ABDUL SAMI KHAN, J.---Through this criminal appeal under section 410, Cr.P.C. read with Section 25 of the Anti-Terrorism Act, 1997, Khurram Shehbaz appellant has challenged the conviction And sentences awarded to him by the learned Judge Anti-Terrorism Court-II, Multan in case FIR No.75/2011 dated 14.03.2011 for the offences under Sections 302, 324, 353, 186, 34, P.P.C. And Section 7 of the Anti-Terrorism Act, 1997, registered at Police Station Farid Nagar, District Pakpattan, vide judgment dated 24.02.2012, the same are reproduced as under:-- >. Under section 302(b), P.P.C. read with section 34, P.P.C. to undergo imprisonment for life with direction to pay Rs.1,00,000/- as required under section 544-A, Cr.P.C. And in default thereof to further undergo 06-months' S.I. >. Under Section 7(a) of Anti-Terrorism Act; 1997 read with section 34, P.P.C., to undergo imprisonment for life with fine of Rs.50,000/-, in default thereof to further undergo 01-year's S.I. >. Under section 186, P.P.C. read with section 34, P.P.C. to undergo 03 months' S.I.
2. Brief facts of the case according to FIR (Ex.PA) are that on 14.03.2011 at about 09:40 p.m. Khalil-ur- Rehman constable/complainant along with Falak Sher constable while armed with rifle SMG And wireless set were on patrol duty in the area of Police Station City Pakpattan, when they reached near Khurshid factory, they saw three unknown suspects. They stopped them, Falak Sher started checking one of the suspects, while the complainant remained sitting on motorcycle. In the meanwhile, the person who was standing behind Falak Sher fired at him, which hit on his shoulder And he fell down. On hearing the voice of firing, Muhammad Asghar And Muhammad Akram constables, who too were on patrol duty, also reached there. They identified the accused in the light of motorcycle, chased them And also fired in air, but the accused succeeded to flee away.
Falak Sher constable was shifted to District Headquarter Hospital, Pakpattan where he succumbed to the injuries.
3. After registration of FIR, the investigation of the case was conducted by Talib Hussain S.I., Iftikhar Hussain S.I. And Muhammad Abdullah S.I. After completion of the investigation, the report under Section 173, Cr.P.C. was submitted in the learned trial Court. At the commencement of trial, after observing legal formalities, learned trial Court framed charge against the accused, to which he pleaded not guilty And claimed trial. To prove its case, the prosecution produced as many as eleven witnesses during trial before the learned trial Court. Ocular account was furnished by Khalil- ur-Rehman constable/complainant (PW-6) And Asghar Ali constable (PW-7). Talib Hussain S.I.
(PW-8), Iftikhar Hussain S.I. (PW-9) And Muhammad Abdullah S.I. (PW-10) testified about the investigation conducted by them. Medical evidence was furnished by Dr.Munir Ahmad (PW-3) who conducted postmortem examination on the dead body of Falak Sher deceased. Muhammad Yasin head constable (PW-1) is the scribe of FIR (Ex.PA), Sarfraz Ahmad (PW-2) identified the dead body of Falak Sher deceased at the time of its postmortem examination, Ghulam Mustafa (PW-5) prepared site plan (Ex.PD), Haq Nawaz (PW-4) stated that he heard the accused talking about the incident, while Mr. Khalil Ahmad Asim (PW-11) deposed regarding identification parade of the appellant conducted under his supervision. Rest of the prosecution witnesses, more or less, are formal in nature.
4. After completion of the prosecution evidence, the statement under section 342, Cr.P.C. of the appellant was recorded by the learned trial Court. He professed innocence And pleaded false implication in the case. He did not opt to get record his statement under section 340(2), Cr.P.C. And did not produce Any witness in his defence.
5. At the end of trial, after thrashing entire evidence And evaluating arguments advanced by learned counsel for the parties in support of their respective versions, the learned trial court found the prosecution's case against the appellant to have been proved beyond reasonable doubt, convicted And sentenced him as mentioned And detailed in paragraph No.1 above. Hence, the instant appeal before this Court.
6. Learned counsel for the appellant, in support of this appeal, contends that the judgment passed by the learned trial Court is against law, facts And material available on the file; the appellant is absolutely innocent, he has been falsely implicated in this case merely on the basis of suspicion; he is not named in the FIR And even during investigation as well as during trial before the learned trial Court, no avert act has been attributed to the appellant by the alleged eye-witnesses, who otherwise were maneuvered by the police in order to create eye-witness account against the appellant; without conceding, if it is admitted that the appellant was present at the spot at the time of occurrence, even then no offence is made out against him; so far as the question of common intention is concerned, the appellant was admittedly not armed at the time of occurrence, which took place at the spur of moment, so the provision of section 34, P.P.C. do not attract in this case; even otherwise, there are lot of discrepancies between the statements of prosecution witnesses recorded by the learned trial Court during trial, so the conviction And sentences of the appellant cannot be maintained on the basis of their statements; both the alleged eye-witnesses are police officials, they have implicated the appellant in the instant case only to show efficiency of their department And their evidence cannot be relied upon without strong And independent corroboration which is very much lacking in this case; the identification parade has not been conducted in accordance with law, so the same bears no force; the prosecution has miserably failed to prove its case against the appellant beyond the shadow of doubt; thus, this appeal be accepted And the appellant be acquitted of the charge.
7. On the other hand, learned District Public Prosecutor appearing on behalf of the State opposes the submissions made by learned counsel for the appellant And submits that the matter was reported to the police without Any element of deliberation And consultation; by lodging FIR against unknown accused, the complainant has shown his bona fide by not involving Any innocent person in this case; both the eye-witnesses had seen the appellant at the place of occurrence, therefore, they duly identified him during the course of his identification parade; the complainant And the- PWs had no enmity,or grudge against the appellant to falsely implicate him in this case of heinous nature And even otherwise, the defence has not brought on record Any ulterior motive of the complainant side to falsely involve the appellant in this case; the ocular account is duly corroborated by the identification parade of the appellant, he shared common intention with the main accused to commit murder of a police personnel who was on patrolling duty, so he does not deserve Any leniency; the appeal filed by the appellant lacks force, hence the same be dismissed.
8. After hearing the arguments of learned counsel for the parties and examining the record with their able assistance, it has been observed by us that the appellant is not named in FIR (Ex.PA) And he was subsequently implicated in the instant case regarding the murder of a Police constable namely Falak Sher deceased. In short, the case of the prosecution is that Subah Sadiq (since convicted) fired at Falak Sher deceased And the appellant shared common intention of committing the instant occurrence with the above named convict. In order to prove its case against the appellant, the prosecution has heavily relied on the Statements of Khalil-ur-Rehman complainant (PW-6) And Asghar Ali (PW-7). Both PW-6 And PW-7 are police constables And both of them claimed that the appellant was accompanying Subah Sadiq convict, who fired at the deceased. Both these witnesses, however, did not attribute any role to the present appellant.
So far as the identification of the appellant is concerned, According to the stance of prosecution only Khalil-ur-Rehman constable complainant (PW-6) was accompanying Falak Sher deceased at the time of occurrence, while Asghar Ali constable (PW-7) attracted to the spot after hearing the noise of firing. They both participated in the identification parade of the appellant And identified him during the identification proceedings. However, we have serious reservations on the mode And manner in which the appellant was put to the test of identification parade. Khurram Shehbaz appellant was confined in Camp Jail, Lahore when Muhammad Abdullah S.I./I.O. (PW-10) shifted him from Lahore on 26.09.2011 and then he was detained in the lock-up of Police Station Farid Nagar for one day. As already discussed above, Khalil-ur-Rehman complainant (PW-6) And Asghar Ali (PW-7) both were police officials And they remained posted at Police Station Farid Nagar. PW-10 admitted in his cross-examination that he did not mention in the case diaries that the face of the appellant was covered at the time when he was confined in police lock up on 26.09.2011. Thereafter, on the next day, the appellant was brought by the Investigating Officer And other police officials to Multan from police Station Farid Nagar, District Pakpattan And here again nothing is available on record suggesting that the face of the appellant was muffled at the time when he was being shifted from District Pakpattan to Multan for his judicial remand. In these eventualities, possibility cannot be ruled out of consideration that Khurram Shehbaz appellant was exposed to Khalil-ur-Rehman complainant/constable (PW-6) And Asghar Ali constable (PW-7) before his identification by these witnesses during identification parade. In this regard, the appellant has also raised objection before Khalil Ahmad Asim (PW-11) that he was shown to the afore-mentioned witnesses before his identification parade.
9. Although, we are not inclined to rely on the evidence of identification parade, however, even if the whole prosecution story is admitted as correct and it is believed that the appellant was accompanying Subah Sadiq accused (since convicted) at the time a occurrence, even then the prosecution is under obligation to prove the factum of common intention as covered by section 34, P.P.C. In this regard, we would like to reproduce Section 34, P.P.C. as under:-- "When a criminal act is done by several persons, in furtherance of the common intention of all, each of such person is liable fa that act in the same manner as if it were done by him alone."
Bare reading of the above section shows that the criminal act should bi done by several persons in furtherance of their common intention meaning thereby each And every accused has to take part in the commission of crime. Mere presence of An accused at the spot at the time of occurrence along with co-accused who commits the offence is no sufficient to attract the provisions of Section 34, P.P.C. and there must be some proof of overt act on the part of each accused, done in furtherance of common intention.
The facts and circumstances of the case clearly indicate that it F was not a pre-planned And premeditated incident. Admittedly, the occurrence took place when Falak Sher deceased stopped Subah Sadiq accused (since convicted), who fired at the deceased And ran away. So far as the contention of learned Law Officer that the appellant was accompanying the main accused And he too fled away from the spot after the occurrence is concerned, we may observe here that in such eventuality, people do try to escape from the scene of occurrence in order to avoid their indulgence in such like cases. Even otherwise, nothing is available on record which could suggest that the appellant escaped from the spot in order to avoid his arrest as admittedly he was not required by the police in Any criminal case at the time of occurrence. Moreso, according to prosecution's own case the appellant was not armed with Any kind of weapon And there is also no allegation against him that he instigated or commanded the main accused/convict to commit this occurrence. Under the given circumstances, we are of the considered view that it was not,a premeditated incident And as a matter of fact, the occurrence took police at the spur of moment, which of course excludes the attraction of section 34, P.P.C. in this case, because, mere presence of a person at the spot does not necessarily attract the said provision of law And vicarious liability cannot be visited unless there is some strong circumstance to show common intention which is very much lacking in this case. Reference is made to the verdict of the Hon'ble Supreme Court of Pakistan in the case Hassan Din v. Muhammad Mushtaq and 2 others (1978 SCM R 49). To further fortify our view, reliance is also placed on Muhammad Yaqoob Sub-Inspector v. The State (PLD 2001 SC 378), wherein, at page 383, the Apex Court was pleased to observe as under:-- "... It was held few decades earlier by this Court which still holds the field that 'it is well-established that a common intention presupposes prior concert. It requires a pre-arranged plan because before a man can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention of them all. The inference of common intention should never be reached unless it is a necessary inference deducible from the circumstances of the case. All that is necessary is either to have direct proof of prior concert, or proof of circumstances which necessarily lead to that inference or the incriminating facts must be incompatible with the innocence of the accused and incapable of explanation on any other reasonable hypothesis. (1955) SCR 1083, (1955), Cr.LJ F 572)".
The above-referred view was reiterated in a latest judgment of the Hon'ble Supreme Court of Pakistan in the case of Shakeel and 5 others v. The State (PLD 2010 Supreme Court 47), wherein, at page 59, the Apex Court has been pleased to observe as under:-- "...It is worth-mentioning that to have some intention independently each other is not to have common intention. Common intention requires a pre-arranged plan. There must be a prior meeting minds. (emphasis provided). Several persons can simultaneously attack a man may have the same intention, namely, the intention to kill and each can individually inflict a separate fatal blow and yet none would have the common intention as there was no prior meeting of mind to form a prearranged plan. In a case like that each would be individually liable for whatever injury be caused but none could be convicted for the act of the other vicariously (PLD 1956 SC Ind.
176)".
10. The above discussion has led us to the conclusion that the appellant cannot be made liable for the acts And omissions of his co-accused namely Subah Sadiq (since convicted). Even otherwise, the ocular evidence of Khalil-ur-Rehman complainant/ constable (PW-6) And Asghar Ali constable (PW-7) could not get support from Any independent corner so as to prove the case of the prosecution against the appellant. The case to the extent of appellant is of doubtful nature And the conviction And sentence of the appellant under the above circumstances cannot be maintained.
Law is settled on the point that the accused cannot be convicted merely on the basis of his presence at the spot especially when he did not share common intention with the main culprit.
Similarly, it is well settled by the Apex Court of the country that in case of doubt arising out of the prosecution case, its benefit must go to the accused not as a matter of grace, but of right. The same proposition came up for consideration in the case reported as Muhammad Akram v. The State (2009 SCM R 230), wherein, at page 236, the Hon'ble Supreme Court of Pakistan, held as under:-- "13. 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".
(emphasis supplied) (sic)
11. It is hardly necessary to reiterate that the prosecution is obliged to prove its case against the accused beyond Any reasonable doubt And if it fails to do so, the accused is entitled to the benefit of doubt. It is also firmly settled that if there is an element of doubt as to the guilt of the accused, the benefit of that doubt must be extended to the accused instead of the prosecution. Reliance can be placed on the case of "Waqar Nazir and others v. The State" (2007 SCM R 661). The rule of benefit of doubt, which is described as the golden rule, is essentially a rule of prudence which cannot be ignored while dispensing justice in accordance with law. So, after considering all the circumstances, this Court is of the considered view that the prosecution has failed to prove its case against the appellant beyond Any shadow of doubt, therefore, this appeal is allowed, the impugned judgment is set-aside And the appellant is acquitted of the charges leveled against him in the instant case. He is behind the bars And shall be released forthwith if not required to be detained in Any other case.