SADAQAT ALI KHAN, J.---The instant Criminal appeal has been filed by Muhammad Shahid present appellant against the judgment dated 12.07.2006 passed by Special Judge Anti-Terrorism Court No.III, Lahore according to which present appellant was convicted and sentenced as under: - "Muhammad Shahid was convicted under section 148, P.P.C. And sentenced to two years' R.I along with fine Rs.5,000/- and in default thereof further undergo one month S.I.
' He was also convicted under section 7 (a) ATA 1997 read with section 302, P.P.C. And sentenced to life imprisonment along with fine Rs.50,000/- and in default thereof further undergo six months' S.I.
' He was also convicted under section 7 (h) ATA 1997 and sentenced to ten years' R.I along with fine Rs.10,000/- and in default thereof further undergo two months' S.I".
' All the sentences awarded to the present appellant were ordered to be run concurrently. Benefit of section 382-B, Cr.P.0 was also extended to the appellant by the learned trial court in case FIR No. 811 dated 22.11.2005 under sections 302, 148/149, P.P.C. And 7 ATA 1997 Police Station Shadbagh, Lahore.
2. The facts of the case has been stated by Muhammad Aslam/complainant PW-7 real father of Afzal Rehman alias Chan deceased in his statement before the learned trial court and same statement is hereby reproduced for narration of the facts: - "On 22.11.2005, at about 07:00 pm I came back from my work and reached near my home near a mosque. My son namely Afzal Rehman alias Chand has a shop of rent A Motorcycle situated in the Karam Elahi Mosque. I was standing along with Muhammad Shafique PW and Muhammad Yasin in front of rented shop. Five persons namely Shahid, Shani Gujjar, Bilal Butt, Adnan alias Gochi and Faisal came at the shop of my son. Shahid entered in the shop and asked Sohail Saeed Butt to come out of the shop as they had come to give the lesson to Afzal Rehman alias Chand for demanding rent of motorcycle from Shani Gullar. Shani Gujjar fired a shot with his pistol which hit on the left side of the chest of my son Afzal Rehman. Then Faisal accused fired a shot with his pistol which hit Afzal Rehman on the right flank of my son. Then Bilal Butt accused fired a shot with his pistol which hit on the right wrist of my son. Then Adnan alias Fouji fired a shot with his pistol which hit on the left wrist of Afzal Rehman deceased. I raised hue and cry. The accused persons while firing in the air fled away from the place of occurrence. Then Muhammad Ali PW came there in a Car and I, Ch. Shafique PW and Muhammad Ali PW took Afzal Rehman to Maya Hospital for treatment. The doctors told us that the injured Afzal Rehman has died on the way. Hafiz Aneeq SI of PS Shadbagh reached in the Emergency Ward of the Mayo Hospital, Lahore, where my statement Ex.PA was recorded by Hafiz Aneeq SI which bears my signatures".
3. After the completion of the investigation, Challan was submitted in the trial court and trial court after observing the legal formalities provided under the Criminal Procedure Code framed the charge on 05.04.2006 against appellant who pleaded not guilty and claimed trial.
4. Prosecution evidence was summoned and prosecution produced Saghir Ahmad AS! PW-1, Dr. Nadeem Ahmad, Demonstrator PW-2, Rashid Ali constable PW-3, Muhammad Maalik constable PW-4, Ch. Zia ud Din Draftsman PW-5, Muhammad Ashraf H.0 PW-6, Muhammad Aslam PW-7, Muhammad Shafique PW-8, Hafiz Muhammad Aneeq SI PW-9, Ajmal Aslam PW-10, Muhammad Saeed Anwar Inspector PW-11, Ghulam Abbas Inspector PW-12 whereas PWs namely Muhammad Sarwar constable Muhammad Sohail Saeed Butt, Yasin, Muhammad Ali, and Shabbir Ahmad were given up by the prosecution being unnecessary and after tendering in 'evidence complaint Ex.PA, FIR Ex.PA/1, postmortem report Ex.PB, recovery memo of last worn clothes of the deceased Ex.PC, receipt of receiving the dead body Ex.PD, scaled site plan Ex.PE, recovery memo of empty Ex.PF, recovery memo of blood stained earth Ex.PG, inquest report Ex.PH, injury statement Ex.PH1/1, rough site plan Ex.PJ, report of Chemical Examiner Ex.PK, report of Serologist Ex. P1 closed the evidence.
5. Medical evidence was furnished by Dr. Nadeem Ahmad, Demonstrator, Forensic Medicine Deptt, Mayo Hospital, Lahore PW-2 who stated that on 22.11.2005, he conducted postmortem examination on the dead body of Afzal Rehman deceased and observed as under:- "EXTERNAL APPEARANCE: ' It was a dead body of .a male appearing to be of stated age, with good built, claded in gray check shirt, black vest and blue jeen. Length of the body was 167 cm. Rigor mortis was fully developed and PM. Staining was present in between areas of contact on back side of the dead body.
' On examination following injuries were noted.
1-A. A fire arm wound of entry 0.7 x 0.7 cm on right side of abdomen on front, 16 cm below nipple and 14 cm to right of midline.
1-B A firearm wound of exit lx1 cm on back of left side, 12 cm from midline and 14 cm from anterior superior iliac spine.
2. A firearm wound of entry, 2x1 cm incise of left side of chest, 4 cm from left nipple and 11/2 cm from axilla. The track of bullet was directed backward and downward. A metallic piece was recovered from the muscles of back.
3. A firearm wound of entry 2x1 cm situated on left arm, 8 cm above wrist 8 cm from elbow joint.
The track of bullet was directed backward and upward. Track traced and metallic piece was recovered from posterior aspect of elbow.
4. A firearm would of exit 1 x 1 cm, 8 cm above right wrist joint 19 cm below elbow.
5. Abrasion 2x12 cm above left eye brow on forehead.
6. Abrasion on cheek 3 x 4 cm below later angle of left eye.
7. Abrasion 3x4 cm on left side of chin.
EXTERNAL EXAMINATION.
' Following internal findings were noted. Fracture of 5th rib on left side injury to left pleural cavity was full of blood. The left lung had perforation. A perforation in heart in left ventricle. One perforation in jejunum and one perforation in transfers colon. The stomach was semi full and bladder was full. The rest of organs were healthy.
' OPINION ' The above mentioned injuries were caused by firearm and were antimortem in nature. Injury Nos.1-A and 1-B caused severe damage to heart and left lung, leading to petfuse haemorrhage and haemothorax leading to death. The above stated injuries were sufficient to cause death in ordinary course of nature. The death was occurred within few minutes and the postmortem was conducted within 24 hours".
5. Statement of the present appellant under section 342, Cr.P.C. Was recorded in which he refuted the allegations leveled against him and appellant did not opt to record his own statement under section 340(2), Cr.P.0 and also did not produce the defence evidence and in reply to question "why this case was registered against you and why the PWs have deposed against you? Replied as under: -- "I was a friend of deceased Afzal and I was also friend of the culprits. I did not participate in this occurrence. I was present near the place of occurrence. The complainant wanted me to become a witness for the prosecution but when I refused to do so, I was falsely implicated in this case by the complainant. Neither I have any pistol, as is alleged by the prosecution nor the same was recovered from me even after my arrest, which shows that 1 was falsely implicated in this case.
The private prosecution witnesses under the influence of the complainant deposed against me".
6. After conclusion of the trial, learned trial court convicted the present appellant Muhammad Shahid with above stated sentences. Hence this appeal.
7. Learned counsel for the appellant contended that:-
(i) the judgment of the trial court dated 12.07.2006 is against law and facts on the file and is liable to be set-aside;
(ii) it is submitted that the story of the prosecution is improbable and not believable;
(iii) it is further submitted that prosecution has failed to prove its case against the appellant beyond shadow of doubt and the learned trial court wrongly convicted present appellant in surmises and conjectures;
(iv) that the prosecution has failed to prove its case against the present appellant as there are many major discrepancies in the statements of the PWs and learned trial court has convicted the appellant on the basis of surmises and conjectures;
(v) it is further contended that motive is not attributed to the present appellant;
(vi) and lastly submitted for the acceptance of the appeal of the present appellant;
8. On the other hand, learned DPG has vehemently opposed the appeal and requested for dismissal of the same and submitted that:-
(i) prosecution has proved its case beyond any shadow of doubt against the appellant with solid evidence and prayed for the dismissal of the present.
9. We have heard the learned counsel for the parties and perused the record.
10. The detail of prosecution case as mentioned in the FIR Ex.PA/1 recorded on the written application Ex.PA statement of Muhammad Aslam complainant PW-7 has already been given in paragraph No. 2 of this judgment, therefore, there is no need to repeat the same to avoid the duplication and repetition.
11. Admittedly, Muhammad Shahid present appellant has not been attributed any injury on the person of Aizal Rehman alias Chand deceased. Muhammad Aslam complainant PW-7 has stated in his statement Ex.PA regarding role of the present appellant as under:- {{URDU TEXT}}
12. Muhammad Aslam complainant PW-7 while appearing before the trial court has not stated that Muhammad Shahid present appellant had made an ineffective fire upon Sohail Saeed Butt, rather, he stated in his statement before the trial court regarding role .Of the present appellant as under:-- "Shahid entered in the shop and asked Sohail Saeed Butt to come out if the shop as they had come to give the lesson to Afzal Rehman alias Chan for demanding rent of motorcycle from Shani Gujjar".
13. Likewise, Muhammad Shafique eye-witness while appeButt to come out of the shop as they had come t give the lesson to Afzal Rehman alias Chan for demanding rent of motorcycle from Shani Gullar".aring before the trial court as PW-8 stated in his statement regarding role of the present appellant as under:-- 'Shahid Saeed accused on his arrival at the place of occurrence showed his pistol to Sohail a friend of deceased who was sitting with him and made it clear openly that they have come to teach a lesson to deceased to demand rent of motorcycle, therefore, you should run away from there and in order to frighten him made a shot in air"
14. Ajmal Aslam real brother of Afzal Rehman deceased PW-10 while appearing before the trial court stated in his statement regarding role of the present appellant as under:-- "Shahiad accused called Sohail Saeed Butt out from the shop and told to leave the place as they had come to teach a lesson to Afzal Rehman for demanding rent of motorcycle from Shani Gujjar.
Then, Shahid accused took out his pistol and made a shot upon Sohail Saeed which did not hit him".
15. In view of the above, there is major discrepancies in the statements of above stated three PWs regarding the role of the present appellant which cannot be ignored. Further, Sohail Saeed Butt did not appear before the trial court to support the version of the prosecution to the extent of role of the present appellant. Rather, he has been given up on the request of the prosecution by the trial court on 17.6.2006 during the trial.
Sohail Saeed Butt was the most important and relevant witness rather was an aggrieved person to the extent of role of the present appellant, his evidence was the best piece of the evidence which prosecution could have relied upon for proving the case to the extent of present appellant but for the reasons best known, his evidence was withheld and he was not examined. So a presumption under Illustration (g) of Article 129 of Order 1984, can fairly be drawn that had Sohail Saeed Butt the eye-witness been produced before Court for his statement, his evidence would have been unfavourable to the prosecution. Reliance is placed on case titled Riaz Ahmed v. The State (2010 SCM R 846) in which Hon'ble Supreme Court of Pakistan has held as under:-- "One of the eye-witnesses Manzoor Hussain was available in the Court on 29.7.2002 butthe prosecution did not examine him, declaring him as unnecessary witness without realizing the fact that he was the most important, only serving witness, being an eye-witness of the occurrence.
Therefore, his evidence was the best piece of the evidence, which the prosecution could have relied upon for proving the case but for the reasons best known, his evidence was withheld and he was not examined. So a presumption under illustration (g) of Article 129 of Qanum-eShahadat Order, 1984 can fairly be drawn that had the eye witness Manzoor Hussain been examined in the Court his evidence would have been unfavourable to the prosecution"
16. Muhammad Aslam complainant PW-7 stated in his statement Ex.PA recorded by him for registration of the FIR Ex.PA/1 regarding the motive of the occurrence as under:-- {{URDU TEXT}}
17. The above motive is not attributed to the present appellant and same is attributed to Zeshan alias Shani (since P.O.).
18. Muhammad Saeed Anwar Inspector/I.O. Of this case PW-11 admitted in cross-examination that according to him appellant had no pistol at the time of occurrence. Further admitted in cross- examination that according to his investigation it proved that accused Shahid did not make firing.
19. Considering above stated facts, we entertain serious doubts in our minds regarding participation of the present appellant in the occurrence. The case of the prosecution to the extent of present appellant is not free from doubt and for giving the benefit of doubt it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled for the same not as a matter of grace and concession but as a matter of right.
Reliance is placed on case titled Muhammad Akram v. The State (2009 SCM R 230) in which Hon'ble Supreme Court of Pakistan has observed at page 235 as under:-- "the nutshell of the whole discussion is that the prosecution case is not free from doubt. 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 SCMR 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".
20. For the foregoing reasons, we are persuaded to hold that prosecution has badly failed to bring home guilt of the appellant to the hilt and the learned trial court was not justified in convicting him.
Resultantly, salutary principle of benefit of doubt is extended in favour of the appellant. The Criminal Appeal No.1234 of 2006 filed by Muhammad Shahid present appellant is accepted and conviction and sentences awarded by the learned trial court through judgment dated 12.07.2006 against him is set-aside and the appellant is ordered to be acquitted of the charge in case FIR No. 811 dated 22.11.2005 under sections 302, 148/149, P.P.C. And 7 ATA 1997 Police Station Shadbagh, Lahore. He is on bail. His surety stands discharged.
21. Before parting with this judgment, it is observed that Zeeshan alias Shani Gujjar, Muhammad Adnan alias Fauji, Muhammad Faisal and Muhammad Bilal Butt are P.0s, their case shall be decided by the learned trial court on its own merits without being influenced from this judgment whenever they were arrested.