' MISS AALIA NEELUM, J.--- Muhammad Akhtar alias Boota son of Mukhtar Ahmed, caste Rajput, resident of Chak No.527/GB, Police Station Tarkhani, Tehsil. Samundri, District Faisalabad, appellant along with Muhammad Abbas and Abdul Rehman (since convicted) and Zulfiqar (since Proclaimed Offender) was involved in case F.I.R. No. 149, dated 26-2-2001, offence under sections 324, 353, 186, 34, P.P.C., read with section 11-B of Pakistan Arms Ordinance (XX), 1965 and section 7 of the Anti-Terrorism Act, 1997, registered at Police Station City Tandlianwala, District Faisalabad and was tried by Raja Muhammad Arshad, Judge, Anti-Terrorism Court No.I, Faisalabad. The learned trial Court seized with the matter in terms of judgment dated 11-11-2010 convicted the appellant as under:--
(i) The appellant was convicted under section 324/34 P.P.C., and sentenced him to ten years' R.I.
Along with fine of Rs.50,000 and in case. Of failure in payment thereof he further undergo S.I. For six months.
(ii) The appellant was also convicted under sections 353/34 P. P. C., and sentenced to undergo R.I.
For two years.
(iii) He was also convicted under section 186/34 P. P. C. , and sentenced to undergo R.I. For three months.
(iv) He was also convicted under section 7(h) of the Anti-Terrorism Act, 1997 read with section 34 P.P.C., and sentenced to undergo ' R.I. For ten years along with fine of Rs.50,000 and in case of default in payment of fine, the appellant was directed to further undergo S.I, for six months.
' All the sentences were directed to run concurrently and benefit of section 382-B Cr. P. C. Was also extended in favour of the appellant.
' The appellant has assailed his conviction and sentence recorded by the learned trial Court by means of instant criminal appeal.
2. Prosecution story as portrayed in the F.I.R. (Exh.PF/1) lodged on the complaint (Exh.PF) of Abdul Majeed Inspector (P.W.6) is that on 26-2-2001 at about 10.00 a.m. The complainant along with Naeem-ul-Hassan, S.I, Muhammad Hussain, S.I. (official tracker), Shaukat Ali, A.S.-I., armed with semi-rifle, Muhammad Ali C/4252 armed with gun, Muhammad Akram, 2/C armed with rifle, Jehangir Khan, S.I. Armed with semi-rifle in connection with investigation of case F.I.R. No.148 dated 25-2-2001, offence under sections 380, 459, P.P.C., registered at Police Station Tandalianwala, started chasing foot-prints of four unknown accused persons. In the meanwhile Mian Mansoor Ahmed Circle Inspector Tandalianwala, Munawar Hassan 2868/C, Abdul Rehman Gunman, Munir Ahmed 2670/C and Ch. Farooq Ahmed Inspector/ CIA, Faisalabad while riding on official vehicle along with Attiq-ur-Rehman 2999/C and gunman also reached there. The foot prints through different paths went toward wheat crop where police party saw four accused persons whose names were subsequently disclosed as (1) Abdul Rehman son of Abdul Rauf Gujjar, resident of D- Type Colony, Faisalabad (2) Muhammad Abbas son of Fateh Muhammad, caste Awan, resident of Kachi Abadi, Samundari Road, Mohalla Farooq Abad, Chungi No.15, Faisalabad (3) Rana Muhammad Akhtar resident of Motti Jhal and (4) Zulfiqar Ali alias Bhirr son of Munna, Rajput, Kasur Road, Lahore armed with pistols were sitting, whose foot-prints were identified by the official tracker as assailants of the previous night occurrence. On seeing the police party the accused resorted straight firing. The complainant, in loud voice, introduced himself and directed them to stop firing and hand over their custody to police, however, the accused remained making firing.
The complainant along with other officials also made firing in self-defence. Due to firing Muhammad Abbas son of Fateh Muhammad and Abdul Rehman son of Abdul Rauf Gujjar sustained injuries while Rana Muhammad Akhtar and Zulfigar while taking shelter of crops made their good escape while Abdul Rehman and Abdul Rauf were apprehended in an injured condition.
On their personal search respective pistols .30-bore from both the accused were recovered along with ten live bullets, which were taken into possession. The complainant drafted complaint and sent the same to Police Station through Munawar Hussain constable for registration of formal F.I.R.
3. It is pertinent to mention here that Muhammad Abbas and Abdul Rehmat were tried by the learned trial Court and convicted separately as whereabouts of Muhammad Akthar appellant at that time were not traceable.
' Thereafter, on 31-5-2010 investigation of the case was entrusted to Khurshid Ahmed, S.I. (P.W.5), who after receipt of information regarding arrest of the appellant in case F.I.R. No.33 dated 28-1- 2006, offence under sections 395, 412 P.P.C., Police Station Tarkhani, Faisalabad, after adopting codal formalities, reached Central Jail, Faisalabad and besides interrogating him, recorded first version of the appellant. Thereafter, the Investigating Officer obtained physical remand of the accused and during the course of interrogation, on 16-6-2010 the accused after making disclosure led to the recovery of pistol .30-bore (P-8) after digging out earth under the "wan tree", which the Investigating Officer took into possession vide recovery memo Exh.PG. He also prepared rough site plan of the place of recovery Exh.PH. On reaching the Police Station, the Investigating Officer handed over case property to Moharrar Malkhana for safe custody and onward transmission to the quarter concerned. He also recorded statements of the prosecution witnesses under section 161, Cr.P.C. Having found the appellants guilty the Investigating Officer placed their names in Column No.3 of the report prepared under section 173, Cr.P.C. And submitted the same before the court of competent jurisdiction.
4. On submission of challan the learned trial Court in terms of order dated 7-9-2010 formally charged sheeted the appellant to which he pleaded not guilty and claimed trial. The prosecution in order to substantiate its case produced as many as six prosecution witnesses.
5. Abdul Majeed, Inspector (P.W.6) is the complainant of the case while his statement was corroborated by Shaukat Ali, S.I. (P.W.2). On presentation of complaint Abdul Razzaq, A.S.-I. (P.W.3) had chalked out formal F.I.R. And Muhammad Ashfaq 1897/C is the witness of recovery. The investigation to the extent of the appellant was carried out by Khurshid Ahmed, S.I., (P.W.5).
6. On 1-11-2010 the learned Deputy District Public Prosecutor gave up Muhammad Hussain, S.I. Being dead and Medical Superintendent DHQ Hospital, Faisalabad and Shaukat Zaman 191/C, P.Ws., being unnecessary. Vide his separate statement recorded on 3-11-2010 the learned Deputy District Public Prosecutor after giving up Naeem-ulHassan S.I. Being unnecessary closed the prosecution evidence.
7. The appellant was also examined in terms of section 342, Cr.P.C. Wherein he opted neither to appear as his own witness in terms of section 340(2), Cr.P.C. In disproof of the allegations levelled against him in the prosecution evidence nor to lead evidence in his defence. In response to the question why this case against him and why the P.Ws. Deposed against him, the appellant made the following deposition:- "It is a false case. I have been involved in this case on the asking of Shoukat Ali Inspector, who has previous enmity with me being my neighbourer. Abdul Rehman and Muhammad Abbas were already in police custody and they were not known to me. Neither I was co-accused with them in any case nor I have any relations with them. I was not present at the pc at the time of occurrence.
All the P. Ws. Are police officials, who have deposed against me being subordinate of the complainant and Shoukat Ali Inspector. I am innocent."
8. After hearing the arguments advanced by the prosecution as well as defence while evaluating the evidence available on record, the learned trial Court found the version of the prosecution proved beyond any shadow of doubt against the appellant, resulting into his conviction in the above stated terms.
9. Learned counsel for the appellant vehemently argued that nevertheless the appellant was named in the crime report along with his other co-accused, however, his involvement was only on the basis of statement of his co-accused. Learned counsel forcefully argued that although it was a daylight occurrence yet while nominating the appellant, his body structures were not mentioned in the crime report. It was next argued that role of generalized nature has been ascribed to the appellant and no specific role was alleged against him. Learned counsel emphasized that as per prosecution version the prosecution had absconded from the spot but requisite proceedings in terms of section 87/88, Cr.P.C. Were not carried out against him. Learned counsel next urged that neither Muhammad Hussain, S.I. (official tracker) was produced nor any secondary evidence on this score was adduced by the prosecution and this fact alone creates flaws in the prosecution version regarding culpability of the appellant in the instant case. Learned counsel vehemently agitated that nevertheless the prosecution witnesses did not know the appellant before the occurrence; however, after his arrest no identification parade was conducted. Further added that astonishingly none from the police official had sustained even a single scratch during the occurrence nevertheless indiscriminating firing was alleged against the appellant and his other co-accused. It was further contended on behalf of the appellant that the pistol allegedly recovered from the appellant was not sent to the office of Forensic Science Laboratory for its matching with the crime empties collected from the place of occurrence. Learned counsel has finally prayed that as there is no direct/interlinking incriminating evidence available on record to connect the appellant with the commission of offence, the impugned judgment passed by the learned trial Court is not sustainable in the eyes of law as such the same is liable to be set aside and the appellant is entitled to his clean acquittal from the charge.
10. As against above learned Deputy District Public Prosecutor vehemently opposed the contentions raised by learned counsel for the appellant with the submissions that it was a daylight occurrence in which the appellant was named as one of the assailants with the role of making firing upon the personnel of law-enforcing agency. Learned Law Officer has further submitted that after making indiscriminating firing while taking shelter of the crops, the appellant made his good escape while his co-accused were apprehended at the spot. It was next argued that the appellant was one of the members of an unlawful assembly and after his arrest, pistol was also recovered on his pointing out, which further substantiates the prosecution case. Learned Deputy District Public Prosecutor went on arguing that during the course of trial the prosecution witnesses of occular account (complainant and Shaukat Ali S.I/P.W.2) had fully involved him in the occurrence and despite lengthy cross-examination they remained coherent on salient features of the prosecution version. It was further argued that even the prosecution witnesses being Government officials had no or previous animosity to falsely involve the appellant in the instant case. It was next argued that during the course of investigation, the appellant was also found guilty as such his name was placed in Column No.3 of the report prepared under section 173, Cr.P.C. It was finally argued that in presence of overwhelming evidence available on record finding full corroboration from other attending circumstances, the learned trial Court was rightly justified in recording conviction/sentence against the appellant.
11. We have considered the arguments advanced pro and contra and perused the record available on file with the able assistance of learned counsel for the appellant, as well as, learned Deputy District Public Prosecutor.
12. There is no cavil to this proposition that as per prosecution accusations contained in the crime report the assailants, while showing highhandedness, not only resisted the personnel of law- enforcing agency in performance of their official duty rather they also resorted to firing at them but at the same time this Court cannot lose sight of the facts and circumstances floating on the record in order to determine/evaluate whether this Court would be justified in maintaining the conviction and sentence recorded by the learned trial Court on the basis of evidence/material available adduced during the course of trial.
13. Coming to the facts of the case, as per prosecution version when the police party on the guidelines of Muhammad Hussain, S.I. (official tracker) on the basis of foot-pints, was on way to locate the whereabouts of the assailants of the occurrence having taken place previous night and when they reached near the wheat crops, the accused resorted to firing upon them. The prosecution case thus mainly rests upon evidence qua foot-prints of the assailants of the previous occurrence, the identity of accused, the ocular account and recovery of pistol besides other corroborative evidence.
14. Not only as per averments of the crime report rather while appearing during the course of trial, the complainant, as well as, other prosecution witness of ocular account, time and again, admitted that prior to the occurrence the accused were not known to them rather name of the appellant was disclosed by his co-accused while it is cordial principle of law that statement of one accused cannot be read against other co-accused until and unless the same is based upon incriminating material finding full corroboration from independent circumstances.
15. The crucial piece of evidence lying with the prosecution in order to show presence of the appellant at the place of occurrence at the relevant time was in the shape of statement of Muhammad Hussain, S.I. (official tracker), as well as, memo of pointation of foot-prints of the assailants. Perusal of record available on file reveals that said Muhammad Hussain, S.I. Did not appear before the learned trial Court. This Court is conscious of the fact that non-production of Muhammad Hussain, S.I. Was beyond the control of the prosecution as before recording his statement, said Muhammad Hussain, S.I. Had met his natural death, however, in this scenario the prosecution was under the bounden duty to adduce secondary evidence in the shape of a person acquainted with the handwriting of Muhammad Hussain, S.I. (deceased official tracker), however, the same was not done for the reasons best known to the prosecution. So much so the prosecution had not opted to got exhibit memo of identification of foot-prints of the accused. Admittedly non- production of evidence with regard to identity of foot-prints of the appellant itself creates material flaw in the prosecution version.
16. Undoubtedly it was a daylight occurrence having taken place at 10-00 a.m. In the last days of February, however, as per record available on file while drafting complaint (Exh.PF.) nevertheless the complainant had named the present appellant as one of the assailants, however, neither his body structures were mentioned therein nor the same contained other features from where even any glimpse could be taken that what height, age, volume and physique the appellant was having.
So much so during the course of investigation, none of the prosecution witness of ocular account had ever opted to give the details of the features of the body B of the present appellant from identity of the accused could have been established.
17. As per prosecution version set forth in the F.I.R., besides the complainant three gazetted officers including one from the organized crime had joined the investigation process of case F.I.R. No.148 dated 25-2-2001, offence under sections 380, 459 P.P.C., registered at Police Station Tandalianwala, hence as the appellant was not previously known to the prosecution witnesses, his test identification parade was of pivotal importance, which was not got done by the prosecution for the reasons best known to it, which creates serious dents in the prosecution version going to its root.
The case of Nadir Khan v. The State (PLD 1992 Federal Shariat Court 390), it was held that:-- 18. ---Art. 22---Criminal Procedure Code (V of 1898), 5.162-- Identification parade---Where the culprits were not known to the witnesses either by face of name an identification parade through such witnesses in presence of Magistrate was a must."
' Moreover, an Hon'ble Division Bench of Sindh High Court in absence of test identification parade had went on to set aside the conviction thereby holding as under:-- "Identification test immediately after arrest of accused persons would be a necessary requirement when accused persons were not people of locality and were not already known to P. Ws. Non- holding of identification test in such case would be a ground for setting aside conviction/death sentence recorded against accused by Anti-Terrorism Court." (underlined for emphasis)
18. No doubt while appearing in the witness box Abdul Majeed Inspector (P.W.6) and Shaukat Ali, S.I.
(P.W.2) had fully involved the appellant as one of the assailants of the occurrence, however, while appearing in the witness box both of them admitted that neither they were acquainted with the name of the accused prior to the occurrence nor they knew him rather involvement of the appellant was only on the basis of statement of co-accused allegedly caught red-handed. As per defence version taken by the appellant while recording his statement in terms of section 342, Cr.P.C. He was not present at the place of occurrence at the relevant time. Nevertheless the Investigating Officer had admitted that this was also first version of the appellant, however, during the course of cross-examination he stated as under:-- "Accused present in the court pleaded before me in his first version that he was not present at the place of occurrence at the time of occurrence. I had not confronted the eye-witnesses of the present case with the accused during my investigation. I had not called any P.W. For associating him in the investigation. ".
' The above portion of testimony of Khurshid Ahmed, S.I/Investigating Officer creates suspicion about the prosecution version coming from the mouth of the prosecution witnesses of ocular account especially when none from the police party had received even a scratch due to firing allegedly made by the appellant and his co-accused.
' We also find much weight in the contention of learned counsel for the appellant that in absence of any direct role qua inflicting any injury on the person of the members of law-enforcing agency, the medical evidence is of no avail to the prosecution to saddle him with the commission of offence.
19. Nevertheless after his arrest, the Investigating Officer had recovered pistol .30-bore from the appellant, however, careful examination of the record available on file reveals that there is no report of Forensic Science Laboratory qua matching the same with any crime empties collected from the place of occurrence, which as per statement of Shaukat Ali, S.I. (P.W. 2) were thirty in number. Hence, this circumstance itself creates flaw in the prosecution version.
20. As far as absconsion of the appellant as contended by learned Law Officer is concerned, perusal of record available on file reveals that the Investigating Officer had not got declared the appellant fugitive from law while carrying out proceedings in terms of section 87/88 of the Criminal Procedure Code, hence this stance of learned Deputy District Public Prosecutor carries no legal authenticity.
21. After carefully examining the whole prosecution version we have arrived at the conclusion that to the extent of the present appellant, there is no incriminating/overwhelming/inter-linking evidence to saddle him with the liability. It is settled principle of criminal justice that mere on the basis of suspicion innocent persons must not be convicted and punished. Moreover, the same has been discouraged by the superior courts of the country. In the case of Muhammad Sarfraz Khan v.
The Crown (PLD 1953 F.C. 317), it has been held as under:- "Evidence-Court canvassing mere probabilities of case and arriving at conclusion of guilt of accusedDisapproved--Judicial duty is to act on evidence duly admitted and tested according to recognized principles."
22. Before concluding we are also inclined to comment upon the contention raised by learned Deputy District Public Prosecutor regarding promptness of the F.I.R. It goes without saying that the same is to be examined/scrutinized together with other features of the case. If this aspect of the prosecution case is taken as correct then admittedly the prosecution has squarely failed to satisfy this Court on number of other characteristics of the case to the extent of the appellant. We are fortified in our view as per dictum of law laid down in the cases of Sirai v. The State (1984 SCM R 1238), Zafar Hayat v. The State (1995 SCM R 896), Mst. Dur Naz v. Yousaf and another (2005 SCM R 1906) and Idris Ali and 7 others v. The State (PLD 1971 Dacca 254).
23. The upshot of the above discussion is that to the extent of the appellant, the prosecution case is full of material contradictions/discrepancies especially non-mentioning of body features of the appellant, non-production of evidence qua foot-prints, non-holding of test identification parade, as well as, non-confrontation of the appellant's defence version by the Investigating Officer to the prosecution witnesses of ocular account coupled with the fact that no injury was ascribed to the appellant on the person of any police official, as well as, nevertheless pistol was recovered from the appellant, however, the same was not sent for matching with the crime empties collected from the place of occurrence. In this backdrop it can safely be held that the prosecution has badly failed to bring home the guilt of the accused/appellant beyond shadow of reasonable doubt and the learned trial Court was not justified in convicting the appellant while basing upon such uncorroborated evidence which even otherwise is full of contradictions and conviction passed by the learned trial Court in the circumstances is against all canons of law recognized for the dispensation of criminal justice. As per dictates of law benefit of every doubt is to be extended in favour of the accused. Similar view was affirmed in the case of Muhammad Akram v. The State (2009 SCM R 230); wherein it was held as under:-- "-Benefit of doubt---Principles--For giving the benefit of doubt it is not necessary that there should be many circumstances creating doubts---Single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefit, not as a matter of grace and concession, but as a matter of right."
' Moreover, it is golden principle of law that Court may err in letting off hundred guilty but should not convict one innocent person. Therefore, keeping in view the facts and circumstances of the case, the salutary principle of benefit of doubt is extended in favour of the appellant as a consequence whereof; Criminal Appeal No.398-J of 2010 is accepted in toto. Conviction and sentence recorded in the judgment of the learned trial Court passed on 11-11-2010 is set at naught and Muhammad Akhtar, appellant is directed to be acquitted of the charge in case F.I.R. No.149 dated 26-2-2001, offence under sections 324, 353, 186, 34 P.P.C., read with section 11-B of Pakistan Arms Ordinance (XX), 1965 and section 7 of the Anti-Terrorism Act, 1997, registered at Police Station City Tandlianwala, District Faisalabad and he is ordered to be released forthwith, if not required in any other case.