KHADIM HUSSAIN TUNIO, J. The appellants Bijar son of Allahyar, Kaloo son of Miran, Sanwan son of Guloo, Shahak son of Attur and Mitho son of Atta Muhammad were charged and tried by the Anti- Terrorism Court Mirpurkhas ("Trial Court") for assaulting police officers and by a consolidated judgment passed on 22.02.2024 ("impugned judgment") whereby they were sentenced to various terms of imprisonment along with fines for the offences punishable under sections 324, 353, 225, 337-A(i), 337-F(i), 337-H(ii), 147, 148 and 149 of the Pakistan Penal Code ("P.P.C") read with sections 6/7 of the Anti-Terrorism Act, 1997 ("ATA 1997"). All three of the captioned Appeals challenge the same pronouncement of the Trial Court pertaining to the same incident; therefore they are being decided together.
FACTUAL HISTORY
2. The main incident stems from FIR No. 33 of 2023 lodged with Police Station Sindhri by Sub- Inspector Khuda Bux Ranjhani whereas FIR No. 34 of 2023 was lodged with the same police station pertaining to the recovery of a firearm from the appellant Sanwan.
3. The facts giving rise to the charge of assault on the police officers and resulting injuries are as follows. On 28th May, 2023 the appellants Bijar and Kaloo, admittedly absconders in separate incidents, were reported to Sub-Inspector Khuda Bux to be present at a hotel near Samaro Bus Stop at Sindhri-Khipro crossroad. Forwarding such information to CIA Centre Mirpurkhas and requesting backup, he set out along with his own police contingent and was joined by Sub- Inspector Hidayatullah along with his own staff. Upon arrival at the designated location, officers encountered three individuals who attempted to escape but were subsequently apprehended and identified as Bijar, Siddique, and Kaloo. However, this apprehension proved temporary, as the other appellants allegedly arrived with the intent to help their associates evade. Appellants Sanwa'', Shahak, and Mitho were armed with pistols. Sanwan allegedly shot his pistol twice; one distant shot striking a police vehicle, and a second point-blank shot deflected by SIP Khuda Bux. Mitho and Shahak allegedly fired into the air. The remaining unidentified assailants reportedly attacked the police with hatchets and clubs, resulting in injuries. During the struggle, Bijar and Kaloo are alleged to have escaped while Sanwan, the alleged shooter, and Siddique, who was unable to flee, were arrested.
PROCEEDINGS BEFORE THE ANTI-TERRORISM COURT
4. A formal charge was framed against the appellants on 18.09.2023 to which they pleaded not guilty and sought trial. Prosecution examined eight witnesses who produced various documents and artefacts in evidence. Then, statement of the appellants was recorded under section 342 of the Code of Criminal Procedure ("Cr.P.C"). wherein they separately disputed the prosecution case by claiming false implication. They disputed any recoveries shown to have been made from them and stated that the medical reports were also managed by the police. Appellant Sanwan and Siddique, the two who were allegedly arrested from the place of incident disputed their presence and stated that they had in fact been arrested from Aachar Cattle Market in Sindhri Town and false involved in the case because of their prior protests against a tyrannical raid on the house of their elder Baboo Mari which had annoyed the Senior Superintendent of Mirpurkhas Police. Appellant Shahak, to the extent of enmity, stated that in 2015 him and his brother were arrested by CIA Centre Mirpurkhas and his brother was murdered under the pretext of a police encounter and that the police of Mirpurkhas has since then, been on inimical terms with him. He stated that he was arrested on 21.05.2023, much prior to the incident, and arrested after being confined at various police stations.
The other accused stated that they surrendered voluntarily upon coming to know that the FIR had been lodged against them. On conclusion of the arguments, Trial Court, passed the consolidated judgment impugned herein.
ARGUMENTS 5.1. Mr. Afzal Karim Virk, learned counsel for the appellants argued that the entire prosecution case is false and was managed to please SSP Mirpurkhas against whom the appellants had protested for a raid on their elder's house. He further contended that the prosecution story, on the face of it, is not credible and that all the witnesses were subordinates of the complainant and therefore had to approve his version of the incident. He also stated that despite the place of incident being a hotel near a lively bus stop, no one from the public came forward or was associated as a witness. He contended that on the basis of the same evidence, Trial Court acquitted a set of co-accused due to them being shown as Unknown accused, a role that is identically assigned to many of the present appellants. As against the recovery of the .30 bore pistol and the live bullets, he contended that the same had lost its evidentiary value as it was sent for ballistic examination after a considerable and unexplained delay of seven days. He also pointed out various contradictions in the evidence of the prosecution witnesses, more specifically ones pertaining to the pendency of cases against the appellant Kaloo, discrepancy in the departure of CIA police officials and the discrepancy in the nature of injuries as per the medical certificates.
5.2. Mr. Shahzado Saleem Nahiyoon, APG Sindh stated that the appellants are involved in the heinous offence of deterring police officials from performing their duties, escaping from police custody, causing injuries to police officials and possessing unlicensed weapons. He further stated, although half-heartedly, that the appellants could not prove their enmity against the police officials and that police officials were all credible witnesses of the incident. He stated that the recovery of the firearm and such positive forensic science laboratory report strengthens the prosecution case and pursuant to all the evidence available, the appeals should be dismissed.
6. Having, heard the parties and perused the record, we unequivocally have come to the conclusion that the prosecution case, as set out in the FIR and advanced by the witnesses, is patently false, that the incidents alleged to have taken place in the manner stated does not find favour of logic and that it was unsafe for the Trial Court to convict the appellants on the basis of the same.
OCULAR ACCOUNT 7.1. For safer administration of justice and since the learned counsel for the appellants pointed out contradictions, we reappraised the depositions of the witnesses. The ocular account of the incident is furnished firstly by SIP Khuda Bux ("the complainant") who deposed verbatim the FIR. We noted that this witness stated that he managed to dodge two bullets during a close quarter scuffle, managed to disarm the assailant by swiftly ejecting the magazine from the pistol held by the said assailant and managed to escape unscathed. The incident was to be viewed with scepticisim from the very inception because the case set out at best would have been of ineffective firing even if the prosecution's version was accepted; and the likelihood of the other injuries being managed is almost certain. According to the complainant, three people namely Sanwan, Shahak and Mitho were armed with pistols. Of these three, Sanwan was arrested by the heroic efforts of SIP Khuda Bux while the other two are shown to have just fired in the air despite seeing their companion being caught. To believe that they risked their lives in order to save their apprehended associates and then left another one who would clearly be booked in a more serious offence is illogical. And then to believe that these same people would surrender, voluntarily, is equally unbelievable. The complainant stated that he recovered three bullet empties from the place of incident. Prior to that, he had already deposed that the appellant Sanwan had shot twice while both Shahak and Mitho had shot. Even if Shahak and Mitho had shot once, the number of empties still does not match.
7.2. The prosecution's second eye-witness, SIP Hidayatullah, presented a chronology of events that contradicts the initial account. Most notably, he asserts that appellant Sanwan fired two shots directly at SIP Khuda Bux prompting SIP Khuda Bux to intervene and disarm him. This contradicts SIP Khuda Bux's own version in which the shot allegedly did not miss but was deflected at close range, and that he ejected the pistol magazine prior to the second shot.
7.3. Police Constable Hashim Khan, the driver of the police mobile and another eye-witness had much to say about the incident as well: Although mostly deposing in line with the depositions of SIP Khuda Bux and HC Allah Bux, he contradicted both of them on the locale of the shot that landed on the police mobile. Earlier, SIP Khuda Bux and HC Allah Bux had deposed that the shot landed on the bonnet/hood of the vehicle, however PC Hashim Khan stated that the shot landed on the passenger side, which he mentions as the site the SHO was seated on, and that the same went through the back. He also contradicts the others in stating that the appellant Sanwan was apprehended only after managing to shoot once. We did note, however, that the pictures exhibited by the prosecution of the vehicle corroborate the version of Police Constable Hashim Khan and not the others.
FORENSIC EVIDENCE 8.1. Admittedly, the unknown accused caused hatchet and club blows to HC Allah Bux and PC Shabbir Ahmed. The complainant does not state how he received injuries, so it is rather surprising to note that in his deposition he later states that he had to visit the doctor at Civil Hospital Mirpurkhas for his own treatment as well and that he received two injuries on his forehead. This discrepancy is left unexplained by every single eye-witness, all of whom fail to account for how these injuries were received which were even found to be incised cuts requiring stitches. The cause of this injury finds mention, for the first time, in the 162, Cr.P.C statement of the complainant as being injuries from the butt of a pistol. The injuries received by HC Allah Bux and PC Shabbir Ahmed, however, are not in dispute and as per medical evidence are due to blunt weapons. They received injuries at the hands of the unknown accused that were not known to the police. None of the eye- witnesses could even state which accused caused which injury, rather such role is collectively assigned to the four unknown assailants. The relevant of medical evidence, in such a case, is very little. This so because prosecution did not have to prove that the injuries were caused but that they were caused by the appellants. In failing to do so, this Court, and as the Trial Court should have done as well, cannot rule out the possibility of the injuries being managed. It already appears implausible that the police officials escaped firearm injuries but were a victim of blunt force trauma. It is also noteworthy to mention here that the blood stained clothes that were recovered after a delay of two days were not sent to the chemical examiner for examination. Furthermore, the clothes of the complainant that were stated blood stained were also recovered after a delay which was covered up as the entry pertaining to the same bearing No. 24 does not note the date and time for such deposit.
8.2. The ballistic examination report pertaining to the pistol allegedly recovered from appellant Sanwan and the three bullet casings also raises significant questions. These items were reportedly 'sent for examination after a seven-day delay. The record indicates that this case property was held in the malkhana under Entry No. 258, produced by Writing Head Constable Abdullah of Police Station Sindhri. However, this very entry presents cause for concern. During cross-examination, WHC Abdullah admitted to preparing Entry No. 24 on plain paper, raising questions about its authenticity. This entry was pertaining to the deposit of the blood stained clothes of the complainant. He was also unable to clarify when the entry was created, to which police register it belonged, or whether it constituted the original record. Furthermore, the malkhana entry for the .30 bore pistol and bullet casings, bearing No. 258, lacks a date, time, or official police station stamp, rendering its evidentiary value negligible. The absence of a proper record undermines the evidentiary value of the pistol on several fronts. First, the prosecution lacks the ability to definitively prove the recovery of the pistol. Beyond the testimony of prosecution witnesses, there exists the possibility of tampering with the evidence, including the entries themselves. Second, the pistol being in a working condition is also called into question. The lack of firearm injuries could suggest that the recovered pistol was inoperable and subsequently replaced with a functioning weapon.
Furthermore, the complainant had failed to prepare a sketch of the recovered pistol which ought to have assisted in establishing its identity as well. This omission too strikes at the heart of the prosecution case. Another relevant detail is that as per depositions of WHC Abdullah, he was not even aware of the contents of the parcels handed over to him because he deposed that the contents of the parcels what were disclosed to him by the investigating officer Inspector Muhammad Haroon. On these grounds alone the conviction of appellant Sanwan for the offense punishable under Section 24 of the Sindh Arms Act cannot be sustained.
8.3. Regrettably, the Trial Court also erroneously concluded that the ballistic examiner's report supported the eye-witness accounts. This conclusion is demonstrably proven wrong by a perusal of the report and the testimonies of the prosecution witnesses. These witnesses consistently deposed that appellant Sanwan fired only two shots before his pistol magazine was removed. If we accept the complainant's version, the first shot was fired, then the magazine was ejected, leaving only one chambered round. The firing of this second round makes it logically impossible for a third shot to have been discharged. Despite this, all three recovered casings are somehow forensically linked to the same .30 bore pistol allegedly recovered from appellant Sanwan. All this is besides the fact that despite alleging that the other armed appellants fired in the air, no such recoveries were made.
9. The identity of the unknown accused is also under doubt. The complainant stated that he just came to know of the identity of these unknown assailants and got his further statement under section 162, Cr.P.C. recorded as Zameer, Attur and Muhammad Usman. He does not disclose the source of such information, and in that same 162; Cr.P.C. statement he discloses how he received the injuries to his own self. Suffice it to say that this statement was nothing short of an attempt to improve the prosecution case at the very stage because of the introduction of information for the very first time. Deliberate and dishonest improvements, taken with the assumption that they are to strengthen the prosecution case, cast serious doubts on the said witness veracity which ultimately makes him unreliable; Naveed Asghar and 2 others v. The State, PLD 2021 SC 600. No test identification parade was conducted either and the police believed whatever source they had received their 'information from. Undoubtedly it is not a legal requirement to conduct a test identification parade, however in cases where the accused are not known by name or seen prior, it becomes a necessity in order to establish their identity; Inhaf Ullah v. The State (2021 SCMR 1725).
10. All the appellants took identical pleas besides Sanwan and Shahak whose plea were relied on only to the extent of their arrests and the sources of enmity disclosed therein. Sanwan stated that he and Siddique had been arrested prior to the incident. The appellants stated that prior to the incident, Mirpurkhas Police had raided a notable of their community without any lady police constables and without any search warrant, resulting in an outcry amongst the Mari community for which they had staged several protests against the SSP Mirpurkhas which had kept him annoyed.
Admittedly in 2015, the brother of appellant Shahak was also murdered in allegedly staged police encounter which, as per the appellant's counsel, had reached national news and to that effect newspaper clippings were tendered in evidence. Suffice it to say that the defence has set up a damning case against the police officials for abusing their authority and involving them in false cases as an application under section 491, Cr.P.C. against the arrest of Shahak Mari filed in July 2023 was also tendered in evidence. Regrettably, the Trial Court also failed to take the defence case into consideration because the same finds no mention in the impugned judgment. The conduct of the police officials was deplorable to say the least too. Evidently, the case was false because not a single piece of evidence backed another piece of evidence and everything pointed to the possibility of the fabrication of this case, from the managed entries, to withholding blood stained clothing from chemical examination to show the incident as a grave one supported by pictures showing the same blood stained clothing, the blatant lies in the deposition left unsupported by even the ballistic examiner's report and then the poor attempts at improving the prosecution case doomed to fail from its inception. All these circumstances created more than sufficient doubts in the prosecution case leaving only one plausible decision: that the prosecution had miserably failed to establish its case against the appellants.
11. It is imperative that any Court handling a matter must exercise its discretion in favour of the accused where the credibility of prosecution witnesses is non-existent from the very beginning. No doubt police officials are public functionaries and deserve their own share of respect; however the trend of believing their testimonies to the grave must end. If one were to take up every criminal case decided by a Superior Court involving evidence of only police witnesses, what would evidently be the conclusion is that their evidence must be treated as the same as evidence coming from any other witness and their testimony has to go through the same rigors as the testimony of an ordinary witness. They are not at a higher pedestal and to even think so would be futile. The incident allegedly took place at a hotel yet not one person from the public came forward, the incident was never reported to the police, the news did not pick up on it nor was a statement of the hotel owner taken by the police. All this appears to be nothing but deliberate.
12. Although a needless exercise, we deem it proper to re-state the principle of benefit of doubt.
Clearly, this case crossed that margin and even beyond, but the Trial Court limited such benefit to only a few accused and not everyone. This principle of benefit of doubt underscores the vital importance of safeguarding the administration of justice and is deeply rooted in our legal system, the common law tradition, and the foundations of Islamic jurisprudence. Affording this benefit is a fundamental right of the accused. The cornerstone of a civilized society is the unwavering principle of the rule of law, a fundamental tenet that cannot be sacrificed. The present appellants are unquestionably deserving of this benefit. This entails why every legal system recognises the accused as the favourite child of the law which was more recently expounded upon by the Supreme Court as follows:- [.. .] the farsightedness and prudence, 'let a hundred guilty be acquitted but one innocent should not be convicted': or that it is better to run the risk of sparing the guilty than to condemn the innocent. The raison d'etre is to assess and scrutinize whether the police and prosecution have performed their tasks accurately and diligently in order to apprehend and expose the actual culprits, or whether they dragged innocent persons in the crime report on account of a defective or botched-up investigation which became a serious cause of concern for the victim who was deprived of justice. The philosophy of the turn of phrase "the accused is the favourite child of law" does not imply that the Court should grant any unwarranted favour, indulgence or preferential treatment to the accused, rather it was coined to maintain a fair-minded and unbiased sense of justice in all circumstances, as a safety gauge or safety contrivance to ensure an even-handed right of defence with a fair trial for compliance with the due process of law, which is an integral limb of the safe administration of criminal justice and is crucial in order to avoid erroneous verdicts, and to advocate for the reinforcement of the renowned doctrine innocent until proven guilty"."
13. As Blackstone rightly states: better that ten guilty persons escape than that one innocent suffer.
While the common law maxim may be traced to Blackstone stated that it is better than ten guilty persons- than that one innocent suffers. the underlying principle finds clear expression within the historical development of Islamic jurisprudence as it is narrated Hazrat Aishah (R.A) that the Messenger of Allah said: avert the legal penalties from the Muslims as much as possible, if he has a way out then leave him to his way, for if the Imam makes a mistake in forgiving it would be better than making mistake in punishment.
14. For what has been discussed above, since prosecution has miserably failed to drive home the charge against the appellants beyond a reasonable shadow of doubt, the judgment is set aside along with the convictions and sentences awarded therein. The appellants are acquitted of all the charges against them. They shall be released forthwith if not requiring detainment in any other custody case.