KHADIM HUSSAIN M. SHAIKH, J. The captioned appeal is directed against the judgment dated 04.04.2005, passed by the learned Additional Sessions Judge, Kandhkot, whereby appellants Sahib son of Panyoun and Malhar son of Azeem were convicted for offence under section 398, P.P.C. and sentenced to undergo R.I. for seven years and for offence punishable under section 353, P.P.C. to undergo R.I. for two years. Both the sentences were directed to run concurrently.
2. Briefly the facts of the case are that on 10.03.2004 at 2040 hours ASI Obhayo Khan Meerani lodged his FIR at Police Station A-Section Kandhkot for offence under sections 353, 324, 34, P.P.C. read with section 17(1), Offences Against Property (Enforcement of Hudood) Ordinance, 1979 being Crime No.45 of 2004 to the effect that while the police party consisting of complainant ASI Obhayo Khan, P.C. Hamid Mehmood and P.C. Dilbar was on patrolling through official motorocycle in Gulsher Mohalla Kandhkot City, they were confronted by the two accused, who directed them to surrender their official motorcycle. Then there ensued encounter between the police party and the accused, which was joined by the another police party comprising of H.C. Meer Dost, P.C. Nazeer and P.C. Amir that encounter lasted for 10 minutes, whereafter the accused persons, raising their hands, surrendered themselves, who were apprehended and on enquiry they disclosed their names to be Sahib and Malhar; the police recovered one unlicensed T.T. Pistol of .30-bore with magazines, containing three bullets from each accused; the mashimama of their arrest and recovery was prepared in presence of H.C. Hamid Mehmood and H.C. Meer Dost; and, then the arrested accused and the property were brought at the police station where the aforesaid FIR was lodged. Besides, that, two other separate FIRs were lodged against both the above named accused on the charge of keeping with them the aforesaid unlicensed T.T. Pistols of .30 bore. After the investigation the final reports under section 173, Cr.P.C. were submitted in the Court whereupon the learned trial Court took cognizance of the case.
3. After completing all the formalities, a formal charge was framed against the accused '(the appellants)' at Ex.3 to which the appellants pleaded not guilty and claimed to be tried whereafter the trial commenced.
4. The prosecution examined PW-1 ASI Obhayo Khan at Ex.5, who produced mashirnama of arrest and recovery, FIR and mashirnama of place of incident at Ex.5/A, 5113 and 5/C respectively and PW.H.C. Meer Dost at Ex.6 and then the prosecution vide statement dated 09.03.2005 closed its side, whereafter the statements under section 342, Cr.P.C. of the appellants were recorded, wherein they denying the prosecution allegations professed their innocence and claimed 4o have been false implication in the subject case. The learned trial Court after hearing the parties' counsel convicted and sentenced the appellants vide impugned judgment dated 04.04.2005 as discussed in paragraph-1 [supra].
5. Having felt aggrieved by the aforesaid judgment dated 04.4.2005, passed by the learned trial Court, the appellants have preferred this criminal appeal.
6. The learned Additional Prosecutor General on a query has pointed out that appellant No.1 Sahib has died, therefore, the appeal against him stood abated. Mr. lmdad Malik advocate filing his Vakalatnama for appellant No.2 Malhar has submitted that the appellant is innocent and he has been falsely implicated in this case by the police by cooking up false and fabricated story of encounter; that the allegation of ineffective firing is attributed to the appellant; that the appellant and deceased co-appellant were acquitted in the off-shoot cases lodged against them; 'that the learned trial. Court without appreciating evidence in proper manner has convicted and sentences the appellants; and, that the impugned judgment dated 04.04.2005, passed by the learned trial Court is illegal. Learned counsel prays that this appeal may be allowed and conviction and sentence awarded to the appellant may be set aside.
7. Learned Additional Prosecutor General after going through the evidence has candidly conceded that there was no evidence to award conviction to the appellants, therefore: he does not support the impugned judgment.
8. I have considered the submissions of learned counsel for the appellants, learned Additional Prosecutor General and have gone through the material placed on the record.
9. From a perusal of the record it would be seen that although the alleged encounter involving extensive firing between the appellants and police parties comprising of six personnel, continued for 10 minutes yet nobody from either side had sustained even a scratch and the firing was proved ineffective; the two motorcycle, on which the two police parties, went to the place of incident, but no damage was alleged to have been caused to any motorcycle; the motorcycle, which the appellants, allegedly attempted to snatch from the police party, was not produced in evidence before the learned trial Court; even the descriptions and colour or making of that motorcycle was not shown anywhere either in the FIR or in the evidence; the weapons namely two T.T. Pistols of .30 bore allegedly recovered from the appellants were not sent to the ballistic expert to ascertain their working condition; the departure and arrival entries, which would show that the police parties were on patrolling and their return to the police station, after the alleged incident, have not been produced in evidence by the prosecution, which adversely reflects upon the prosecution; the appellants are reported to have been acquitted by the learned trial Courts disbelieving the prosecution case in both the off- shoot cases registered against the appellants on the charge of keeping with them the aforesaid unlicensed T.T. Pistols of .30 bore, which were registered against them on the basis of subject mashirnama of arrest and recovery. There are material contradictions in the evidence led by the prosecution such as N.C. P.W-2 Meer Dost, heading, the second party allegedly participated in the alleged encounter stated that "accused were not seen by me while making fires"; he further stated that some persons from neighbour came on firing but P.W-1 complainant ASI Obhayo Khan deposed that no private person or Chowkidar responded to that firing from neighbourhood; that P.W-1 complainant ASI Obhayo Khan had stated that he secured four empties of T.T. Pistols but P.W-2 mashir HC Meer Dost had stated that five empties of T.T. Pistols were secured from the place of incident. P.W-1 complainant ASI Obhayo Khan had stated that "I did not made (sic) effort to act as mashir", whereas P. W. H.C. Meer Dost has stated that "the complainant made effort to call private person to act as mashir", P.W.1 complainant ASI Obhayo Khan had stated that "we saw accused jointly from 10 steps away" whereas P.W.H.C. Meer Dost had stated that "I saw the accused from about 40 steps away".
10. Apart from the -above material and glaring contradictions, discrepancies and infirmities etc in the prosecution case rendering it doubtful, there are many other material contradictions and discrepancies in the prosecution case, which need not to be discussed just to save the space, and the same were not at all attended to by the learned trial Court, while passing the impugned judgment 04.04.2005, convicting and sentencing the appellants, as discussed supra, although the benefit of doubt, if any, arising in the prosecution case is to be extended to the accused not as a matter of grace, but as a matter of right. And, thus the impugned judgment suffers from misreading and non-reading of the evidence, which is not sustainable. Reliance in this context can be placed on the case of Muhammad Akram v. The State (2009 SCMR 230), wherein Hon'ble Supreme Court of Pakistan has held that: "It 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 circumstances 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 doubt not as a matter of grace and concession but as a matter of right."
11. In view of what has been discussed above I am of the considered view that the prosecution has failed to prove its case against the appellant beyond a reasonable doubt and the impugned judgment passed by the learned trial Court, convicting and sentencing the appellant is not sustainable. Accordingly, this criminal appeal is allowed and the conviction and sentence awarded to the appellant vide impugned judgment dated 04 04.2005, passed by the learned trial Court are set-aside and appellant Malhar is acquitted of the charge. The appellant is on bail, his bail bond is cancelled and his surety is discharged.