AFTAB AHMED GORAR, J.---Through the instant. Criminal Appeal the appellant has assailed the judgment dated 26.09.2019. passed by learned VIlth Additional Sessions Judge/M.C.T .C-02, Karachi-Central in Session Case No. 452 of 2016 arising out of Crime No.290/ 2014 under section 302/392/397/34, P.P.C. registered with Police Station Sir Syed Karachi whereby he was convicted under section 265-1 1(ii), Cr.P.C. for the offence punishable under section 302(b), P.P.C. and sentenced to suffer life imprisonment and pay fine of Rs.1.00.000/- as compensation to the legal heirs of the deceased, in default whereof to suffer simple Imprisonment for one year more. However benefit of section 382-B, Cr.P.C. was extended to the appellant. The appellant has prayed for setting aside of the said judgment, conviction and for his acquittal from the charge of the case, on the facts, grounds mentioned in the appeal.
2. Prosecution story in nutshell is that complainant Muhammad Noman son of Sheikh Badaruddin lodged FIR on 06.09.2014 stating that he was working as a Manager at United Queens Food situated at U.P.Mor. Karachi where Muhammad Pannah son of Arz Muhammad Brohi an employee of U-Security , was performing his duty as security guard, at about 12:40 a.m. in the night they were busy in doing their respective works, suddenly two unknown persons aged about 24/25 years wearing pant/shirt Urdu Speaking, the person sitting in the back was wearing cap, came on 125CC motorcycle and apprehe nded the above named security guard by putting arm over his neck got him fallen on earth and tried to snatch his pistol during which on resistance of security guard, the person wearing cap made, two fire shots which hit the security guard who became injured and both the' accused person made their escape good on the 125CC motorcycle. They also took away the pistol of injured security guard then they shifted the injured security guard to Abbasi Shaheed Hospital through ambulance where he expired, hence the FIR. On completion of usual investigation challan was submitted. At trial, charge was framed by the court to which the accused pleaded not guilty and claimed trial.
3. In order to prove its case prosecution produced as many as 08 witnesses during the trial. The appellant/accused was examined under Section 342, Cr.P.C. He neither produced any evidence in defence nor opted to depose on Oath as required under Section 340(2) Cr.P.C. However , learned trial Court convicted and sentenced the appellant as mentioned above.
4. It is argued by learned counsel that the appellant that the appellant has falsely been implicated in this case; that the impugned judgment has been passed against the very spirit of law and basic requirement or the natural justice and is the result of misreading and mis-appreciation of the evidence. He contended that prosecution witnesses are not the eye-witnesses of the incident, they were fully shaken during the cross examination. He further contended that prosecution produced an eye-witness namely Ghulam Nabi by moving application under section 540, Cr.P.C. at very belated stage of the trial while he was not associated as witness and this witness was created and produced before the Court just to prove this case after lapse of five years, therefore it has no legal value at all. He argued that the appellant was already in custody of the Pakistan Rangers prior to implication in this case and subsequently he was handed over to Sir Syed police and in this respect a constitutional petition was also filed before this court which fact was not considered by the trial court. He further argued that no confessional statement under section 164, Cr.P.C. of the appellant was recorded even no identification parade was held through the eye witness and mere admission of appellant before the police officials regarding the guilt has no legal value and is violation of Articles 38 and 39 of Qanun-e-Shahadat Order , 1984. He submitted that as per prosecution the appellant laid the police party and got recovered the alleged pistol from a residential flat with some other articles but police did not associate and private witness. He further submitted that during the evidence it has come on the record that there was dispute over the property between deceased and his relatives which was confirmed through the evidence of PW -7. Muhammad Ali Brohi who admitted the dispute over the property .
5. Learned DPG supported the impugne d judgment and contended that the prosecution has proved the charge against accused person. She further contended that the evidence of eye-witness Ghulam-un-Nabi coupled with the medical evidence as well as recovery of crime weapon on the pointation of appellant is sufficient to bring guilt home to the appellant and that the Trial Court after thorough examining the record, has rightly convicted the appellant, which deserves no interference.
6. I have given due consideration to the record and arguments of learned counsel for the parties.
7. Admittedly , the complainant is not eye-witness of the incident and the only eye-witness so produced by the prosecution is PW-6 Ghulam-un-Nabi who was not associated as witness of the case and no where in the FIR his presence is mentioned. PW-6 in his evidence has stated that he has made fires upon the culprits but the record does not show that the weapon or the empties have been produced before the court. Perusal or record further shows that the son of deceased in his evidence admitted that there was dispute with one Dodo Khan over some properties and the Investigating Officer of the case in his evidence has stated that son of the deceased had made an application for reopening the investigation stating therein that his cousin Dodo killed his father Muhammad Parnah due to such dispute. Record further reflects that filing of application unde r section 540, Cr.P.C. for calling the so called eye-witness at belated stage of trial creates doubt as the said witness had stated that deceased was his friend and possibility that son of deceased had met him for giving evidence cannot be ignored as in such like circumstances false implication of the appellant in the case cannot be ruled out.
8. Analysis of the evidence produced by the prosecution has led this Court to a conclusion that the prosecution case is not free from doubts. It is settled by the apex Court of the country that in case of doubt its benefit must go to the accused not as a matter of grace but of right. The same proposition came up for consideration in the case reported as Muhammad Akram v. The State (2009 SCMR 230), wherein. at Page 236, the Hon'ble Supreme Court of Pakistan, held as under:- "13. The nutshell of the whole discussion is that the prosecution case is not free from doubt is an axiomatic principle of law that in case of doubt the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State (1995 SCMR 1345 ) that for giving the benefit of doubt, it was not necessary that there should be many circum stances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doub t not as a matter of grace and concession but as a matter of right".
(emphasis supplied)
9. As this case hinges on the circumstantial evidence as well as eye-witness, therefore, utmost care and caution has to be adopted to reach at a just decision of the case. It is settled by now that in such like cases every chain should be linked with each other and if any chain link is missing then its benefit should be given to the accused. In this regard, guidance has been sought from the judgments of the apex Court of the country reported in Ch. Barkat Ali v. Major Karam Elahi Zia and anothe r (1992 SCMR 1047 ), Sarfraz Khan v. The State (1996 SCMR 188) and Asadullah and another v. State (1999 SCMR 1034 ). In the case of Ch. Barkat Ali (supra), the august Supreme.
Court of Pakistan at Page 1055, quoted as under:-- "...Law relating to circumstantial evidence that proved circumstances must he incompatible with any reasonable hypothesis of the innocence of the accused. See Siraj v. The Crown (PLD 1956 FC 123) In a case of circumstantial evidence the rule is that no link in the chain should be broken and that the circumstances should be such as cannot be explained away on any hypothesis other than the guilt of the accused".
10. In the case of Sarfraz Khan (supra), the august Supreme Court of Pakistan, at page 192, held as under-- "7. .........it is well-settled that circumstantial evidence should be so inter-connected that it forms such continuous chain that its one end touches the dead body and other neck of the accused there by excluding all the hypothesis of his innocence........".
11. Besides above, learned counsel for the appellant has rightly pointed out that mere admission of appellant before the police officials regarding the guilt has no legal value and is violation of Articles 38 and 39 of Qanun-e- Shahadat Order , 1984 and there is no independent witness of the recovery of pistol from the flat, which is also violation of section 103, Cr.P.C. He submitted that as per prosecution the appell ant laid the police party and got recovered the alleged pistol from a residential flat with some other articles but police did not associate any private witness. The learned trial court has failed to appreciate the glaring infirmities floating on the record and recorded conviction which is the result of flagrant misreading and wrong appraisal of evidence, causing grave miscarriage of justice.
12. It is cardinal principle of criminal justice that prosecution is bound to prove its case beyond any shadow of doubt. If any reasonable doubt arises from the prosecution case which pricks the judicial mind, E benefit of the same is to be extended to the accused not as a matter of grace or concession but as a matter of right. It is also settled principle of criminal justice that there is no need of existence of so many doubts in the prosecution case, rather single reasonable doubt arising from it, may I crumble the whole edifice of the prosecution case. This analogy is well entrenched in our judicial system developed on Anglo-Saxon law but stemming out of divine law ordained way back fourteen centuries ago by The Holy Prophet (Peace be Upon Him) when he commanded that it would be better to acquit 100 culprits than convicting one innocent man, IG which is respectfully followed by the courts till date. Thus by applying the said principle, in the light or above discussio n, appellants are also entitled to the benefit of doubt, barely floating on record.
13. In the afore-referred circumstances, this Court is of the considered view that the prosecution has failed to prove its case against the appellant beyond any shadow of doubt to sustain conviction. Therefore, on 22.04.2020, after hearing the learned counsel for the parties by a short order , the instant appeal was allowed, the impugned judgment of conviction was set-aside, the appellant was acquitted from the charges levelled against him and jail authorities were directed to release the appellant if not required to be detained in any other case. The above are the reasons for the said short order .