KHALID HUSSAIN TUNIO, J.---Through this order , I intend to dispose of the above captioned revision applicati on filed against the judgment dated 13.04.20 15 passed by the Learned Sessions Judge, Kamber Shandadkot whereby he sent the case to the trial court for retrial and set aside the judgment dated 30.10.2014 whereby trial court convicted the appellant under Section 23(i)(a) of Sindh Arms Act, and sentenced him to suffer R.I. for three years and fine amount of Rs. 2,000/-. and in case of default thereof to suffer further S.1. for one month. However , benefit of Section 382-B, Cr .P.C. was extended to him.
2. Facts in nutshell of the present case are dial complainant SIP Karim Bux left PS along with subordinate staff at 1900 hours for patrolling, and when they reached at Nasirabad Naka, they received spy information that absconding accused of Crime No. 270 of 2013 under sections 324, 353, 427, P.P.C. of Police Station Kamber namely Muhammad Ali Supro with his companions were sitting in the otaq of Bashir Gopang in Bagodero Mohalla, Kamber . On receiving such information, they proceeded to the pointed out place and reached there at 2200 hours, where they identified each Muhammad Ali with a pistol, Tarique with a pistol, Sajjad with a pistol, Nisar Ahmed with a pistol, Ghulam Umar with a pistol, Bashir empty handed. Ali Sher with a pistol while two unknown persons armed with Kalashnikovs. Upon being approached, all the accused persons opened fire upon police, and in their defence, the police party also opened fire whilst taking cover of the walls of the otaq. During the crossfire, accused Muhammad All received injuries who fled the scene along with rest whereas the police party tactfully apprehended accused Tarique, Sajjad, Nisar Ahmed and Ghulam Umar with empty pistols, for which they failed to produce any license. Such memo. of arrest and recovery was prepared in the presence of mashirs, who signed the same.
Thereafter , case property along with accused were brought to P .S. and FIR was lodged,
3. After usual investigation, police submitted charge against the accused showing him under custody as such he faced the trial.
4. A formal charge was framed against the accused, to which he pleaded not guilty and claimed his trial,
5. The prosecution. in order to prove its case against the appellant, examined in all 3 witnesses namely SIP Karim Bux Chandio, PC Muhammad Ramzan and PC Gulzar , thereafter prosecution closed its evidence vide their statement at Ex.06.
6. Statement of accused under section 342, Cr.P.C. was recorded at Ex.07, in which he denied all the allegations leveled against him and prayed for justice.
7. Learned counsel for the applicant argued that the accused has been falsely implicated in the present case and the weapon was foisted upon him and nothing was secured from him; that the ground the impugned judgment was based on was not raised by either of the parties; that the impugned judgment was given by the learned. Judge to utter surprise of the applicant, neither any notice was given to the advocates of either parties nor were both the parties heard before passing the judgmen t; that the learned judge failed to act in his jurisdiction and also failed to appreciate the evidence recorded by the trial court; that all the PWs are police officials and subordinate to the complainant; that the prosecution has failed to prove its case against the applicant, therefore prays for setting aside the impugned judgment.
8. Learned APG for the State has argued that no material contradictions have been pointed out by the defense, therefore, the Cr . Revision application of the applicant is liable to be dismissed.
9. Heard. Perused the Record.
10. After giving due consideration to the arguments forwarded and perused the record, I have come to the conclusion that the Prosecution has direly failed to prove its case against the applicant in view of numerous contradictions in the case of the prosecution. Complainant SIP Karim Bux has deposed in his cross-examination that "We patrolled Bus stand Kamber , bypass Bagodero Shahi Bazar Shaikh Muhallah.. ." whereas PC Muhammad Ramzan has deposed that "We patrolled Bhutto Chowk, Bus stand, cinema road and other places... " and PC Gulzar Ali deposed that "We first patrolled Mastoi Fatak, then Bagodero bypass and came to Nasirabad Naka." It is surprising how each and every witness has contradicted on the same point of patrolling, raising serious doubt in the prosecution case. PC Gulzar has deposed that "We stayed 5/10 minutes at Mastoi Fatak " whereas PC Muhammad Ramzan deposed that We did not stay anywhere during patrolling." Further on all 3 witnesses have deposed that they did not take any efforts to call for independent witnesses even after admitting that the place of incident was located in a populated area and also state d that the otaq was surrounded by house s. SIP Karim BUX has deposed in his examination-in-chief that he does not remember the name of the SHO that followed the accused that escaped on foot. Such a statement is hostile to the prosecution case, raising further doubt as to the statement of the complainant as a whole. PC Ramzan has deposed that there was a distance of 15 paces between them and the accused when the encounter took place whereas PC Gulzar deposed that "We saw the accused at a distance of 8 to 10 paces..." He has further deposed that the proceedings took over half an hour to complete whereas PC Ramzan has deposed that it look them about 15-20 minutes to complete all the formalities after the arrest of the accused, whereas complainant depose d that it took them about an hour to complete all the formalities.
Complainant has deposed in his examina tion-in-chief that they reached the hospita l at about 2300 hours; whereas rest of the PWs including PC Gulzar and PC Ramzan have deposed that they reached at PS at 2350 hours and have not mentioned anything about stopping at a hospital. Such a fact raises serious doubts in the prosecution case.
11. In the case of Muhammad Ilyas v. The State (1997 SCMR 25), the Hon'ble Apex Court of Pakistan-has held that:-- "It is well-settled principle of law that where evidence creates doubt about the truthfulness of prosecution story , benefit of such a doubt had to be given to the accused without any reservation. In the result: there is no alternative but to acquit the appellant by giving him benefit of doubt."
12. In the case of Hashim Qasim and another v. The State (2017 SCMR 986), the Hon'ble Apex Court of Pakistan has held that:- "20. Even a single doubt, if found reasonable, would entitle the accused person to acquittal and not a combination of several doubts is bedrock principle of justice. Reference may be made to the case of Riaz Masih t Mithoo v. The State ( 1995 SCMR 1730 )."
13. In the case of Muhammad Mansha v. The State (2018 SCMR 772), Hon'ble Supreme Court of Pakistan has held that:-- "Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted"; Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR 1345 ), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221 ), Muhammad Akram v . The State (2009 SCMR 230 ) and Muhammad Zaman v . The State (2014 SCMR 749 )."
14. In view of the foregoing reasons, I allowed the instant Cr. Revisions Application, set aside the conviction and sentence awarded to the applicant. Since , the applicant was present on bail, his bail bond stands dismissed and surety discharged.
These are the reasons for the short order dated 29.06.2018.