2020 PLP 94 (YLRN)

MUHAMMAD SALEEM JESSAR, J.

Through this appeal Appellant has assailed Judgment dated 30.10.2014, handed down by learned IIIrd Additional District and Sessions Judge, Karachi Central in Sessions Case No.652/2010 (re: The State v. Mohammad Akram and others), being outcome of FIR No.949/2010 registered at Police Station North Nazimabad under Sections 302/ 397/34, P.P.C. whereby the accused/ appellant Mohammad Akram alias Babo has been convicted for the offence punishable under Section 302(b), P.P.C. for committing murder of deceased Sheikh Mohammad Farooq and has been awarded sentence of imprisonment for life (R.I.) However, the appellant was extended benefit of Section 382-B, Cr.P.C. It may be pointed out here that other two co-accused namely Faizan son of Jung Sher and Mohammad Farooq son of Mohammad Umer had already been acquitted under section 265-K, Cr.P.C. by the trial Court vide order dated 09.9.2014. Briefly, the facts of the prosecution case are that on 25th October, 2010, ASI Deedar Hussain being duty officer at Police Station North Nazimabad, Karachi, received information conveyed by Dr. Shiraz Ali MLO of Abbasi Shaheed Hospital. Karachi regarding arrival of the corpse of one Sheikh Muhammad Farooq son of Sheikh Ghulam aged about 70 years, with the history that he has died by means of firing during the commission of dacoity by someone in House No. A-77, Block C, North Nazimabad, Karachi. On such information, ASI Deedar Hussain after recording such entry in daily station diary, went to Abbasi Shaheed Hospital after obtaining permission from concerned MLO, inspected the dead body of deceased, prepared such memo and inquest report and the concerned MLO conducted autopsy on the dead body of deceased. The said ASI also recorded statement of son of the deceased namely, Sheikh Mohammad Asim under section 154, Cr.P.C. wherein the said complainant stated that he is running Chemical Trading Business in their office situated in the house in which his father was residing. On 25th October, 2010, he had gone to New Karachi for some work and his wife informed him on telephone that someone had committed murder of his father who is lying in injured condition. On such information he reached at his home and noticed that his father was lying in unconscious condition. On inquiry about the said culprit, it was disclosed to him that he was a person of tall height who used to visit at their house in connection with business and meet with his father, who seemed to be Babo. The complainant took his father to Abbasi Shaheed Hospital but in the way he died. Complainant claimed that the said Babo used to take loan from his father and his father was having some cash and mobile phone which were also missing. The said ASI after completion of usual formalities, returned back to police station, where on the basis of 154, Cr. P.C. he registered FIR. After registration of FIR, further investigation was entrusted to SIO PI Jaffar Khan Baloch, who inspected the place of incident, seized one empty of .30 bores pistol and on 26th October, 2010 he arrested accused Muhammad Akram alias Babo, and on his pointation he recovered one pistol of 30 bore having three live bullets in its magazine and one in chamber. During interrogation accused Muhammad Akram disclosed that he along with his two companions namely Faizan and Farooq took away 20 bags of titanium dioxide by loading the same in Suzuki Pickup, which were also recovered on the pointation of accused Muhammad Akram on 29th October, 2010. On completion of usual investigation, I.O. submitted challan against three accused named above for the offences under sections 302/397/34, P.P.C. by showing accused Muhammad Akram in custody while remaining accused Faizan and Farooq as absconders. However, accused Faizan after getting pre-arrest bail joined the trial. After observing formalities under section 87/88, Cr.P.C. against accused Farooq, he was declared proclaimed offender. Thereafter, a formal charge was framed against the two accused on 17th November, 2011 vide Ex. 4, to which they pleaded not guilty and claimed trial. However, accused Muhammad Farooq after obtaining pre-arrest bail joined the trial therefore, amended charge was framed against all three accused on 1St September, 2012 vide Ex. 7 and again another amended charge was framed on 19th January, 2013 vide Ex.

9. In order to prove its case, prosecution examined as many as eight witnesses, namely complainant Sheikh Muhammad Asim son of Sheikh Muhammad Farooq as PW-1 at Ex. 5, who produced his 154, Cr.P.C. statement, memo of inspection of corpse of deceased, inquest report, receipt for receiving dead body, memo of inspection of place of incident, memo of arrest of accused Muhammad Akram alias Babo, memo of seizure of pistol on pointation and production of accused Muhammad Akram, memo of seizure of robbed 20 bags of chemical powder and superdiginama of chemical bags at Ex. 5-A to 5-1 respectively, Muhammad Aamir son of Muhammad Ashraf was examined as PW-2 at Ex. 10, whereas Sheikh Hafiz Muhammad Arif Wasim son of Muhammad Amin was examined as PW-3 at Ex.11. ASI Deedar Hussain was examined as PW-4 at Ex.12, who produced letter addressed to concerned MLO for issuance of cause of death and carbon copy of FIR as Ex. 12-A and 12-B respectively. Muhammad Adnan son of Muhammad Imran was examined as PW-5 at Ex. 13, who produced photocopy of his 164, Cr.P.C. statement as Ex. 13-A, Inspector Jaffer Khan Baloch was examined as PW-6 at Ex. 14, who produced reports of chemical examiner and FSL as Exs. 14-A and 14-B respectively, Shafqatullah Unar Judicial Magistrate as PW-7 at Ex. 16, who produced application submitted by the I.O. for recording of 164, Cr.P.C. statement of eye-witness Muhammad Adnan and 164, Cr.P.C. statement of Muhammad Adnan at Exs. 16-A and 16-B, respectively and Dr. Shiraz Ali MLO as PW-8 at Ex. 21, who produced MLC issued arrival of corpse of deceased, post mortem report and cause of death certificate at Exs. 21-A to 21-C respectively, whereas PW HC Mozammil Shah was given up by learned ADDP who vide statement Ex.15 closed prosecution side. After recording the statements of seven PWs, statements of all accused under section 342, Cr.P.C. were recorded on 31st May, 2014 vide Exs. 18 to 20 respectively. However, on 12th June, 2014 learned advocate for the complainant filed an application under section 540, Cr.P.C. for calling Dr. Shiraz Ali MLO of Abbasi Shaheed Hospital, Karachi, on the ground that the said MLO had carried out autopsy on the corpse of deceased but his name was not cited in the calendar of witnesses in the charge sheet, which was allowed vide order dated 4.7.2014, hence, the statement of said MLO was recorded. Thereafter, again statements under section 342, Cr.P.C. of all three accused were recorded on 26th August, 2014 vide Ex.22 to Ex.24 respectively, wherein they denied the allegations and stated that they are innocent and have been falsely implicated in the instant crime, whereas accused Muhammad Akram claimed that PW Adnan used to give extra bags of chemical secretly without the knowledge of the deceased and took illegal money from him. Such practice was continued for two years and when he refused to give money for that purpose, the said PW became angry with him and accused brought such facts into the notice of deceased, therefore the said PW Adnan has deposed against him and falsely involved him in instant case. However, accused Faizan and Muhammad Farooq neither examined themselves on oath under section 340(2), Cr.P.C. nor produced any witness in their defence but accused Muhammad Akram has examined himself on oath vide statement Ex. 25, however, he too did not examine any witness in his defence. After formulating the points for determination, recording evidence of the prosecution witnesses and hearing counsel for the parties, trial Court vide impugned judgment convicted and sentenced the appellant / accused, as stated above. Against the said judgment the appellant has preferred instant appeal. I have heard learned counsel for the appellant, learned counsel for the complainant as well as learned A.P.G. appearing for the State and perused the material available on the record. Learned counsel for the appellant contended that the appellant has been falsely involved in the present case. He further contended the complainant is not an eye-witness of the incident, as he was informed by his wife on telephone that his father had sustained bullet injury and was lying injured, however his wife being natural witnesses was not arrayed as a witness in the case. As regards remaining prosecution witnesses, learned counsel submitted that they were not named in the FIR. He further contended that the alleged robbed bags of chemical although had been shown to have been recovered by the police during investigation on the pointation of the appellant from the shop situated at Juria Bazaar, Karachi, but the shopkeeper to whom the appellant allegedly sold out the chemical was not arrayed as witness. According to him, in fact such shopkeeper should have been booked under section 412, P.P.C. for possessing / retaining the robbed property of this crime for which no plausible explanation has been offered by the prosecution. He further contended that although the crime weapon viz. 30 bore pistol was allegedly thrown by the appellant at somewhere else but subsequently on his pointation the same was secured from another place for which separate FIR under the Arms Ordinance was registered against him in which appellant has been acquitted. He further contended that while proceeding towards place of recovery of the pistol as well as chemical bags, no independent person from the locality was associated as attesting witness which is clear violation of Section 103, Cr.P.C. He further submitted that the Suzuki Pickup upon which alleged chemical bags were loaded and taken away by co-accused was also not recovered by the I.O. during investigation. He further argued that the co-accused who allegedly took away the alleged chemical bags have been acquitted of the charge. He further contended that Roznamcha (daily diary entries (DD)) entries were not produced by ASI Deedar Husain and I.O. Jaffar Khan Baloch before the trial Court. According to him, all these factors create serious doubts in the prosecution case benefit whereof should have been extended to the accused/appellant but the trial court has failed to do so. Lastly he prayed for setting aside the impugned judgment and acquittal of the appellant / accused. In support of her contentions, she relied upon the case of Deedar Ahmed v. The State (2016 PCr.LJ 1911). Conversely, learned counsel appearing for the complainant supported the impugned judgment and opposed the appeal. According to him, all the prosecution witnesses have fully supported the prosecution case. He further submitted that the trial court while delivering the impugned judgment has discussed all the relevant points and sound and cogent reasons have been assigned for its findings, therefore the impugned judgment does not call for any interference by this Court. He prayed for dismissal of the appeal and maintaining the impugned judgment. In support of his submissions he placed reliance upon the case-law reported In 1995 SCMR 693, 1995 SCMR 614, 1997 SCMR 1999, 2003 PCr.LJ 1563, 2000 PCr.LJ 894; 2001 PCr.LJ 622, 2003 MLD 595, 2001 PCr.LJ 557, 1999 PCr.LJ 73 and 2003 SCMR 1164 Learned APG appearing for the State while supporting the impugned judgment, submitted that there is no misreading or non-reading of evidence and the trial court has property appreciated and evaluated the evidence of the prosecution witnesses, therefore the impugned judgment does not call for any interference. She further contended that the empties secured from the spot also matched with the crime weapon recovered on the pointation of accused/appellant. According to her, confidence inspiring evidence of even a sole witness is sufficient to maintain conviction. She further submitted that no enmity is alleged by the accused with the complainant party or the police. She also prayed for dismissal of the appeal and upholding the impugned judgment. While going through the evidence of the prosecution witnesses, various contradictions/admissions have been found in their evidence, so also there are certain discrepancies / legal flaws which put dents in the prosecution case. Complainant Shaikh Mohammad Asim in his examination-in-chief deposed as under: "On 25.10.2010 I went to New Karachi in connection with my personal work when I received telephonic call from my home that my father is lying in injured condition as some one has made fire upon him." In his cross-examination he made following admissions: "It is correct to suggest that my statement under section 161, Cr.P.C. is based on information given to me by my wife and one of the eye-witness who was my father's personal servant. It is correct to suggest that I am not eye-witness of the incident. It is correct to suggest that my wife is not witness in this case .. I do not remember when I.O. took my statement under section 161, Cr.P.C. either after one day, second day or third day. Accused Akram was arrested from outside of the factory premises. It is correct to suggest that the people were gathered at the place of arrest of the accused Akram. I do not know whether police asked from the public to be acted as witness of arrest of the accused Akram or not It is correct to suggest that no P.W. of the locality was taken from the place where on the pointaton of accused Akram pistol and other articles were recovered . It is correct to suggest that the case property i.e. 20 bags are not present . I do not know whether the police made witness to the owner of the godown. I do not know whether the I.O. of the case contacted with the owner of godown or not. It is correct to suggest that our business is to sell the chemical in bags It is correct to suggest that P.W. Mohammad Adnan is my servant and Shaikh Mohammad Arif is my brother in law. " P.W. Mohammad Aamir in his examination-in-chief deposed as under:-- "The complainant told me that he had gone to New Karachi for his personal work and received call from his wife that a fire has made in their house and she has seen one person while he was running outside." P.W. Shaikh Hafiz Mohammad Arif Wasim, who is brother-in-law (wife's brother/sala) of the complainant in his examination-in-chief deposed as under: "I received telephone call of my younger sister she stated some incident has occurred in her house and crying that Abu/father has been murdered .. I gave hope to her meanwhile she disclosed that accused Babu who was armed with weapon ran away from the house, therefore, I went to hospital where I saw the dead body was lying there..." In his cross-examination he made following admissions: "It is correct to suggest that I am brother in law of complainant .. I do not know whether the owner of that bungalow besides which recovery was effected has not been taken as witness in this case." P.W. ASI Deedar Hussain in his cross-examination admitted as under:- "It is correct to suggest that I have not produced the roznamcha entry today in the court It is correct to suggest that all the formalities were completed at PS...." P.W. Mohammad Adnan is the star witness in this case as he is the only alleged eye-witness of the incident. In his examination-in-chief he narrated the facts of the incident by stating that on 25.10.2010 i.e. on the date of the incident he was available in the office of deceased Shaikh Mohammad Farooq and was busy in his work when the bell of the door rang. Deceased asked him to open the door and bring appellant Akram and he complied with his instruction. Thereafter, he went downstairs and when after some time he again came in the office he saw the appellant having a pistol in his hand who extended threats and demanded chemical. Deceased asked P.W. Adnan to load 10 bags of chemical in the vehicle where persons of Babu were present and he obeyed the direction of the deceased. Thereafter, deceased again asked him to load 10 bags of chemical more which were also loaded. He further stated that electricity was off and generator was on. After some time he heard voice of some "patakha" whereupon he went upstairs and saw that the deceased was bleeding from right side of his nose and blood was oozing from the injury and he was lying on the chair. Babu was having pistol in his hand who threatened him not to tell anybody about the incident otherwise he will also be killed, as such due to fear he left the house of the deceased. On the next day complainant Shaikh Mohammad Asim enquired from him about the incident but due to fear he did not tell anything to him. However, after 2/3 days when he came to know that Seth Mohammad Farooq had expired, he disclosed each and everything to the complainant who took him to police station where police recorded his statement under section 161 Cr. P.C. and thereafter his 164, Cr.P.C. statement was also recorded. In his cross-examination he made following admissions: "It is incorrect to suggest that there is any women of the house are eye-witnesses of the incident. It is correct to suggest that on the date when my examination in chief was recorded and even today, the case property viz. 20 bags of titanium dioxide are not present in the court . It is correct to suggest that on the day of recording of my statement under section 164, Cr.P.C. I came to the court with the complainant. Today also I have come with the complainant. It is correct to suggest that I have not disclosed regarding the incident to the house women .. It is correct to suggest that the CD of the camera installed in the office has not been produced by me in the court " P.W. Jaffer Khan Baloch, who is I.O. of the case, in his cross-examination to the counsel for accused/appellant made following admissions: "It is correct to suggest that the name of accused has mentioned in statement under section 154, Cr P.C. on the basis of doubt It is correct to suggest that as per statement under section 154, Cr.P.C. and FIR the name of eye-witness namely Mohammad Adnan son of Mohammad Imran is not mentioned. It is correct to suggest that it is not stated in the statement under section 154, Cr.P.C. that the wife of the complainant has informed her husband regarding incident but not disclosed the name of eye-witness namely Adnan. It is correct to suggest that complainant is not eye-witness of the incident . It is correct to suggest that the complainant has not produced his wife before me nor I have made her as witness in this case. It is correct to suggest that the C.C.T.V. camera was fixed at the place of incident as mentioned in FIR and statement of complainant under section 161, Cr.P.C. Vol: says that C.C.TV. camera was removed on the day of incident. It is correct to suggest that it is not mentioned in statement under section 161, Cr.P.C. and statement before the court of the complainant that the C.C.TV. camera was removed on the day of incident It is correct to suggest that I have not produced roznamcah entry before the court . It is correct to suggest that I have not recorded statement of neighbourer hood of complainant . It is correct to suggest that when I went to recover the weapon the people were gathered over there. I do not know the name of owner of bungalow wherefrom the weapon was recovered and he did not cooperate with me. It is correct to suggest that I have not made any independent witness from the place of recovery of weapon. It is correct to suggest that I have not prepared memo of site inspection wherefrom the weapon was recovered. It is correct to suggest that I have not made witness/ accused from where 20 bags of titanium dioxide chemical was recovered. Third day of incident I recorded the statement of eye-witness Adnan. On fifth day of incident of statement of eye-witness I produced the eye-witness before the concerned Judicial Magistrate for recording of statement under section 154, Cr.P.C .." P.W. Shafqatullah Unar, Judicial Magistrate who recorded 164, Cr.P.C. statements of the P.Ws. in his cross-examination admitted as under: "It is correct to suggest that the date of incident is 25.10.2010 whereas I recorded the statement under section 164, Cr.P.C. on 05.11.2010." From above certain important factors come on the surface which adversely affect prosecution case. It has been admitted by the complainant that he is not an eye-witness of the incident and that he was informed about the alleged incident by his wife. In fact, either complainant's wife or at least P.W. Mohammad Adnan who also claims to have witnessed the alleged incident should have been the complainant in this case but instead a person whose evidence is hearsay has become complainant in this case. In this view of the matter, complainants' statement has no evidentiary value by virtue of the provisions of Article 71 of Qanun-e-Shahadat Order, 1984. This is injurious to the prosecution case. There are also contradictions in the evidence of the prosecution witnesses. Complainant in his evidence deposed that, "I received telephonic call from my home that my father is lying in injured condition as someone has made fire upon him". Likewise, P.W. Mohammad Aamir deposed that the complainant told him that he had gone to New Karachi for his personal work and had received call from his wife that a fire was made in their house and she has seen one person while running outside. From the evidence of both these witnesses it is clear that complainant's wife claimed that she had seen an 'unknown person' running outside the house. However, P.W. Shaikh Hafiz Mohammad Arif Wasim, who is brother of complainant's wife made a contradictory statement by deposing that he had received telephone call of his younger sister viz. complainant's wife, informing him that deceased Shaikh Mohammad Farooq had been murdered and that she further disclosed that accused Babu who was armed with weapon ran away from the house. If complainant's wife had seen the present appellant Akram alias Babu while running away from the house duly armed with firearm weapon, then as to why she did not tell this fact to her husband. In this view of the matter it was incumbent upon the prosecution to have examined complainant's wife as she claimed to be an eye-witness of the incident in order to unearth the true and factual aspects of the incident. The evidence of only alleged eye-witness namely, Mohammad Adnan is also unworthy of reliance. As stated above, the said witness in his evidence himself admitted that although he had witnessed the incident but due to fear he had left the house of the deceased and even on the next day when complainant Shaikh Mohammad Asim enquired from him about the incident he did not tell anything to him and it was after 2/3 days when he came to know that Seth Mohammad Farooq had expired, then he disclosed the fact of alleged incident to the complainant. It is also worthwhile to point out here that the accused/appellant in his statement under section 342, Cr.P.C. as well as in his statement on Oath had stated that he was working in Leader Paint Factory for the last five years and he knew P.W. Adnan who was working with deceased Shaikh Mohammad Farooq from whom appellant used to collect chemical for the company. He further stated that he used to go to the deceased and obtain receipt for red oxide and he issued receipt and P.W. Mohammad Adnan used to give him chemical after weighing the same as per receipt. P.W. Mohammad Adnan told the appellant that although he would bring receipt for one kilo chemical but he would give the accused chemical weighing two kilos and then they would distribute fifty fifty share of the amount gained from such illegitimate deal amongst themselves. He further stated that such practice continued for nine months; however, thereafter the appellant felt guilty and discontinued the same and three days before the alleged incident he disclosed all such facts to the deceased whereupon the deceased annoyed with P.W. Adnan. He further stated that prior to murder of the deceased P.W. Adnan warned the appellant that he would see him. Thereafter, he "did not go to collect the chemical from the deceased. He denied that any recovery was made from his possession. Learned trial Court has not properly taken into consideration statement of the accused under section 342, Cr.P.C. as well as his statement on oath. In para 34 of the impugned judgment the trial Court while discussing the veracity of the evidence of P.W. Mohammad Adnan observed as under: "It may be observed that the veracity of the evidence of PW-5 Mohammad Adnan about involvement of accused Akram alias Babo in this crime and exoneration of the other two accused Faizan and Mohammad Umar, reflects that his evidence is cogent, reliable and trustworthy without any tint of mala fide on his part, on the contrary show his fairness owing to the reason that had been deposing under institution (instruction) of police or complainant, he could have involved the other two accused named above, in present case as well, which he not did so." I am not convinced with the above reasoning of the learned trial Court for the simple reason that only accused / appellant Mohammad Akram alias Babu in his statement had narrated the facts regarding involvement of P.W. Mohammad Adnan in the murder of the deceased. The other two acquitted accused Faizan and Mohammad Farooque have not said even a single word against P.W. Mohammad Adnan, rather they have said that none of the prosecution witnesses has said anything against them, therefore no enmity or ill-will has come on record between P.W. Mohammad Adnan and the acquitted accused. Now adverting to the evidence regarding recovery of the crime weapon and the alleged robbed chemicals on the pointation of convict/appellant, it seems that it has also come in the evidence that alleged robbed chemicals were sold by the present appellant to some shopkeeper in the market. Although the said chemicals have been allegedly recovered from a particular shop/godown but very strangely the owner and/or occupant of the said shop who had allegedly purchased, or for that matter, retained the robbed chemicals has neither been made an accused nor associated at least as a witness in the case which also creates serious doubts in the prosecution story as no explanation, at all, has been offered by the Investigating Officer for such lapse on his part, rather he in his deposition admitted, "It is correct to suggest that I have not made witness/accused from where 20 bags of titanium dioxide chemical was recovered. As regards the recovery of alleged crime weapon, the I.O. in his evidence categorically admitted that when he went to recover the weapon the people had gathered there. He also admitted that he did not associate any independent person as attesting witness from the place of recovery of weapon and that he also did not prepare memo of site inspection wherefrom the weapon was recovered. Likewise, complainant in his evidence admitted that the people had gathered at the place wherefrom accused/appellant was arrested. He also showed his ignorance as to whether police asked any private person from the public to become attesting witness of arrest of accused Akram. He also admitted that no person was made witness/mashir from the place wherefrom on the pointaton of accused Akram pistol and other articles were recovered. From this, there seems to be clear violation of the provisions of Section 103, Cr.P.C. Needless to emphasize that in view of provisions of section 103, Cr.P.C. the officials making searches, recoveries and arrests, are reasonably required to associate private persons, more particularly in those cases in which presence of private persons is admitted, more particularly when there is prior information regarding effecting any recovery from a specific place, like the case in hand, so as to lend credence to such actions, and to restore public confidence. This aspect of the matter must not be lost sight of indiscriminately and without exception. In the case reported as State v. Bashir and others (PLD 1997 SC 408) Honourable Supreme Court held as under: "As regards above second submission of Mr.M.M. Aqil, it may be observed that it has been repeatedly held that the requirements of section 103, Cr.P.C. namely, that two Members of the public of the locality should be Mashirs of the recovery, is mandatory unless it is shown by the prosecution that in the circumstances of a particular case it was not possible to have two Mashirs from the public." In view of aforesaid factual and legal position, the recovery of the alleged crime weapon as well as robbed chemicals on the pointation of the accused/appellant has lost its evidentiary value. Yet there is another discrepancy/flaw which is also fatal to the prosecution case. The Investigating Officer in his cross-examination has admitted that he has not produced roznamcah entry before the court. Likewise, ASI Deedar Hussain who recorded statement under section 154, Cr.P.C. and registered the FIR also admitted in his evidence that he had not produced the roznamcha entry in the court. In absence of any roznamcha entry it becomes suspicious as to whether, in fact the Investigating Officer or the police party, as the case may be, had left the police station to the place of arrest, incident and/or recovery or not. In the case of Mour v. The State reported in 2016 PCr.LJ 1706 this Court, while dealing with the point of non-production of roznamcha entry, held as under: "Another point is that the complainant party left police station vide roznamcha entry No.42 but as per prosecution evidence said entry has not been produced at the time of time of recording of their evidence. Non production of this vital document in evidence has also created serious doubt regarding departure of police from police station. Similar observations were made also in the cases reported in 2017 PCr.LJ 992 Peshawar and 2010 PCr.LJ 542 Quetta. It is also of worth-importance that the accused/appellant has been acquitted under section 249-A, Cr.P.C. registered against him under Section 13-E Arms Ordinance, vide order dated 08.9.2014 passed by XIth Judicial Magistrate, Karachi Central in Criminal Case No.2672/2012 being outcome of Crime No.953/2010 of Police Station North Nazamabad. Learned counsel for the complainant or learned A.P.G. has not brought anything on record in order to establish that the said acquittal order has been challenged in the higher forum, thus the same has attained finality. There is also delay in sending the crime weapon and the empty secured from the spot to the ballistic expert. In fact, the crime weapon was secured on 26.10.2010 vide memo Ex.5-G whereas the crime weapon was received by the Ballistic Expert/FSL on 04.11.2010 i.e. about nine days after the alleged incident as is evident from the Examination Report of the Ballistic Expert/FSL Ex.14/A. No plausible explanation has come forward from prosecution side for such delay which creates doubt in the veracity and credibility of such recovery, so also the report of the ballistic expert. In the case reported as Samandar alias Qurban and others v. The State reported in 2017 MLD 539 Karachi, while dealing with the point of delay in sending the weapon to Ballistic Expert, this Court held as under: "Apart from above sending of crime weapon to ballistic expert for forensic report with delay of 20 days of their recovery also added further doubt into the prosecution case, thus in view of above coupled with non-compliance of section 103, Cr.P.C., it can safely be presumed that alleged recovery of crime weapon was not made from the possession of the appellants as alleged by the prosecution." In the case reported as Yaqoob Shah v. The State (1995 SCMR 1293) Honourable Supreme Court held that, "The report of the Fire-Arm Expert was of no avail to the prosecution as the crime empties and the fire-arms allegedly recovered from the accused were sent to Forensic Science Laboratory after delay". Reference in this respect may also be made to the decision reported as Ghulam Hussain and 2 others v. State (1998 PCr.LJ 779). In the circumstances, such reports of the ballistic expert might be in positive, would lose its sanctity. Needless to emphasize that it is a well settled principle of law that the prosecution is bound under the law to prove its case against the accused beyond any shadow of reasonable doubt, but no such duty is cast upon the accused to prove his innocence. It has also been held by the Superior Courts that conviction must be based and founded on unimpeachable evidence and certainty of guilt, and any doubt arising in the prosecution case must be resolved in favour of the accused. In the case reported as Wazir Mohammad v. The State (1992 SCMR 1134) it was held by Honourable Supreme Court as under: "In the criminal trial whereas it is the duty of the prosecution to prove its case against the accused to the hilt, but no such duty is cast upon the accused, he has only to create doubt in the case of the prosecution." In another case reported as Shamoon alias Shamma v. The State (1995 SCMR 1377) it was held by Honourable Supreme Court as under: "The prosecution must prove its case against the accused beyond reasonable doubts irrespective of any plea raised by the accused in his defence. Failure of prosecution to prove the case against the accused, entitles the accused to an acquittal. The prosecution cannot fall back on the plea of an accused to prove its case ... ....Before, the case is established against the accused by prosecution, the question of burden of proof on the accused to establish his plea in defence does not arise." The accumulative effect of the abovesaid contradictions, infirmities/legal flaws in the prosecution case is that serious dents have been put and doubts created in the prosecution case. It is well settled principle of law that the prosecution is bound under the law to prove its case against the accused beyond any shadow of reasonable doubt. In view of aforesaid defects and lacunas, it can safely be held that the prosecution has not succeeded in discharging such obligation on its part. Needless to emphasize the well settled principle of law 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 doubts 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:-- "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." For the foregoing reasons, by short order dated 27.08.2019 instant appeal was allowed and the impugned Judgment dated 30.10.2014. handed down by learned IIIrd Additional District and Sessions Judge, Karachi Central in Sessions Case No.652/2010 (re: The State v. Mohammad Akram and others), being outcome of FIR No.949/2010 registered at Police Station North Nazimabad under Sections 302/397/34, P.P.C. was set aside to the extent and effect of conviction and sentence of appellant Mohammad Akram son of Aziz only. Consequently, the appellant Mohammad Akram was acquitted from all the charges. He was ordered to be released forthwith if his custody is not required in any other criminal/custody case. Above are the reasons for the said short order. JK/M-234/Sindh Appeal allowed.