MUHAMMAD IQBAL MAHAR, J.---This appeal is directed against the judgment dated 11.02.2016, passed by learned Judge, Anti-Terrorism Court No, V. Karachi, in Special Case No,120(iii) emanating from Crime No,62/2015 offence under sections 4/5 Explosive Substances Act read with section 7 of ATA, 1997 and in Special Case No,121(iii) emanating from Crime No,63/2015 offence under section 23(i)(a) Sindh Arms Act, 2013 registered at Police Station Mithadar Karachi, whereby the appellant was convicted for offence under section 7(1)(ff) of A.T.A., 1997 and sentenced to undergo R.I. for 14 years and 10 years for offence under section 23(1)(a) Sindh Arms Act, 2013 and to pay fine of Rs,50000, in default thereof, to undergo S.I. for six months, however, benefit of section 382-B, Cr.P.C. was extended to him and both the sentences were ordered to run concurrently.
2. Precisely, prosecution case is that on 19.03.2015 complainant A.S.I., Kashif Barkat along with PC Zafar Iqbal, PC Khan Muhammad and DPC Muhammad Yaseen left Police Station in Police Mobile for patrolling. During patrolling when they reached at Railway Godi Tower Parking area at 0910 hours saw one person in suspicious condition. The police party apprehended him, on inquiry, he disclosed his name as present appellant. From his search, the complainant recovered one unlicensed 30 bore pistol loaded with five bullets and Awan Gola and prepared such mashirnama in presence of PC Zafar Iqbal and PC Khan Muhammad. After completing formalities the complainant brought the appellant/ accused and property at police station and registered two separate FIRs on behalf of the State.
3. After usual investigation, the investigating officer submitted challan of the case in the Court of law. Learned trial Court completed all legal formalities and amalgamated both the cases as required under section 21-M of the Anti-Terrorism Act, 1997 and framed joint charge against the appellant at Ex.4, to which he pleaded not guilty and claimed trial.
4. The prosecution in order to prove its case examined complainant. ASI Kashif Barkat at Ex. 6, who produced copy of daily diary, mashirnama of arrest and recovery, FIR No, 62/2015, copy of report, FIR No, 63/2015. copy of report and mashirnama of wardat at Ex.6/A to 6/G. mashir PC Zafar Iqbal, at Ex.7, SIP Akhtar Mahmood at Ex. 9, who produced entry and inspection report of Grenade, at Ex. 9- A and 9-C, Inspector Ch. Muhammad Irshad at Ex. 10. who produced copies of report Nos,19, 22 and letter to FSL. letter to CRO letter to S.P. examination report and order of Secretary at Ex.10-A to 10-H and then learned DDPP closed the side of prosecution vide statement at Ex.11.
5. At the conclusion of prosecution evidence, the learned trial Court recorded the statement of appellant under section 342 Cr.P.C. at Ex.12. in which he denied the allegations and pleaded his innocence stating further that in fact he was picked by Rangers on 28.2.2015 and was illegally confined and later on he was handed over to SHO, Police Station Mithadar, who registered false cases. In support of his plea he examined himself on oath at Ex.13. DW Ghulam Jilani at Ex.14, who produced copy of application made to SHO at Ex. 14-A, Mst. Sabra at Ex. 15 Who produced copy memo of constitution petition and copy of order passed by this Court at Ex. 15-A and Abdul Hameed at Ex.16, and then learned counsel for the appellant closed the side.
6. The learned trial Court after hearing the arguments of learned counsel for appellant, and learned DDPP passed the impugned judgment.
7. Learned counsel for the appellant/ accused contended that the impugned judgment is against the principle of criminal justice; that the appellant accused is innocent and has been falsely involved in this case by the complainant due to mala fide intention: that in fact the appellant was arrested by Rangers on 28.2.2016 and such intimation was given to SHO through an application on the very day and thereafter the mother of the appellant filed constitutional petition on 10.03.2016, but the arrest of the appellant was shown on 19.03.2016; that the alleged incident has taken place in a thickly populated area but no private person was joined in recovery proceedings; that there are material contradictions in the evidence of prosecution witnesses, which have not been considered by learned trial Court. He lastly concluded that the impugned judgment passed by learned trial Court is against the facts and law, hence, is liable to be set aside in support of his arguments, he relied upon an unreported case of Mehboob Alam alias Madni v. The State (Appeal No, D-8/ 2016).
8. The learned Addl. P.G., appearing for the State supported the impugned judgment on the ground that the appellant was arrested along with case property and no enmity has been suggested by him.
9 We have heard the learned counsel for the appellant as well as learned Addl. P.G. for the State and have gone through the record with their valuable assistance.
10.The prosecution examined in all four witnesses i,e, Complainant ASI Kashif Barkat and mashir Zafar Iqbal are said to be the eye-witnesses of the incident. Admittedly the place of arrest and recovery shown by the complainant was a thickly populated area but no private person was joined in recovery proceedings. So far as the evidence of ASI Kashif Barkat is concerned he is complainant in the case while PC Zafar Iqbal is his subordinate who attempted to make deliberate and dishonest improvements in the prosecution. case by showing his unawareness and taking shelter of his memory while giving answers of various questions put by the learned defence counsel; and there are also material contradictions in the evidence of the police officials and thus, their evidence required some independent corroboration which is lacking in this case. In these circumstances it would not be in accordance with the safe administration of justice to place implicit reliance on uncorroborated testimony of Police officials. In this respect reference can be made to case of Rafaqat Ali v. The State (1995 PCr.LJ 2364).
11. We have examined the evidence of Police officials, there are contradictions and discrepancies in the evidence of prosecution witnesses which cannot be ignored while deciding the case and on the basis whereof, no conviction could be recorded but the learned trial Court has not taken into consideration while passing impugned judgment. For the sake of convenience we reproduce relevant portions of their evidence. the complainant and the mashir deposed that Awan Gala was recovered from the appellant, but SIP, Akthar Mahmood of BDU deposed that Ch. Irshad who gave me one Rifle Grenade, while 1.0. Ch. Muhammad Irshad stated that on the same day at 1815 hours BDU SIP Akhtar Mahmood arrived at PS and made safe the said gun grenade. As per FIR No,62/2015 time of report is 1030 hours but the mashir stated that at about 1.00 p.m. we reached at P.S. The entry was made by SHO. As per FIR mashirnama of recovery and evidence of complainant and mashir Awan Gola was recovered from the appellant but the property shown to complainant in Court is different. Complainant stated that I also see one packet which was prepared by BDU containing the parts of Awan Gola where as SIP Akhtar Mahmood stated that I see one packet containing part of rifle grenade. Investigation Officer in his cross-examination stated that I did not produce the entry of weapons, bullet proof jacket etc. which I took at the time of proceeding from P.S. All this show that the property recovered from accused was not produced in Court at the time of examination of witnesses.
12. Apart from above the case of prosecution is that the incident occurred on 19.3.2015, but the appellant and his witnesses have deposed that the appellant was taken away by Rangers on 28.2.2015 and on the very day the mother of appellant Mst. Sabra made an application to SHO and on 10.3.2015, i,e, nine days prior to this case, she also filed Constitutional Petition A No,D-1305/2015 before this Court; copy of application and constitutional petition have been produced at Ex. 14-A and Ex. 15-A. On a query learned Addl. P.G. conceded that, while keeping the prosecution version in juxta position with the plea taken by the appellant, supported by documents, more particularly the copy of the Constitutional Petition No,D-1305/2015 filed by the appellant's mother Mst. Sabra, the defence version appears to be more plausible.
13. For what has been discussed above, we are of the opinion that the prosecution has failed to prove its case against the appellant beyond any shadow of doubt and it is settled law that benefit of doubt if any arising would go to the accused. In this regard reference can be made to case of Tariq Parvez v. The State (1995 SCM R 1345) wherein it has been held by honourable Supreme Court that: "For giving benefit of doubt to appellant it is not necessary that there should be many circumstances creating doubts. If there is a single circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as matter of right".
14. In view of the dictum laid by honourable Supreme Court in above case and foregoing reasons instant Criminal appeal was allowed and impugned judgment dated 11.02.20116 passed by learned Judge, Anti-Terrorism Court No, V Karachi, was set aside. The appellant accused was acquitted of the charge and he was directed to be released forthwith if not required in any other case. These are reasons for the same.