2018F4002 (PLP)

S. 392

Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)

Robbery, haraabah

Appreciation of evidence

Delay of more than ten hours in lodging FIR

Effect

Occurrence took place at 7.00 a.m.

First Information Report was lodged on the same day at 17.30 p.m.

Place of occurrence was at the distance of one and a half furlong from the Police Station

Complainant neither in the FIR nor as a witness disclosed any compulsion in order to justify the delay in lodging the FIR

Delay in lodging FIR though suggested element of deliberation and consultation but since the accused were not nominated in the FIR, therefore question of deliberation and consultation could not be presumed

Presence of the witnesses at the spot could be disputed

Spontaneity of the FIR was the guarantee of truth to a greater extent. [Case-law referred].

S. 161

Statement of witness before police

Delay

Effect

Statement of witnesses were recorded after the delay of one day, which had not been explained by the witnesses

Witnesses did not attribute either delay or malice to the Investigating Officer

Evidence of said witnesses could not be relied upon in circumstances. [Case-law referred].

S. 392

Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)

Robbery, haraabah

Appreciation of evidence

Identification parade

Scope

Prosecution had banked upon the evidence of identification parade supervised by the Judicial Magistrate

Eye-witness stated that three culprits with open face entered the house

Complainant stated that his wife and son told him that dacoits had muffled their faces and muffle of one culprit was removed who was identified by his wife

Statement of complainant and eye-witness on said aspect could not be reconciled and as such no implicit reliance could be placed upon the statements of said witnesses in order to establish the identity of accused as assailants

If the assailants committed occurrence had muffled their faces as per stance of the complainant, it was not possible for the witness to identify the appellants as culprits

Contents of FIR showed that full particulars and description of the accused were not given in it; in such situations, it was not possible for the witnesses to identify the assailants, particularly keeping in view the identification test held on 1.6.2000 while occurrence had taken place on 29.3.2000

Eye-witness/brother of the complainant admitted in cross-examination that he did not disclose the features of the accused to the police, so his evidence was liable to be brushed aside

Identification test was joint, though separate identification parade should have been held, therefore, it would not advance the plea of prosecution

Statements of eye-witnesses showed that the said witnesses did not disclose the role of each accused caused serious blow to the case of prosecution

Prosecution did not produce the Judicial Magistrate, who supervised the identification parade

Original report of identification parade was not brought on record

Circumstances established that no reliance could be placed upon the identification parade

Accused were acquitted in circumstances by setting aside conviction and sentence recorded by the Trial Court. [Case-law referred].

S. 392

Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)

Robbery, haraabah

Appreciation of evidence

Benefit of doubt

Prosecution case was that three unknown persons armed with daggers entered the house of complainant in his absence and by showing force took gold ornaments lying in the box

Occurrence was stated to be seen by son of complainant, his wife and brother, who resided near the house of complainant

Witness/brother of complainant had been named as eye-witness of the occurrence but in view of the evidence of eye-witness/son of complainant by no stretch of imagination, he could be stamped as eye-witness

Eye-witness had stated that after departure of the culprits, they raised cries, which attracted brother of complainant, witness, who had seen the culprits

Eye-witness had disclosed that brother of complainant/witness reached after 3-4 minutes of departure of the culprits and he narrated the occurrence to him

Witness deposed that after hearing the cry coming from the house of complainant, he came out of his house and had seen three persons with open faces having draggers in their hands gone from the street near the outer door of the house of the complainant

Said witness though picked accused as assailants in the identification parade but in circumstances, he could not be said to be eye-witness of the occurrence

Witness having seen the accused in the street near the outer door of the house of complainant, by itself would not be sufficient, to presume that the said person was an eye-witness

Complainant had stated that his wife due to removal of muffle of one culprit, identified him as accused and she disclosed his name as well, then the identification of said accused by the witness could not be believed, relied and acted upon

Record showed that complainant, eye-witnesses and accused were village fellows

If the occurrence took place in a daylight and allegedly, the culprits with open face entered the house, it could not be said that the eye-witnesses were unable to identify the appellants as accused

Witness/son of complainant had deposed that culprits started beating him and his mother but said aspect was not disclosed in the FIR

Admittedly, wife of complainant was not subjected to medical examination

Circumstances established that prosecution had failed to prove the charge against the accused persons beyond shadow of doubt, benefit of which would resolve in favour of accused

Accused were acquitted in circumstances by setting aside conviction and sentence recorded by the Trial Court.

S. 392

Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)

Robbery, haraabah

Appreciation of evidence

Recovery of gold ornaments and weapon of offence

Effect

Gold ornaments and daggers were recovered from the possession of the accused persons

Prosecution version was that the accused persons got recovered gold ornaments but admittedly there was nothing on record to suggest that said articles were ever identified either by the complainant or by his son/witness or any other person claiming ownership

Said recovery would not advance the plea of prosecution in order to prove the culpability of accused

Recovery of dagger would not be sufficient to prove the guilt of accused persons as the recovery of weapon of offence was a corroborative piece of evidence and could not be the basis for recording conviction. [Case-law referred].

S. 392

Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)

Qanun-e-Shahadat (10 of 1984), Art. 129(g)

Robbery, haraabah

Appreciation of evidence

Withholding of best evidence

Effect

Complainant stated that the dacoits caused injures to his wife but she was not produced as witness

Complainant had stated that his wife sustained injuries and also identified one of the accused

Non-production of wife of the complainant caused adverse effect to the case of prosecution.

Evidence

Standard of proof

Suspicion

Suspicion, however, strong could not take the place of proof.

Benefit of doubt

Principle

Benefit of doubt had to be extended in favour of accused as a matter of right. [Case-law referred]. Shabir Ahmed Kumbhar and Muhammad Nawaz Taheri for the Complainant. Muzaffar Hussain Salongi DDPP on Behalf of Prosecutor General Sindh for the State. JUDGMENT MEHMOOD MAQBOOL BAJWA, J.

Conclusion of trial in case FIR No.13 of 2000 registered under Section 17(3) of The Offences against Property (Enforcement of Hudood) Ordinance, 1979 (VI of 1979) (Hereinafter called The Ordinance) and Section 392 of The Pakistan Penal Code, 1860 (Act XLV of 1860) (Hereinafter called The Code), learned 1st Additional Sessions Judge, Thatta through judgment dated 15.02.2005 recorded conviction against the present appellants under Section 392 of the Code and awarded each appellant sentence of three years rigorous imprisonment along with fine to the tune of Rs.5,000/- each and in case of default of payment of fine to further undergo six months R.I. Benefit of section 382-B of The Code of Criminal Procedure, 1898 (Act V of 1898) (Hereinafter called Act V of 1898) was also extended in favour of appellants.

2. By way of present appeal, the appellants have called in question vires of said judgment, seeking acquittal while setting aside the judgment.

3. The appellants earlier preferred appeal before Honourable High Court of Sindh and for want of jurisdiction, it was remitted to this Court through order dated 02.04.2015.

4. Accusation contained in the crime Report (Ex.8-A) got recorded by Muhammad Soomar (P.W.1) is that on 29.03.2000 at about 7:00 a.m. three unknown persons armed with daggers entered in his house in his absence and by show of force took gold ornaments (detail of which has been given in the crime Report) lying in the box. Detail of occurrence was intimated to the complainant by his son, Muhammad Amin (P.W.2) and wife (not cited as a witness). The occurrence is stated to be seen by Muhammad Amin (P.W.2) son of complainant as well as Muhammad Ibrahim (P.W.3), brother of the complainant who is residing near the house of complainant and his wife.

5. Since the assailants were unknown, therefore, after arrest of the present appellants being suspects who were arrested on 31.05.2000 were put to identification test conducted on 01.06.2000 under the supervision of Syed Saghir Ahmed Naqvi, Judicial Magistrate, Sujawal and in the identification test, the witnesses, Muhammad Amin and Muhammad Ibrahim (P.W2 - P.W.3) identified the appellants as assailants. During the course of investigation after disclosure each appellant got recovered gold jhoomaks, gold arm belt and daggers through recovery memos (Ex.15-A to 15-C). After usual investigation and observing codal and legal formalities Report under section 173 of Act V of 1898 was submitted. The appellants who were charged under Section 17(3) of the Ordinance read with Sections 392 and 34 of the Code pleaded not guilty and claimed to be tried.

6. The prosecution in order to prove its case produced as many as eight witnesses including complainant, Muhammad Soomar (P.W.1), Muhammad Amin (P.W.2) and Muhammad Ibrahim (P.W.3) (eye-witnesses). The appellants in their respective statements recorded under Section 342 of the Act V of 1898 denied the whole incriminating evidence with which they were confronted and pleaded innocence. The appellants produced Dr. Rafique Ahmed (D.W. 1), Nazir Ahmed (D.W.2) and Liaqat Ali (D.W.3) besides documentary evidence.

7. The learned Trial Court after hearing the adversaries recorded conviction against the appellants awarding them sentence, the detail of which has been given in para-1 of the judgment.

8. The learned Counsel for the appellants while questioning the evidentiary value of the evidence led by the prosecution contended that there are material contradictions in the statements of the witnesses. Further contended that Muhammad Soomar, complainant (P.W.1) is not the eye-witness of occurrence and as such his evidence would not advance the plea of prosecution in order to prove the guilt of the appellants. Making reference to the evidence of Muhammad Amin (P.W.2) and Muhammad Ibrahim (P.W.3), it was submitted that the said witnesses did not disclose the role of the appellants as an accused during the course of identification parade as well as while appearing as a witness and as such the evidence would not be sufficient to prove the guilt of appellants. Further contended that description of the assailants was not given by both the witnesses while associating themselves in the investigation which omission in the opinion of learned Counsel for the appellants is sufficient to brush aside the evidence. Continuing the arguments, it was further argued that all the three appellants were put in for identification jointly though there must have been separate identification parade for each appellant. It was further submitted that there is nothing on a record to suggest the features and description of the dummies in the report and as such the said report would not advance the plea of prosecution. To substantiate the contentions help was sought from the dictum laid down in Lal Pasand v. The State (PLD 981 SC 142) "Siraj-ul-Haq and another v. The State (2008 SCMR 302) and Hakeem and others v. The State (2017 SCMR 1546). Further contended that there is a delay in holding of identification test and as such same got no evidentiary value. Reference was made to the Ratio expounded in "Shafqat Mehmood and others v. The State (2011 SCMR 537). Adverting to the factum of recoveries, it was submitted that the said aspect was heavily relied upon by the learned Trial Court but since the case property was not produced during the course of trial, therefore, is of little help to the case of prosecution. Reliance was placed upon "Khairuddin and 2 others v. The State (1974 PCr.LJ 219) and "Muhammad Asghar alias Pappu" v. The State" (1999 PCr.LJ 1575). Alternatively, it was argued that the recovery of articles being corroborative evidence would not prove the case of prosecution.

9. Controverting the arguments, learned law Officer as well as learned Counsel for the complainant submitted that Muhammad Amin (P.W.2) and Muhammad Ibrahim (P.W.3) are the eye-witnesses of the occurrence whose evidence despite cross-examination could not be shaken in cross-examination. Referring to the statements of both the witnesses, it was submitted that presence of the said witnesses at the spot cannot be questioned and both the witnesses in their direct statements categorically stated the whole case of prosecution, which is in line with the case setup in the crime Report (Ex.8-A). It was further argued that both the witnesses in their respective statements categorically stated that they identified the appellants as assailants in identification test held on 01.06.2000. Replying to the argument advanced on behalf of the appellants regarding the delay in conduct of identification test, it was submitted that all the three appellants were arrested on 31.05.2000 as is evident from mashimama (Ex.13-A) and identification parade was held on 01.06.2000 without any delay as is evident from mashirnama Ex. 13-B ). Making reference to the statements of Mir Muhammad (P.W.6) and Ghulam Nabi, Inspector/I.O. (P.W.8), it was contended that the recovery witness as well as Investigating Officer proved the factum of recovery of robbed articles and weapons of offence from all the three appellants. Repelling the contention regarding non-production of case property during the course of trial, it was pointed out that Ghulam Nabi, the then Inspector (I.O.) (P.W.8) categorically stated that the accused as well as property viz. gold ornaments before the court are one and the same. Continuing the arguments, it was further argued that in view of the evidence led by the prosecution which is worthy of credit, the prosecution established its case against the appellants beyond shadow of doubt. The defence, contended, produced by the appellants coming from the mouth of witnesses (D.W.1 to D.W.3) is neither convincing nor inspire confidence which aspect was rightly pointed out by the learned Trial Court. It was further submitted that the learned Trial Court granted undue premium to the appellants while awarding lesser sentence which should not have been in view of conclusion of learned Trial Court regarding the proof of guilt of appellants beyond shadow of doubt. Highlighting the cumulative effect, it was submitted that the judgment assailed by way of present appeal does not call for any interference.

10. Occurrence took place at 7:00 a.m. as is evident from the copy of FIR (Ex.8-A). The complainant, i.e., Muhammad Soomar (P.W.1) though deposed that he went to police station for registration of FIR but he did not tell the time of his visit to police station. Sohrab Khan, Sub-Inspector (P.W.7) in his statement maintained that complainant visited police station at 5:30 p.m., which fact also finds mentioned in the crime Report (Ex.8-A). Perusal of column No.4 of the FIR further reveals that place of occurrence, (house of the complainant) is at the distance of one and a half furlong. The complainant neither in the FIR nor as a witness (P.W.1) disclosed any compulsion in order to justify the delay in lodging the FIR. Delay in lodging FIR though suggests element of deliberation and consultation and can also suggest the absence of the witnesses at the spot as held in a "Farman Ahmed v. Muhammad Inayat and others (2007 SCMR 1825) but since the accused were not nominated in the FIR, therefore, question of deliberation and consultation cannot be presumed though one can dispute the presence of the witnesses at the spot. It is to be noted that spontaneity of the FIR is the guarantee of truth to a greater extent. Reliance is placed upon the dictum laid down in "Mushtaq Hussain and another v. The State (2011 SCMR 45).

11. Before dealing with the evidence led by the prosecution, there is another factor which is required to be highlighted. As pointed out, occurrence took place on 29.03.2000 at 7:00 a.m. FIR was lodged though on the same day but at 17:30 p.m. Statements of the witnesses (P.W.2-P.W.3) under Section 161 of the Act V of 1898 were recorded on the next day, i.e., 30.03.2000 as deposed by Sohrab Khan, SIP-Investigation Officer (P.W.7). Delay in recording the statements under Section 161 of the Act V of 1898 has not been explained by the witnesses (P.W.2-P.W.3). It is further to be noted that both the witnesses in their respective statements did not attribute either delay or malice to the Investigating Officer (P.W.7). In the circumstances, the evidence of said witnesses cannot be safely relied upon. If any authority is needed on the point, Reference may be made to "Muhammad Asif v. The State" (2017 SCMR 486), Rahat Ali v. The State (2010 SCMR 584) and Ghulam Qadir and 2 others v. The State (2008 SCMR 1221).

12. Admittedly, case was registered against un-known accused. Record does not suggest how the appellants came into picture being accused which fact, however, would not be sufficient to put a dent in the case of prosecution by itself warranting acquittal.

13. In order to establish the guilt of appellants, the prosecution has banked upon the evidence of identification parade supervised by Syed Sagheer Ahmad Naqvi, Judicial Magistrate, Sujawal. Prior to dealing, with the question of admissibility and evidentiary value of identification test, it is desirable to make reference to the deposition of complainant, i.e., Muhammad Soomar (P.W.1) and Muhammad Amin (P.W.2). The later-mentioned witness (P.W.2) stated in his direct statement that three culprits with open faces entered in their house. However, the complainant (P.W.1) introduced a different version by adding that his wife (not produced as a witness) and his son Muhammad Amin (P.W.2) informed him that the dacoits had muffled faces. He further disclosed that his wife also intimated that during the course of robbery, muffle of one culprit was removed who was identified by his wife as Ghulam Ali (appellant No.3). Statements of the complainant, Muhammad Soomar (P.W.1) and Muhammad Amin (P.W.2) on this aspect cannot be reconciled and as such no implicit reliance can be placed upon the statements of said witnesses in order to establish the identity of appellants as assailants. If the assailants committed occurrence having muffled faces as per stance of the complainant, how it was possible for the witnesses to identify the appellants as culprits? Perusal of the contents of the FIR (Ex.8-A) reveals that full particulars and description of the accused was not given in it and it just finds mentioned that one of the accused was wearing yellow colour clothes having a strong built while others who were wearing black colour clothes were of medium built. Un-deniably keeping in view this description, it was not possible for the witnesses to identify the assailants, particularly keeping in view the date of identification test held on 01.06.2000 though occurrence took place on 29.03.2000. For all intents and purposes, it will be presumed that the FIR does not contain the features of the accused. However, since the complainant is neither the eye-witness nor the identifier of the appellants, therefore, the fact by itself would not be sufficient to cast doubt about the veracity of prosecution version, particularly keeping in view the reply given in cross-examination by Muhammad Amin (P.W.2) stating that he disclosed description and features of the accused in his statement before the police which reply though was questioned by putting a suggestion in cross-examination but the witness was not confronted with his statement referred to.

14. However, Muhammad Ibrahim (P.W.3) admitted in cross-examination that he did not disclose the features of the accused to the police. In the circumstances, the evidence of Muhammad Ibrahim (P.W.3) is liable to be brushed aside keeping in view this omission in view of rule of law laid down in "Maula Dad alias Maula and others v. Emperor (AIR 1925 Lahore 426), State/Government of Sindh through Advocate-General Sindh, Karachi v. Sobharo (1993 SCMR 585), Sabir Ali alias Fauji v. The State" (2011 SCMR 563) and Mansoor Ahmed alias Shahzad alias Sheeri and others v. The State" (2012 YLR 2481). Referring to the evidence of identification parade, it was rightly pointed out by the learned Counsel for the appellants that since it was joint identification test though separate identification parade should have been held, therefore, it will not advance plea of prosecution as ruled in the dictum laid down in "Hakeem and others v. The State (2017 SCMR 1546) relied upon by the learned Counsel for the appellants.

15. Perusal of the statement of Muhammad Amin (P.W.2) and Muhammad Ibrahim (P.W.3) clearly reveals that the witnesses did not disclose the role of each appellant causing serious blow to the case of prosecution as held in Siraj-ul-Haq and another v. The State (2008 SCMR 302).

16. In view of the infirmities pointed out, no implicit reliance can be placed upon the identification parade. I am fortified in my view by law laid down in "Ghulam Rasool and 3 others v. The State" (1998 SCMR 557), "Mehmood Ahmad and 3 others v. The State and another" (1995 SCMR 127), Solat Ali Khan v. The State" (2002 SCMR 820), Nazir Ahmad v. Muhammad Iqbal and another (2011 SCMR 527), "Sabir Ali alias Fauji v. The State" (2011 SCMR 563) and Mansoor Ahmed alias Shahzad alias Sheeri and others v. The State (2012 YLR 2481). Same rule of law was expounded in "Lal Pasand v. The State (PLD 1981 SC 142) relied upon by learned counsel for the appellants.

17. Matter does not end here. Strangely enough, the prosecution did not produce Syed Saghir Ahmad Naqvi, Judicial Magistrate, Sujawal, who supervised the identification test. Original report of identification parade was also not brought on record. Copy of mashirnama (Ex.13-B) is not substitute of the report of identification parade which surprisingly was not produced on behalf of prosecution for the reasons best known to the person conducting the prosecution. The omission is significant which has laid foundation of acquittal of appellants. Even if this aspect is ignored, it would not be sufficient to bank upon the said mashirnama (Ex.13-B) in view of discussion made earlier.

18. Matter can be examined from another angle as well. Muhammad Ibrahim (P.W.3) brother of the complainant has been named as an eye-witness of the occurrence but keeping in view the evidence of Muhammad Amin (P.W.2) by no stretch of imagination he can be stamped as eye-witness. Muhammad Amin (P.W.2) in his direct statement maintained that "After departure of the culprits, they raised cries which attracted my uncle Ibrahim. My uncle had seen the culprits". He further stated that he narrated the occurrence to his uncle. In cross-examination, the witness disclosed that his uncle reached after about 3-4 minutes of departure of the culprits. It is the high time to make reference to the statement of Muhammad Ibrahim (P.W.3) who deposed in his examination-in-chief that after hearing the cry coming from the house of complainant he came out of his house and saw three persons with open faces having draggers in their hands going from the street near the outer door of the house of the complainant. In the circumstances, there can be no two opinions that the said witness though picked appellants as assailants in identification parade cannot be said to be an eye-witness of the occurrence. Seeing the appellants in the street even near the outer door of house of complainant, by itself would not be sufficient, even to presume that the said person is an eye-witness. It is further to be noted that keeping in view the statement of complainant (P.W.1) adding that his wife due to removal of muffler of one culprit identified Ghulam Ali (appellant No.3) as an accused and she also disclosed the name of said accused, then how the identification of said accused by the witnesses can be believed, relied and acted upon? Perusal of the replies given in the cross-examination by Muhammad Amin (P.W.2) and Muhammad Ibrahim (P.W.3) clearly reveals that Bashir Ahmed and Feroz Ahmed (appellants Nos.1 and 2) are residents of Chuhar Jamali and the complainant (P.W.1), as well as witnesses (P.W.2-P.W.3) are their village fellows. In the circumstances, when the occurrence took place in a daylight and according to the version of Muhammad Amin (P.W.2) the culprits with open face entered in his house, then how it can be said that the witnesses (P.W.2-P.W.3) were unable to identify the appellants as accused, particularly when the FIR was lodged with the delay of 101/2 hours. It is further to be noted that Muhammad Amin (P.W.2) in cross-examination maintained that inter-se distance between his house and house of Ghulam Ali (appellant No.3) is 70/80 paces. In the circumstances, how one can believe and act upon the version of the complainant as well as the witnesses that the culprits were unknown and stranger. Viewed from whichever angle, no reliance can be placed upon the evidence led by prosecution including the process of identification test.

19. Great stress was laid down on behalf of complainant about fatcum of recoveries got recoveries got recovered by appellants through recovery memos (Ex.15-A to 15-C). According to mashirnama (Exh.15-A), Bashir Ahmed (appellant No.1) got recovered one gold Jhoomak with colour ful pearls and one dagger having two edges, while Feroz Ahmed (appellant No.2) recovered one golden arm belt and one dagger. Through mashirnama (Ex.15-C) Ghulam Ali (appellant No.3) on pointation got recovered one gold jhoomak with colourful pearls and one dagger. There is no need to deal with the evidence of Mir Muhammad (P.W.6) who is the mashir of all the mashirnamas and Ghulam Nabi-Insecptor/I.O. (P.W.8). The recovery would not advance the plea of prosecution in order to prove the culpability of appellants for two-fold reasons. According to the prosecution version all the three appellants recovered gold arm belt and two gold jhoomaks but admittedly there is nothing on record to suggest that said articles were ever identified either by the complainant (P.W.1) or by his son (P.W.2) or any other person claiming ownership. Recovery of dagger, even if taken as gospel truth, would not be sufficient to advance the plea of prosecution to prove the guilt of appellants as the factum of recovery of weapon of offence is a corroborative piece of evidence and cannot be basis for recording conviction. Reliance is placed upon the Ratio enunciated in "Noor Muhammad v. The State and another" (2010 SCMR 97) and "Riaz Ahmed v. The State" (2010 SCMR 846).

20. There is another aspect which is required to be dealt with putting another dent in the case of prosecution. The complainant (P.W. 1) in his statement maintained that the dacoits also caused injuries to his wife. Muhammad Amin (P.W.2) also deposed that culprits started beating to him as well as his mother but the said aspect was not disclosed in the FIR. If the wife of complainant sustained injuries why she was not subjected to medical examination? Non-production of wife of the complainant is another fact, causing adverse effect to the case of prosecution particularly, when as per complainant (P.W.1) she sustained injuries and also identified Ghulam Ali, one of the appellant in view of Article 129(g) of The Qanun-e-Shahadat, 1984 (President Order No.10 of 1984).

21. Viewed from whichever angle, the prosecution miserably failed to prove the charge against the appellants beyond shadow of doubt.

22. Suspicion, however, strong cannot take the place of proof.

23. The learned law Officer as well as learned Counsel for the complainant while making reference to the statements of the appellants under section 342 of Act V of 1898 and evidence of defence witnesses (D.W.1 to D.W.3) and documents produced contended that the said evidence is sketchy and does not inspire confidence which was rightly brushed aside by the learned Trial Court. Since the prosecution failed to prove its case against the appellants beyond shadow of doubt as discussed, therefore, the defence version regarding false implication, even if not trustworthy, would not be sufficient to grant any premium to the prosecution.

24. In view of discussion made in preceding paragraphs, there can be no two opinions that prosecution failed to prove its case against the appellants beyond shadow of doubt and as such benefit of doubt has to be extended in favour of appellants as a matter of right. Reliance is placed upon "Tariq Pervez v. The State" (1995 SCMR 1345), "Allah Bachaya and another v. The State" (PLD 2008 SC 349), Wajahat Ahmed and others v. The State and others" (2016 SCMR 2073) and "Hashim Qasim and another v. The State (2017 SCMR 986).

25. Epitome of above discussion is that while extending benefit of doubt present appeal is allowed and while setting aside the judgment of learned Trial Court recording conviction and awarding sentence to the appellants, they are acquitted.

26. The appellants are on bail. They and their sureties stand discharged of their respective bonds. JK/20/FSC Appeal allowed.