This judgment will dispose of Criminal Appeal No,1315 of 2001 filed by Abdul Ghaffar, appellant, who was convicted and sentenced by learned Judge Special Court, Anti-Terrorism, Lahore-II, Lahore Division, Lahore vide his judgment dated 30-7-2001 to undergo 20 years' R.I. and to pay Rs,30.000 as fine under section 324 P.P.C. or in default six months' R.I., 10 years' R.I. and to pay Rs,30,000 as fine under section 7(ii) of the Anti-Terrorism Act, 1997 read with section 324, P.P.C., or in default six months R.I, imprisonment for life and a fine of Rs,50.000 under section 7(i)(b) of the Anti-Terrorism Act, 1997 or in default six months' R.I. with the benefit of section 382-B. C.P.C.
2. Occurrence in this case had taken place 11.35 a.m. on 14-6-1999 within the jurisdiction of Police Station Burki, District, Lahore at a distance of one K.M. while the matter was reported to the police on the same day at 12.14 p.m. by Ahmad Pervaiz S.I/S.H.O. Police Station Nishtar Colony, Lahore and the formal F.I.R. Exh.P.A was recorded by Muzaffar Khan S.I.
3. Briefly the prosecution version contained in F.I.R. Exh. P.A. recorded on the strength of written complaint Exh. P.E of Ahmad Pervaiz S.I. P.W.4 is that on 14-7-1999 he alongwith Police Officials in search of accused in case F.I.R. No, 168 of 1999 registered under section 392, P.P.C. at Police Station Nishtar Colony. Lahore when reached at Naka Deo Kalan. Muhammad Ramzan. Suleman Khan. Constables and Muhammad Ali and Muhammad Siddique Shopkeepers intimated him that vehicle No,LXD 687 and Car No,LHR 8442 have gone to village Qureshian. The complainant alongwith Police party chased the accused and when he reached village Qureshian, the persons sitting in Car. No,LHR 8224 started firing on police party. The police party also made firing in exchange. The accused taking the advantage of standing crop near the point fled away except Abdul Ghaffar accused who was apprehended at the spot having 30 bore Mouzer in his hand.
4. Ahmad Pervaiz. S.-I. P.W.4 took into possession Mouzer P.I. alongwith three live bullets P.2 to P.4 and three empties P.5 to P.7 vide memo. Exh. P.B. He also took into custody Car No,LHR 8224 vide memo. Exh. P.C. thereafter, investigation was entrusted to Manzoor Ali Shah. 5.-I. P.W-6, who went to the spot and prepared site plan of recovery Exh. P.F., recorded the statements of the witnesses under section 161.
On 20-7-1999 investigation was entrusted to Sher Muhammad Pasha. S.I. P.W.7, who interrogated the accused but nothing was recovered from him. On 25-7-1999 accused was sent to judicial lock- up, then challan was submitted against him to face the trial.
5. At the trial, prosecution in order to prove its case produced 7 witnesses in all. -thereafter, learned P.P. closed the prosecution evidence then the statement of the accused was recorded under section 342. Cr.P.C. in which he pleaded innocence and claimed false implication.
6. Learned counsel for the appellant in support of this appeal submits that complainant in this case is Ahmad Pervaiz, S.I./S.H.O. of Police Station Nishter Colony while the occurrences had taken place in Police Station Burki, that star witness in this case is complainant himself but he did not say anything about the recovery of crime empties while Riat Ali, F.C. P.W.3 is stated that three crime empties were recovered from the spot, that no body was injured, in this case, that appellant was falsely implicated in this case, that thrial Court had acquitted the appellant under sections 13/20/65 of Arms Ordinance. that no case is made out against the appellant.
7. On the other hand, learned counsel for the State submits that there are conflicting statements of the prosecution witnesses in this case itself, that benefit of doubt must be granted to the appellant.
8. I have heard learned counsel for the parties. In the instant case, the allegation against the appellant was that he was in a car alongwith one other person, complainant received an information that they should be checked, police party asked the said car to stop but they started tiring on the police party and police party also started firing in retaliation, one of the accused was not apprehended at the spot, he ran away but till today he has not been apprehended. As far as, present appellant is concerned, he was apprehended at the spot and only ineffective tiring was attributed to him. Complainant has not stated anything ,about crime empties although the other recovery witness has stated that three crime empties were recovered from the spot, so there is conflict between the statement of Complainant and the statement of B Riat Ali P.W.3. Moreover, he was the only complainant in the F.I.R., he was not the S.H.O. of Police Station Burki and it was the duty of S.H.O., Police Station Burki and his subordinates to proceed with the investigation honestly so that the actual facts must have come to light.
9. For all what has been discussed above, I am of the considered opinion, that it is a case in which there are so many doubts and the benefits of the same always goes in favour of the accused not as a matter of grace but as a matter of right because the learned State counsel does not support the prosecution case, so, while extending the same benefit, I allow this appeal, set aside the conviction and sentence recorded against the appellant by the learned trial Court. He is in jail and he shall be released forthwith if not required to be detained in any other case.