MUHAMMAD IQBAL MAHAR, J.---By way of this criminal revision application, applicants-accused Tarique, Sajjad, Nisar and Ghulam Umar , all by caste Gopang, have challenged the judgment dated 13.04.2015, passed by learned Sessions Judge, Kamber-Shandadkot alias Kamber in Criminal Appeal No.10 of 2014, whereby he maintained the conviction and sentence awarded to them for offence under section 212, P.P.C. to suffer R.I. for three years and to pay fine of Rs. 2000/, in default thereof to suffer S.I. for one month, under section 353, P.P.C. to suffer R.I. for one year and to pay fine of Rs. 1000/, in default thereof to suffer further S.I for fifteen days, under section 427, P.P.C. to suffer R.I. for six months and to pay fine of Rs. 1000/, in default thereof to suffer S.I. for fifteen days more and under section 149, P.P.C. to suffer R.I for six months by learned Assistant Sessions Judge. Kamber , vide Judgment dated 30.10.2014 passed in Sessions Case No.246/2014 (Re: State v. Tarique and others), culminating from Crime No.61 of 2014, registered at Police Station Kamber City and he further convicted and sentenced the applicants-accused to suffer RI for one year for offence under sections 337-A(i) and 337-F(i) respectively and to pay Daman Rs, 5000/ each to injured police officials. However ,- benefit of section 382-B, Cr.P.C. has been extended to the applicants-accused.
2. Precisely , prosecution case is that on 31.03.2014 complainant S.I.P., Karim Bux Chandio along with his subordinate staff during patrolling received spy information at Nasirbabad Naka that absconding accused Muhammad Ali Supro along with his companions was sitting in the Otaq of Bash ir Ahmed Gopang al Bagodero Mohalla Kamber . On such information, the complainant party reached at pointed place at 2200 hours and saw and identified absconding accused Muhammad Ali, applicants-accused Tarique, Sajjad, Nisar Ahmed, Ghulam Umar , co-accused Ali Sher, armed with pistols and Bashir Ahmed, empty handed, while two were unknown and they were armed with Kalashnikovs. It is alleged that the accused-persons seeing the Police party fired upon them. The Police party also retaliated in their defence. During encounter absconding accused Muhammad Ali sustained injuries but he was taken away by his companions. However , the police party arrested the applicants-accused and recovered unlicensed pistols. The complainant found himself and PC Gulzar Ali sustaining injuries. The complainant prepared such mashirnama, brought the accused and property at Police Station and lodged the FIRs of this case and of fshoot cases respectively .
3. After usual investigation, final report of the case was submitted before the Court. Learned Trial Court observed all legal formalities and framed the charge against the applicants-accused at Ex.5, to which they pleaded not guilty and claimed trial.
4. At trial, the prosecution examined complainant SIP Karim Bux at Ex.6, who produced copy of roznamcha entries, memo of arrest and recovery , FIR, memo of injuries, memo of inspection of place of incident and FSL report at Ex.o6-A to G respectively , PC Muhammad Ramzan at Ex.o7, PC Gulzar Ali at Ex.o8, Dr. Bhirma at Ex.10, who produced medical certificates of injured SIP Karim Bux and PC Gulzar Ali at Ex.10-A and B. Thereafter learned ADPP closed the side of prosecution through statement at Ex.1 1.
5. At the closure of prosecution side, learn ed trial Court recorded statements of the applicants-accused at Exs.12 to 15 as required under section 342, Cr.P.C, wherein they denied the prosecution case and claimed their innocence, however neither they examined themselves on oath nor produced any witness in defence.
6. On the appraisal of evidence, so produced by the prosecution, learned Trial Court convicted and sentenced the applicants-accused as stated above. They preferred appeal before the Court of learned Sessions Judge Shandadkot at Kamber but he dismissed the appeal and further convicted and sentenced the applicants-accused for of fence under sections 337-A(i) and F-(i), P .P.C. as stated above, hence this revision application.
7. Learned counsel for the applicants-accused contended that the applicants-accus ed have falsely been involved in this case by the complainant with mala fide intention; that there is violation of section 103, Cr.P.C; that no any other criminal case, against the applicants-accused, has been shown by the Police; that as per prosecution case, the otaq belongs to co-accused Bashir Ahmed and applicants-accused have no concern at all; that the applicants- accused have been acquitted from off-shoot cases; that there are material contradictions in the evidence of prosecution witnesses, which create doubt. He lastly concluded that the prosecution has failed to prove its case against the applicants-accused beyond reasonable doubt; hence they are entitled for acquittal.
8. Conversely , learned D.P.G. appearing for the State opposed the revision application and submitted that the applicants-accused were arrested at spot and pistols were recovered from them for which they could not produce licenses, however he concedes that there is no criminal record of the applicants-accused.
9. I have considered the arguments advanced by learned counsel for the applicants-accused, learned D.P.G. for the State and have perused the record very carefully . It is the case of prosecution that the Police party proceeded towards the otaq of co-accused Bashir Ahmed on advance information in order to conduct raid and arrest the A accused persons but did not associate any private person, though the place of receiving spy information and place of incident were thickly populated areas, which is clear violation of Section 103, Cr.P.C., according to which two respectable inhabitants of the locality were to be called. In this respect PC Muhamm ad Ramzan has deposed in his cross-examination that "At 2150 hours spy information received. There are shops and hotels at Nasirabad Nako.1.0. did not take private persons from this place after receipt of spy information There are houses of different people near the place of incident. Complainant did not ask any private person from nearby places to act as mashir." PC Gulzar Ali has also deposed that "It is fact that Nasirabad Naka is situated in populated area where several hotels, houses and shops are situated. S.I. P, Karim Bux did not take any private person from this place to act as mashir after receiving spy information." In case of Muhammad Zaman and another v. The State (PLD 2008 Karachi 348) this Court has already held as under: "The contents of the FIR prima facie show that the complainant party received spy information about the gathering of the accused persons, still no private person was associated to be the witness and all the police personnel were shown to be the witnesses of the alleged incident, therefore, violation of section 103, Cr. P. C. has been committed by the prosecution. The evidence of police officials in such a situation when the incident took place in thickly populated area and the police had received spy information prior to occurrence of said offence, cannot be reliable."
10. As per prosecution case place of incident, the otaq of co-accused Bashir , was consistir upon one room with one door where he accused persons were sitting and on arrival of the Police party at the door of otaq, the accused persons started firing upon the Police, who also retaliated wherein absconding accused Muhammad Ali sustained injuries but he was taken away by his companions from the room and the Police party remained mum like silent spectators. Furthermore, neither blood stained earth was secured from the room nor marks of firing were found at the walls and door of the otaq, thus the prosecution story appears to be improbable/unnatural.
11. So far as the medical evidence is concerned, as per prosecution case the alleged incident occurred at 2200 hours, thereafter the complainant prepared mashirnama of arrest and recovery and brought the accused and property at Police Station, lodged the FIR at 2330 hours and then went to Hospital but the medical certificates of both the injured show the arrival of injure d officials at Hospital at 11.00 p.m., which is contradictory and does not corroborate the prosecution case. Even otherwise, no question regarding medical evidence was put to the applicants-accused in their statements recorded under section 342, Cr.P.C, hence medical evidence cannot be used against them. In case of Muhammad Nawaz and others v.The State and others (2016 SC MR 267), the honourable Supreme Court of Pakistan has held as under: "There is yet another aspect of the case. While examining the appellants under section 342 Code of Criminal Procedure, the medical evidence was not put to them. It is well settled by now that a piece of evidence not put to an accused during his / her examination under section 342, Code of Criminal Procedure, could not be used against him/her for maintaining conviction and sentence."
12. As per prosecution case the otaq, where the absconding accused was sitting, belongs to co-accused Bashir Ahmed and no connection of the applicants-accused has been shown with Bashir Ahmed. There is nothing on record to show that the applicants-accused are involved in any criminal case. Furthermore, the evidence of Police officials has already been disbelieved by this Court with regard to recovery of unlicensed pistols from the applicants-accused at the time of arrest and they have been acquitted, therefore, same set of evidence cannot be relied upon with regard to arrest and encounter without independent corroboration which is lacking in the case.
13. Apart from above, there are many contradictions in the evidence of prose cution witnesses with regard to distance of place of information, distance of firing and the manner in which the alleged incident occurred, the same have not been considered by both Courts below but cannot be ignored by this Court while deciding this criminal revision application.
14. The upshot of the above discussion is that the prosecution has miserably failed to bring home the guilt of the applicants-accused beyond reasonable doubt and it is settled law that benefit of every doubt is to be extended in favour of the accused. In this respect reliance can be placed upon case of Muhammad Mansha v. The State (2018 SCMR 772 ), wherein it has been held that: "4. Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". Reliance in this behalf can be made upon the cases of Tarique Parvez v. The State (1995 SCMR 1345 ), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221 ), Mohammad Akram v .The State 2009 SCMR 230 ) and Mohammad Zaman v . The State (2014 SCMR 749 )."
15. Keeping in view the above facts and circumstances of the case, benefit of doubt is extended in favour of the applicants-accused and as a consequence whereof instant criminal revision application is allowed impugned judgment is set aside and the applicants-accused are acquitted of the charge, they were present on bail, their bail bonds are cancelled and surety discharged.