' SAYYED MAZAHAR ALI AKBAR NAQVI, J.---Muhammad Bashir son of Sher Zaman, resident of Mankiala Muslim, Tehsil Gujjar Khan, District Rawalpindi, appellant (Criminal Appeal No,596- T/2004), along with Muhammad Zahid, Gul Nawaz and Muhammad Akhtar (since acquitted) was booked in case FIR No,272, dated 15-6-2002, offence under sections 302, 324, 148, 149, 109, 120-B, P.P.C., read with section 7 of the Anti-Terrorism Act, 1997, registered at Police Station Gujjar Khan, District Rawalpindi. After registration of the case, the investigation was carried out by the local police, however, the same was not accepted by the complainant and he showed his dissatisfaction. According to the version of the prosecution Muhammad Bashir Bhatti appellant in connivance with Muhammad Aslam, ASI, Muhammad Nawaz Head Constable (Naib Court) and Tahir Reader succeeded in lodging case FIR No,222, dated 12-6-2002 under Section 7 of the Surrender of Illicit Arms Act (XXI) 1997, at Police Station Airport against him and sent someone else to Adyala Jail and after commission of the aforesaid crime, he while joining hands with the jail authorities himself confined in the jail premises; thereby substituting the dummy prisoner, who was earlier lodged in jail premises in connection with the aforesaid crime. Accordingly the complainant filed private complaint titled as Muhammad Safeer v. Muhammad Bashir and others under the provisions of sections 302, 324, 148, 149, 109, P.P.C., read with section 7 of the Anti-Terrorism Act, _ 1997. On submission of complaint, the learned trial" court after recording preliminary evidence and taking into consideration all other documents vide order dated 16-11-2002 issued process against the appellant and others except Muhammad Aslam ASI, Tahir Mehmood Reader and Muhammad Nawaz Head Constable (Naib Court). Proceedings in complaint case were initiated on preferential basis and the learned trial court after taking into consideration the whole evidence adduced by the prosecution vide judgment dated 9-12-2004 convicted and sentenced the appellant in the following terms:-- ' Under Section 7(a) of the Anti-Terrorism Act, 1997, read with section 109, P.P.C., sentenced to death on four counts with fine of Rs,1,00,000.
' Under Section 7(c) of the Anti-Terrorism Act, 1997, read with section. 109, P.P.C. Sentenced to imprisonment for life on three counts.
2. Muhammad Bashir appellant has assailed his conviction and sentence through filing Criminal Appeal No,596-T/2004. Learned trial court also forwarded Capital Sentence Reference No,3-T/2005 for confirmation of death sentence inflicted upon Muhammad Bashir/convict. Vide the impugned judgment the learned trial court had acquitted Muhammad Zahid, Gul Nawaz and Muhammad Akhtar, accused and to their extent, the complainant preferred Criminal Appeal No,8 of 2005 in which vide order dated 29-5-2009 notice was issued to Muhammad Zahid and Gul Nawaz/respondents Nos.1 and 2. As all the matters are arising out of one and the same-judgment of the learned trial court, therefore, these are being disposed of through consolidated judgment.
3. Prosecution story as portrayed in the complaint (Exh.PJ) lodged by Muhammad Safeer son of Wazeer Khan, caste Mughal, resident of Mankiala Muslim, Gujjar. Khan (P.W.4) is that the complainant is resident of Gujjar Khan and residing along with his family members. Muhammad Aslam son of Fateh Din and his wife Mst. Kalsoom Bibi residents of Chatran Sensah, Azad Kashmir had visited house of the complainant in order to see Bagh Hussain uncle (Taya) of the complainant, who was indisposed. On the night between 14 and 15 June, 2002, along with the complainant, Muhammad Aslam and his wife Mst. Kalsoom Bibi, Wazeer Ahmed father of the complainant, Muhammad Shabbir (brother), Sajida Shabbir (bhabi) Sakina Bibi (mother), Muhammad Asim and Noman Ali (bhanjas) son of Muhammad Basharat, residents of Ward No,7, Gujjar Khan, went to sleep in the courtyard, the bulbs were lit. At about 3:00 a.m. (night)
Muhammad Bashir son of Sher Zaman armed with kalashnikov, Muhammad Azram son of Ali Akbar armed with rifle, Bilal Asghar son of Muhammad Asghar armed with rifle, Muhammad Nazamat alias Kola son of Muhammad Riasat armed with pistol, Muhammad Zahid son of Muhammad Yousaf armed with rifle, Gul Nawaz son of Karamat Hussain armed with pistol, Mazhar Hussain son of Abdul Rehman armed with pistol, in connivance with each other, from the backside of the house of the complainant with the help of stairs went on the rooftop of the house. Muhammad Bashir raised lalkara not to spare any person on which the complainant after coming down from his cot, concealed .Himself behind the wall of kitchen. Muhammad Bashir and other accused persons started straight firing in the courtyard, which landed at Wazeer Muhammad on his chest and knee of left leg, on right armpit, left flank and on right thigh of Muhammad Shabbir, on left bicep, right hand and right leg of Muhammad Aslam, on left flank, left thigh of the left shin and right thigh of Mst. Kalsoom Bibi, on left and right foot of Noman Ali, on right knee of Sajida Bashir, on right shin and left foot of Muhammad Asim. On sustaining the injuries Muhammad Aslam and Mst. Kalsoom Bibi died at the spot while Wazir Muhammad, Muhammad Shabbir, Noman Ali, Mst. Sajida Shabbir and Muhammad Asim sustained injuries, who were evacuated to the hospital, however, on way Wazir Muhammad and Muhammad Shabbir succumbed to the injuries. The police reached the hospital where statement of the complaint was recorded on the basis of which formal FIR bearing No,272, dated 15-6-2002, offence under sections 302, 324, 148, 149, 109, P.P.C., read with section 7 of the Anti-Terrorism Act, 1997 was registered at Police Station Gujjar Khan. It was also averred in the complaint that on 14-6-2002 Muhammad Bashir son of Sher Zeman, Muhammad Azram son of All Akbar, Bilal Asghar son of Muhammad Asghar, Muhammad Nazamat alias Kala son of Muhammad Riasat, Muhammad Zahid son of Muhammad Yousaf, Gul Nawaz son of Karamat Hussain, Mazhar Hussain son of Abdul Rehman and Muhammad Akhtar son of Lal Khan had gathered in the house of Muhammad Akhtar, whereby conspiracy was hatched to commit this occurrence.
' Motive behind the occurrence as disclosed in the crime report was stated to be previous criminal litigation inter se the parties. Moreover, besides the complainant the occurrence was witnessed by Sakina Bibi mother of the complainant and other injured witnesses in the light of bulbs. The complainant had also urged that Muhammad Bashir appellant was a resourceful person and in order to materialize the whole occurrence he while joining hands with Muhammad Aslam ASI, Muhammad Nawaz Head constable Naib Court and Tahir Reader of the trial court by concocting a false story got lodged case FIR No,222, dated 12-6-2002 under Section 7 of the Surrender of Illicit Arms Act (XXI) 1997, Police Station Airport and while committing impersonation; thereby arranging another person for lodging him at Jail in place of the complainant and after committing the occurrence while joining hands with the jail officials, he himself lodged at the jail.
4. On receipt of reports regarding the occurrence, Muhammad Qasim DSP (CW-27), who was posted as Inspector/ SHO of Police Station Gujjar Khan, proceeded to Civil Hospital, where Safeer Ahmed complainant made his statement, which was reduced into writing (Exh.PM) and the same was sent to Police Station for registration of formal FIR. Thereafter, the Investigating Officer inspected the dead bodies and drafted application for postmortem examination (Exh.CP) and inquest report (Exh.CQ) of Muhammad Shabbir, application for postmortem examination (Exh.CR) and inquest report (Exh.CS) of Wazir Muhammad and entrusted the dead bodies to Muhammad Shoban constable for autopsy. Thereafter, the Investigating Officer inspected the dead body of Muhammad Aslam and prepared inquest report (Exh,CU) and application for postmortem examination (Ex and application for postmortem examination (Exh.CV) of Kalsoom Bibi and her inquest report (Exh.CW) for their postmortem examination. Subsequently, the Investigating Officer prepared injury statement of Noman injured (Exh.CX), injury statement of Asim injured (Exh.CY) and injury- statement of Sajida Shabbir (Exh.CZ) and sent them to civil hospital for their medical examination. From the spot, the Investigating Officer secured blood from the place of murder of Wazir Muhammad and made into sealed parcel vide recovery memo Exh.CA and from the place of murder of Shabbir deceased vide recovery memo Exh.CB. Blood from the place of murder of Muhammad Aslam was secured vide recovery memo Exh.CC and blood from the place of murder of Kalsoom Bibi was secured vide recovery memo Exh.CD. He also secured 93 crime empties from the place of occurrence and made into sealed parcel vide recovery memo Exh.CE. The stair used for climbing over the roof was taken into possession vide recovery memo Exh.CF and 28 bullets from the courtyard of the house were taken into possession vide recovery memo Exh.CG.
' After postmortem examination Muhammad Shoban constable produced last worn clothes of Wazir Muhammad deceased, which he secured vide recovery memo Exh.CH. Last worn clothes of Shabbir deceased were taken into possession vide recovery memo Exh.CJ. Thereafter, Munawar constable produced last worn clothes of Mst. Kalsoom Bibi vide recovery memo Exh.CJ/1 and that of Muhammad Aslam deceased were secured vide recovery memo Exh.CJ/2. On reaching the Police Station, the Investigating Officer handed over the case property to Moharrar Malkhana for safe custody and onward transmission to the quarter concerned.
' On the direction of the Investigating Officer and pointing out of the P.Ws., Qamar Din draftsman after taking notes of the place of occurrence, prepared scaled site plan (Exh.CO).
5. Thereafter the investigation came up before Syed Haseeb Hussain Shah, DSP (CW-17), who on 8- 7-2002, after adopting all codal formalities, obtained physical remand of the appellant. During the course of interrogation on 30-7-2002, the appellant after making disclosure led to the recovery of two hand grenades from his cattle shed, which were taken into possession by the Investigating Officer. Thereafter the investigation came up before Yousaf Ali Shahid Inspector (CW-19), who on 14-9-2002 verified the investigation carried out by CW-17 and submitted his report before the Superintendent of Police, Range Crime, Rawalpindi.
6. After conclusion of investigation, the Investigating Officer prepared report under section 173, Cr.P.C. And sent the same to the court of competent jurisdiction. Firstly the appellant was charge sheeted on 3-3-2003 and subsequently fresh charge was framed on 9-12-2004 to which he pleaded not guilty and claimed trial. Prosecution in order to substantiate its case produced as many as nine (9) prosecution witnesses, while twenty eight (28) persons were summoned as court witnesses.
' Occular account in this case consists of the statements of Muhammad Safeer complainant (P.W.4), Muhammad Asim Basharat (P.W.5), Mst. Sajida Shabbir (P.W.6) and Mst. Sakeena Bibi (CW- 24). Besides drafting complaint, Muhammad Qasim DSP (CW-27) had initially investigated the case, which was further conducted by Syed Haseeb Hussain Shah DSP (CW-17) and Yousaf Ali Shahid Inspector (CW-19). Muhammad Azam 12232/HC (CW-20) was Moharrar at the relevant time.
' Dr. Shahida Hamid, Woman Medical Officer (P.W.1), on 15-6-2002, had conducted postmortem examination upon the dead body of Mst. Kalsoom Bibi and found following injuries on her person:-- "(1) Firearm entrance wound, oval shaped, on lower later part of left abdomen just below the line of level of superior border of left iliac crest of 1 c.m. x 0.7 cm.
(2) Fire arm exit wound of injury No,1 at the upper part of right thigh on its back of 2 c.m. x 1 c.m. And fracture of right hip joint.
(3) Firearm entry wound on the upper lateral part of left thigh of 8 c.m. x 0.6 cm. It is 24 c.m. From the injury No,l.
(4) Fire arm exit of injury No,3 on the inner lower part of left thigh of 7 c.m. x 6.5 cm with irregular margins damaging underlying muscles, blood vessels, but sparing the bones.
(5) Firearm entrance wound on the lower outer part of left lower leg 1 cm x 0.7 cm. It is 13 cm above the left ankle.
(6) Fire arm exit of injury No,5 with irregular margins on the lower part of left leg directed down ward and inward of 4 cm x 0.8 cm. It is 6 cm from injury No,5.
(7) Firearm entry wound on .The lower part of right thigh medially oval shaped of 1.5 cm x 2 cm.
(8) Firearm exit of injury No,7 on the outer part of right thigh at the same level of entry wound of 2.5 cm x 2.2 cm. There is fracture of right hip joint and fracture of lower right femure.
' After conducting the postmortem examination, the doctor rendered the following opinion:-- "In my opinion cause of death was haemorrhagic shock caused mostly by the injuries Nos.1 and 2 which have badly damaged the abdominal vessel, causing an extensive internal haemorrhage which was sufficiently fatal to cause death in an ordinary course of nature. The injuries were ante- mortem and were caused by firearm.
' Probable time between injuries and death was about half to one hour and between the death and post mortem about six to eight hours."
' On 15-6-2002 Dr. Ahmad Farooq, Medical Officer (P.W.2) had conducted postmortem examination upon the dead body of Muhammad Shabbir and observed following injuries on his person:-- "(1) Entry wound 1 x 1 cm right mid auxiliary line 16 cm from right iliac crest.
(2) Exit wound of injury No,1, 3 x 2 cm right side of chest 6 cm from mid line and slightly below the level of right nipple.
(3) Entry wound .7 x .7 cm in the left lumber region 12 cm from mid line.
(4) Exit wound of injury No,3, 2.5 x 2 cm right side of abdomen 8.00 cm from mid line and 10 cm above the umbilicus.
(5) Entry wound .8 x .8 cm front and middle of right thigh.
(6) Exit wound of injury No,5, 2 x 2 cm on lateral and lower aspect of right thigh. It was 12 cm from entry wound and 8 cm below the low level of entry wound. All entry wounds had abrasion collars."
' After conducting the postmortem examination, the doctor rendered the following opinion:-- "In my opinion the person died due to damage to vital organs and hypovolumic shock, which was sufficient to cause death in ordinary course of nature. All the injuries were ante-mortem. Probable time between injuries and death within one hour, between death and postmortem died at 3.35 a.m.
On 15-6-2002 and postmortem started at 5:00 a.m. On 15-6-2002."
' On the same day P.W.2 had conducted postmortem examination on the dead body of Wazir Muhammad deceased and found following injuries on his person:-- - "(1) Entry wound 2 x 1 cm on front of left chest, 5 cm from mid line and 8 cm from left nipple and 4 cm above the level of nipple.
(2) Exit wound .5 x .5 cm with grazing 3.5 x 1 cm on chest, 3cm from midline 11 cm from left nipple, 3.5 cm above the left nipple. The distance between the entry and exit 2.5 cm.
(3) Entry wound 1.3 x 1 cm on right side of chest 2 cm from the midline at the level of right nipple.
(4) Exit wound 1.5 x 1 cm on lateral aspect of right side of chest at the level of mid auxiliary line and 15 cm from the anterior auxiliary fold.
(5) Entry wound 0.5 x 0.3 on lateral aspect of left knee joint.
(6) Exit wound 1 c.m. x .3 cm on the medial aspect of left knee joint, 4 cm from the entry wound and 2 cm below the level of entry wound. All entry wounds had abrasion collars.
' After conducting the postmortem examination, the doctor had opined as under:-- "In my opinion death had occurred due to damage to vital organs and hypovolumic shock which were sufficient to cause death in ordinary course of nature. All the injuries were ante mortem.
Probable duration between injuries and death was within minutes. Duration between death and postmortem examination was about three to four hours."
' The doctor had also conducted postmortem examination upon the dead body of Muhammad Aslam deceased and observed following injuries:-- "(1) Entry wound 0.8 cm x 0.8 cm on back and lateral aspect of left upper arm making tract towards anterior auxiliary fold making an entry forward.
(2) Exit wound 1.5 x 1 cm just below anterior auxiliary fold. The same firearm entered into the chest 6 cm from the anterior auxiliary fold and 6 cm from the left nipple. The same firearm made the track towards apegastic area making exit wound 6 x 3 cm on midline. Clinically there was fracture of the corresponding bones (left humerous and ribs).
(3) Entry wound 2 x 1.5 cm on the dorsal aspect of left arm near thumb.
(4) Exit wound 1.5 x .5 cm on palmer aspect near thumb and there was grazing of the same bullet 7 x 1 c.m. On middle finger and 1.5 x 1.5 cm grazing on index finger distally.
(5) Entry wounds .6 x .6 cm on front and middle of right thigh.
(6) Exit wound .9 x .9 middle and lateral aspect of right thigh, 12 c.m. Apart from entry and at the same level. All entry wounds had abraded collars."
' After the postmortem examination, the doctor had rendered the following opinion:-- "In my opinion death had occurred due to damage to vital organs by injuries Nos.1, 2, 3 and 4 which were sufficient to cause death in ordinary course of nature. All the injuries were ante-mortem.
' Probable time between injuries and death within minutes and between death and postmortem about four to five hours."
' Statements of rest of the witnesses are formal in nature.
7. On 21-4-2003 the prosecution gave up Noman Ali, Abdul Majeed and Muhammad Shakeel P.Ws.
Being unnecessary while Noman Ali, Muhammad Shakeel and Muhammad Rafique, P.Ws., were given up on 22-10-2003 again being unnecessary. Further on 12-4-2004, learned counsel for the complainant had given up Sajid Mehmood, PW, being unnecessary. On 23-8-2004 after tendering in evidence the reports of Chemical Examiner (Exh.PK/1-4), the prosecution evidence was closed.
8. The appellant was also examined in terms of Section 342, Cr.P.C. Wherein he opted to adduce evidence in his defence, however, he opted not to appear as his own witness in terms of Section 340(2), Cr.P.C. While replying to the question why this case against him and why the P.Ws. Deposed against him, the appellant made the following deposition:-- "Deceased's side had multiple enmities and in this case the occurrence had taken place in the dark hours of night which was unseen. I was made scapegoat out of suspicion, and the version of the complainant was found false in successive investigation. P.Ws. Are fake and planted. Their testimony is contradicted and belied by the documentary evidence."
9. Learned trial court after evaluating the evidence available on record in light of arguments advanced from both sides, found the prosecution version proved beyond shadow of reasonable doubt against the appellant resulting into his conviction in the afore stated terms.
10. Learned counsel for the appellant while advancing his arguments submitted that as per prosecution version in the instant case the occurrence had taken place on 15-6-2002 at 3:00 a.m.
And it was reported to the police with a delay of more than two hours at 5:10 a.m. While inter se distance between the place of occurrence and the Police Station was only 5-KMs. Learned counsel vehemently agitated that even no source of light installed at the rooftop of the house was mentioned in the crime report, therefore, the identification of the appellant and other co-accused is highly doubtful. Learned counsel for the appellant emphasized that even in the successive investigations carried out by senior police officers the prosecution accusations contained in the crime report were found false and version of the appellant that at the relevant time he was lodged behind judicial lock up was found correct, which straightway vitiates the prosecution case. It was vehemently argued that even no specific role was ascribed to the appellant, therefore, the medical evidence does not substantiate the prosecution case. Learned counsel further contended that nothing was recovered from the appellant during the course of investigation. He next submitted that as ingredients of provisions of section 107, P.P.C., are not made out from the facts of the case, therefore, the learned trial court was not justified in recording conviction under the provisions of section 109, P.P.C. Learned counsel further argued that astonishingly the learned trial court acquitted the appellant under the provisions of section 302, P.P.C., however, convicted him under the provisions of Section 7(a) of the Anti-Terrorism Act, 1997, which on the face of it is against the guidelines given by the superior courts from time to time. In this backdrop, learned counsel urged, in absence of any cogent evidence, the learned trial court was not justified in recording conviction/sentence against the appellant, which requires interference by this Court at appellate stage. In support of his contentions learned counsel for the appellant placed reliance on the dictum of law laid down in the case of Mehboob-urRehman v. The State (2013 SCMR 106).
11. As against above, learned DDPP assisted by learned counsel for the complainant vehemently opposed the contentions raised by learned counsel for the appellant with the submissions that the appellant was duly named in the crime report, who while armed with rifle (kalashnikov) resorted to firing in the house of the complainant in which besides other family members two guests also lost their lives. Learned counsel further contended that the appellant while joining hands with the court staff and jail officials lodged a substitute at jail in his place and after committing the occurrence, he himself replaced him. It was argued that in their statements three injured prosecution witnesses fully supported the allegations levelled in the crime report, which fully saddle the appellant with the liability. Learned counsel for the complainant urged that the medical evidence is in line with the ocular account. It was next argued that during the course of trial the prosecution brought on record sufficient incriminating evidence in order to substantiate that the appellant hatched conspiracy with other co-accused and thereafter committed the occurrence. Moreover, during the course of inquiries conducted by senior officers, the appellant conceded his guilt and in report prepared in terms of section 173, Cr.P.C. While holding him guilty, the name of the appellant was placed in column No,3. It was finally argued that in view of overwhelming material brought on record the learned trial court while advancing cogent reasons, convicted the appellant, therefore, the instant appeal is liable to be dismissed straightway. Learned counsel for the complainant, however, conceded that in view of record available on file, the prosecution could not substantiate the presence of the appellant at the place of occurrence at the relevant time.
12. While arguing Criminal Appeal No,8 of 2005, learned counsel for the complainant submitted that both Muhammad Zahid and Gul. Nawaz/ respondents Nos.1 and 2 were duly named in the crime report with the allegation of having resorted to firing upon the deceesed family. Learned counsel agitated that during the course of investigation the crime weapons were recovered on the pointing out of the respondents. Learned counsel emphasized that the medical evidence also corroborates the prosecution version of occular account. While appreciating the material available on record, learned counsel for the complainant urged, learned Division Bench had issued notice to the respondents, hence in presence of sufficient incriminating evidence saddling them with the liability, the conclusion arrived at by the learned trial court requires interference at appellate stage and they are entitled to be convicted under the relevant provisions of law.
13. Learned counsel representing the respondents in Criminal Appeal No,8/2005 submitted that during the course of investigation, as well as, trial, the prosecution failed to substantiate the accusations levelled in the crime report. It was next contended that bulk of prosecution case was found false during the course of investigation. Learned counsel further argued that even the principal accused to whom direct role was ascribed was .Found lodged at jail at the relevant time.
It was also argued that in view of shaky evidence adduced during the course of trial particularly the fact that the occular account is not confidence inspiring regarding source of light and proper identification of accused coupled with non-recovery of crime weapon and considering it on the touchstone of other attending circumstances that it was a case of no evidence, the learned trial court rightly extended the benefit of doubt in favour of the respondents. It was urged that after acquittal from the learned trial court presumption of innocence becomes double and it is established principle of law that there should be extra-ordinary circumstances to warrant interference in such like cases, which are lacking in this case, hence the instant appeal being without legal justification is liable to be dismissed.
14. Arguments advanced from both sides have been heard. We have also gone through the record available on file with the able assistance of learned counsel for the appellants, learned counsel for the complainant, as well as, learned Deputy Prosecutor General.
15. In this unfortunate occurrence, which had taken place in the remote area of Gujjar Khan, four innocent persons including two guests had lost their lives while three others had sustained injuries.
No doubt the occurrence had taken place in a brutal manner and there can be hardly any justification for bailing out the barbarism shown by the accused while committing such a heinous crime in which two innocent guests, who had approached house of the complainant in order to see ailing uncle of the complainant and stayed there overnight were also murdered but at the same time to create balance in the situation and to scrutinize the whole evidence available on the record while weighing the same on the judicial parlance, this Court is under bounden duty to evaluate all the facts and circumstances in order to arrive at the conclusion whether conviction can be maintained in the instant occurrence in the given scenario.
16. In order to evaluate the evidence available on the record first of all this Court has to consider the time of occurrence, place of occurrence, mode and manner of occurrence and while juxtaposing the same with the evidence led by the prosecution consisting of statements of the complainant, as well as, Muhammad Asim Basharat (P.W.5), Mst. Sajida Shabbir (P.W.6) and Mst. Sakina Bibi (CW- 24), medical evidence, motive, the evidence of conspiracy, on the touchstone Of other attending circumstances particularly the statement of Ghulam Sarwar, Assistant Superintendent, Adyala Jail, Rawalpindi, who appeared as DW-1.
' Admittedly the occurrence is stated to have taken place at odd hours of night at 3:00 a.m., however, the identification of the accused, as well as, the manner of witnessing the same by the prosecution witnesses, who were sleeping in the courtyard of the house at that particular time when no bulb was installed at the rooftop requires close scrutiny by this Court. The identity of the accused in this particular case is of prime importance. This Court is conscious of the fact that during the occurrence three persons had sustained injuries and they while appearing in the witness box had made their statements before the learned trial court as P.W.5, P.W.6 and CW-24; thereby implicating the appellant as principal accused of the occurrence but at the same time it is one aspect of prudence that statement of injured P.W. Has to be scrutinized with care and caution as it is also the consistent view of the superior courts of the country that the statement of injured P.W. Straightway cannot be taken as a gospel truth in stricto sensu rather it requires to be scrutinized with more care and caution while juxtaposing withl other independent circumstances because after receipt of injury, the vindictiveness enhances due to the stamp of injuries and hostility between the parties. Reference in this regard can be made to the dictum of law in the case of ARO Hussain and 4 others v. The State (PLD 2000 Lahore 216). Similar view was held in the case of Jahangir Havat v. The State (PLD 1999 Lahore 285).
17. As per prosecution version arising out of the statement of the complainant and supported by the injured prosecution witnesses, at the relevant time, the appellant aged about 60 years while armed with firearm in the company of other co-accused, resorted to indiscriminate firing with sophisticated weapons upon the persons sleeping in the courtyard of the house, however, during the course of successive investigations carried out by senior police officers, it was concluded that as a matter of fact at the relevant time, the appellant was lodged at Adyala Jail, Rawalpindi, as an under trial prisoner in connection with a case bearing FIR No,222, dated 12-6-2002, offence under section 7 of Surrender of Illicit Arms Act (XXI) 1991, Police Station Airport, Rawalpindi. Nevertheless at the time of lodging private complaint main emphasis of the complainant was that the appellant while joining hands with officials of the jail, had lodged some other person (dummy) as his substitute in the jail and after committing the occurrence he managed to replace him, however, not a single circumstance was brought on record in this regard so much so even no attempt whatsoever was made by the prosecution in order to bring on record the name of the dummy along with his credentials, who was lodged within the jail premises as a makeshift prisoner in place of appellant. Fact also remains that the prosecution witnesses while appearing in the witness box had admitted that the appellant was behind the jail at the relevant time. In his statement, complainant Muhammad Safeer (P.W.4) admitted this fact in the following terms:-- "It is, however, correct that case FIR No,222 was registered and Bashir Bhatti accused was in jail at the time of occurrence."
' Further Muhammad Asim Basharat (P.W .5) another injured witness of the occurrence stated as under:-- "I do not remember when I learnt that Bashir Bhatti was in jail, however, I came to know that he was in jail."
' The defence plea, on the other hand raised by the appellant that at the relevant time he was lodged at Adyala Jail, Rawalpindi, has been supplemented by all the Investigating Officers including two senior police officers of the rank of DSP. So much so Ghulam Sarwar, Assistant Superintendent, Adyala Jail, Rawalpindi had appeared before the learned trial court as DW-1, who through documentary proof verified the factum that on the fateful day the appellant was lodged at Jail in connection with case FIR No,222, dated 12-6-2002, offence under Section 7 of Surrender of Illicit Arms Act (XXI) 1991, Police Station Airport, Rawalpindi. Even during the course of proceedings in complaint case vide order dated 16-11-2002 the learned trial court declined to issue process against the police official against whom accusation of hatching of conspiracy with appellant, which remained unchallenged till today, was alleged. It is cordial principle of law that a man can tell a lie but document cannot. All these facts straightway vitiate the prosecution version coming from the statements of the complainant and other injured witnesses regarding the fact that at the relevant time the appellant had made firing upon persons sleeping in the courtyard of the house.
Fact also remains that nevertheless as per prosecution accusations the appellant was alleged to have resorted to firing while armed with kalashinikov, however, nothing was recovered on his pointing out during the course of investigation.
' So much so, the learned trial court while scrutinizing the material available on record on the touchstone of the prosecution evidence, regarding presence of the appellant at the relevant time while handing down the impugned judgment had held as under:- "In the present case the defence has gone ahead of showing mere possibility of correctness of version of alibi. I have, therefore, no hesitation in holding that Bashir Bhatti accused was not present in the occurrence as alleged by the eye-witnesses.
' While analyzing the prosecution version upon this touchstone, it clearly repudiates the prosecution version at length and likewise at the same time it appeals to reason very vigorously as compared to the other view oozing from the defence version. Even otherwise during the course of cross- examination, the complainant had also admitted that all the prosecution witnesses of the instant case were either closely related to him or from his brotherhood.
18. There is no denial to this fact that at the time of lodging private complaint, the complainant had not attributed any specific role to the appellant rather general allegations were levelled against him, therefore. The medical evidence in the shape of the postmortem examination reports and the MLRs of the injured witnesses, in isolation, cannot be made basis for maintaining conviction in the case in hand.
19. In the above scenario the only piece of evidence remains with the prosecution is the motive, which always is considered as a double edged weapon. There are two views, which can be gathered from facts and circumstances firstly the false implication and secondly the commission of offence; and the view favouring the accused keeping in view the facts and circumstances narrated above seems to be more weighty and reasonable hence it is concluded that possibility of false implication cannot be ruled out.
20. Before concluding we are also adamant to comment upon the prosecution version of conspiracy coming from the statements of Ishfaq Ahmed (P.W.7), Muhammad Sagheer (P.W.8) and Muhammad Mushtaq (P.W.9). Nevertheless it is said that they had overheard the conspiracy hatched by the appellant along with other accused much prior to the occurrence, however, despite of the fact there existed enmity, none of them had opted to# disclose the conversation hatched by the accused to the complainant party facilitating them to adopt safety measures for their defence.
Such an attitude at the part of the prosecution witnesses, who one way or the other are closely related to the complainant/deceased, compels this Court to scrutinize that their statements were made after due deliberations and consultations as an afterthought.
21. While scrutinizing the material available on record we have noticed that at the time of recording his statement in terms of Section 342, Cr.P.C. The accused had not taken any specific plea qua his false implication in the instant case, however, it is settled principle of law that the prosecution has to stand on its own legs, whereas, the defence has to show only glimpse. Moreover, the prosecution cannot take any benefit of weakness of defence plea. In the case of Shamir alias Shamla v. The State (PLD 1958 Supreme Court 242), it has been held that even if the accused does not lead to prove plea of innocence but accused version receiving support to the extent of being reasonably possible from prosecution evidence, accused is entitled to his acquittal. Moreover, in its ratio decidendi in the case of Shera Masih and another v. The State (PLD 2002 Supreme Court 643) the august Supreme Court of Pakistan had held as under:-- "---Defence plea of the accused even if is not supported by any evidence direct or circumstantial and is discarded being improbable, still it will not be a circumstance to prove the guilt of an accused and the prosecution has to establish its case by standing on its own legs."
' Similar view was affirmed in the case of Mehboob-ur-Rehman v. The State (2013 SCMR 106).
It is also very astonishing that when the learned trial court had arrived at the conclusion that the appellant was not connected with the case to the extent of provisions of section 302, P.P.C., how it opted to convict him under the provisions of section 7(a) of the Anti-Terrorism Act, 1997. Similarly when as per contents of the complaint, ingredients of section 107, P.P.C., are not made out, in our humble view, the conviction recorded by the learned trial court under the provisions of section 109, P.P.C., carries no legal sanctity.
22. From the above stated facts and circumstances, it is abundant clear that in this particular case the prosecution version is burdened/loaded with major discrepancies, which create serious doubts in its authenticity. The prosecution version qua mode and manner of occurrence, its witnessing by the prosecution witnesses in the odd hours of night particularly when all the prosecution witnesses have admitted that at the relevant time the appellant was lodged at jail corroborated by the findings of the Investigating Officers regarding plea of alibi taken by the appellant and fully supported by the statement of DW-1, create serious doubts in the prosecution version particularly when it had failed to bring on record any circumstance from which it could be established that who was managed in place of the appellant for his lodging at jail at the relevant time. It is established principle of law that to extend benefit of doubt it is not necessary that there should be so many circumstances. If one circumstance is sufficient to discharge and bring suspicion in the mind of the Court that the prosecution has faded up the evidence to procure conviction then the Court can come forward for the rescue of the accused. Respectful reliance in this regard is placed on the ratio decidendi of august Supreme Court of Pakistan in the case of Tariq Pervez v. The State (1995 SCMR. 1345); wherein it has been held as under:-- "---Art. 4---Benefit of doubt, grant of---For giving benefit of doubt to an accused it is not necessary that there should bemany circumstances creating doubts---If a simple circumstance creates reasonable doubt in a prudent mind about the guilt of accused, then he will be entitled to such benefit not as a matter of grace and concession but as a matter of right."
' Moreover, it is golden principle of law that the Court ought to let off 100 guilty but should not convict one innocent person on the basis of suspicion. Resultantly salutary principle of benefit of doubt is extended in favour of the appellant, hence Criminal Appeal No,596-T/2005 filed by Muhammad Bashir appellant is ACCEPTED IN TOTO as a result whereof conviction and sentence recorded by the learned trial court vide judgment dated 9-12-2004 is set aside and the appellant is ordered to be acquitted of the charge and he is directed to be released forthwith if not required in any other case.
23. Capital Sentence Reference No,3-T/ 2005 forwarded by the learned trial court for confirmation of sentence of death inflicted upon Muhammad Bashir/convict fails, which is answered in NEGATIVE. Death sentence is NOT CONFIRMED.
24. As far as the case of Muhammad Zahid and Gul Nawaz respondents in Criminal Appeal No,8/2005 is concerned, no doubt both of them were duly named in the crime report, however, only role of generalized nature was ascribed to them. During the course of successive investigations carried out by senior police officers, the respondents were found innocent. There was also no motive with the respondents for committing the occurrence. Hence, while taking note of all these facts, the learned trial court was rightly justified in acquitting them of the charge while extending the benefit of doubt particularly when the prosecution evidence qua occular account was thrashed qua presence of the accused at the relevant time. Needless to mention that the accused is favourite child of law and after acquittal presumption of innocence becomes double in favour of the accused and it is established principle of law that there should be extra-ordinary circumstances to warrant interference, which are lacking in this particular case. Respectful reliance in this regard is placed on the ratio decidendi of august Supreme Court of Pakistan in the case of Haji Amann Ullah v. Munir Ahmed and others (2010 SCMR 222).
25. For the foregoing reasons we have not been able to take a contrary view with regard to innocence of the respondents as already taken by the learned trial court. Resultantly, Criminal Appeal No,8 of 2005 filed by the complainant hereby stands DISMISSED.
26. Before parting with the judgment we deem it to be under bounden duty to appreciate the just/proper assistance rendered by learned counsel for the complainant.