KHURRAM JALALI Versus State
1. AFTAB AHMED GORAR, J.--- Through this Cr. Appeal Appellant Khurram Jalali has impugned judgment dated 12.08.2014 passed by Judge, Anti-Terrorism Court No.III, Karachi in Special Case No. 192 of 2011, whereby appellant has been convicted under section 302(b), P.P.C. read with section 7(a), Anti-Terrorism Act, 1997 and sentenced to death subject to confirmation by this Court. Appellant has also been convicted under section 353, P.P.C. and sentenced to suffer R.I. for two years and to pay fine of Rs.10,000/- (Rupees Ten thousand only), further sentenced to R.I. for two years and to pay Rs.5000/- as Daman to victim/complainant Gulbaz Khan for offence punishable under section 337-A(i), P.P.C., further awarded sentence of three years' R.I. and to pay Rs.5000/- as Daman to victim ASI Muzaffar Hussain for offence punishable under section 337-F(ii), P.P.C. and in case of non-payment of total Daman amount of Rs.10,000/-, the appellant was ordered to be kept behind the bars till the said amount is paid or in case of his release on bail, he may be released on bail subject to his furnishing solvent surety/security in the sum of Daman. However, the appellant was extended benefit of section 382-B, Cr.P.C. It was further ordered that fine, if recovered, shall be paid to the legal heirs of deceased and moveable and immoveable property of the accused, after deducting the abovesaid amount ordered to be disbursed, be forfeited with the Government.
2. Precisely, the facts of the prosecution case are that complainant HC Gulbaz Khan lodged FIR No.03/2010 at P.S. Soldier Bazar at 0315 hours stating therein that on 03.01.2010 he along with ASI Muzaffar Hussain and HC Hakim Ali was patrolling in mobile within the area of PS Soldier Bazar. During the patrolling ASI Muzaffar Hussain received a call on his mobile phone from PC Mohammad Shafiq that two dacoits had come on two motorcycles and were committing robbery in Nasir Autos. On receiving such information, they reached Nasir Autos at 0045 hours and saw that the dacoits on the resistance of the employees of Nasir Autos had opened fire consequently one employee namely Rashid was injured. When police party tried to capture the culprits, they started firing with intention to kill them with the result the complainant and ASI Muzaffar Hussain also sustained injuries. The police also fired at the accused in their defence. They identified the dacoits as Khurram Jalali and Dilawar. However, it is alleged that accused made their escape good on one motorcycle leaving another at the spot. The injured were shifted to civil hospital for treatment however subsequently injured Rashid succumbed to his injuries. After usual investigation challan was submitted against the accused under sections 302/353/324/397/394/34, P.P.C. read with section 7(a), A.T.A., 1997.
3. Charge was framed against the accused at Ex.14 to which he pleaded not guilty and claimed to be tried.
4. In order to prove the charge against the accused, prosecution examined PW-1 Complainant ASI Mohammad Gulbaz (Ex.17) who produced statement under section 154, Cr.P.C., FIR, Memo and sketch of place of occurrence (Ex.17-A to Ex,17/I), PW-2 ASI Muzaffar Hussain (Ex.19) who produced extract of entry No.60 (Ex.19/A), PW-3 SIP Mohammad Irshad (Ex.20) who produced extracts of four entries (Ex.20/A to Ex.20/G), PW-4 PC Shafiq Ahmed (Ex.21), PW-5 HC Khursheed Ahmed (Ex.22) who produced copy of memo of arrest (Ex.22/A), PW-6 SIP Mian Khan (Ex.23) who produced attested copy of FIR under section 13(e) Arms Ordinance (Ex.23/A) and attested copy of 154 Cr.P.C. Statement (Ex.23/B), PW-7 PC Mohammad Saleem (Ex.24), PW-8 MLO Dr. Iftikhar Ahmed (Ex.25) who produced provisional and final medical certificates of three injured (Ex.25/A to Ex.25/E), PW-9 SIP Anwaar Mohammad (Ex.26) who produced extract of entry No.26, copy of letter sent to MLO, memo of inspection of dead body of the deceased and inquest report (Ex.26/A to Ex.26/D), PW-10 ASI Hakim Ali (Ex.27), PW-11 SIP Sarfaraz (Ex.28) who produced attested copy of cause of death of deceased (Ex.28/A to Ex.28/M). Thereafter, prosecution closed its side vide statement at Ex.29.
5. Statement of accused was recorded under section 342, Cr.P.C. at Ex.30 wherein he denied the prosecution allegations and claimed innocence. He further stated that he has been involved falsely on account of political victimization and PW Malik Nasir owner of Nasir Autos has not implicated him. Accused further stated that he had been acquitted in connected case under section 13(e), Arms Ordinance. Accused declined to give statement on oath and did not lead evidence in defence.
6. After formulating the points for determination, recording evidence of the prosecution witnesses and hearing counsel for the parties, learned trial Court vide impugned judgment convicted and sentenced the accused as stated above. Against the said judgment appellant Khurram Jalali has preferred the instant appeal.
7. We have heard learned counsel for the appellant as well as learned A.P.G. appearing for the State and perused the evidence recorded by the trial Court.
8. Learned counsel for the appellant has contended that the accused is innocent and has been falsely involved in the case by the police for political reasons. Learned counsel for the appellant further contended that it was night time incident. Identity of the accused was highly doubtful. There was no mention of street lights in the mashirnama at the place of incident. He has further contended that police officials have named the accused but they have not disclosed as to how they knew the accused persons prior to this incident. It is, therefore, argued that there are material contradictions in the evidence of the prosecution witnesses on the point of identification of accused. He has also argued that P.Ws Shafique Ahmed and Malik Nasir have been declared hostile and no private person has been examined by the prosecution. According to the prosecution case, incident occurred near petrol pump and it was common road adjacent to the petrol pump and private persons were attracted at the time of occurrence despite that none of them has been examined. He argued that identification of accused was highly doubtful inasmuch as P.Ws 1 and 2 stated that accused were wearing helmets at the time of incident whereas P.W. 4 stated that faces of accused were open. He further contended that evidence of Malik Nasir, the owner of Nasir Autos Shop, was recorded by IInd Additional Sessions Judge, Karachi East on 01.12.2012 in which he had deposed that culprits were wearing helmet and he could not identify them and he was also declared hostile but he was not examined before ATC, on the ground that he was untraceable. He contended that non-examination of such material witness would be favourable circumstance to the accused. In support of his contentions he relied upon the case of Riaz v. The State (2010 SCMR 846), He submitted that if the appellant would have been previously known to P.Ws PC Gulbaz Khan and ASI Muzaffar Hussain, then he would have been arrested from the jail without delay but as per record, the appellant was arrested from Central Prison Karachi on 29.04.2010. According to the learned defence counsel, although complainant PC Mohammad Gulbaz has implicated the accused but his evidence is not reliable. Learned counsel has submitted that honourable Supreme Court has held that in the cases of police encounter investigation should be carried out by some other agency. It is contended that accused has been acquitted by Ist Class Magistrate in the case under section 13-(e) of Arms Ordinance and such acquittal was not challenged by the State despite that learned trial Court has relied upon the evidence regarding recovery of illicit arm which was unwarranted. Learned counsel argued that although robbery has not been established at trial and in the impugned judgment the trial Court has answered this point in favour of the accused but very strangely learned trial Court found the accused to have committed murder and the accused has been awarded capital punishment. He argued that PWs Mohammad Shafique and Nazir had been declared hostile but benefit of their evidence has not been extended to the appellant. He submitted that no private person has been cited or examined as witness by the prosecution in this case though were attracted at the time of incident. In support of his contentions, learned counsel placed reliance on the case of Zeeshan alias Shani v. The State, 2012 SCMR 428.
9. Conversely, Mr. Mohammad Iqbal Awan, APG contended that the prosecution witnesses have implicated the accused. He submitted that HC Mohammad Gulbaz has deposed that he identified accused Khurram Jalali as the accused was residing in Soldier Bazar where he was also residing. He contended that besides PWs HC Gulbaz and ASI Muzaffar Hussain, P.C. Shafeeq has also clearly stated that the faces of the accused were open. According to him, FIR was promptly lodged. He submitted that P.W. HC Gulbaz has stated that accused were identified on the light of Petrol Pump, Street Lights and the light of Auto Shop. He further contended that although post-mortem examination was not conducted but death certificate was issued by the doctor in which it was clearly stated that deceased died after receiving fire-arm injuries. He further contended that two empties were secured from the wardat, so also one .9 MM Pistol was recovered on the pointation of accused Khurram Jalali. He submitted that P.W. Mohammad Saleem was present at the time of incident at Jamaat Khana and was performing duty as Guard and identified the accused before the trial Court saying that the accused was residing at Soldier Bazar where he was also residing. He contended that the pistol recovered on the pointation of the accused and the empties recovered from the spot were sent to the Ballistic Expert, its report is positive. Lastly, contended that prosecution has proved its case against the appellant and the appellant deserves no leniency so far as sentence is concerned.
10. We have gone through the evidence of the prosecution witnesses recorded by the trial Court. PW-1 HC Gulbaz Khan is the complainant in the case. He has deposed that on 03.1.2010 while patrolling in the area along with ASI Muzaffar and driver PC Hakim Ali when at about 0045 hours police party reached at Shell Petrol Pump, Soldier Bazar, PC Shafiq informed them that two persons came on two motorcycles and were busy in looting the articles at Nasir Autos, police party proceeded towards Nasir Autos and saw that culprits had caused fire arm injury to one employee of Nasir Autos namely Rashid. They tried to surround the dacoits who while attempting to escape from the spot, started firing upon the police party with the result, he and ASI Muzaffar sustained injuries. The dacoits made their escape good on one motorcycle while leaving another motorcycle at the spot. He identified the culprits as Khurram Jalali and Dilawar Khan. He further deposed that he as well as ASI Muzaffar and injured Rashid were taken to civil hospital for treatment. Duty Officer SI Haji Mohammad Irshad recorded his statement under section 154, Cr.P.C. in the hospital and on reaching the police station FIR was registered on the basis of his 154, Cr.P.C. He further deposed that on his pointation SI Sarfraz Alyana inspected the place of incident and secured empties. In his cross-examination he stated that since 2009 he was posted at P.S. Soldier Bazar and accused Khurram Jalali was residing in Soldier Bazar, therefore he knew him prior to the incident. In reply to a question, he stated that subsequently accused Khurram shifted to Orangi Town, however his brothers were still residing at Soldier Bazar and the accused used to visit his brothers. He admitted that in his statement under section 154, Cr.P.C. it was not mentioned that the accused fled away from the place of incident on second motorcycle. He admitted that no one amongst the persons who had gathered at the spot at the time of incident, was made witness in the case. He admitted that Malik Nasir, proprietor of Nasir Autos witnessed the incident. He denied the suggestion that at the time of incident the dacoits were wearing helmet. He also denied the suggestion that there was no source of light at the spot and voluntarily stated that street light and the bulb installed at petrol pump as well as at Nasir Autos were on at that time.
11. P.W. 2 Muzaffar Hussain deposed that on 03.01.2010 he was performing the duty of patrolling along with driver HC Hakim Ali and HC Gulbaz. At about 12.45 a.m. when they reached at Soldier Bazar No.2 near Shell Petrol Pump Constable Mohammad Shafiq informed him that two culprits riding on two motorcycles were committing robbery at Nasir Autos. On such information when they reached at Nasir Autos the accused had caused fire-arm injury to one employee of Nasir Autos whose name he later on came to know to be Shahzad. On seeing police party, accused made straight firing upon police party which resulted in injuries to him and HC Gulbaz. On receiving bullet injury he went unconscious and regained his conscious at Civil Hospital Karachi wherefrom he was referred to Aga Khan Hospital. He further deposed that the accused were identified by him to be Khurram Jalali and Dilawar Khan as they were residents of same area within P.S. Soldier Bazar. Subsequently, he came to know that the employee of Nasir Autos namely Rashid had succumbed to his injuries. He identified accused Khurram in Court. In his cross-examination he denied the suggestion that at the time of incident the accused were wearing helmet. He denied the suggestion that accused was a political worker and he was deposing falsely against him.
12. PW-4 Shafiq Ahmed deposed that on 03.1.2010 he was performing intelligence duty at PS Soldier Bazar Karachi. At 0045 hours when he was available at Shell Petrol Pump, Soldier Bazar there was disturbance in general public and on his enquiry he came to know that some dacoits had come. He tried to contact ASI Muzaffar who was on patrolling duty, however, meanwhile the mobile under the control of ASI Muzaffar Hussain also reached there and along with ASI Muzaffar, HC Gulbaz and HC Hakim were also in the mobile. While the police officials were in the way to Nasir Autos the two accused made straight firing upon police party. He further deposed that when he reached near police party, he saw ASI Muzaffar Hussain and HC Gulbaz in injured condition. The dacoits made their escape good. Another police mobile also reached the spot and they shifted the injured to Civil Hospital. At about 04.00 a.m. he was called by SI Alyana at the spot from where the empties etc and one motorcycle were secured in his presence under proper memo. He deposed that due to rush of the people he could not identify the accused. He further deposed that his statement was not recorded by I.O. and that since he had not seen the accused person, therefore he could not say whether the accused were same or not.
13. At that stage this witness was declared hostile and was cross-examined by learned APG appearing for the State. Despite cross-examination by APG nothing favourable to the prosecution came on record. On the other hand, perusal of evidence of Shafeeq he has clearly stated that due to rush of people he could not identify the accused. There are circumstances in the evidence of P.W. Shafique Ahmed in favour of the accused. In his cross-examination he admitted that in police papers statement in his name was seen. He further admitted that he found his statement in the police papers and that he did not make any complaint regarding availability of his statement in police papers. He, however, denied the suggestion that he was deposing falsely due to pressure of accused persons in order to save them from conviction.
14. Evidence of PW-6 ASI Mian Khan is to the effect that on 02.1.2010 he was performing patrolling duty in another police mobile and on hearing firing he along with his subordinate staff reached the spot and found ASI Muzaffar Hussain and Rashid, employee of Nasir Autos, lying injured and he took them to Civil Hospital for treatment. He further deposed that on 02.5.2010 on receiving statement under section 154, Cr.P.C. of SI Sarfaraz Alyana, being Duty Officer he registered FIR No.190/2010 under section 13(e), Pakistan Arms Ordinance against the accused.
15. PW-7 PC Mohammad Saleem deposed that on 02.01.2010 he was deputed as guard at Khowaja Jamait Khana, Soldier Bazar. At about 0045 hours on hearing firing reports he rushed to Northern side and saw rush of people in front of Nasir Auto shop and ASI Muzaffar, HC Gulbaz and one Rashid were lying there in injured condition. One motorcycle was also lying there. Meanwhile, SI Mian Khan, who was on mobile duty also reached there and shifted injured to the hospital. He informed Duty Officer SI Haji Irshad on private mobile phone about the incident. He further deposed that persons from the public informed the I.O. about the names of the culprits to be Khurram Jalali and Dilawar. Accused Khurram Jalali was already known to him as he was residing in the same locality. He identified the accused before trial Court.
16. PW-10 ASI Hakim Ali was also accompanying ASI Muzaffar Hussain and HC Gulbaz at the time of incident. He deposed that on 03.01.2010 during patrolling when they reached Shell Petrol Pump Soldier Bazar No.2 at about 0045 hours, constable Shafiq informed ASI Muzaffar that two culprits on two motorcycles were committing robbery at Nasir Autos shop. They immediately proceeded towards the said place and as soon as they reached Nasir Autos, accused fired at police party with the result ASI Muzaffar and one employee of Nasir Autos namely Rashid received injuries, whereas HC Gulbaz also received minor injury. The injured were shifted to Civil Hospital Karachi. He further deposed that on the same day one motorcycle and empties were secured in his presence. Constable Shafiq informed them that accused Khurram Jalali and Dilawar had committed the offence and identified accused Khurram before trial Court. In his cross-examination he admitted that since he was driver of police mobile, therefore he remained with the mobile. He deposed that he was empty handed, however in reply to a suggestion he admitted that in his 161, Cr.P.C. statement he had stated that he fired two shots but clarified that when ASI Muzaffar became injured and fell down, he took his SMG and conducted firing. He admitted that that he was informed by PC Shafiq and other people about the names of accused who committed the offence, voluntarily stated that he had also seen the accused who committed the offence.
17. PW-11 SIP Sarfaraz was the Investigating Officer of the case. He deposed that he visited the place of incident in presence of mashirs, collected empties etc and one motorcycle and prepared such memo. He collected certificate of cause of death of deceased Rashid and sent case property for FSL. On 06.3.2010 interim challan of the case was submitted before concerned Judicial Magistrate. He further deposed that on coming to know that accused Khurram was arrested by police of P.S. Frere in some other case, he obtained custody of accused Khurram Jalali and arrested him under proper memo and interrogated the accused. Thereafter, on the pointation of the accused he secured one .9 MM pistol loaded with two live bullets and magazine, hidden under heap of stones and prepared such memo. FIR under section 13(e), Pakistan Arms Ordinance was registered against the accused. He also sent the pistol, magazine and bullets to FSL and collected report. He further deposed that the secured motorcycle was found to have been snatched from its owner and such report had already been lodged at PS Preedy. After completion of investigation he submitted challan. In his cross-examination he admitted that government SMG was not sent for FSL report. He further admitted that accused was affiliated with some political parties of Karachi, however he denied the suggestion that the accused has been involved in the case falsely due to his affiliation with political party.
18. We have carefully taken into consideration the contentions raised by the learned counsel for the parties and scanned the entire evidence. We have come to the conclusion that prosecution case is highly doubtful for the reasons that it was night time incident, source of identification was also highly questionable. According to eye-witnesses, they had identified the accused on the street light but there is no mention of street light in the mashirnama of place of wardat. P.W. Malik Nasir, owner of Nasir Autos where the incident is alleged to have taken place, was examined when the case was pending trial in the Court IInd Additional Sessions Judge, Karachi (East) in Sessions Case No.223/2010. Copy of his evidence has been placed on record. After transfer of the case to Anti-Terrorism Court he was not examined on the ground that he was untraceable. We have looked into evidence of P.W. Malik Nasir recorded before Additional Session Judge, he deposed that accused were wearing helmets at the time of incident, P.W. Malik Nasir in his evidence had deposed, "I cant identify the motorcyclist/the culprit as who they were because they were wearing the helmet at that time. My statement under section 161, Cr.P.C. was recorded by police after three or four days." He was declared hostile at the request of DDPP and was cross-examined. However, the said witness could not be produced at the trial on the ground that he was untraceable. Presumption under illustration (g) of Article 129 of Qanun-e-Shahadat Order, 1984 could fairly be drawn that such material witness in case would have been examined in Court, his evidence would have been unfavourable to prosecution. Such legal position has been enunciated by Honourable Supreme Court in the case of Riaz v. The State 2010 SCMR 846, the relevant portion from the said judgment is reproduced hereunder:
19. "Having heard the learned counsel for the appellant, the learned Deputy Prosecutor-General, Punjab and perusing the record of the case with their assistance, we find that the statement of the complainant is in conflict with the medical evidence, as according to the complainant the deceased was fired upon from a distance of 3 Karams (16-1/2'), whereas the Medical Officer found a wad lying near the liver inside the body of the deceased. This aspect of the case clearly shows that the gun was fired from a very close range, probably by putting its barrel on the body of the deceased. Thus, there is conflict between the medical and oral evidence. Furthermore, the statement of the complainant is neither supported nor corroborated by any piece of evidence. One of the eye-witnesses Manzoor Hussain was available in the Court on 29-7-2002 but the prosecution did not examine him, declaring him as unnecessary witness without realizing the fact that he was the most important, only serving witness, being an eye-witness of the occurrence. Therefore, his evidence was the best piece of the evidence, which the prosecution could have relied upon for proving the case but for the reasons best known, his evidence was withheld and he was not examined. So a presumption under Illustration (g) of Article 129 of Qanun-e-Shandat Order, 1984 can fairly be drawn that had the eye-witness Manzoor Hussain been examined in the Court his evidence would have been unfavourable to the prosecution."
20. Similar view was also taken by this Court in the case of Dadan alias Allahdad v. The State 2000 MLD 595 (Kar). PW. Shafique Ahmed has also been declared hostile by prosecution.
21. Police officials namely, ASI Muzaffar Hussain and PC Gulbaz had deposed that they had identified the accused as they were residing in the same vicinity. We are unable to believe these police officials that they knew the accused prior to the incident. The said police officials could not explain in what context and reference they knew both the accused prior to this incident as such evidence of said police officials could not be safely relied upon in a case which carries capital punishment. Rightly reliance has been placed upon the case of Zeeshan alias Shani v. The State 2012 SCMR 428. Reliance portion is reproduced as under:
22. "The prosecution case, so to speak, mainly hinges on the evidence of identification. The case of the prosecution is that appellant was already known to the complainant and the prosecution witnesses on account of his criminal background and involvement in a number of cases. But there is absolutely no evidence on the record to show that appellant had any criminal background. There is also no evidence on record to show that he was ever involved in any criminal case. The allegation that he was already known to the complainant and the prosecution witnesses remained unproved and unsubstantiated. When neither criminal background nor involvement of the appellant has been proved on the record, how could the complainant and the prosecution witnesses identify him is a question which also went unanswered."
23. It is a matter of record that at the time of incident private persons were attracted but neither they were examined during the investigation nor were produced at the trial. It would be unsafe to maintain conviction in this case, without independent evidence. Besides, there are material contradictions in the evidence of prosecution witnesses. P.W. Hakim Ali deposed that he was empty handed at the time of incident, whereas P.W. Muzaffar Hussain stated in his cross-examination that Hakim Ali was armed with SMG. P.W. Mohammad Gulbaz deposed, "I, PC Shafique and people collected at the venue identified the said culprits as Khurram Jalali and Dilawar Khan." Whereas P.W. Shafiq Ahmed deposed, "Due to rush of the people I could not identify the accused." It has also come in evidence that government SMG was not sent for FSL test.
24. It is also worth-noting that the learned trial Court in the impugned judgment while dealing with point No.1 regarding commission of robbery by the accused from Nasir Autos, decided the said point in negative i.e. in favour of the accused whereas on the same set of evidence point No.3 regarding commission of murder of deceased Rashid and causing firearm injuries to two police officials decided the said point in affirmative and convicted the accused under section 302 (b), P.P.C. read with section 7(a), A.T.A., 1997. It seems that charge against the accused was framed under sections 394, 397, 302/34, P.P.C. read with section 7(a) of Anti-Terrorism Act, 1997. In the charge it has been specifically mentioned that the deceased Rashid was murdered on account of his showing resistance against the accused who were committing robbery. Sections 394 and 397, P.P.C. also speak about voluntarily causing hurt and using deadly weapon or causing grievous hurt or attempting to cause death or grievous to any person while committing or attempting to commit robbery or dacoity. It was not an offence simplicitor of committing murder or causing injuries but the same happened during the course of committing offence of robbery/dacoity. The learned trial Court while deciding the point No.1 regarding dacoity in the impugned judgment held as under:
25. "Admittedly none of the witnesses have deposed that the accused were seen while committing robbery. The only evidence in this regard before this Court is of PW-4 who has deposed that on his enquiry public persons informed him that some dacoits have come. He categorically deposed that due to rush he could not identify the accused and that he cannot say that present accused is same accused. Moreover, no witness from the employees or proprietor of Nasir Autos have been examined before this Court nor any detail of robbery has been brought to establish the charge of robbery. The only witness examined before the Sessions Court i.e. Malik Nasir, Proprietor of Nasir Autos has deposed that accused were wearing helmet, therefore, he could not identified (sic) them. The point No.1 is, therefore, answered as not proved."
26. It seems that the learned trial Court has mainly based its finding on point No.1 regarding commission of robbery/dacoity on the evidence of the P.Ws Shafiq Ahmed and Malik Nasir, owner of Nasir Autos, that they could not identify the accused persons at the time of incident, but very strangely while deciding point No.3 regarding committing murder of deceased Rashid and causing injuries to police officials the trial Court has not given benefit of the evidence of these witnesses to the accused. On the other hand, while discussing the evidence of PW Malik Nasir the learned trial Court observed, "So far the evidence of proprietor of the Nasir Autos is concerned, no doubt he deposed before the Sessions Court that the accused were with helmet but to my mind he has extended concession to the accused, who are not ordinary accused but a convict in like nature...'
27. According to prosecution case, P.W. Shafiq who initially informed ASI Muzaffar Hussain about the commission of dacoity by the accused at Nasir Autos, in his evidence deposed that due to rush of the people he could not identify the accused. He further deposed that his statement was not recorded by I.O. and that since he had not seen the accused person, therefore he could not say whether the accused were same or not. He was declared hostile.
28. It is a matter of record that postmortem examination of the deceased was not conducted. Without postmortem examination Medical Officer who firstly examined the injured issued certificate of cause of injuries. Without postmortem examination cause of death could not be ascertained. Rightly reliance has been placed upon the judgment of honourable Supreme Court in the case of Khan Muhammad and another v. The State 2010 SCMR 1029 wherein it was as follows:
29. "12. Some of the salient features of this case, which create reasonable doubts in the case of prosecution and need careful consideration, are as follows:
30. (a)................................
(h) On the application of complainant dated 16.3.2000, the said dead body was handed over to him without postmortem, therefore, cause of death could not be ascertained."
31. The accumulative effect of all the abovesaid defects/infirmities is that they have put serious dents and doubts in the prosecution case. It is now well settled that the accused is entitled to be extended benefit of doubt as a matter of right. In the present case, there are many circumstances which create doubt in the prosecution case. Even an accused cannot be deprived of benefit of doubt merely because there is only one circumstance which creates doubt in the prosecution story. In the case reported as Tariq Pervaiz v. The State 1995 SCMR 1345 the honourable Supreme Court held as under :-
32. "The concept of benefit of doubt to an accused person is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right."
33. In another case Ghulam Qadir and 2 others v. The State reported in 2008 SCMR 1221, it was held by Honourable Supreme Court that for the purpose of benefit of doubt of an accused, more than one infirmity is not required. Single infirmity creating reasonable doubt in the mind of reasonable and prudent person regarding the truth of charge, makes the whole case doubtful.
34. In view of above, it could safely be held that prosecution has not been able to prove its case against the accused beyond reasonable doubt, benefit whereof must be extended to him.
35. Consequently, the appeal is allowed and the impugned judgment of conviction and sentence is set aside. The appellant is acquitted of the charge. He shall be released forthwith if not required in any other case. The confirmation reference is answered in negative.
36. SL/K-15/Sindh Appeal allowed.