ABDUL MAALIK GADDI, J.---Appellant Muhammad Shahid was tried by the Court of learned IInd Additional Sessions Judge, Karachi (South), in Sessions Case No,187 of 2013, re: The State v. Muhammad Yaqoob and others, arising out of Crime No,270 of 2012 registered at police station Tipu Sultan, Karachi, under Section 392/34, P.P.C., Amended in Challan as Section 395/34, P.P.C. By judgment dated 14.10.2013, the appellant was convicted and sentenced the appellant as stated in Point No,2 of the impugned judgment. For the sake of convenience, it would be proper to reproduce the Point No,2 of the impugned judgment, which reads as under:-- "Point No,2. In view of my findings on Point No,1, the prosecution has been able to bring home the charge against the accused Mohammad Shahid son of Noor Mohammad, beyond any reasonable doubt. So far the point of conviction and quantum of sentence to be awarded to the accused is concerned, I, therefore, convict him under section 265H(2), Cr.P.C. and sentenced him, under Section 392, P.P.C. to undergo R.I. of 03 (three) years, and further to pay fine of Rs,5,000/-, in default thereof to suffer further S.I. of two months. The benefit of Section 382-B, Cr. P. C. is also extended to the accused. He is produced in Jail Custody and sent back to Jail, with the conviction as well as jail warrants. Whereas, the case against the accused persons namely Mohammad Yaqoob son of Jamal Irfan and Danish Shehzad son of Mohammad Tasleem, the prosecution has failed to prove the charge against them beyond any reasonable doubt. Therefore, 1 acquit both the accused persons Mohammad Yaqoob son of Jamal Irfan and Danish Shehzad son of Mohammad Tasleem, under Section 265-H(i), Cr.P.C. by giving them benefit of doubt. The accused Danish is present on bail, his bail bond stands cancelled and surety discharged. The accused Mohammad Yaqoob is produced in Jail Custody and sent back to Jail, along with release writ with the direction to the Jail Superintendent to release him forthwith if he is not required in any other crimin al case. The case against the absconding accused persons namely (i) Zubair son of Bahadur Khan, (ii) Faisal son of Maqbool and (iii) Imran son of Mohammad T asleem, be kept on dormant file till their arrest."
2. Precisely the facts of the prosecution case, as unfolded in the FIR lodged by the complainant Khawaja Irfan Ahmed are that on 13.08.2012 at about 2300 hours (11:00 PM), when he along with Zafar Junaid, Atif and Security Guard were present in TCS Office situated at Amber Tower , Block-6, PECHS, main Shahrah-e-Faisal, Karachi, in the meantime, three accused persons above named along with absconding accuse d persons namely (i) Zubair son of Bahadur Khan, (ii) Faisal son of Maqb ool and (iii) Imran son of Muhammad Tasleem, duly armed with pistols entered into the office and on the force of weapons conjointly committed dacoitee and took away cash of Rs,15,000/- (Rupees Fifteen Thousand only), of the company and while going after committing said dacoitee also took away Repeater bearing No, P AM 624, from the Security Guard namely Irfan.
3. The charge was framed on 14.06.2013 at Ex.4 against the accused by the learned trial Court, to which he pleaded not guilty vide plea at Ex.4/C, and claimed to be tried.
4. At trial, in order to establish accusa tion against appellant/ accused, prosecution had examined following witnesses:--
(i) PW-1/Complainant Khawaja Irfan Ahmed at Ex.5, who produced the FIR No,27 0/2012 and memo. of inspection of place of incident at Ex.5/A and Ex.5/B respectively;
(ii) PW -2 Saeed Ahmed at Ex.6;
(iii) PW-3 SI Mian Tariq Rauf at Ex.7, who produced copy of FIR No,314/2012 , copy of memo. of arrest and recovery of accused Zubair and Imran, and copy of FSL Report of recovered Repeater at Ex.7/A to Ex.7/C respectively;
(iv) PW -4 Irfan (Security Guard) at Ex.8;
(v) PW -5 SI Iqbal Mehmood at Ex.9;
(vi) PW-6 SI Rao Muhammad Mubashir (10) at Ex.11, who produced Site Sketch of place of incident, photographs of the accused person taken from the CCTV footages, information letters to different PS, letter to CRO, memo. of re-arrest of accused persons, three FIRs bearin Nos,39, 40 and 41 of 2013, hulia form of arrested accused persons, entry No,11 of CID Garden, entry No,29 of PS Tipu Sultan, entry No,37 and notice under section 160, Cr.P.C. at Ex.1 1/A to Ex.1 1/Q respectively .
These witnesses were cross-examined by the counsel for the appellant. There after, leaned ADPP closed the prosecution side vide Statement at Ex.12.
5. Statement of appellant was recorded under Section 342, Cr.P.C. at Ex.15, in which he has professed not guilty and denied the allegations as leveled by the prosecution by stating that he is innocent and nothing was recovered from him. However , accused neither examined himself on Oath nor led any evidence in his defence.
6. Trial Court after hearing the learned counsel for the parties, convicted and sentenced the appellant, as stated supra.
7. Mr. Umar Farooq Khan, learned counsel for the appellant has argued that the case against the appellant is false and has been registered due to enmity with police official; that the alleged incident took place on 13.08.2012, whereas, the FIR was lodged by the complainant Khawaja Irfan Ahmed on 28.08.2012 after the delay of about fifteen (15) days, for which no satisfactory explanation has been furnished, as such, false implication of the appellant in this case with due deliberation and consultation with police officer could not be ruled out; that the name of the present appellant does not transpire in the FIR; that in the FIR, initially , four unknown accused have been shown and their Hulia Form have also not been described, but when the challan sheet was presented before the trial Court by the Investigating Officer of the case, wherein six accused persons namely Yaqoob, Danish, Shahid, Zubair , Faisal and Imran have been shown as accused; that since the name of appellant is not appearing in the FIR without any Hulia Form and after his arrest he has also not been put into identification test before any concerned Magistrate through prosecution witnesse s, therefore, his involvement in the case at the hands of Investigating Officer falsely could not be ruled out; that out of these, accused Zubair , Faisal and Imran have been declared proclaimed offenders by the trial Court, whereas, the accused Muhammad Yaqoo b, Danish Shahzad have been acquitted by the trial Court and the present appellant Muhammad Shahid has been convicted by the trial Court on the basis of same evidence without assigning any justification and good reasons; that the appellant was arrested on 04.01.2013 by the CID in case of alleged country made pistol and in the said case, appellant has been acquitted, but the prosecution has not filed any appeal against his acquittal order; that nothing was recovered from the possession of the appellant, but the trial Court has convicted the appellant on the basis of CCTV Camaras, but nothing is mentioned in the FIR as to whether the CCTV Camaras were installed in the place of incident or otherwise; that the evidence of prosecution witnesses are contradictory to each other on material particulars of the case, therefore, on the basis of contradictory and doubtful evidence, no conviction can be maintained against the appellant; that PW-4 Irfan, Security Guard in his evidence at Ex.8 did not implicate the appellant as he has deposed that the accused, who had snatched the gun from his possession, is not present in Court; that PW-5 Iqbal Mehmood also in his evidence at Ex.9 did not deposed anything against the appellant; that CCTV footages in which appellant has not played any role, but even than the same cannot be equated with the ocular evidence, which is not against the appellant. During the course of arguments, learned counsel for the appellant has also reiterated the same facts and grounds, which he has urged in the memo of appeal. Lastly , he argued that in view of the above points, prosecution has failed to prove its case against the appellant.
8. Mr. Sagheer Abbasi, learned Assistan t Prosecutor General, Sindh for the State while opposing the aforesaid contentions, submitted that the prosecution has fully established its case against the appellant beyond reasonable doubt by producing consistent/ convincing and reliable evidence and the convictio n and sentence awarded to the appellant is the result of proper appreciation of evidence brought on record, which needs no interference. Lastly , he prayed that this appeal may be dismissed.
9. I have given my anxious thoughts to the contentions raised at the bar and have gone through the evidence, documents and the impugned judgment.
10. After careful consideration and meticulous examination of the available record, suffice to say that mere heinous nature of offence is not sufficient to convict the accused because the accused continues with presumption of innocence until found otherwise at the end of the trial. It is the settled principle of law that burden is always upon the prosecution to prove the case beyond shadow of doubt. Keeping in view of this basic touchstone of criminal administration of justice, I have examined the ocular evidence as well as circumstantial evidence, along with impugned judgment.
11. After going through the record, I have come to the conclusion that prosecuti on has failed to prove its' case against the appellant for the reasons that all the pieces of evidence produced by prosecution in this case are weak in nature. It appears from the record that the alleged incident of committing dacoitee took place on 13.08.2012 inside the TCS Office situated at Amber Tower , Block-6, PECHS, Shahrah-e-Faisal, Karachi, but the FIR of the incident was lodged by the complainant Khawaja Irfan Ahmed on 28.08.2012 after the delay of about fifteen days, for which no satisfactory explanation has been furnished, therefore, on this ground alone, false implication of the appellant in this case with due deliberation and consultation could not be ruled out. During the course of arguments, I have specifically asked the question from the learned APG with regard to delay in registration of FIR, he has not replied satisfactorily . The prosecution has failed to show as to why identification test of the appellant through the eye-witnesses was not held, when his name did not appear in the FIR. Nothing on record as to how the complainant learnt the name of the accused persons, their parentage and their place of incident. In this backdrop, none holding of identification parade after the arrest of the accused cut the root of prosecution case. It has been observed time and again by the Apex Court as well as this Court that cutting the short process of investigation by way of supplementary statement does not serve any lawful purpose, nor it create any admissible piece of evidence and that such a statement cannot be equated with lawful evidence of identification parade, but police appears to have been turned to deaf ear to it, which is unfortunate.
12. It may be mentioned here that initially FIR has been registered against the four unknown persons, but challan sheet has been presented by the Investigating Officer of the case against six persons namely Yaqoob, Danish, Shahid, Zubair , Faisal and Imran. Out of them, three accused namely Zubair , Faisal and Imran have been declared as proclaimed offenders by the trial Court, whereas, the remaining accused namely Muhammad Yaqoob, Danish Shahzad and Muhammad Shahid were proceeded for trial and after conclusion of trial, trial Court has acquitted the accused Muhammad Yaqoob and Danish Shahzad, but the prosecution has not filed any appeal against the aforesaid acquitted accused persons, whereas, the present appellant Muhammad Shahid was convicted as stated above on the basis of same evidence and in doing so, the case of the prosecution has become doubtful.
13. As observed above, the name of appellant is not appearing in the FIR and the appellant has been arrested on 04.01.2013 by the CID in the case of recovery of alleged country made pistol. It is informed by the counsel for appellant that appellant has been acquitte d in the case of alleged recovery of country made pistol. This fact has not been disputed by the learned APG. Admittedly , the name of appellant is not appearing in the FIR, but he was arrested on 04.01.2013 much after the registration of the FIR, but after his arrest, he has also not been put into identification test before any concerned Magistrate. During the course of arguments, I have also specifically asked the question from the learned APG that after arrest of appellant, why he has not been produced before any Magistrate for the purposes of identificatio n test, he has no answered with him. It also appears from the record that nothing was recovered E from the possession of the appellant. I have perused the evidence of PW-2 Saeed Ahmed available on record at Ex.6 of the R&Ps , but he did not utter any single word against the appellant. Likewise, complainant Khawaja Irfan Ahmed in his examination-in-chief at Ex.5 has also not F uttered any single word with regard to the identity and involvement of the appellant in this case. During the course of arguments, learned counsel for the appellant has drawn the attention of this Court towards the evidenc e of PW-4 Irfan, Security Guard in his evidence at Ex.8, also not implicate d the appellant by deposing that the accu sed, who had snatched the gun from his possession is not present in Court. It is admitted by the Investigating Officer of the case that he has not recovered any incriminating article from the appellant. From the perusal of impugned judgment, it appears that the appellant has been convicted on the basis of footages of CCTV Camaras, but neither the said CCTV Camaras have shown as 'article in the challan shee t, nor it was shown that who had produced the same and according to the counsel for appellant, the appellant has not seen in the CCTV Camaras by comm itting any offence at the place of incident. It has also not been mentioned in the FIR as to whether the CCTV Camar as were installed inside the TCS Office or otherwise. Even otherwise, no recovery memo. of CCTV/CD has been made. It is also argued by the counsel for appellant that footage of CCTV Camaras have not been shown to the appellant during trial to defend his case. Even otherwise, the CCTV footage cannot be equated with the ocular evidence already on record.
Perusal of ocular evidence on record, no adverse evidence is available against the appellant. All these aspects of the case leads to me to arrive at the conclusion that it is the case based upon number of infirmities/lacunas as well as full of doubt.
14. All the above circumstances have proved that neither the incident as alleged, had taken place, nor the recovery , as shown, were effected from the possession of appellant. It is settled principle of law that to extend benefit of doubt there is no necessity to gather many circumstances, but even if slightest doubt arises out of prosecution case, is sufficient to extend the benefit of doubt to the accused. In the instant case in view of the discussion whatever discussed hereinabove and the material placed before me has constrained to hold that the prosecution has miserably failed to prove its charge against the appellant beyond any reasonable shadow of doubt.
Consequently , this appeal is allowed. The impugned Judgment passed by the trial Court is set-aside. Resultantly , the appellant is acquitted of the charge. Appellant is present on bail, his bail bond stands cancelled and surety is discharged.