MALIK SHAHZAD AHMAD KHAN, J.---Khawar Masih appellant was tried in case F.I.R. No, 252/2012, dated 3.5.2012, registered at Police Station Civil Lines, District Bahawalpur in respect of offences under sections 353, 324, 186, 34, PPC and section 7 of the Anti-Terrorism Act, 1997. After conclusion of the trial, the learned Trial Court vide its judgment dated 28.8.2013 has convicted and sentenced the appellant as under:--- ' Under Section 324, PPC, he was sentenced to undergo ten years' rigorous imprisonment with fine of Rs, 1,00,000/-. In default of payment of fine, he was directed to undergo six months' simple imprisonment.
' Under section 7(h) of Anti-Terrorism Act, 1997, he was sentenced to undergo ten years' rigorous imprisonment with fine of Rs, 1,00,000/- and in default of payment of fine, he was directed to further undergo six months' simple imprisonment ' Under section 353, PPC he was sentenced to undergo two years' rigorous imprisonment.
' Under section 337-F(iii), PPC he was sentenced to undergo two years' rigorous imprisonment on two counts for causing two injuries to Muhammad Younas. He was also directed to pay Rs, 20,000/- as Daman to Muhammad Younas injured on two counts.
' Under section 337-F(iii), PPC, he was sentenced to undergo two years' rigorous imprisonment for causing injury to Muhammad Makki. He was also directed to pay Rs, 20,000/- as Daman to Muhammad Makki injured constable.
' Under section 337-F(v), PPC, he was sentenced to undergo three years' rigorous imprisonment for causing injury to Muhammad Makki. He was also directed to pay Rs, 20,000/- as Daman to Muhammad Makki injured constable.
' All the sentences were ordered to run concurrently. The benefit of section 382-B, Cr.P.C. Was also extended to the appellant.
2. Feeling aggrieved, the appellant has challenged his convictions and sentences through Criminal Appeal No, 334- ATA of 2013.
3. Brief facts of the case as given by the complainant, namely, Safdar Hussain 222/HC (PW2) in this complaint (Exh.PB) on the basis of which the formal FIR (Ex. PA) was chalked out, are that on 3.5.2012, he (complainant) alongwith other police officials was present at Railway Chowk in connection with patrolling duty. At about 12.30 p.m, two persons, came there while riding a motorcycle Honda-125. On suspicion, they were signaled to stop but they did not stop and ran away. The complainant (PW2) alongwith other police officials chased them and when they reached near welcome chowk, both the accused persons started firing at the complainant (PW2) and his other companions. Due to the firing, Muhammad Younas Khan 447/C-II (PW3) and Muhammad Makki 960/C (PW4) suffered injuries. The names of both the accused persons were later on disclosed as Nadeem Mehmood accused (since P.0) and Khawar Masih (appellant).
Accused. Nadeem Mehmood (since P.0) was driving the motorcycle, whereas Khawar Masih (appellant) was sitting on the rear seat. Due to this act of the afore-mentioned accused, fear, panic and harassm ent in general public was created.
4. The appellant namely Khawar Masih was arrested on 4.5.2012 by Sajjad Hussain; SI (not produced). According to the prosecution case, on 8.5.2012, the appellant Khawar Masih after making disclosure, led to the recovery of Motorcycle Honda 125 P-10, which was taken into possession through memo. Exh. PF. On 14.5.2012, the appellant Khawar Masih after making disclosure, led to the recovery of pistol 9MM P-5 with seven live bullets P-14/1-5, which were taken into possession through memo. Exh. PD. On the same day, the appellant Khawar Masih after making disclosure, led to the recovery of pistol 30 bore P-1 with one extra magazine P-2 and after unloading the same four live bullets P-3/1-4, which were taken into possession through memo. Exh.
PC. After completion of investigation, the challan was prepared and submitted before the Court.
The learned Trial Court, after observing legal formalities, as provided under the Code of Criminal Procedure, 1898 framed charge against the appellant namely Khawar Masih on 3.6.2013, to which he pleaded not guilty and claimed trial.
5. In order to prove its case, the prosecution produced 10 witnesses, during the trial. Safdar Hussain 222/HC (PW2) is the complainant of the case, whereas, Muhammad Younas Khan 447-C-II (PW3), Muhammad Makki 960-C (PW4) and Imran Haider 1166/C (PW5) are the witnesses of ocular account.
' The medical evidence was furnished by Dr. Muhammad Akram (PW8).
' Allah Bakhsh, SI (PW6) is the witness of recovery of Pistol 30 bore P-1 and pistol 9MM P-5, which was recovered on the pointation of Khawar Masih appellant, whereas, Muhammad Naveed 672/C (PW7) is the witness of the recovery of motorcycle Honda 125 P-10 which was recovered on the pointation of the appellant. Syed Hamid Shah, Inspector (PW10) is the Investigating Officer of the case.
' Muhammad Ishaq 1874/HC (PW1) and Muhammad Aasim Raza 1227/C (PW9) are the formal witnesses.
' The prosecution produced documentary evidence in the shape of FIR Exh. PA, complaint, Exh. PB, memo. Of recovery of pistol 30 bore P-1 with one extra magazine P-2 and four live bullets P-3/1-4 which were recovered on the pointation of the appellant, Exh. PC, rough site-plan of the place of recovery of pistol 30 bore P1 Exh.PC/1, memo. Of possession of pistol 9MM P-5 with seven live bullets P-14/1-5, which were taken into possession through memo. Exh. PD, rough site-plan of the place of recovery Exh. PD/1, memo. Of possession of clothes of injured Muhammad Makki 960/C (PW4) Exh.
PE, memo. Of possession of Honda Motorcycle P-10, which was recovered on the pointation of the appellant Exh. PF, rough site-plan of the place of occurrence without scale Exh. PF/1, Medico-legal Report of Muhammad Younas Khan 447-C-II (PW3) Exh. PG, Medico-legal Report of Muhammad Makki 960-C (PW4) Exh. PH, memo. Of possession of blood-stained earth in respect of Muhammad Younis Khan 447-C-II (PW3) Exh. PJ, memo. Of possession of blood-stained earth in respect of Muhammad Makki 960/C (PW4) Exh. PK, memo. Of recovery of five empties of pistol 30 bore P-1, four empties of 9mm P-12 (1-4) and eight empties of 30 bore P-13 (1-8) Exh. PM, scaled site-plan of the place of occurrence Exh. PN, Punjab Forensic Science Agency report Exh. PQ and closed its evidence.
' The statement of the appellant u/s. 342, Cr.P.C. Was recorded. He refuted the allegations levelled against him and professed his innocence. While answering to a question that "Why this case against you and why the PWs have deposed against you" the appellant has replied as under:--- "I belong to a poor family. I have no concern with this case. When this occurrence is shown to have been committed, I was already in the illegal custody of police in some other case in which police arrested me on the basis of suspicion. Police tortured me in that case and I sustained sever injuries. In order to avoid the consequences of inquiry, police involved me in this case falsely and I have no concern with co-accused Nadeem Mahmood Butt."
' Neither the appellant made statement on oath u/s. 340 (2), Cr.P.C. Nor he produced any evidence in his defence. The learned Trial Court vide its judgment dated 28.8.2013, found the appellant guilty and convicted and sentenced him as mentioned and detailed above.
6. Learned counsel for the appellant, in support of this appeal, contends that it is evident from the perusal of contents of FIR Exh. PA that the names of the assailants who made firing on police party were not known to the complainant or other eye-witnesses and their names came into the knowledge of the complainant later on but no source of information has been disclosed in the FIR or by the eye-witnesses that as to how the names of the appellant and his co-accused came to their knowledge; that no identification parade of the appellant was ever held in the instant case; that the complaint Exh. PB was written by Sajjad Hussain, SI who also initially investigated the case but he was not produced before the Court; that there is clear contradiction in the prosecution case regarding the date of arrest of the appellant which has created another dent in the prosecution story; that there are material contradictions in the statements of the prosecution witnesses; that according to the prosecution witnesses the distance between the assailants and the injured PWs was ten feet but according to the medical report there was burning and blackening around some injuries of the injured PWs and as such ocular account of the prosecution has been contradicted by the medical evidence; that it is the case of the prosecution that the appellant was also injured during the occurrence but no medico-legal report of the appellant has been brought on the record; that the alleged recovery of motorcycle from the appellant is of no avail to the prosecution because the registration number of motorcycle which was used by the assailants during the occurrence was not mentioned in the FIR; that similarly the evidence of the prosecution qua the alleged recovery of pistols from the appellant and positive report of Punjab Forensic Science Agency Exh. PQ is immaterial because the empties and pistol were deposited together in the agency; that the impugned judgment is result of misreading and non-reading of evidence available on the record; that the prosecution miserably failed to prove its case against the appellant, therefore, this appeal may be accepted and the appellant be acquitted from the charges.
7. Learned DPG for the State opposes this appeal on the grounds that the occurrence in this case took place on 3.5.2012 at 12.30 (noon) and the FIR was promptly lodged on the same day at 02.00 p.m.; that the appellant and his co-accused were specifically named in the FIR with their respective roles of causing injuries to Muhammad Younas Khan 447-C-11 (PW3) and Muhammad Makki 960/C (PW4); that it was a daylight occurrence and the injured prosecution witnesses in their statements before the Court have fully supported the prosecution story narrated in the FIR; that the case of prosecution is further supported by the medical evidence; that the injuries on the persons of Muhammad Younas Khan 447-C-II (PW3) and Muhammad Makki 960/C (PW4) have established the presence of said witnesses at the spot; that the contradictions in 'the prosecution evidence, pointed out by learned counsel for the appellant are minor in nature and the same are not worth of consideration; that the appellant could not establish any mala fide on the part of the police for his false involvement in this case; that the motorcycle which was used during the occurrence was also recovered from the possession of the appellant; that the recovery of pistols from the possession of the appellant and positive report of Punjab Forensic Science Agency Exh. PQ have further corroborated the prosecution case against the appellant; that the prosecution has proved its case against the appellant beyond the shadow of any doubt, therefore, the instant appeal may be dismissed.
8. We have heard the arguments of learned counsel for the, parties and have also gone through the evidence available on the record with their able assistance.
9. According to the prosecution case the occurrence took place on 3.5.2012 at 12.30 p.m. (noon), whereas, the FIR Exh. PA was lodged on the same day at 02.00 p.m. It is evident from the contents of the FIR that the assailants who made firing on the police party and caused injuries to Muhammad Younas Khan 447-C-II (PW3) and Muhammad Makki 960/C (PW4) were not known to the complainant or other eye-witnesses. It is so mentioned in the FIR that the name of the assailants came into the knowledge of police party later on but no source of information has been disclosed therein that as to how the complainant party came to know about the name of the appellant and his co-accused. During the cross-examination of the complainant Safdar Hussain 222/HC (PW2) he stated that he came to know about the names of the accused persons when they were arrested and according to the statement of Syed Hamid Ali Shah, Inspector (PW10) the appellant was arrested on 4.5.2012. We have also gone through the police record and found that in application for judicial remand of the appellant his date of arrest has been mentioned as 8.5.2012. There is no mention of the arrest of the appellant in the FIR, therefore the above-mentioned statement of the complainant Safdar Hussain 222/HC (PW2) that he came to know about the names of the accused persons when they were arrested has created dent in the prosecution case because as per above- mentioned statement of Syed Hamid Ali Shah, Inspector (PW10) the appellant was arrested on 4.5 2012, whereas, the name of the appellant was already mentioned in the FIR which was lodged on 3.5.2012 at 02.00 p.m. It is also noteworthy that, the features and descriptions of the assailants were also not mentioned in the FIR. Similarly the injured eye-witness of the prosecution namely Muhammad Makki 960/C (PW4) stated that he came to know about the names of the accused persons, after their arrest. He further stated during his cross-examination that in his statement under section 161, Cr.P.C. He had not got recorded the names of accused persons. Similarly the other injured eye-witness namely Muhammad Younas Khan 447-C-H (PW3) has stated during his cross-examination that when he regained his senses the name of the accused persons came to his knowledge. He further stated during his cross-examination that he cannot tell the source through which he came to know about the names of the accused persons. Both the above- mentioned prosecution witnesses have stated that the appellant was arrested on the day of occurrence but their evidence is contradicted by Syed Hamid Shah, Inspector (PW10) and the police record (application for physical remand), according to which, the appellant was arrested on 4.5.2012 and 8.5.2013, respectively. Sajjad Hussain who wrote the FIR Exh. PA and arrested the appellant was given up by the prosecution being not available.
10. We have also noted that according to the statement of another eye-witness namely Imran Haider 1166/C (PW5) the motorcycle of the accused persons had fallen on the ground at the time of occurrence, whereas, according to the statement of complainant Safdar Hussain 222/HC (PW2) the accused persons fled away on the motorcycle on the day of occurrence.
' As per statement of injured eye-witness namely Muhammad Younas Khan 447/C-II (PW3) the motorcycle of the accused persons did not fall on the ground at the time of occurrence and as such there are contradictions about the manner of occurrence in the statements of prosecution witnesses.
11. Now coming to the medical evidence of the prosecution we have noted that according to the statement of Safdar Hussain 222/HC (PW2) the distance between the appellant and him at the time of occurrence was ten feet. Similarly Imran Haider 1166/C (PW5) has stated in his examination-in-chief that the police party was at a distance of 8/10 feet at the time of occurrence but according to the statement of Dr. Muhammad Akram (PW8) blackening was present around injury No, 1 of Muhammad Makki 960/C (PW4) and blackening and tattooing was also present on injury No, 3 of the above-mentioned injured. He further stated during his cross-examination that the above-mentioned injuries were caused from a distance of less than two feet and as such ocular account of the prosecution has further been contradicted by the medical evidence furnished by Dr. Muhammad Akram (PW8). It is also noteworthy that as per prosecution case one of the assailants whose name was later on disclosed as Khawar Masih (appellant) was also injured during the occurrence due to the firing of his co-accused and Syed Hamid Shah, Inspector (PW10) has stated that the appellant was admitted in the hospital when he initially interrogated him but surprisingly no Medico-legal Report of the appellant regarding sustaining his injury during the occurrence has been brought on the record by the prosecution. As there is conflict between ocular account and medical evidence of the prosecution, therefore, benefit of doubt arises in favour of the appellant. Reference in this respect may be made to the cases of Barkat Ali versus Muhammad Asif and others (2007 SCM R 1812) and Muhammad Ishaque versus The State (2007 SCM R 108).
12. Insofar as the recovery of motorcycle Honda 125 P-10 used in the occurrence on the pointation of the appellant is concerned, we have noted that no number of motorcycle which was used during the occurrence was mentioned in the FIR. Moreover, the recovery witness of the motorcycle P-10 namely Muhammad Naveed 672/C (PW7) has stated during his cross-examination that he does not know the name of owner of the house from where the recovery was affected. Under the circumstances, the alleged recovery of motorcycle P-10 from the appellant is of no avail to the prosecution.
13. Insofar as the recovery of pistols on the pointation of the appellant and positive report of Punjab Forensic Science Agency Exh. PQ is concerned, it is noteworthy that the occurrence took place on 3.5.2012 and the empties were recovered on the same day and according to the statement of Allah Bakhsh, SI (PW6), pistols P-1 and P-5 were recovered on the pointation of the appellant on 14.5.2012 but we have noted that according to the report of Punjab Forensic Science Agency Exh. PQ the pistols and empties were deposited together on 8.6.2012 in the Office of above-mentioned agency.
As the empties and pistols were deposited together with considerable delay from the dates of their recoveries, therefore, the prosecution evidence qua recovery of pistol P-1 and positive report of Punjab Forensic Science Agency Exh. PQ has become immaterial. Reference in this respect may be ,made to the cases of Barkat Ali versus Muhammad Asif and others (2007 SCM R 1812), Ali Khan versus The State (1999 , SCMR 955), Ali Sher and others versus The State (2008 SCM R 707).
14. Although it has been argued by learned DPG that the prosecution case has been proved through the evidence of injured eye-witnesses but in our humble view the injuries on the body of an eye-witness does not stamp him with the truth. Reference in this regard may be made to the case of Khuda Dad versus Ghulam Qasim and six others (PLJ 2001 Cr.C. (Lahore) 499). It was also argued by learned DPG that there is no enmity of the prosecution witnesses with the appellant, therefore, their statements may be relied upon but it is by now well-settled that non- existence of enmity between the accused and the prosecution witnesses does not mean that the evidence of such witnesses should be relied upon blindly. Reliance in this context may be placed upon the cases reported as Ghulam Mustafa alias Ziau versus The State (PLD 1991 SC 718) and Hawn alias Harooni versus The State and another (1995 SCM R 1627).
' As mentioned earlier, there are material contradictions in the statements ,of prosecution witnesses and the ocular account of the prosecution is contradicted by the medical evidence furnished by Dr. Muhammad Akram, therefore, the evidence of above-mentioned eye-witnesses cannot be relied upon blindly without independent corroboration which is very much lacking in this case.
15. We have considered all the aspects of this case and have come to this irresistible conclusion that the prosecution could not prove as case against the appellant beyond the shadow of doubt. It is by now well-settled law that if there is a single circumstance which creates doubt regarding the prosecution case, the same is sufficient to give benefit of doubt to the accused, whereas, the instant case is replete with number of circumstances which have created serious- doubt about the prosecution story. In Tariq Pervez versus The State' (1995 SCM R 1345), the Hon'ble Supreme Court of Pakistan, at page 1347, was pleased to observe as under:--- ' The concept of benefit of doubt to an accused person is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts.
If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right.'
' The Hon'ble Supreme Court of Pakistan while reiterating the same principle in the case of Muhammad Akrani versus ' The State' (2009 SCM R 230), at page 236, observed as under:--- 13...........It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCM R 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right."
16. In the light of above discussion, we are of the view that as the prosecution has failed to prove its case against the appellant beyond the shadow of doubt, therefore, we accept the Criminal Appeal No, 334-ATA of 2013 filed by Khawar Masih appellant, set aside his convictions and sentences recorded by the learned Judge, Anti-Terrorism Court, Bahawalpur vide judgment dated 28.8.2013 and acquit him of the charges by extending him the benefit of doubt. Khawar Masih appellant is in custody, he be released forthwith if not required in any other case.