2020 PLP 69 (YLRN)

AMJAD ALI SAHITO, J.

The above-named appellants were tried by learned Anti-Terrorism Court, Hyderabad, in ATC Cases No.105, 106, 107 and 108 of 2014, for offence punishable under Sections 302, 324, 353, 34, P.P.C. read with section 6/7 ATA and section 23(i)(A) of Sindh Arms Act, 2013, vide Crimes Nos.12, 13, 14 and 15 of 2014, registered with Police Station, Keti Bander whereby they were convicted and sentenced as follows:- (i) Accused Sanaullah son of Qurban Ali Perozani and Liaquat alias Imamdino son of Hubdar Ali Perozani in ATC Case No.105/ 2014 Crime No.12/2014 of Police Station Keti Bander are convicted for the offence causing death of deceased HC Wazir Ali Shahani and both are sentenced to death under Section 7(a) of Anti Terrorism Act 1997 read with Section 302(b)/34, P.P.C. They be hanged by neck till death subject to the confirmation of said sentence by the Hon'ble High Court of Sindh. They are further sentenced to pay fine of Rs.1,00,000/- each payable to the legal heirs of deceased Wazir Ali Shahani or in default to undergo SI for six months each. Accused Sanaullah son of Qurban Ali Perozani and Liaquat alias Imamdino son of Hubdar Ali Perozani are also convicted for the offence likely to cause death and endangering lives of police force and are sentenced under Section 7(b) of Anti Terrorism Act, 1997 read with Sections 324, 34, P.C. to undergo R.I. for Ten (10) years and to pay fine of Rs.50,000/- each or in default to undergo SI for six months more. (ii) Accused Sanaullah son of Qurban Ali Perozani and Liaquat alias Imamdino son of Hubdar Ali Perozani in ATC Case No.106/2014 Crime No.13/ 2014 of Police Station Ketti Bander are also convicted for the offence likely to cause death and endangering lives of police force and are sentenced under Section 7(b) of Anti Terrorism Act, 1997 read with Sections 324, 34, P.P.C. to undergo R.I. for Ten (10) years and to pay fine of Rs.50,000/- each or in default to undergo SI for six months more. (iii) Accused Sanaullah son of Qurban Ali Perozani in ATC Case No.107/2014 Crime No.14/ 2014 of Police Station Ketti Bander is convicted for possession and carrying unlicensed .30 bore pistol and is sentenced under Section 23-A(i) of the Sindh Arms Act, 2013 to undergo R.I. for Seven (7) years and to pay fine of Rs.50,000/- or in default to undergo S.I. for three months more. (iv) Accused Liaquat alias Imamdino son of Hubdar Ali Perozani in ATC Case No.108/ 2014 Crime No.15/ 2014 of Police Station Ketti Bander is convicted for possession and carrying unlicensed .30 bore pistol and is sentenced under Section 23-A(i) of the Sindh Arms Act, 2013 to undergo R.I. for Seven (7) years and to pay fine of Rs.50,000/ - or in default to undergo S.I. for three months more. However, all the above sentences awarded to the convicts were ordered to run concurrently. The benefit of section 382-B, Cr.P.C. was also extended to them.

2. Briefly, stated facts of Crime No.12/2014 of Police Station Ketti Bander (ATC Case No.105/2014) are that on 07.06.2014 at 1645 hours complainant SHO Muhammad Aslam Gago of Police Station Ketti Bander at Baghan lodged FIR alleging therein that he is posted as SHO at Police Station Ketti Bander at Baghan. HC Wazir Ali Shahani who since long was posted at the same police station and was having information about new and old criminals of the area and was conveying such information. For some period he was informed that each Sanaullah son of Qurban Ali and Liaquat alias Imamdino son of Hubdar Ali Perozani had emerged as new criminals and they by heinous crimes had created terror, and general public due to their fear was harassed. On such information, SHO also made secret enquiry and came to know that both the above persons are hidden criminals. HC Wazir Ali was directed to collect evidence and he was, therefore, following them due to which said criminals were advancing threats to him that he had proved himself difficult for them, and they would also become difficult for him. Such entries in the roznamcha were kept on different dates. On 07.06.2014 complainant along with PC Ghulam Khan, PC Ali Asghar, PC Nabi Bux and DPC Ali Asghar in uniform and HC Wazir Ali Shahani in plain clothes left police station under roznamcha entry No.5 at 1510 hours for patrolling and to collect secret information and reached Hotel of Malook Memon in Baghan Town and sent HC Wazir Ali inside the Hotel to get information regarding culprits. Soon thereafter at 1530 hours two persons arrived on a black color 125 motorcycle bearing Registration No.KGM 3133 and stopped the motorcycle infront of the Hotel, they on seeing HC Wazir Ali in the Hotel took out pistols and in order to create fear, terror and harassment amongst general public made firing and challenged HC Wazir Ali and with intention to cause his death jointly made straight fires at him with pistols. Staff disclosed that culprits are Sanaullah Perozani and Liaquat alias Imamdino Perozani. Complainant side got down from the police mobile and took positions. The accused with intention to kill made straight firing upon police party and police while taking care of general public made aerial firing. The accused persons while taking the cover of general public escaped towards eastern side on the motorcycle. A lot of blood was oozing from the body of HC Wazir Ali Shahani and he had died at spot. Due to terror, the town was closed and general public due to fear had scattered, therefore, witness from the public could not be arranged and necessary formalities were completed in presence of PC Ghulam Khan and PC Nabi Bux and the dead body of deceased was sent to Sakro Hospital through PC Muhammad Hassan for post mortem. The complainant then came back at P.S. and lodged FIR in the manner stated above that accused while committing terrorist act in presence of general public and in order to demoralize police made firing upon HC Wazir Ali in the Hotel during his official duty and committed his target killing with pistol and martyred him. They also made firing upon police with intention to kill and restrained them from performing lawful duty.

3. Brief facts of Crime Nos.13, 14 and 15 of 2014 of Police Station Keti Bander at Baghan (ATC Case Nos.106, 107 and 108 of 2014) are that after registration of Crime No.12 of 2014 SHO Muhammad Aslam Gago left P.S. on same date i.e. 07.06.2014 under entry No.9 at 1710 hours along with subordinate staff PC Ghulam Khan, PC Ali Asghar, PC Nabi Bux and DPC Ali Asghar in Govt. vehicle for investigation of Crime No.12 of 2014 and at Udasi stop received secret information that wanted accused in above crime namely Sanaullah Perozani and Liaquat alias Imamdino Perozani after causing death of HC Wazir Ali Shahani had taken shelter in an abandoned otak of their uncle Nawaz Perozani who are waiting for sunset (night) in order to slip somewhere else. On receipt of such information police party reached pointed place and encircled the otak at 1740 hours. The accused seeing police made straight firing with intention to kill them and police party retaliated in defence and thereafter police saw that accused Sanaullah Perozani and Liaquat alias Imamdino Perozani came out on their 125 motorcycle and tried to slip towards eastern side but were encircled and at 1820 hours were apprehended. From personal search of accused Sanaullah Perozani one pistol with empty magazine was recovered and from personal search of accused Liaquat alias Imamdino Perozani also one pistol with empty magazine was recovered. On interrogation both the accused disclosed that they do not possess a license for the pistol recovered from their possession respectively. Recovered pistols were sealed separately, such memo was prepared. PC Ghulam Khan and PC Nabi Bux acted as mashirs. The accused and property were brought at P.S. where above three cases were registered against them. After completing investigation, the above four cases were challenged against both the appellants. The said cases were ordered to be tried jointly as provided under section 21-M of Anti-Terrorism Act. The formal charge against both the appellants was framed at Ex.04, to which they pleaded not guilty and claimed their trial.

4. The prosecution in order to prove its case has examined the witnesses:- PW.1 Dr. Abdul Ghafoor Kaloi Baloch Ex.08. He conducted post mortem upon the dead body of HC Wazir Ali and produced police letter and post mortem report at Ex.8-A and 8-B respectively. PW.2 Tapedar Toorpio Shoro at Ex.09, he has produced sketch of Vardat at Ex.9-B. PW.3 PC Asghar Ali Shahani is examined as Ex.10. PW.4 PC Ghulam Khan is examined at Ex.11. He produced roznamcha entries Nos.05, 06 and 07 dated 07.06.2014 at Ex.11-A. He has acted as mashir of all the proceedings and produce memo of place of vardat and dead body as Ex.11-B. Danishnama and inquest report as Ex.11-C, Roznamcha entries Nos.08, 09 and 12 dated 07.04.2014 as Ex.11-D, memo of arrest and recovery as Ex.11-E, memo of a place of second vardatas Ex.11-F and memo of cloths of deceased as Ex.11-G. PW.5 Muhammad Aslam Gago, SHO Police Station Keti Bander at Ex.12. He is complainant of Crimes Nos.12, 13, 14 and 15 of 2014 and produced such FIRs as Exs.12-A, 12-E, 12-F, and 12-G. He has also produced roznamcha entries regarding threats of HC Wazir Ali by the accused as Ex.12-B, 12-C, and 12-D. PW.6 I.O./Inspector Muhammad Azeem Durrani is examined at Ex.13. He produced chemical examiner report at Ex.13-B and FSL report at Ex.13-C. Thereafter, the learned State Counsel closed prosecution side vide Statement Ex.14.

5. Statements of both appellants were recorded under Section 342, Cr.P.C. at Exs.15 and 16 whereby they have denied the allegations of prosecution but they did not opt to examine themselves on oath or examine witnesses in their defence.

6. After recording statements of accused learned DDPP filed an application under section 227, Cr.P.C. praying therein to amend the charge which was allowed by consent of learned defence counsel and accordingly amended charge was framed as Ex.21 to which both the accused pleaded not guilty vide their pleas recorded as Exs.22 and

23. Thereafter, learned DDPP adopted the same examination in chief recorded earlier and learned DC also give a statement that he did not want to cross-examine P.Ws further and adopted the same cross-examination conducted earlier vide statements of both the learned counsel dated 06.11.2017.

7. The learned trial Court, after hearing the learned counsel for the parties and going through the material brought on record, awarded conviction and sentence to the present accused/appellants as stated above, vide consolidated judgment dated 22.03.2018, which the present appellants have impugned before this Court by way of filing instant appeals.

8. Learned counsel for appellants mainly contended that the impugned judgment is against the law and facts of the case; that the present appellants are innocent and have falsely been involved in this case by the complainant party due to opposition of ruling party PPP; that all the witnesses cited in the case are police officials and are hostile towards the appellants; that neither owner of hotel was cited as witness nor any independent person was associated for recovery as well preparation of site plan; that as per entry No.5 dated 07.06.2014 the SHO of Police Station Keti Bander left police station along with other police staff for patrolling and deceased HC Wazir Ali had left the police station for collecting secret information but the police officials in their evidence have given contrary story; that investigating officer failed to collect the evidence regarding ownership of motorcycle recovered from the appellants; that the claim of complainant party was that the accused/appellant are criminals and belong to notorious gangs and involved in number of cases but not a single person or complaint has been produced to believe that the appellants are criminals, rather I.O. of the case has admitted in evidence that both the appellants are Zamindars of the area; that the police station was at a distance of 01 furlong but as per entry No.06 dated 07.06.2014 which was registered at about 1532 hours ASI has disclosed that the SHO through telephone informed that in city Baghan there is a dispute between the police and private persons and requested for sending other police personnel; that after registration of FIR on very same day police arrested the appellants at about 1820 hours and recovered arms and ammunition; that perusal of Ex.8/A letter to Medical Officer for post mortem of deceased HC Wazir Ali shows that no crime number is mentioned, which shows that before registration of FIR dead body was sent for post mortem; that post mortem started at about 09.30 p.m. with delay of six hours, hence, false implication of the appellants cannot be ruled out; that nothing was recovered from possession of the appellants and the arms and ammunition were foisted upon them; that encounter continued quite for some time but the police officials present on the spot did not bother to arrest them and lame excuses were given by them that due to availability of general public they did not fire upon the appellants; that even the SHO and other police officials did not bother to chase appellants but subsequently they were arrested from banana garden. They lastly contended that the prosecution has miserably failed to prove the case against the appellants thus the appellants are entitled to the acquittal. In support of their contentions they relied upon the case laws reported as 2012 SCMR 428, 2007 SCMR 1631, 2007 PCr.LJ 318, 2016 SCMR 1144, 2008 YLR 2672, 2008 YLR 2677, 2019 YLR 3, 2017 PCr.LJ Note 19, 2006 MLD 896, 2014, PCr.LJ 928, 2019 SCMR 872, 2017 PCr.LJ Note 19, 2017 YLR Note 443, 2016 YLR 1878, 2008 PCr.LJ 1645 and 2007 MLD 1203.

9. While rebutting the above contentions, learned counsel for legal heir of deceased argued that the appellants are named in the FIR with specific role of firing upon deceased; that ocular version is consistent with medical evidence; that FIR has been lodged promptly; that all the witnesses have supported the version of the complainant; that there is no material contradiction in the evidence of prosecution witnesses; that learned trial Court has rightly appreciated the evidence for recording conviction and sentence to the appellants which are in accordance with law. He lastly prayed for dismissal of instant appeals. In support of his contentions, he relied upon the case law reported as PLD 2004 SC 682, 2007 SCMR 518, 2010 SCMR 660, 2010 SCMR 566, PLD 1965 SC 111, 2011 SCMR 492, 2010 SCMR 1090, 2003 SCMR 522, 2003 SCMR 95, 2010 SCMR 1791, 2011 SCMR 492, 2011 SCMR 460, PLD 2007 SC 539, 2004 SCMR 723, 2003 PCr.LJ 1023, PLD 2003 SC 583, 2003 SCMR 799, 2003 PCr.LJ 121, 1997 SCMR 89, 2001 SCMR 1474, 2003 SCMR 673, 2003 SCMR 522 and 1996 SCMR 908.

10. Learned Assistant Prosecutor General has adopted the arguments advanced by learned counsel for a legal heir (brother) of deceased.

11. We have heard learned counsel for the parties and have minutely perused the record. The presumption of innocence in favour of the accused remains throughout the case until such time, the prosecution on the basis of evidence satisfies the Court beyond a reasonable doubt that the accused is guilty. It is one of the principles, which seeks to ensure that no innocent person is convicted. On evaluation of the material brought on record, it appears that the appellants are shown to have become dangerous criminals and involved in terrorist activities and spreading terrorism in the society three days prior to the incident. Otherwise as per evidence of prosecution witnesses both the appellants are "Zamindar" and previously they were not found involved in any criminal cases nor prosecution has brought any such evidence. Complainant SHO Muhammad Aslam, PC Ghulam Khan, PC Ali Asghar, PC Nabi Bux along with arms and ammunition vide entry No.5 dated 07.06.2014 at about 1510 hours left police station in police mobile while HC Wazir Ali left police station in plainclothes for collecting secret information in the city, whereas ASI Abdul Qadir was present at police station.PW.3 Ali Asghar has deposed that after leaving police station the SHO parked the mobile in front of Hotel of Malook Memon, meanwhile one 125 Black Color Motorcycle came and was parked in front of Hotel. The SHO sent HC Wazir Ali for information about the criminals. Appellants Sanaullah Perozani and Liaquat alias Imamdino Perozani seeing HO Wazir Ali took out pistol and started firing at him. He informed the SHO about the names of the accused but they after committing murder of HC Wazir Ali escaped. The accused persons had fired 18 rounds of pistol and from police side 15 rounds were fired. Whereas PW-4 PC Ghulam Khan in his evidence has deposed that SHO parked the mobile there and sent HC Wazir Ali, who went inside the hotel, the accused persons also went inside the hotel and while seeing HC Wazir Ali they started firing upon him. One witness says that the appellants came at the spot and went inside the hotel, the SHO sent deceased Wazir Ali behind them. Whereas, the latter witness states that Wazir Ali first went inside the hotel followed by the appellants.

12. Surprisingly in presence of four police officials both the appellants committed murder of their fellow but these police officials armed with arms and ammunition did not resist nor made a single fire of any consequences upon the appellants. Further the accused also fired upon police officials but none of them received any injury nor any bullet was hit on police mobile available there. The police mobile was parked in front of hotel, people were present in the hotel the accused person indiscriminately fired but not a single person received any scratch to believe that the incident had happened in the manner as alleged. In the memo of place of incident, nowhere it is mentioned that any bullet marks were found on the wall of hotel or near it. In cross-examination PW-3 has admitted that the accused persons had come at Malook Hotel 15/20 minutes after their arrival, the encounter had continued for 40 minutes and we had not resisted the accused. He has disclosed that they first went to the petrol pump and stopped there for 5/6 minutes. PW-4 PC Ghulam Khan in his cross-examination has disclosed that the deceased was posted at police stations 2/3 years prior to his posting. The deceased Wazir is close relative of PC Asghar, they had gone to the petrol pump for fuel and then had gone to city, the accused reached within 2/3 minutes of their arrival at the place of incident, so many customers, owner of Hotel and waiter were present in the hotel. Lastly he has admitted that "elders of the accused present in the court have been contesting election". Further the prosecution in order to strengthen the case has examined complainant SHO/Inspector Muhammad Aslam, who has given a contrary story, he has deposed that he along with other police official reached in front of Malook hotel at Bhagan town, HC Wazir Ali in plain clothes was sent inside hotel to enquire about the accused meanwhile two accused alighted from motorcycle and went inside the hotel and started firing upon deceased Wazir Ali so also upon him/complainant and other police officials. The deceased died on the spot and accused person ran away taking advantage of the people, but he had not chased. Further he i.e. SHO started preparation of memos at place of incident and a letter for post mortem and then dead body was sent to hospital for its post mortem. The claim of the complainant/ SHO is that after completing all documentary evidence, he came to police station and lodged FIR. But a perusal of EX-8/A, a letter to medical officer, shows outward No.901 along with stamp. Danishnama and Lash Chakas Form Ex-11/C also bear SHO stamp. But memo of place of incident and dead body only bears signature of the SHO and witnesses, which would show that Danishnama, the letter to Medical Officer and Lash Chakas Form were prepared at PS and therefore have come to bear stamp of the SHO, which is against the evidence of SHO. Further as per entry No.6 at about 1532 hours SHO informed P.S. through phone that there is a quarrel with the police in city Bhagan and directed PC Hassan, PC Ali Ashraf, and PC Amir Bux to report to pointed place but such fact has not been disclosed by SHO in his evidence. It is interesting to note here that the distance between police station and place of encounter was 500 feet and noise of fire shots must have reached there but even then the police officials did not bother to reach place of incident. In cross-examination SHO has admitted that they had not resisted the appellants. The accused persons had come to Malook Hotel 15/20 minutes after their arrival. He further admitted that no police constable was injured nor any person sitting in the hotel was injured including owner or customer. He has also admitted that encounter continued for about 40 minutes and he remained at the place of vardat/incident for 10/15 minutes and from where they reached the police station within 8/10 minutes. It is noted that the dead body was sent to hospital at about 3.30 PM and post mortem was conducted at 9.30 PM with a delay of 6 hours (six hours) without any plausible explanation.

13. It is surprising to note that all the witnesses were present in front of the hotel and in their presence the appellants entered hotel, committed murder of their fellow and fired upon them but they could not do anything to stop it or stop accused/appellants from entering the hotel and firing upon the deceased which seems an anomaly keeping in view story of the prosecution case that police had advance information about the appellants being criminals involved in terrorist activities. The encounter continued for 15/20 minutes but neither they nor the appellants received any scratch. PW-4 Ghulam Khan has admitted that the accused at the time of encounter were at the distance of 6/7 feet from them and at the time of encounter people were available in the surroundings but from their firing, none of the accused was injured. 40/50 fires were made by police, the accused persons had fired 30/40 rounds but none from police party nor even customers at the hotel or members of public and police mobile were hit by firing of the accused or police which does not appeal to common sense. Allegedly the police remained at place of incident for about 1 hour or 1.15 hour. The writing work started 10/15 minutes after the encounter. PC Ghulam Khan has written Danishnama and Lash Chakash at the spot and thereafter police returned to police station/thana at 4.30 p.m. Again on spy information they left for the place where accused were arrested after police party had fired 60/70 rounds in the encounter. Further this witness has admitted that empties lying in the Court are not in accordance with the numbers of rounds fired during both the encounters. He has also admitted that "accused persons present in the Court are local Zamindars". The independent and vital piece of evidence available with prosecution was the bullet recovered from the dead body of deceased HC Wazir Ali but it is not helpful to the prosecution that it was handed over to Incharge Forensic Division in a sealed condition for its examination and was received by office of In-charge Forensic Division Hyderabad being Parcel No. 3, but as per report Ex-13/C "No definite opinion can be expressed regarding one crime bullet now marked as B due to cause of lack of sufficient data for examination".

14. During second encounter the complainant recovered motorcycle from the appellants but no information was collected as to who is owner of the motorcycle. The sketch of place of incident was prepared by PW-2 Toorpio Tapedar/Patwari which shows distance between the dead body and motorcycle of accused 40 feet but it does not denote where the accused were present and what was distance between accused and the deceased HC Wazir Ali at the time of the incident. In cross-examination PW-2 Toorpio has admitted that "Different points denoting the place where the dead body was lying shown in the sketch etc were pointed out to me by the SHO". Which shows that even SHO/Complainant was not in a position to show where the accused were present at the time of incident. Further PW-3 Ali Asghar in his cross-examination has admitted that first they went to petrol pump and then to Malook hotel, whereas,PW-4 Ghulam Khan has said that they had gone to the petrol pump to fill the fuel and then to city. In the FIR the complainant disclosed that they left police station for patrolling and went to the Malook hotel, where the instant incident took place.

15. The last ray of hope was Investigating Officer who was required to conduct proper investigation and dig out the truth but he in his evidence has deposed that on verbal orders he started investigating this crime and collected the documents. Further that SHO showed him place of incident, he recorded statements of police officials, deputed Tapedar/ Patvari for preparing sketch and received chemical and FSL reports, written letter to chemical Analyzer and FSL and finally submitted Report (challan) before the trial Court. It seems that I.O. has only fulfilled formalities without going into details of the case and did not try to find out whether the incident took place in the manner as alleged or not. In cross-examination all PWs have admitted that the place of incident is thickly populated area but he/I.O. could not detect any person present at place of incident to make him witness or at least record his statement in support of the fact that incident had taken place there. He has further admitted that "I have not noticed any bullet marks on the walls of hotel viz. first place of vardat. No blood stained were found there. It is correct to suggest that empty bullets fired from police side were not sent to FSL. The deceased was murdered inside the hotel." The entire investigation was completed in two hours by I.O. of the case. The I.O. has not even recorded statement of the owner of the hotel, waiters, owner of the cabin which was situated at the distance of 5 feet, or any other person from locality to believe the incident had taken place in the manner and at the place as disclosed by the police. We are sorry to observe abysmal standard of the investigation in a murder case wherein a police official was murdered.

16. All police witnesses are subordinate to the compliant and therefore interested in the outcome of the case. In such circumstances, we are not inclined to accept the evidence of three eye-witnesses as gospel truth. Further we have found that there are material contradictions in their evidence and that no independent person has been examined by the prosecution to lend some corroboration to their evidence. In this context reliance is placed on the case of Khalid alias Khalidi and 2 others v. The State (2012 SCMR 327) where in the Hon'ble Supreme Court of Pakistan has held that:- "We, therefore, find that the ocular account is not of such a character which could be relied upon in order to convict a person on a capital charge when the same is not corroborated by any other independent evidence as the presence of both the eye-witnesses at the place and time of occurrence is not established."

17. In another case of Abid Ali and 2 others v. The State (2011 SCMR 208) Hon'ble Supreme Court of Pakistan has held that; "

21. To believe or disbelieve a witness all depends upon intrinsic value of the statement made by him. Even otherwise, there cannot be universal principle that in every case interested witness shall be disbelieve or disinterested witness shall be believed. It all depends upon the rule of prudence and reasonableness to hold that a particular witness was present on the scene of crime and he is making true statement. A person who is reported otherwise to be very honest, above board and very respectable in society if gives a statement which is illogical and unbelievable, no prudent man despite his nobility would accept such statement.

22. As rule of criminal jurisprudence, prosecution evidence is not tested on the basis of quantity but quality of the evidence. It is not that who is giving the evidence and making statement; what is relevant is what statement has been given. It is not the person but the statement of that person which is to be seen and adjudged."

18. We for the above reasons are of the view that the three eye-witnesses who claimed to be present at the scene of the crime were infact not present there and their testimonies are not confidence inspiring. Apparent promptitude in reporting the matter to police and registration of FIR is hardly of any avail to the prosecution because the postmortem on the dead body of the deceased was conducted after unexplained delay of six hours.

19. Having held that three eye-witnesses presence at the spot is not free from doubt, now we refer to the evidence of arrest and recoveries. SHO/ complainant PW-5 stated that after registration of FIR No. 12/2014 he left police station at 1710 hours along with same staff on spy information; that the accused required in this case were hidden in the otak of Nawaz Perozani and waiting for night to escape. He went to the pointed place where while seeing police officials the appellants started firing upon them and after an encounter which continued for about 40 minutes both the appellants were arrested and from them pistols were recovered. It is astonishing to note that the police party is same in whose presence the appellants allegedly committed murder of deceased HC Wazir Ali and escaped unscathed but later on within two hours same police party was able to arrest the accused person at 1740 hours from banana garden, this time also none of the party received any harm. It does not seem to be trustworthy that in the encounter from appellant Liaquat alias Imam Dino a pistol was recovered from fold of his shalwar. The encounter continued for about 40 minutes but not a single person received any scratch nor any bullet hit police mobile or motorcycle. Further the prosecution has not examined owner of the banana garden to lend corroboration to such fact. All the three witnesses of recovery and arrest are police officials and subordinate to the complainant. They are not resident of the locality, and hence in such a situation we cannot wholly solely rely on their evidence.

20. This is a murder case in which motive as setup by prosecution is that the appellants were notorious criminals, involved in heinous crimes/cases and also spreading terrorism in the locality but no such material was produced by prosecution to believe that they were involved in such like activities. Therefore we are not hesitant to say that the prosecution has failed to establish motive against the appellants. The case laws referred by the learned counsel for legal heirs of the deceased are distinguishable from the facts and circumstances of the present case.

21. It is a settled proposition of law that prosecution is bound to prove its case beyond a shadow of a doubt. If a reasonable doubt arises in the prosecution case, the benefit of the same must be extended to the accused not as a grace or concession, but as a matter of right. Likewise, it is also a well-embedded principle of criminal justice that it is not necessary that there must be so many doubts in the prosecution case if there is a reasonable doubt arising out of the prosecution evidence pricking the judicious mind, the same would be considered sufficient for giving its benefit to the accused. In this respect, reliance can be placed upon the case of Mohammad Mansha v. The State (2018 SCMR 772). "

4. Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted." Reliance in this behalf can be made upon the cases of Tarique Parvez v. The State (1995 SCMR 1345), Ghulam Qadir and 2 others v.The State (2008 SCMR 1221), Mohammad Akram v. The State (2009 SCMR 230) and Mohammad Zaman v. The State (2014 SCMR 749)."

22. For the reasons discussed above, the instant appeals are allowed. The conviction and sentence awarded by the learned trial Court are set aside. Appellants Sanaullah and Liaquat alias Imamdino by caste Perozani are acquitted of the charges levelled against them in all cases by extending them the benefit of doubt. Appellants are in custody, they shall be released forthwith if they are not required in any other custody case.

23. All the captioned appeals stand disposed of in the above manner. JK/S-131/Sindh Appeals allowed.