SYED MUHAMMAD FAROOQ SHAH, J.---Through this appeal, the appellant has impugned the judgment dated 30.10.2010, passed by IInd Additional Sessions Judge, Karachi (South), in Sessions Case No. 386 of 2007. Crime No. 98/2007 of Police Station Baghdadi, Karachi, for an offence under Section 302, P.P.C., whereby the appellant was convicted and sentenced for life imprisonment and further directed to pay fine of Rs.100,000/-(Rupees One lac only), in default thereof, he has to suffer further R.I for six months; however, the benefit of Section 382-B, Cr.P.C. has been extended to the appellant. The appeal. being statutory right, was admitted by this Court on 11.02.2011.
2. This is a handwritten Criminal Jail Appeal forwarded by Superintendent, Central Prison, Karachi, on dated 04.01.2011, therein, the appellant has made a prayer to set-aside the impugned judgment.
3. Mr. Zakir Leghari, advocate volunteered to proceed the appeal on behalf of the appellant without charging professional fee. Worthy submissions made by the learned Counsel for the appellant and the learned DPG are considered.
4. Prosecution story, succinctly is that Complainant Imdad Hussain son of Ghulam Ali had lodged FIR No. 98/2007 under Section 302, P.P.C. on dated 12.04.2007 at Police Station Baghdadi, Karachi, stating therein that on 12.04.2007 he was present on his duty and received telephonic message that deceased Abdul Shakoor son of Abdul Rehman was sitting at Block-D, Street No. 11, when at about 12:00 noon, two unknown motorcycle riders/youngsters arrived and the youngster, sitting on the rear seat of motorcycle, fired upon his maternal uncle from TT Pistol, who became injured by receiving bullet on his head and Kamran removed him to the hospital for treatment. Upon receiving such intimation, he rushed to the Hospital and witnessed his maternal uncle, who succumbed to the injury on the way. SIP Wazir Ahmed took the investigation of aforestated FIR, examined the dead body in the hospital and on completion of usual investigation, the charge sheet under Section 173 Cr.P.C. against the appellant was submitted before the Court.
5. On commencement of trial, the appellant did not plead guilty to the charge framed under Section 302, P.P.C. and claimed trial. At the trial, the prosecution examined all material witnesses and thereafter statement of accused under Section 342, Cr.P.C. was recorded, who has vehemently denied the allegations made in the charge but he did not examine himself on oath nor produced any witness in his defence. Insofar as the case of the prosecution with or without contradictions or material discrepancies is concerned, the learned trial judge based the impugned judgthent on the examination-in-chief of prosecution witnesses by making observation that all the PWs have been cross-examined by the defence Counsel but during cross-examination their evidence remained unshattered.
6. Mr. Zakir Leghari, learned Counsel representing the appellant submitted that there are material contradictions in cross-examination, which cannot be brushed aside, as cross-examination is a valuable right guaranteed by the legislature to challenge the veracity of a witness and under Article 133(2) of Qanun-e-Shahadat Order, 1984, cross-examination is not limited to the facts, which a witness has 'stated in his examination-in-chief. Learned Counsel submitted that the FIR was lodged against two unknown persons. He further submitted that later on, the accused has been nominated due to personal grudge as PW1 and Complainant had already been involved in murder case of the brother of the appellant in FIR No. 195/2008, lodged by the father of the appellant namely Muhammad Javed Iqbal.
7. To support his contention with regard to the contradictions, inconsistencies and discrepancies in the prosecution case, learned Counsel argued that PW1 has admitted to be the neighbour of the complainant and did not disclose the name of cousin of deceased, who shifted him to the hospital and if they were available on the spot then why they were not examined at the time of lodging the FIR. PW2 has also admitted his non-availability at the place of occurrence and said that he saw the accused holding pistol on 'chowk', however, no 'chowk' has been shown in the memo of place of occurrence; he saw Kamran was moving body of deceased Shakoor to hospital but Kamran was not examined and as per Medico Legal Report, dead body was brought to the hospital by Imdad Hussain, who admittedly was in his office and came to know about the occurrence at 12:45 noon through telephone. PW2 admitted in cross that "It is correct that I have not seen the accused Shahid at the time of firing at deceased shakoor". "It is correct to suggest that the accused has not committed the murder of deceased Shakoor and he is innocent". PW3 has produced Medico Legal Certificate by showing that the Imdad Hussain/Complainant brought the dead body. PW4 Mehar Bux, who was not knowing the appellant/accused deposed that he and complainant got arrested the accused on their pointation on 10.07.2007, which shows that they are knowing the appellant by face, though they were not eye-witnesses; then how they can recognize the accused moreso, the police did not arrange the identification parade of accused before the Magistrate through eyewitnesses. PW5 Wazir Muhammad, who produced the Entry No. 18, stated that MLO informed him that two unknown persons killed Abdul Shakoor with firing and letter to MLO was also showing two unknown persons, who caused murder of Abdul Shakoor. He also produced 154 Cr.P.C. statement of Imdad Hussain against the unknown motorcycle rider, who fired on his maternal uncle. PW 6 Imdad Hussain/Complainant has admitted that Mola Bux, Rashid and Abdul Ghani informed him that his maternal uncle was killed by Shahid Punjabi (the appellant). He admitted that on his pointation, the accused was arrested but he never disclosed that accused was earlier known to him then how he identified him? He also refused to admit that he is involved in case of murder of brother of the accused; however as per record he is nominated in the earlier FIR No. 195/2008 with specific role. PW 7 Dr. Syed Sajid Ali was examined in place of Dr. Muhammad Tariq MLO, who produced the record being conversant with the signatures of the MLO. PW 8 Muhammad Nawaz, Inspector/SHO Police Station Baghdadi and Investigation Officer of the case was examined.
He deposed that accused confessed before him; no legal sanctity is attached to such a confession as the accused was not produced before the concerned Magistrate after his arrest on 10.07.2007 for recording his confessional statement. Moreso, he has also produced letter for FSL report dated 06.08.2007, which shows delay of about two months without any explanation. He produced examination report showing date of receiving on 07.08.2007 and examination report is dated 06.10.2007 with delay of two months. FSL Examiner was also not examined. PW-8 in the last of his cross-examination stated that "It is incorrect to suggest that accused has committed murder".
Learned Counsel next submitted that the statement of the accused recorded under Section 342 Cr.P.C. does not transpire that he was confronted to the prosecution evidence and only formal questions were framed, which have no evidentiary value. Lastly, learned counsel submitted thy t the pauper appellant is behind the bars for about last 13 years for an offence of no evidence; he prayed for acceptance of appeal by setting aside the impugned judgment.
7. (Sic) On the other side, Ms. Rahat Ehsan, learned DPG could not controvert the aforementioned submissions of learned Counsel for the appellant, being matter of record; however, she supported the impugned judgment.
8. Neither statement of accused under Section 342 Cr.P.C. was put in juxtaposition as the accused has taken specific plea of his false involvement in this case as his father has also lodged FIR against the complainant of this case nor the accused was controverted to the prosecution evidence; the question No. 1 asked to the accused is that he had committed murder of Abdul Shakoor by firing at him cannot be considered sufficient or elaborate. It is settled law that a piece of evidence not put to the accused person at the time of recording of his statement under Section 342 Cr.P.C. cannot be considered against him.
9. It is not out of context to mention here that cross- examination is the great legal engine invented for the discovery of truth. Opportunity to cross-examine contemplated by the law must be real, fair and reasonable. Cross-examination was not an empty formality, but a valuable right and best method for ascertaining the truth. The right of cross-examination has from times immemorial been held to be particularly in criminal cases a valuable right to the accused. It is a weapon which an accused person or an Advocate on his behalf can wield for the purpose of testing the veracity of the statement made by a witness.
10. The contradictions among PWs and discrepancies pointed out by the learned Counsel, mentioned supra, cannot be considered of minor nature. The concept of benefit of doubt to an accused person is deep routed in our country. The prosecution was duty bound to prove its case beyond the shadow of reasonable doubt and if any single or slightest doubt is created, benefit of same must go to the accused and it would be sufficient to disbelieve the prosecution story. It is settled law that benefit of doubt would go to the accused, regardless of fact whether he had taken such plea or not. If need arises, reliance may conveniently be placed on the case of Tariq Pervaiz v.
The State 1995 SCM R 1345; Muhammad Akram's case 2009 SCM R 230 and Faryad Ali's case 2008 SCM R 1086. Keeping in view the afore-stated peculiar facts and circumstances; more particularly, the cross-examination of witnesses of the prosecution reproduced in paragraph-7/ante, creates reasonable doubts in a prudent mind about the guilt of the accused, therefore, it is a fit case in which the accused is entitled to the benefit of doubt not as a matter of grace but as a matter of right as there being no satisfactory basis for upholding the conviction and sentence of the appellant.
11. A perusal of impugned judgment further reveals that learned trial court acted in oblivion of principles of appreciation of evidence in criminal trial to evaluate it and discover the probabilities with regard to the conviction of the accused. Suffice is to say that from material on record, the version of prosecution without corroboration adversely affects the credibility of prosecution witnesses testimony. It needs not to be reiterated that keeping in view the judicial wisdom, experience and while balancing the judicial conscious justice should be dispensed with according to the law and not to the whims and caprice or subjective standard of trial judge in the overall context. The depositions of prosecution witnesses are totally inconsistent with the safe administration of justice. There are so many circumstances, discussed above creating serious doubts in the prosecution case which go to the roots of the prosecution case and according to golden principle of benefit of doubt one substantial doubt would be enough for acquittal of the accused. Conviction must be based on unimpeachable evidence and certainty of guilt and any doubt arising in the prosecution case, must be resolved in favour of the accused.
12. For the foregoing reasons, I reached at the irresistible conclusion that evidence adduced by the prosecution falls short of disclosing the charged offence against the appellant/accused. In the circumstances, the conviction and sentence awarded to the appellant/accused is set aside.
Consequently, the appellant/accused is acquitted from the charge of this case. The Superintendent Central Prison, Karachi is directed to release the appellant forthwith, in this case, if he is not required in any other custody case.
13. The appeal is allowed in the above terms. This the 24th day of May, 2017.