' SAYYED MAZAHAR ALI AKBAR NAQVI, J.---Muhammad Sajid alias Shehzad son of Munir Ahmed, resident of Chak, No.123/JB, Sidhupura, District Faisalabad, appellant along with Muhammad Hayat, Sabir Hussain, Ghulam Mohy-ud-Din and Kamal Khan (all since acquitted) was involved in case FIR No.984/2009, dated 29.09.2009, offence under sections 203, 353, 186, 148, 149, P.P.C., read with section 7 of the Anti-Terrorism Act, 1997, and section 13 of Pakistan Arms Ordinance (XX) of 1965, registered with Police Station Ghulam Muhammad Abad, Faisalabad, and was tried by learned Judge, Anti-Terrorism Court, Faisalabad. The learned trial court seized with the matter in terms of judgment dated 01.04.2010 convicted and sentenced the appellant as under:- Under Section 316, P.P.C., sentenced to undergo R.I. For fourteen years with direction to pay Diyat amount of Rs.12,00,000/- to the legal heirs of the deceased Muhammad Ashfaq SI. The convict shall remain in jail till the payment of Diyat amount.
' Under Section 353 , P. P.C. , sentenced to undergo R.I. For two years.
' Under Section 186, P.P.C., sentenced to undergo R.I. For three months.
' Under Section 13 of Pakistan Arms Ordinance (XX) of 1965, sentenced to undergo R.I. For five years.
' All the sentences inflicted upon the appellant were directed to run concurrently and benefit of Section 382-B, Cr. P. C. Was also extended in his favour.
2. The appellant has assailed his conviction and sentence by means of Crl. Appeal No.890/2010 while Rehana Ameen/daughter of the deceased filed Crl. Appeal No.1080/2010 seeking conviction of the accused under Section 302(b), P.P.C. As both 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 disclosed in the FIR (Exh.PA/1) lodged on the complaint (Exh.PA) of Muhammad Aslam, S.I. (PW-7) is that on 29.09.2009 at 3:00 p.m. The complainant along with Muhammad Ashfaq, S.I, Abdul Razzaq ASI, Muhammad Abbas 654/HC, Muhammad Naseem 4004/HC, Muhammad Salean HC/4202 was present at Police Station when informer passed on spy information that a notorious drug peddler namely Muhammad Sajjad alias Shehzad son of Munir Ahmed, caste. Rajput, resident of Chak No.123/G.B., Sidhupura, armed with rifle .222-bore along with his companions Ghulam Mohay-ud-Din son of Hassan Muhammad, armed with repeater .12-bore, Muhammad Hayat son of Abdul Ghafoor armed with repeater .12-bore, Sabir Hussain son of Ali Muhammad armed with pistol .30-bore,. All Rajput by caste and residents of Chak No.123, Sidhupura and narcotics supplier Kamal Khan son of Noor Muhammad, caste Pathan, resident of Jibli, District Sawabi, Province of Khyber Pakhtoon Khawah were selling narcotics in the bithak of Muhammad Sajjad alias Shehzad and if raid is conducted, they could be arrested. On the receipt of information, the complainant called the personnel of 'Rescue-15' Ghulam Muhammad Abad namely Manzoor Hussain, ASI, Usman Zafra 2928/C, Muhammad Shafique 867/C, Mohsin Hassan 5571/C and thereafter they reached at the given place and saw that Sajjad alias Shehzad etc. Along with two unknown persons, armed with firearms, were present there, who extended threats of dire consequences for conducting raid. The complainant along with other police officials tried to catch hold the accused on which on the lalkara raised by other accused persons, Muhammad Sajjad alias Shehzad inflicted butt blows of his rifle .22-bore on the chest of Muhammad Ashfaq, S.I., as well as, kick blows on his person. The other accused persons also inflicted injuries upon the person of Muhammad Ashfaq, S.I. Muhammad Sajjad alias Shehzad threw away black colour shopper bag containing charas and his rifle .222-bore underneath the cot and fled away from the scene of occurrence. The complainant along with other officials caught hold Ghulam Mohay-ud- Din along with repeater .12-bore, Muhammad Hayat armed with repeater .12-bore, and cartridges, Sabir Hussain along with pistol .30-bore and Kamal Khan empty handed. Thereafter Muhammad Ashfaq, S.I. Was evacuated to hospital, however, he succumbed to the injuries.
4. After registration of the case the .Investigation was entrusted to Khalid Mehmood, S.I. (PW-9), who reached Allied Hospital, Faisalabad, inspected the dead body, prepared injury statement (Exh.PG), drafted inquest report (Exh.PH) and dispatched the dead body to mortuary through Nasir Hussain 1808/C. Thereafter, he inspected the place of occurrence and prepared rough site plan (Exh.PS).
' Muhammad Aslam, S.I/complainant handed over case property/crime weapons recovered from the accused to the Investigating Officer, which were made part of the file. After the post mortem examination last worn clothes of the deceased uniform shirt (P-1), vest (P-2), pant of uniform (P-3), underwear (P-4) belt (P-5) and pair of shoes (P-6) were produced before the Investigating. Officer, which he took into possession vide recovery memo. Exh.PC. 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 on the pointation of the P.Ws., on 02.10.2009, Aurangzeb Draftsman (PW-4) took rough notes of the place of occurrence and thereafter prepared scaled site plan (Exh.PB and Exh.PB/1), which was made part of the file.
' On 23.11.2009, the Investigating Officer arrested the appellant and obtained his physical remand, however, nothing was recovered on his pointing out.
5. During the course of investigation, having found the appellant guilty, the Investigating Officer placed his name in column No.3 of the report prepared under Section 173, Cr.P.C. And submitted the same before the court of competent jurisdiction.
6. On submission of challan the learned trial court formally charge sheeted the appellant on 18.01.2010 to which he pleaded not guilty and claimed trial. Prosecution in order to adduce its version produced as many as nine (9) prosecution witnesses. Muhammad Aslam, S.I. (PW-7) is the complainant of the case while Abdul Haq, ASI (PW-8) is the witness of occular account.
Muhammad Rafique ASI (PW-1) had chalked out formal FIR while Aurangzeb Draftsman (PW-4) had prepared scaled site plan of the place of occurrence. Investigation in this case was conducted by Khalid Mehmood, S.I. (PW-9).
' Dr. Muhammad Akram (PW-6) being member of the Standing Medical Board had conducted post mortem examination on the dead body of deceased and observed following injuries on his person:-- "1. Bruise on fore-head 7 cm x 10 cm.
2. Bruise over upper part of chest 8 cm x 12 cm.
' Bruise over the left side of scrotum 4 cm x 3 cm."
' After conducting the postmortem examination the following opinion was formed:- "After receiving the reports from the office of Chemical Examiner, Lahore and Bacteriologist, Government of the Punjab, Lahore, the District Standing Medical Board was of the unanimous opinion that the death in this case was due to inschaemic heart disease leading into acute myocardial infraction and death. The stress related condition and bruises suffered during police encounter were sufficient to trigger the potential inschemia heart disease 'in the presence of moderate grade atherosclerotic changes in coronary arteries and hypertrophied myocardium."
' Statements of rest of the prosecution witnesses are formal in nature.
7. Vide his statement recorded on 17.02.2010; the learned Public Prosecutor gave up Dr. Hafiz Mukhtar Ahmed Randhawa, Dr. Muhammad Saleem and Dr. Rana Muhammad Imran, PWs, being unnecessary. On 12.03.2010 after giving up Muhammad Saleem 4202/HC and Muhammad Aslam, PWs, being unnecessary the learned Public Prosecutor closed the prosecution evidence.
8. The appellant was also examined under Section 342, Cr.P.C; wherein he opted neither to appear as his own witness as provided under Section 340(2), Cr.P.C. In disproof of the leveled against him in the prosecution evidence nor he opted to lead defence evidence. In response to the question why this case against him and why the PWs deposed against him, the appellant made the following deposition:-- "It is a false case. I have been involved in this case falsely. The PWs namely Muhammad Aslam SI, Abdul Haq ASI were not present at the spot and they did not see the occurrence. On 29.09.2009 I was not present at my home. I was involved in this false case on the asking of higher police officers and the PWs are colleagues of Ashfaq SI deceased. I am innocent."
9. After hearing the arguments advanced by the prosecution as well as defence while evaluating the evidence available on record, the learned trial court found the version of the prosecution proved beyond any shadow of doubt against the appellant, resulting into his conviction in the above stated terms.
10. Learned counsel for the appellant while advancing his arguments contended that the impugned judgment has been passed by the learned trial court in a slipshod manner without adverting to real facts of the case and material available on record. Learned counsel vehemently contended that the story contained in the crime report does not sound sense. While elaborating his argument, he submitted that it does not appeal to reason that in presence of such a huge number of police personnel, who were fully trained and armed with most sophisticated firearms, the appellant would flee away when it is not the prosecution case that he had aimed his rifle towards the police officials. It was further argued that according to prosecution version the appellant had inflicted butt blows of his rifle upon Muhammad Ashfaq deceased, however, the Standing Medical Board opined that the cause of death was result of heart attack. Even injuries on the person of deceased were declared simple/trivial. Learned counsel vigorously argued that according to prosecution version Ghulam Mohay-ud-Din, Muhammad Hayat, Sabir Hussain and "Kamal Khan were caught red handed and even firearm weapons were also recovered from their possession, however, on the same set of evidence, the learned trial court acquitted them of the charge. Further contended that during the course of investigation nothing was recovered on the pointing out of the appellant. Next argued that there is absolutely no incriminating material available on record in order to substantiate that the appellant was notorious/record holder. In view of deficit prosecution evidence, learned counsel for the appellant contended, the learned trial court was not justified in passing conviction against the appellant, which is liable to be set aside.
11. As against above, learned District Public Prosecutor assisted by learned counsel for the complainant vehemently controverted the assertions made by learned counsel for the appellant with the submissions that it was a ,daylight occurrence and the appellant was duly nominated in the crime report along with his accused. It was argued by learned counsel for the complainant that while appearing in the witness all the prosecution witnesses fully substantiated the prosecution version by giving minute details. Notwithstanding the fact that they were subjected to lengthy cross-examination, however, nothing adverse to the prosecution version could be brought on record. Further submitted that medical evidence fully corroborates the prosecution version. It was next argued that rifle thrown away by the appellant at the time of his escaping from the place of occurrence was taken into possession by the Investigating Officer. Learned Law Officer contended that the prosecution witnesses being police officials had no to falsely involve the appellant in place of real culprits, who was also found guilty during the course of investigation as such his name was placed in column No.3 of the report prepared under Section 173, Cr.P.C. In this backdrop, it was finally argued that the learned trial court while attending each and every aspect of the case in light of prosecution evidence available on the record rightly held the appellant responsible for the occurrence.
12. While arguing Crl. Appeal No.1080/2010, learned counsel for the complainant submitted that the prosecution through adducing cogent and confidence inspiring evidence established link of all the accused/respondents with the occurrence for committing culpable homicide. Next argued that Muhammad Hayat, Sabir Hussain, Ghulam Mohay-ud-Din and Kamal Khan/respondents were caught red handed and crime weapons were also recovered from their possession. Learned counsel submitted that in view of evidence brought forth on the record, all the respondents/ accused are liable to their conviction under the provisions of Section 302(b), P.P.C., hence the findings recorded by the learned trial court being in derogation to the material available on record are liable to be struck down.
13. We have considered the arguments advanced by learned counsel for the appellant, learned counsel for the complainant, as well as, learned District Public Prosecutor and gone through the record available on file with their able assistance.
14. In the instant case the occurrence is stated to have taken place on 29.09.2009 at 3:40 p.m. When on receipt of spy information the complainant along with Muhammad Ashfaq, S.I. (deceased) andother police officials had raided the house of Muhammad Sajjad alias Shehzad/ appellant where, allegedly the appellant along with his co-accused were selling narcotics. Admittedly it was a daylight occurrence and large number of police officials armed with most sophisticated weapons had conducted raid, however, according to prosecution version the appellant made his good escape from the place of occurrence in presence of so many police officials.
15. Prosecution in order to substantiate its version has adduced evidence in the shape of occular account, medical evidence, recovery of crime weapon, as well as, investigation.
16. Occular account in this case consists of the statements of Muhammad Aslam, S.1. (PW-7) and Abdul Haq, ASI (PW-8). The moot point to be determined by this Court is the conduct of the prosecution witnesses shown by them during the occurrence. Bare reading of the crime report reveals that the informer, who passed on information to the complainant regarding the presence of the appellant and other co-accused, had also specifically mentioned the crime weapons with which the accused persons were armed at the relevant time. It was in this backdrop that ten police officials duly armed with firearms including officials of Rescue '15' had raided the premises of the appellant. However, astonishingly none of them had opted to overpower the accused. So much so it is the fart of the crime report that when the raid was conducted, the accused had aimed their weapons towards the complainant and other police officials with the threats of killing them, however, no response was made by the police party. The conduct of the complainant and other prosecution witnesses was so unnatural that they remained as idle spectators when the appellant was inflicting butt blows on the chest of Muhammad Ashfaq, S.I. Deceased. They further allowed the accused persons to inflict severe injuries on the person of Muhammad Ashfaq, S.I. When he had fallen on the ground. Moreover, according to prosecution version, subsequently the appellant threw away his rifle and escaped from there. However, this version advanced by the prosecution does not sound sense. What was fun with the appellant to throw away his rifle before escaping from there when it was crystal clear to him that the police officials were armed with firearms and they had also seen him inflicting injuries on the person of Muhammad Ashfaq, S.I. (since dead). Even when the appellant was empty handed none of the police officials had tried to overpower him/catch hold him. The above conduct of the prosecution witnesses not only creates serious doubts in the veracity of their deposition rather casts question mark about their conduct. Hence; in this backdrop, we are constrained to observe that the learned trial court was not justified in recording conviction against the appellant on the basis of statements of PWs of such character.
17. Next comes the medical evidence, which consists of the statement of Dr. Muhammad Akram (PW-6), who being Member of the Standing Medical Board had conducted post mortem examination on the dead body of the deceased. Although it is the prosecution case' that the appellant and other co-accused had inflicted serious injuries on the person of Muhammad Ashfaq, S.I., however, after conducting the post mortem examination, the standing medical board opined that the injuries were simple and those could be caused by result of falling on hard surface.
Moreover, it was also opined that the deceased was suffering from ischemic heart disease commonly known as 'heart attack' and this could be his cause of death. Hence, in all eventualities the medical evidence contradicts the prosecution version brought forth in the crime report.
18. As far as findings recorded by the learned trial court are concerned, we have noticed that according to prosecution Version Ghulam Mohay-ud-Din, Muhammad Hayat, Sabir Hussain and Kamal Khan were caught red handed and except Kamal Khan; from rest of the accused, crime weapons were also recovered. However, they 'were extended the premium of innocence by the learned trial court and without any corroborative piece of evidence, the appellant was convicted from whom admittedly nothing was recovered during the course of investigation. It is also an admitted fact that the learned trial court has already disbelieved the prosecution story qua extending coercion to the police officials preventing them in discharge of their lawful duty as admittedly it had not recorded conviction under the provisions of Section 7 of the. Anti- Terrorism Act, 1997.
19. After carefully examining the whole prosecution version we have arrived at the conclusion that the conviction recorded by the learned trial court is on the basis of conjectures and surmises to the extent of appellant. It is settled principle of criminal justice that mere on the basis of suspicion innocent persons must not be convicted and punished. Moreover, the same has been discouraged by the superior courts of the country. In the case of Muhammad Sarfraz Khan v. The Crown (PLD 1953 F.C. 317), it has been held as under:-- "Evidence---Court canvassing mere probabilities of case and arriving at conclusion of guilt of accused--- Disapproved-Judicial duty is to act on evidence duly admitted and tested according to recognized principles."
20. Before concluding we are also inclined to comment upon the contention raised by learned DPP regarding promptness of, the FIR. It goes without saying that the same is to be examined/scrutinized together with other features of the case. If this aspect of the prosecution case is taken as correct then admittedly the prosecution has squarely failed to 'satisfy this Court on number of other characteristics of the case to the extent of the appellant. We are fortified in our view as per dictum of law laid down in the cases of Siraj v. The State (1984 SCM R 1238), Zafar Hayat v. The State (1995 SCM R 896), Mst. Dur Naz v. Yousaf and another (2005 SCM R 1906), Idris Ali and 7 others v. The State (PLD 1971-Dacca 254).
21. Upshot of the above discussion is that the prosecution case, is full of material contradictions/discrepancies especially the unnatural conduct of the prosecution witnesses, who undoubtedly were trained to meet with such like situations, as well as, armed with most sophisticated weapons, major inconsistency in their statements coupled with the fact that the medical evidence straightway contradicts the, prosecution version on minute details. Fact remains that nothing was recovered on the pointation of the appellant during the course of investigation and on the same set of evidence, the learned trial court had acquitted Ghulam Mohay-ud-Din, Muhammad Hayat, Sabir Hussain and Kamal Khan. In this backdrop it can safely be held that the learned trial court was not justified in convicting the appellant and the sentence recorded by the learned trial court in the circumstances is against all canons of law recognized far the dispensation of criminal justice. As per dictates of law benefit of every doubt is to be extended in favour of the accused. Similar view was affirmed in the case of Muhammad Akram v. The State (2009 SCM R 230); wherein it was held as under:-- "-Benefit of doubt---Principles--- For giving the benefit of doubt it is not necessary that there should be many circumstances creating doubts---Single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefit, not as a matter of grace and concession, but as a matter of right."
22. Moreover, it is golden principle of law that Court may err in letting off 100 guilty but should not convict one innocent person. Therefore, keeping in view the facts and circumstances of the case, the salutary principle of benefit of doubt is extended in favour of the appellant as a consequence whereof; Crl. Appeal No.890 of 2010 is accepted in toto. Conviction and sentence recorded in the judgment of the learned trial court passed on 01.04.2010 is set at naught and the appellant is directed to be acquitted of the charge in case FIR No.984/2009, dated 29.09.2009, offence under Sections 302, 353, 186, 148, 149, P.P.C., read with Section 7 of the Anti-Terrorism Act, 1997, and Section 13 of Pakistan Arms Ordinance (XX) of 1965, registered with Police Station Ghulam Muhammad Abad, Faisalabad and he is ordered to be released forthwith, if not required in any other case.
23. As far as Crl. Appeal No.1080/2010 filed by Rehana Ameen/ appellant seeking conviction of the respondents under Section 302(b), P.P.C., is concerned, for the afore stated reasons particularly the opinion rendered by the Standing Medical Board qua possibility of cause of death of the deceased, we do not find any compelling material available on record to warrant interference. Resultantly, Crl.
Appeal No.1080/2010 being devoid of legal justification hereby stands dismissed.