the deceased Usman Ghani, we have reached to the irresistible conclusion that the prosecution had not been able to prove its case against the convict/appellant Munawar Khan beyond any shadow of reasonable doubt. It needs no reiteration that a single circumstance which creates doubt in the mind of a prudent mind, its benefit must be extended in favour. Of the accused. Moreover, barring minor contradictions, when on the same set of evidence, the other co-accused, namely, Atta Muhammad; had been acquitted, the present appellant too, deserves equal treatment.
12(sic). As a corollary to what is discussed above, we accept this appeal, set aside the impugned judgment of conviction and sentence of the appellant Munawar Khan and acquit him of the charges levelled against him in the case in hand. He shall be set at liberty forthwith if not wanted in any other case.
' Above are the detailed reasons for our short order of even dated.