SYED MUHAMMAD FAROOQ SHAH, J.---This Criminal Appeal is directed against the judgment dated 03.03.2015, passed by the learned VIIth Assistant Sessions Judge, Karachi-East in Session Case No. 867 of 2014 (FIR No. 81/2014, under Sections 353/324/34, P.P.C.), registered at P.S. Shahrah- e-Faisal, Karachi, whereby the appellant has been convicted for an offence punishable under section 353, P.P.C. to suffer R.I. for two years and to pay fine of Rs. 5,000/-, in default thereof, to suffer SI for two months more. He was also convicted under section 324, P.P.C. to suffer R.I. for five years and to pay fine of Rs. 20,000/-, in case of failure of payment of fine, to undergo two months more S.I, with direction that the sentences shall run concurrently; however, benefit of section 382-B, Cr.P.C. was extended to the accused. The appellant has prayed for setting aside the impugned judgment and for his acquittal from charge of this case, on the facts and grounds averred in the memo. of appeal.
2. Prosecution story as narrated in the FIR is that on 04.02.2014 SIP Noor Mustafa of P.S. Shahrah-e- Faisal, Karachi along with his subordinates was busy in patrolling in the area of Gulistan-e-Jauhar.
During patrolling, they reached behind Shell Petrol Pump, near Pehelwan Goth, Block-13, Gulistan-e- Jauhar and signaled two motorcycle riders to stop but instead of stopping the motor cycle, the pavilion rider started firing upon the police party with intention to kill them and to stop them from the execution of their duties. However, police encircled them, due to which the rider, who was sitting on back of motor cycle fell down; he was apprehended by the complainant with the help of his subordinate staff, while another accused succeeded to fled away on motor cycle. One T.T. Pistol, a bullet in its chamber, two bullets in its magazine, without number was secured. On inquiry, he disclosed his name to be Muhammad Umair/appellant. Recovered weapon was sealed at the spot.
On completion of usual investigation; the appellant was charge sheeted by the police under sections 324/353, P.P.C. At trial, charge was framed by the trial court, to which the accused pleaded not guilty and claimed trial.
3. To support its case, prosecution examined in all four witnesses. PW-1 SI Muhammad Deen, who produced memo. of arrest as Ex.3/A. PW-2 SI Noor Mustafa, who produced copy of FIR as Ex.4/A, memo. of site inspection as Ex.4/B, arrival entry as Ex.4/C. PW-3 HC Sikandar Ali has given up by the prosecution vide his statement dated 07.02.2015 as EX.5. PW-4 ASI Syed Saqib Ali was examined as Ex.6, who was I.O. of this case, who produced FSL letter along with report as Ex.6/A and 6/B. On conclusion of prosecution evidence, statement of the accused was recorded under section 342, Cr.P.C.
4. Arguments heard. Record perused.
5. Mr. Sajjad, learned counsel for the appellant, inter-alia, submits that the appellant has falsely been implicated in this case by the police. He argued that the impugned judgment is result of misreading, non-reading and non-appreciation of evidence; moreso, the Section 324, which has been reproduced by the trial Court at page-7 of the impugned judgment, does not found in the Pakistan Penal Code or any other statute book. Learned Counsel next submits that, if at all, this is a case of ineffective firing and that there are material discrepancies and contradictions amongst prosecution witnesses, which cannot be brushed aside for safe administration of justice. PW- Sub- Inspector namely Deen Muhammad, in his cross-examination, stated as under:- "It is correct to suggest that a Shell Pump situated in the way of Rabia City. It is correct to suggest that except this Shell Pump there is no any other shell pump is situated in that way. It is correct to suggest that the number and colour of motor cycle are not mentioned in the memo. of arrest as one accused went away from there quickly. It is correct to suggest that no empties were recovered from the place of incident and I do not produce such empties before this Court. It is correct to suggest that the accused fell down from the motor cycle but no any injury are found on his body. It is correct to suggest that on that day I do not arrest any other accused except present accused. I was present on my duty from 08:00 p.m. to 8:00 a.m. on that day. I made entry after return to P.S. It is incorrect to suggest that two SI were present in the mobile. It is correct to suggest that my statement under section 161, Cr. P. C. was recorded at P.S. The sketch is not made on the memo of arrest and recovery".
6. PW- SIP Noor Mustafa (Ex-4) in cross examination has given different version in the following manner:-- "It is correct to suggest that I do not mention the departure entry in the memo. of arrest and recovery. It is correct to suggest that I do not produce departure entry before this Court it is the part of investigation. It is correct to suggest that in the FIR I made signature as a duty Incharge.
Being a senior officer when I reached at the police station I was incharge of police station. It is a routine work of Police Station. During patrolling, I patrolled at the different places of the jurisdiction of Police Station. A shell patrol pump is situated near by Pehalwan Goth. It is correct to suggest that I cannot saw the number of motor cycle as such I could not writ down the same in the memo.
It is correct to suggest that I had not disclosed the hulia of absconder accused in the memo. I cannot say how speed was of the motorcycle of the accused. It is correct to suggest that the distance between the P.S. and place of occurrence is 4-kilometers away. It is correct to suggest that the FIR was registered with the delay of one hour and 15-minutes. It is correct to suggest that I have not mentioned in the FIR as well as memo. of arrest and recovery that how many bullet fires were made by us. I did not recover any empty from the place of occurrence. It is correct to suggest that I have not made sketch of pistol on the back side of memo. of arrest and recovery. I do not remember whether arrest some other accused on the same day".
7. PW- ASIP Syed Saqib Ali (Ex-6), being Investigation Officer admitted in cross-examination that:-- "It is correct to suggest that the entry of Roznamcha regarding the arrival is not available in the police file. It is correct to suggest that at the time of remand I have not produced the case property before the Court. It is correct to suggest that the case property is submitted to the FSL on 12.2.2014. It is correct to suggest that I have not shown any entry whether the case property between the eight days in who's possession. It is correct to suggest that I have not recorded any evidence of accused. It is correct to suggest that I have not prepared any entry in Roznamcha to visit the site inspection of incident place. It is correct to suggest that the signature of HC Sikandar are different on memo. of arrest, memo. of site inspection and the cloth of case property. It is correct to suggest that I have not produce the entry of case property register before the Court. It is correct to suggest that the incident were took place at 2315 hours and the FIR lodged at 0045 hours after the delay of one and half hours. It is correct to suggest that the complainant stated that he not try to arrange any private witness. It is correct to suggest that the Complainant not prepared any sketch of case property nor that I asked question to the Complainant. It is correct to suggest that I have not produced the entry of complainant when who left the police station for patrolling."
8. By placing reliance on the case law reported as PLD 2005 Karachi 18 and in the latest pronouncements of Hon'ble Supreme Court in the case of Qaddan v. The State reported as 2017 SCMR 148, learned Counsel argued that material question with regard to recovery of weapon, FSL report, beside other substantial evidence have not been questioned to the accused while recording his statement under section 342, Cr.P.C. He further submits that admittedly the Complainant/I.O. deliberately and intentionally did not call any independent person at the place of occurrence, which is reportedly a Shell Petrol Pump, where the employees of fuel pump and public persons are oftenly found available. Learned counsel next submits that the appellant has been involved due to enmity of his son with a journalist of 'Jang' group. He argued that serious improvements and contradictions in the statements of prosecution witnesses made the prosecution version untrustworthy, unreliable and benefit of doubt arising therefrom ought to have been extended to the appellant but the trial Court has not properly appreciated the evidence nor determine the value or the quality of the evidence but the judgment has been pronounced on the strength of examination-in-chief of three police officials. Learned counsel' lastly submitted that the prosecution case hinges entirely on circumstantial evidence, then each piece of evidence collected must provide all links making out one straight chain.
9. Conversely, learned Prosecutor, without controverting the contradictions among the prosecution witnesses and discrepancies pointed out by the learned Counsel, submits that the accused has failed to prove the animosity with PWs nor anything brought on record regarding their inimical terms with Rana Khalid, on whose instigation, the police has allegedly involved the appellant in this case.
10.Suffice it to say that admittedly there are material contradictions among three prosecution witnesses those are police officials and record reflects that the recovered crime weapon was sent to FSL after eight (8) days delay without any plausible reason and explanation, which fact has admitted by the Investigation Officer. It is also an admitted position that no empty bullet was secured from the place of occurrence; delay in lodging the FIR has not been explained by the Complainant. Perusal of cross-examination of prosecution witnesses reproduced hereinabove reveals that the prosecution has miserably failed to establish any case of firing upon the police party with intention to cause their murder.
11.Discrepancies, illegalities and contradictions in the prosecution witnesses are creating a reasonable doubt as there are lot of loop holes and material contradictions in the prosecution case, which are sufficient to observe that the prosecution has failed to prove its case against appellant beyond any shadow of doubt; the benefit of which must go to the appellant. It is established law that for giving benefit of doubt to an accused, there need not be a number of circumstances to prove the innocence of accused; even single circumstance creating reasonable doubt is sufficient for the acquittal of an accused but the trial Court has failed to appreciate the evidence brought on record by convicting the appellant which is against the law. It need not to be reiterated that cross-examination is the great legal engine invented to unearth the truth from the statement of a witness. It is well known principle of appreciation of evidence that the benefit of all favorable instances in the prosecution evidence must go to the accused regardless to the fact as to whether he has taken any such defense plea or not.
12.Crux of the aforementioned discussion is that the impugned judgment is not tenable in law as it does not base on direct or substantive evidence and therefore the guilt of accused cannot be based on high probabilities that may be inferred from evidence in this particular case. As observed above, in the instant case sufficient discrepancies are appearing in the statements of prosecution witnesses and in the memo. of place of occurrence and recovery, prepared during investigation, appear to be suspected.
13.Resultantly, the appeal in hand is allowed. Consequently, the impugned judgment of the trial court is set aside and the appellant is acquitted from the charge of this case. He is on bail. His bail bonds stand cancelled. Surety discharged.