Summary: Summary pending

Summary: (Against the judgment dated 15.02.2024 of the Peshawar High Court, Peshawar passed in Customs Reference No.36-P of 2021). Customs Act (IV of 1969)--- ----Ss.17, 181, 194-A & 196---Notification SRO 499 (I)/2009, dated 13-06-2009---Constitution of Pakistan, Art. 185(3)---Transporting smuggled goods---Confiscation of vehicle---Option to pay fine---Aggrieved person---Scope---Petitioner was driver of vehicle which was confiscated by authorities for transporting smuggled goods---Owner of vehicle did not come forward, instead the petitioner sought release of vehicle against payment of fine---Validity---Vehicle was seized in year 2020 and it was outrightly confiscated---Before insertion of proviso to Section 157(2) of Customs Act, 1969 it remained effective for a short period and was omitted through Finance Act, 2022---Proviso inserted in section 157 of Customs Act, 1969 generally explained the extent of confiscation and did not in any manner affect, limit or interfere with the powers conferred on Federal Board of Revenue under Section 181 of Customs Act, 1969---In the context of giving an option to release goods in lieu of payment of fine, provisions of Sections 157 and 181 were independent of each other and the former could not be construed as having an overriding effect on the latter---Inserted and then omitted proviso was not relevant or attracted in the matter, as the vehicle was found carrying smuggled goods and was used exclusively for transportation thereof, which was covered under clause (b) of Preamble to Notification SRO 499(I)/2009, dated 13-06-2009 and the option contemplated under section 181 of Customs Act, 1969 could not have been given for its release---Aggrieved person is the one whose legal right have been invaded, or whose pecuniary interest is directly and adversely affected---Expression aggrieved refers to a substantial grievance, denial of some personal pecuniary or property rights, or imposition upon a party for burden or obligation---Statutory right of appeal provided under Section 194A of Customs Act, 1969 is confined to an aggrieved person or an officer of customs---Petitioner was not owner of vehicle, nor had the latter sought benefit under section 181 of Customs Act, 1969---Petitioner was neither authorized by nor was acting as a lawful attorney on behalf of owner of vehicle---Supreme Court declined to interfere in the orders of confiscation of vehicle in question---Petition for leave to appeal was dismissed and leave to appeal was refused. Collector of Customs, Peshawar v. Wali Khan and others 2017 SCMR 585; Director-General, Intelligence and Investigation-FBR v. Sher Andaz and others 2010 SCMR 1746 and Director, Directorate-General of Intelligence and Investigation and others v. Al-Faiz Industries (Pvt.) Ltd. and others 2006 SCMR 129 ref. Naveed Akhtar, Advocate Supreme Court for Petitioner (via video link from Peshawar). Shahid Qayyum, Advocate Supreme Court for Respondents (via video link from Peshawar). Date of hearing: 12th September, 2024.

Summary: (Against the Judgment dated 20.02.2023 passed by the Federal Service Tribunal, Lahore in the Appeal No.8(L) of 2020). (a) Civil service--- ----Pension---Claim for pensionary benefits---Limitation---Pension constitutes a recurring cause of action---Claims constituting payment of lawful dues constitute a recurring cause of action and delay, if any, would not automatically vitiate a claim. Abdul Jabbar v. Pakistan Railways 2018 PLC (C.S.) 375; Umar Baz Khan v. Jehanzeb PLD 2013 SC 268; M.R. Gupta v. Union of India and others (1995) 5 SCC 628 and Union of India and others v. Tarsem Singh (2008) 8 SCC 648 ref. (b) Civil Service Regulations (CSR)--- ----Art. 371-A(ii)---Pensionary benefits, calculation of---Inclusion of contractual period for calculation of pensionary benefits---Contractual period (of less than 5 years),being temporary service, is recognized by Article 371-A of the Civil Service Regulations (CSR) for inclusion in the calculation of pension provided that the contractual period is followed by regularization or confirmation without any gap or interruption, in accordance with clause (ii) of Article 371-A of the CSR---Clause (ii) of Article 371-A of the CSR provides for situations where a government servant has rendered less than five years of continuous temporary or officiating service---In such instances, the period of service shall also be counted towards pension or gratuity, provided that it is immediately followed by confirmation/regularization as a permanent employee---In the present case, since temporary service (contract period) of respondent (employee) was 4 _ years therefore clause (ii) of Article 371-A was applicable---Record reveals that the respondent's service from his contractual appointment to regularization and retirement was continuous and uninterrupted and this had not been disputed by the petitioner (employer)---Therefore, Federal Service Tribunal had rightly allowed the appeal of the respondent---Petition was dismissed and leave was refused. Chairman, Pakistan Railway, Government of Pakistan, Islamabad and others v. Shah Jehan Shah PLD 2016 SC 534 and Ministry of Finance through Secretary and others v. Syed Afroz Akhtar Rizvi and others 2021 SCMR 1546 ref. Imran Aziz, Advocate Supreme Court for Petitioner. Aurangzeb Mirza, Advocate Supreme Court for Respondent (via video link from Lahore). Date of hearing: 12th September, 2024.

Summary: (Against the judgment dated 30.08.2023 of the High Court of Balochistan, Quetta passed in C.P. No.570 of 2021). (a) Constitution of Pakistan--- ----Art. 25---Employee of National Bank of Pakistan---Allegations of omissions and irregularities regarding ATM cash feeding, maintenance and balancing---Penalty of dismissal from service reduced to down gradation by one step in pay scale---Other employees facing similar allegations awarded lesser punishment---Discrimination---In the impugned judgment, the High Court rightly held that under similar facts and circumstances as well as the same set of allegations and charges the other employees of the Bank were awarded lesser punishment by the Disciplinary Cases Committee of the Bank, and no reason whatsoever had been assigned to single out the respondent who had been awarded the major punishment of dismissal from service which amounted to clear discrimination---Nothing had been brought on record to show that respondent was directly responsible or had committed any gross misconduct or negligence in respect of the allegations as contained in the charge sheet/show cause notice, whereas, the guilt regarding allegations and charges in the instant case had been duly accepted through confessional statement by another employee of the bank i.e. the Branch Manager against whom a criminal case was also registered, however, such aspect had been totally ignored while awarding the major punishment of dismissal from service, which, on the face of it, was otherwise not commensurate with the magnitude of the guilt and the role assigned to respondent---Neither in the charge sheet nor in the proceedings before the Disciplinary Cases Committee there was any direct charge of misconduct, fraud, embezzlement of fraud or even the connivance of respondent with the offence committed by the Branch Manager who had accepted his guilt and entire responsibility, therefore, on the allegation of not complying with office circulars to handle the ATM cash feeding and allowing the Branch Manager, who was reportedly performing the said duty as joint custodian, major penalty of dismissal from service was not only harsh but also disproportionate to the allegations/charge besides being discriminatory---Impugned judgment of the High Court by which it modified the penalty of dismissal from service awarded to the respondent to down gradation by one step in his pay scale was upheld---Petition was dismissed and leave to appeal was refused. Secretary to Government of the Punjab Food Department, Lahore and another v. Javed Iqbal and others 2006 SCMR 1120 ref. (b) Civil service--- ----Punishment, quantum of---Discretion of competent authority---Authority vested with discretion to award punishment to an employee has to ensure that such punishment should commensurate with the magnitude of guilt. Malik Khushal Khan, Advocate Supreme Court for Petitioner (via video link from Quetta). Kamran Murtaza, Senior Advocate Supreme Court and Syed Rifaqat H. Shah, Advocate-on-Record for Respondent No.1. Date of hearing: 12th September, 2024.

Summary: Income Tax Ordinance (XLIX of 2001)--- ----S.134A(1)---Constitution of Pakistan, Art. 199---Constitutional petition---Alternative Dispute Resolution---Committee not established---Effect---Petitioner / taxpayer company in its earlier petition was directed by High Court to get its dispute settled through Alternative Dispute Resolution Committee---Authorities did not establish Alternative Dispute Resolution Committee and dispute of petitioner / taxpayer company was not decided within the period fixed by High Court in earlier petition---Effect---High Court directed Federal Government to establish necessary Committee of Alternative Dispute Resolution as per provision of S. 134A(1) of Income Tax Ordinance, 2001, on immediate basis so that litigants would not suffer and tendency of overburdening Court with unnecessary litigation was curtailed---High Court restrained the authorities from adopting coercive measures against petitioner / taxpayer company as Committee of Alternative Dispute Resolution had not been established and there was no forum to get dispute resolved by way of mediation---Constitutional petition was disposed of accordingly. Shell Pakistan Limited v. Government of Punjab and others 2020 PTD 1607; Shaheen Merchant v. Federation of Pakistan/National Tariff Commission and others 2021 PTD 2126; Federation of Pakistan and others v. Attock Petroleum Ltd. Islamabad 2007 SCMR 1095; Commissioner Inland Revenue v. Messrs RYK Mills 2023 SCMR 1856; Province of Punjab through Secretary G&W, Lahore and others v. Messrs Maroon Construction Company, Government Contractor and others 2024 SCMR 947; Strategic Plans Division and another v. Punjab Revenue Authority and others PLD 2024 Lah. 545; Faisal Zafar and another v. Siraj-ud-Din and 4 others 2024 CLD 1; Netherlands Financierings Maatschanpij Voor Ontwikkelingslanden N.V. (F.M.O) v. Morgah Valley Limited and SECP PLD 2024 Lah. 315; Sohail Nisar v. Nadeem Nisar and others 2024 LHC 1435; Messrs U.IG. (Pvt.) Limited through Director and 3 others v. Muhammad Imran Qureshi 2011 CLC 758 and Shehzad Arshad v. Pervez Arshad and 2 others 2024 CLD 1121 rel. Syed Tanseer Bukhari for Petitioner. Imran Shaukat Rao, A.A.G. (on Court call).

Summary: (Against the judgment dated 15.02.2024 of the Peshawar High Court, Peshawar passed in Customs Reference No.36-P of 2021). Customs Act (IV of 1969)--- ----Ss.17, 181, 194-A & 196---Notification SRO 499 (I)/2009, dated 13-06-2009---Constitution of Pakistan, Art. 185(3)---Transporting smuggled goods---Confiscation of vehicle---Option to pay fine---Aggrieved person---Scope---Petitioner was driver of vehicle which was confiscated by authorities for transporting smuggled goods---Owner of vehicle did not come forward, instead the petitioner sought release of vehicle against payment of fine---Validity---Vehicle was seized in year 2020 and it was outrightly confiscated---Before insertion of proviso to Section 157(2) of Customs Act, 1969 it remained effective for a short period and was omitted through Finance Act, 2022---Proviso inserted in section 157 of Customs Act, 1969 generally explained the extent of confiscation and did not in any manner affect, limit or interfere with the powers conferred on Federal Board of Revenue under Section 181 of Customs Act, 1969---In the context of giving an option to release goods in lieu of payment of fine, provisions of Sections 157 & 181 were independent of each other and the former could not be construed as having an overriding effect on the latter---Inserted and then omitted proviso was not relevant or attracted in the matter, as the vehicle was found carrying smuggled goods and was used exclusively for transportation thereof, which was covered under clause (b) of Preamble to Notification SRO 499(I)/2009, dated 13-06-2009 and the option contemplated under section 181 of Customs Act, 1969 could not have been given for its release---Aggrieved person is the one whose legal right have been invaded, or whose pecuniary interest is directly and adversely affected---Expression aggrieved refers to a substantial grievance, denial of some personal pecuniary or property rights, or imposition upon a party for burden or obligation---Statutory right of appeal provided under Section 194A of Customs Act, 1969 is confined to an aggrieved person or an officer of customs---Petitioner was not owner of vehicle, nor had the latter sought benefit under section 181 of Customs Act, 1969---Petitioner was neither authorized nor was acting as a lawful attorney on behalf of owner of vehicle---Supreme Court declined to interfere in the orders of confiscation of vehicle in question---Petition for leave to appeal was dismissed and leave to appeal was refused. Collector of Customs, Peshawar v. Wali Khan and others 2017 SCMR 585; Director-General, Intelligence and Investigation-FBR v. Sher Andaz and others 2010 SCMR 1746 and Director, Directorate-General of Intelligence and Investigation and others v. Al-Faiz Industries (Pvt.) Ltd. and others 2006 SCMR 129 ref. Naveed Akhtar, Advocate Supreme Court for Petitioner (via video link from Peshawar). Shahid Qayyum, Advocate Supreme Court for Respondents (via video link from Peshawar). Date of hearing: 12th September, 2024.

Summary: Sales Tax Act (VII of 1990)--- ----Ss. 13 &2 (46)(i), Explanation [added vide Finance Act, 2022]---Electricity Distribution Companies (DISCOs)---Subsidy---Chargeability to tax---Retrospective effect---Scope---Department filed Reference Application against order passed by Appellate Tribunal Inland Revenue (Tribunal) in favour of DISCOs---Validity---Explanation added in sub-clause (i) of Clause (46) of S. 2 of the Sales Tax Act, 1990 (Explanation-in-question) contemplated an unequivocal clarification that the subsidy was not chargeable to the tax under Sales Tax Act, 1990, (the Act, 1990) in case of DISCOs---Explanation-in-question stated that "It is clarified that the value of supply does not include the amount of subsidy provided by the federal government or provincial governments to the electricity consumers and has never been chargeable to tax under the Act"---Pertinently, the explanation-in-question was inserted through the Finance Act, 2022, after the passing of order(s) by the Tribunal, and the matter was decided against Department by the Tribunal while observing that there was no clarification in the law regarding the identity of the obligator---Notwithstanding subsequent introduction of the explanation-in-question, scope and applicability of the explanation was clear---Thus, the proposed questions were decided in favour of the respondents and against the applicant-department---Reference applications were dismissed. Commissioner Inland Revenue v. M/s GEPCO Limited (S.T.R No.77467/2022) and Commissioner Inland Revenue v. M/s Faisalabad Electricity Supply Co. Ltd. (S.T.R No.113/2014) ref. Commissioner Inland Revenue, LTO, Lahore v. Messrs Gujranwala Electric Power Co. (GEPCO) 2024 PTD 440 distinguished. Muhammad Suleman Bhatti for Applicant. Ch. Mumtaz-ul-Hassan for Respondent. Date of hearing: 12th September, 2024.

Summary: Customs Act (IV of 1969)--- ----S. 19---Sales Tax Act (VII of 1990), Sixth Sched., Cl. 133---Notifications SRO 65(I)/2006 dated 05-06-2006 and SRO 474(I)/2016 dated 27-06-2016---Tax exemption---Two HS Codes---Applicability---Petitioner / importer claimed exemption from levy of customs duty in terms of SRO 565(I)/2006 dated 05-06-2006 duly amended vide SRO 474(I)/2016 dated 27-06-2016, as goods imported were fully covered by the exemption as per column No.3 of Table at serial No.3 of amending SRO 474(I)/2016 dated 27-06-2016---Plea raised by petitioner / importer was that two HS Codes were available at serial No. 3 of Table to SRO 474(I)/2016 dated 27-06-2016 therefore, it qualified for such exemption or zero rating of duties---Validity---Provision of Cl. 133 of Sixth Schedule to Sales Tax Act, 1990, was not pari materia with the entry at serial No.3 of Table to SRO 474(I)/2016 dated 27-06-2016---There was no restriction under Cl. 133 of Sixth Schedule to Sales Tax Act, 1990, that manufacturer or formulator was to be approved or recognized by Ministry of National Food Security and Research; rather it was the product i.e. pesticides and active ingredients, which were required to be registered by Department of Plant Protection under Agricultural Pesticides Ordinance, 1971, including stabilizers, emulsifiers and solvents, namely, other surface active agents and non-ionic surface active agents---Petitioner / importer was claiming certain exemption and the principle relating to proper interpretation and application of exemption clauses in fiscal legislation were well settled that onus was upon taxpayer to show that his case had come within the exemption; and if two reasonable interpretations were possible, the one against taxpayer would be adopted---Petitioner / importer failed to fulfil condition as provided in column No.(2) against serial No.3 of SRO 474(I)/2016 dated 27-06-2016, including production of recognition and approval from Ministry of National Food Security and Research---High Court declined to interfere in the matter---Constitutional petition was dismissed, in circumstances. Surfactant Chemicals Company (Pvt.) Ltd. v. Federation of Pakistan and others 2020 PTD 1985; Federal Board of Revenue v. Surfactant Chemicals Company (Pvt.) Limited Civil Petitions Nos.95-K and 145-K of 2020; Civil Petitions Nos.95-K and 145-K of 2020; Oxford University Press v. Commissioner of Income Tax 2019 SCMR 235; Pakistan Match Industries (Pvt.) Limited v. Assistant Collector Sales Tax 2019 SCMR 906 and Commissioner Inland Revenue v. Kassim Textile Mills (Pvt.) Limited 2013 PTD 1420 ref. Asad Manzoor Halepota for Petitioner (in all Petitions). Dr. Shah Nawaz for Respondent No.3. (in C.P. No.D-4002 of 2019). Khalid Rajpar for Respondent No.3 (in C.P. No.D-774 of 2022). Ms. Masooda Siraj for Respondent No.4 (in C.P. No.D-774 of 2022). Kashif Nazeer, Assistant Attorney General for Federation of Pakistan. Date of hearing: 12th September, 2024.

Summary: Criminal Procedure Code (V of 1898)--- ----S. 497---Penal Code (XLV of 1860), Ss. 324, 337-A(i), 337-F(i), 337-F(iv), 504, 147, 148 & 149---Attempt to commit qatl-i-amd, shajjah-i-khafifah, ghayr-jaifah-damiyah, ghayr-jaifah-mudihah, intentional insult with intent to provoke breach of peace rioting, rioting armed with deadly weapons, unlawful assembly---Bail, refusal of---Accusation against the applicants were that they caused severe injuries to three persons on their vital and non-vital parts---Accused were named in the FIR with specific roles---Complainant alleged that the accused committed acts of violence, including assault with deadly weapons, resulting in injuries to multiple individuals---First Information Report detailed the accused's actions, including the use of a gun, hatchet and sticks---Witnesses corroborated the complainant's account, and medical evidence supported the claims of injuries---Motive for the attack was also outlined in the FIR, stemming from a dispute over payment---Injuries sustained by the victims were classified under various Sections of P.P.C including Ss. 337-D & 324---Such offences were non-bailable and carried potential penalties including imprisonment and fines---Based on the evidence presented, including the FIR, the witnesses' statements, the medical reports and recovered weapons, there was a prima facie case against the accused---Accused had not demonstrated any grounds for further inquiry---Bail petition was dismissed, in circumstances. Mir Muhammad v. The State 2024 SCMR 805; Muhammad Ijaz v. The State 2022 SCMR 1271; Muhammad Faisal v. The State and another 2020 SCMR 971 and Abd-ur-Razak alias Karo v. The State 2012 MLD 1656 ref. Zafar Hayat for Applicant. Mian Taaj Muhammad Keerio for the Complainant along with Complainant and two injured. Dhani Bux Mari, Assistant P.G Sindh. order Adnan-ul-Karim Memon, J .--- The applicants Gul Bahar and Ghulam Murtaza are seeking post-arrest bail in FIR No.31 of 2024 for the offenses under sections 324, 337-F(iv), A(i), F(i), 147, 148, 149, 504 P.P.C at Police Station Chotiyaroon. 2. The trial Court declined their earlier bail plea vide order dated 24.07.2024 on the premise that the applicants are nominated in FIR with specific roles for causing severe injuries to the victims on vital and non-vital parts, with intent to commit their qatl-i-amd; that delay in registration of FIR is properly explained; that accusations are supported by statements of witnesses under section 161 Cr.P.C., coupled with medicolegal certificate; that the alleged offense carries prohibition contained in Section 497 Cr.P.C. 3. The accusation against the applicants are that on 07-07.2024, they caused severe injuries to injured Asim Mansoor, Sher Usama, and Ghulam Mustafa on their vital and non-vital parts. Such a report of the incident was given to police on 10.07.2024. 4. The counsel for the accused argued that there was a delay of three days in filing the FIR without a good reason; that the accused is a police constable who was on duty at the time of the incident; that the medical report does not show any gunshot wounds on the victim's vital parts, and the type of weapon used is listed as a sharp cutting substance; that the injuries of the other victims are listed as caused by a hard blunt substance; that there was no actual incident, and the complaint was filed due to a dispute over cotton sales; that no witnesses from the local area are listed in the FIR or case; that the offense does not fall under the prohibited clause of Section 497 of the Criminal Procedure Code; that the accused has connections to a local landlord who belongs to the ruling party, and the complaint may be influenced by this; that the case needs further investigation. Based on these arguments, the counsel requested post-arrest bail for the accused. In support of his contentions, he relied upon the cases of Mir Muhammad v. The State [2024 SCMR 805], Muhammad Ijaz v. The State [2022 SCMR 1271], Muhammad Faisal v. The State and another [2020 2 SCMR 971] and Abd-ur-Razak alias Karo v. The State [2012 MLD 1656]. 5. The prosecution argues that the accused are guilty of the crime based on the evidence that they are named in the FIR with specific roles in the crime; that the accused demanded food from the complainant's shop without paying; that the police recovered weapons used in the crime from the accused; that the medical evidence supports the complainant's version of events; that witnesses have corroborated the complainant's story; that the co-accused Hadi Bux inflicted a serious injury on the victim. The prosecution argues that there is no need for further investigation and that the accused has not proven any wrongdoing on the part of the complainant. They request that the bail application be denied. 6. Tentative assessment of record reflects that the accused are named in the FIR with specific roles. The complainant alleges that the accused committed acts of violence, including assault with deadly weapons, resulting in injuries to multiple individuals. The FIR details the accused's actions, including the use of a gun, hatchet, and sticks. Witnesses corroborate the complainant's account, and medical evidence supports the claims of injuries. The motive for the attack is also outlined in the FIR, stemming from a dispute over payment. The injuries sustained by the victims are classified under various sections of the Pakistan Penal Code (P.P.C.), including 337-D and 324. These offenses are non-bailable and carry potential penalties, including imprisonment and fines. Based on the evidence presented, including the FIR, witness statements, medical reports and recovered weapons, there is a prima facie case against the accused. They have not demonstrated any grounds for further inquiry or bail. 7. For the reasons to follow, the captioned bail application is dismissed leaving the trial Court to examine the complainant and injured within two months and if the charge is not framed, the same shall be framed on the date so fixed by the trial Court; however, it is expected that the trial Court will endeavor to comply the directions contained in this case. JK/G-2/Sindh Application dismissed.

Summary: (a) Penal Code (XLV of 1860)--- ----Ss. 324, 353, 186 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Murderous assault on police, acts of terrorism---Appreciation of evidence---Accused was charged that he along with his co-accused made firing upon the police party; in retaliation police also made firing due to which appellant sustained firearm; injury and co-accused ran away from the spot---Record showed that it was a case of spy information, incident had occurred on a road in thickly populated area, but no efforts were made by the police to associate private persons---As per prosecution evidence, there was cross-firing with sophisticated weapons but neither Police Officials sustained firearm injury nor damage was caused to police mobile which appeared to be unbelievable---On the other hand, appellant had sustained fire shot injury on his right leg---So far as Injury No. 2 on the person of the appellant was concerned, record reflected that it had been suppressed by the police---According to the Medical Officer, Injury No. 2 was 03 to 04 days old and was caused to the appellant with hard blunt substance---Prosecution could not explain how Injury No. 2 was sustained by the appellant---Element of terror or panic was missing in the case---Conviction and sentence under S.7 of the Act 1997 was also not sustainable---Police Officials did not record or take photographs when search, seizure and arrest of the appellant was made---Moreover, it was night time incident, source of light was not mentioned by the Police Officials in their evidence and mashirnama of arrest and recovery was also silent on such aspect of the case---In the mashirnama of arrest and recovery, description had been mentioned, but evidence of Police Officials was silent on that respect---Prosecution could not explain such omission in the evidence---Safe custody and safe transmission of the pistol used in the crime had not been established before the trial Court, for the reason that prosecution failed to examine Incharge Malkhana of concerned Police Station---Investigation Officer failed to preserve the finger prints of the accused and on pistol during course of encounter---Moreover, there were also major contradictions in the evidence of prosecution witnesses on material particulars of the case---Appeal against conviction was allowed, in circumstances. Zahid Sarfaraz Gill v. The State 2024 SCMR 934 ref. (b) Criminal trial--- ----Benefit of doubt---Principle---If there is a circumstance which creats reasonable doubt in a prudent mind about the guilt of the accused, the benefit of such doubt, must be given to him not as a matter of grace and concession but as a matter of right. Muhammad Mansha v. The State 2018 SCMR 772 rel. Khuda Dino Sangi for Appellant. Abrar Ali Khichi, Additional Prosecutor General Sndh for the State. Date of hearing: 12th September, 2024. Judgment Naimatullah Phulpoto, J .--- It is the case of the prosecution that SIP Ghulam Hussain along with his subordinate staff left for patrolling on 06.08.2022. During patrolling, police party received spy information that two suspected persons were present near Liyari Railway Station, Maripur Road. Police party proceeded to the pointed place and reached there at 0200 hours and saw two persons in suspicious manner, who on seeing police party started firing, police also fired in self defence, resultantly, appellant sustained fire arm injury and co-accused ran away from the spot. In the incident, no injury was caused to the police officials. Police arrested the appellant, on enquiry he disclosed his name as Jawaid Shah. Police recovered one unlicensed .30 bore pistol without number and four live bullets from his possession; mashirnama of arrest and recovery was prepared in presence of mashirs namely PCs Gulsher and Muhammad Aslam. Thereafter, appellant was referred to the Hospital and SIP Ghulam Hussain came at the police station and lodged two FIRs bearing Crime No.237/2022 for offences punishable under Sections 353, 324, 186, 34, P.P.C. read with Section 7 of ATA, 1997 and Crime No. 238/2022 for offence punishable under Section 23(1)(a) of Sindh Arms Act, 2013 at P.S Kalri, Karachi on behalf of State. 2. During investigation, crime weapon .30 bore pistol, bullets and empties were dispatched to the Ballistic Expert, positive report was received. On the conclusion of the usual investigation, challan was submitted against accused under the above referred sections. 3. At trial, both cases one relating to police encounter and another relating to the recovery of unlicensed pistol of .30 bore from appellant were jointly tried in terms of Section 21-M of Anti-Terrorism Act, 1997. 4. Trial Court framed Charge against the appellant, he pleaded not guilty and claimed to be tried. In order to substantiate the charge, prosecution has examined 04 P.Ws who produced the relevant documents at trial. Thereafter, prosecution side was closed. 5. Trial Court recorded statement of accused under Section 342, Cr.P.C, in which he denied the prosecution's allegations and claimed false implication in this case. Accused declined to examine himself on oath in disproof of the prosecution allegations and did not lead evidence in his defence. 6. Trial Court, after hearing learned counsel for the parties and assessment of the evidence vide judgment dated 15.06.2023 convicted the appellant under Section 7(h) of ATA, 1997 read with section 353, P.P.C. and sentenced to undergo 05 years R.I and to pay fine of Rs.5000/-. In case of default, he was directed to undergo 03 months S.I. Appellant was convicted under Section 7(h) of ATA, 1997 read with section 324, P.P.C. and sentenced to undergo 05 years R.I and to pay fine of Rs.5000/-. In case of default, he was directed to undergo 03 months S.I. Appellant was also convicted under Section 23(1)(a) of Sindh Arms Act, 2013 and sentenced to undergo 05 years R.I and to pay fine of Rs.3000/- In case of default, he was directed to undergo 03 months S.I. All the sentences were directed to run concurrently. Appellant was also extended benefit of section 382(b), Cr.P.C. Thereafter, appellant filed instant Appeal. 7. Learned advocate for the appellant has mainly contended that prosecution story is highly unnatural and unbelievable; that it was night time incident but source of light on which mashirnama of arrest and recovery was prepared has not been mentioned; that description of the pistol allegedly recovered from the possession of the appellant has not been mentioned; that though it was the case of cross firing with sophisticated weapons but not a single injury was caused to any police official. Learned advocate for the appellant pointed out that Doctor, who examined the appellant, opined that injury No.2 on the person of the appellant was 03 to 04 days old, whereas, according to the prosecution case, soon after the incident, appellant in injured condition was referred to the Hospital but no where injury No.2 was on the person of injured appellant has been mentioned. Lastly, it is submitted that appellant is entitled to the acquittal by extending him benefit of doubt. In support of his contentions reliance is placed upon the case reported as Zahid Sarfaraz Gill v. The State (2024 SCMR 934). 8. On the other hand learned, Addl. P.G Sindh contended that evidence of police official is reliable and confidence inspiring; that appellant was arrested on spot in injured condition and an unlicensed pistol was recovered from his possession. Prosecution has succeeded to prove its' case against the appellant and prayed for dismissal of the appeal. 9. We have heard arguments of learned Advocate for the appellant, Addl. P.G and have gone through the entire evidence, which has been read out by learned Advocate for the appellant and the impugned judgment and have considered the relevant law cited at bar. 10. After re-assessment of the evidence, we have come to the conclusion that prosecution has miserably failed to prove its' case against the appellant for the reasons that it was a case of spy information, incident had occurred on a road in thickly populated area, but no efforts were made by the police to associate private person. It is the prosecution evidence that there was cross-firing with the sophisticated weapons but neither police official sustained firearm injury nor damage was caused to police mobile which appears to be unbelievable. On the other hand, appellant had sustained fire shot injury on his right leg. So far injury No.2 on the person of the appellant is concerned, record reflects that it has been suppressed by the police. According to the Doctor, injury No.2 was 03 to 04 days old and was caused to the appellant with hard blunt substance. Addl. P.G could not explain injury No.2 that how that was sustained by the appellant. On the other hand, advocate for appellant has contended that it is a case of false police encounter and appellant was arrested by police 04 days prior to registration of cases. Element of terror or panic is missing in the case. Conviction and sentence under section 7 of the Anti-Terrorism Act, 1997 was also not sustainable. Police officials did not record or took photographs when search, seizure and arrest of the appellant was made. It was night time incident, source of light is not mentioned by the police officials in their evidence and mashirnama of arrest and recovery is also silent on this aspect of the case. So far description of the pistol is concerned, in the mashirnama of arrest and recovery, description has been mentioned, but evidence of police officials is silent on this respect. Addl. P.G could not explain such omission in the prosecution evidence. Safe custody and safe transmission of the pistol used in crime has not been established before the trial Court, for the reason that prosecution failed to examine Incharge Malkhana of concerned police station. The Investigation Officer failed to preserve the finger prints of the accused and on pistol during course of encounter. There are also major contradictions in the evidence of prosecution witnesses on material particulars of the case. 11. 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 matter of right. Reliance in this respect can be made upon the case of Muhammad Mansha v. The State (2018 SCMR 772). 12. For what has been discussed above, we find that prosecution has failed to prove its' case against the appellant beyond any reasonable doubt to sustain conviction. Consequently, this appeal is allowed and impugned judgment is set aside, appellant Javed Shah son of Niaz Muhammad Shah is acquitted of the offences, for which he was charged, tried and convicted by learned trial Court and he be released forthwith, if not required to be detained in any other custody case. 13. These are the reasons for our short order announced on 12.09.2024, whereby instant Special Criminal Anti-Terrorism Jail Appeal was allowed. JK/J-1/Sindh Appeal allowed.