2013 PLP 1827 (YLR)

ABDUL RASOOL MEMON, J.

I intend to decide the above captioned appeals through this common Judgment having similar facts arising out of the impugned Judgment dated 5-10-2011 passed by the Additional Sessions Judge, Umer Kot in Sessions Case No.36 of 2010 whereby accused namely Lal Muhammad, Muhammad Ismail, Rehmatullah and Mandhal respondents in Criminal Appeal No.433 of 2011 were acquitted (hereinafter will be referred as acquitted accused) while appellants/accused Mumtaz Ali and Lutuf Ali (hereinafter will be referred as appellant) were convicted as under:-- Name of accused Under section Sentence awarded Lutuf Ali and Mumtaz Ali (1) 452, PPC Seven years' R.I. and fine of Rs.50,000 (fifty thousand only) each in default of fine they will suffer three years. (2) 337(i) Seven years' R.I. and Daman amount Rs.50,000 (fifty thousand only) each to be paid to the victim Sher Muhammad, in default each will suffer for one year S.I. (3) 337-A(ii) R.I. for five years. (4) 337-L(iii) R.I. for Seven years. (5) 337-L(ii) Daman amount of Rs.50,000 (fifty thousand only) to be paid to victim Haji Arbab Ali by each accused. In default they will suffer three years' S.I. (6) 337-F(vi) R.I. for seven Years and Daman amount of Rs.50,000 (fifty thousand only) to be paid to the victim Amir Hassan by Each of accused, In default three Years' S.I. All the sentences to run concurrently and benefit of section 382-B, Cr.P.C. was also extended.

2. Before I proceed to dwell upon the merits of the case, a reference to the case of prosecution would be necessary. According to the prosecution on 28-4-2010 at 7-30 a.m. while Hafiz Mir Muhammad with his father Arbab Ali, brother Sher Muhammad and son of his maternal Uncle Amir Hassan were present in their house on hearing commotions they went outside and saw appellant and acquitted accused with three unknown persons armed with hatchets and lathies who abruptly abused the complainant party and told them to vacate the land in their possession. Acquitted accused Lal Muhammad and Mandhal caused hatchet blows to P.W. Amir Hassan on his head, left hand and other parts of his body respectively, acquitted accused Muhammad Ismail caused hatchet injuries on the head of P.W. Sher Muhammad while appellant Lutuf Ali caused hatchet injuries to P.W. Arbab Ali. All the accused are also alleged to have caused blows with their respective weapons to P.Ws. Haji Arbab Ali and Amir Hassan resultantly they fell down. Appellant Lutuf Ali is further alleged to have robbed Rs.30,000 from P.W. Arbab Ali and acquitted accused Muhammad Ismail robbed Nokia Mobile Phone from P.W. Sher Muhammad beside, that all the accused trespassed into the house of complainant and took away licensed rifle of P.W. Arbab Ali, double barrel gun of Nawab Ali and licensed pistol of P.W. Amir Hassan. The incident was witnessed by Nawab Ali and others, by shifting the injured to Chhore Hospital, P.W.1 Hafiz Mir Muhammad reported the matter to Police vide F.I.R. No.5/2010 of Police Station Chhore. The motive which trigged the occurrence was dispute over agricultural land with appellant Mumtaz Ali.

3. The police after registration of F.I.R. proceeded with the investigation. Besides inspecting the place of occurrence, the Investigating Officer recorded the statements of injured P.Ws. and noted their injuries on 8-5-2010 vide memo at Exh.10/C. After investigation challan of the case was submitted against the appellants and acquitted accused, which was sent up to Sessions Court and ultimately made over to Additional Sessions Judge Umer Kot for trial. The charge was framed under sections 397, 337-A(i)(ii)(iii), 337-F(vi) and 337-L(2). The appellants and acquitted accused denied the charge and claimed the trial.

4. At trial prosecution examined Hafiz Mir Muhammad (Complainant) and P.W. Arbab Ali, Amir Hussain, Sher Muhammad so also Dr. Lachman Das, mashir Urs and Investigating Officer A.S.-I. Dur Muhammad to prove its case. The material pieces of evidence appearing in the case of prosecution against the accused were put to them and their statements under section 342, Cr.P.C. were recorded by the trial Court. Acquitted accused Lal Muhammad produced eleven true copies of documents with statement of his advocate vide Exh.13/A and claimed that he and other accused were falsely involved due to dispute over agricultural land and further pleaded that complainant party being aggressor had caused injuries to him and appellant Lutuf Ali. The other acquitted accused and appellant Lutuf Ali also relied upon the documents produced by acquitted accused Lal Muhammad. Appellant Lutuf Ali stated that he and P.W. Mumtaz Ali sustained injuries at the hands of, complainant party. However, they did not examine themselves on oath within purview of section 340(2), Cr.P.C. and lead any evidence in defence. The trial Court vide impugned Judgment partly believed the evidence produced by the prosecution on the basis of thereof convicted the appellants and sentences them in terms referred to herein above while remaining four accused were acquitted.

5. Mr. A.Q. Halepoto, learned counsel for the appellants Mumtaz Ali and Lutuf Ali and acquitted accused has argued that the evidence so far brought on record by the prosecution is not reliable, trustworthy and confidence-inspiring. According to him, the prosecution witnesses are not only related inter se, but are also hostile to the appellants and acquitted accused; that there is admitted enmity and dispute over agricultural land; that presence of independent persons was admitted by the prosecution witnesses, but none of them was cited as witnesses or examined in the case; that Dr. Lachmandas, who examined the injured is admittedly tenant of the complainant party and on their influence, he has managed and falsely issued the certificates of alleged injured and no irrefutable presumption could be drawn that the doctor is always truthful witness, his evidence is also to be appreciated like all other witnesses; that there is unexplained delay in lodging F.I.R. and sufficient material is available on record for creating shadow of doubt upon the prosecution case and its benefit should be given to accused Lutuf Ali and Mumtaz Ali also no case for conviction of acquitted accused is made out. In support of his arguments, he has placed reliance on cases of (1) Nasir Ali and others v. Sajjad Hussain and others (PLD 2006 Supreme Court 560), (2) Abdul Hamid and another v. The State (1985 PCr.LJ 1992) (3) Badam Singh v. The State (AIR 2004 Supreme Court 26), (4) Rehmat and others v. The State (PLD 1959 Supreme Court (Pak) 109), (5) Muhammad Iqbal v. Abid Hussain alias Mithu and 6 others (1994 SCMR 1928), (6) Pahlwan and 4 others v. The State (PLD 1975 Karachi-84), (7) Ata Muhammad and another v. The State (1995 SCMR 599), (8) Tariq Pervez v. The State (1995 SCMR 1345), (9) AIR 2011 Supreme Court 200 (10) Nawaz Ali and another v. The State (1981 SCMR 132), (11) Muhammad Amir alias Mushki and 3 others v. The State (PLD 1977 Karachi 695), (12) Syed Saeed Muhammad Shah and another v. The State (1993 SCMR 550) and (13) Bagh Ali v. Muhammad Anwar and another (1983 SCMR 1292).

6. Conversely, Mr. Muhammad Ashraf Kazi Advocate appearing on behalf of complainant has contended that medical evidence is in conformity with ocular evidence; that no material was available on record for extending benefit of doubt to accused namely Lal Muhammad, Rehmatullah, Muhammad Ismail and Mandhal; that the prosecution witnesses have fully supported the case by assigning overt act to each of the above named four accused persons, therefore, the learned Additional Sessions Judge reached to the wrong conclusion and Judgment passed by the Additional Sessions Judge is based on misreading and non-reading of the evidence, therefore, while maintaining the conviction awarded to appellants Lutuf Ali and Mumtaz Ali, the Acquittal appeal filed by complainant Hafiz Mir Muhammad may be allowed and acquitted accused may be convicted according to law. He has also contended that the incident also took place in dwelling house and the presence of complainant and injured P.Ws. is natural. According to him, the evidence has not been analyzed and the trial Court has acted on surmises and conjecture, therefore, it is the duty of appellate court to set aside the wrong where doubt is based on irrelevant grounds or where un shattered evidence is rejected by the trial Court. He has placed his reliance on the cases (1) The State v. Khan Muhammad alias Khanan and others (2005 PCr.LJ 811), (2) Mst. Naseem Jan v. Khawaj Muhammad (PLD 2004 Peshawar 134), (3) Abdul Rashid v. Umid Ali and 2 others (PLD 1975 Supreme Court 227), (4) Muhammad Ahmed and another v. The State (2010 SCMR 660), (5) Yaqoob Shah v. The State (PLD 1976 Supreme Court 53), (6) Muhammad Siddique alias Ashraf alias Achhi and 3 others v. The State (1971 SCMR 659), (7) Muhammad Iqbal alias Javed Iqbal v. The State (PLD 1976 Supreme Court 291), (8) Muhammad Afzal and 2 others v. The State (2003 SCMR 1678) and (9) Taj v. The State (2012 SCMR 43).

7. The learned A.P.-G. Mr. Muhammad Iqbal Awan has supported the arguments of learned counsel for the complainant.

8. I have considered the submission made by the counsel for the parties and gone through the evidence available on record and also gone through the cited cases relied upon by the learned counsel for the parties. It is settled principle of criminal jurisprudence that burden of proof lies on the prosecution and it has to prove the charge beyond reasonable doubt. It is also settled principle of law that accused after acquittal from criminal charge enjoys double presumption of innocence, one before the trial of case and second after his acquittal, thus courts while dealing with an acquittal appeal are bound to examine whether court below had not, ignored any evidence on record or had discarded any evidence for the reasons not recognized by law. Reference is made to a case of Barkat Ali v. Shaukat Ali and others (2004 SCMR 249).

9. Applying the above principles it is to be seen whether accused namely Lal Muhammad, Rehmatullah, Muhammad Ismail, Mandhal have rightly been acquitted and conviction of appellants Lutuf Ali and Mumtaz Ali is sustainable under the law.

10. Perusal of record would reveal that it is an admitted fact that parties are on disputed terms over Agricultural land, thus complainant party is hostile and inimical towards appellants and acquitted accused, as such, as per settled rule their evidence being interested is to be scrutinize with care and caution. The ocular testimony consists of complainant Hafiz Mir Muhammad, P.Ws. Haji Arbab Ali, Amir Hussain and Sher Muhammad. All the eye-witnesses are closely related inter se. It is settled law that wherever a large number of accused are involved and there is admitted enmity between the parties then independent corroboration to prosecution version is necessary. In this context I am fortified by the cases of MUHAMMAD IRSHAD and another v. THE STATE (1999 SCMR 1030). The case of prosecution is that the alleged incident accrued in the market of Haji Arbab and in his house situated in village Hafizabad and at that time people from said village attracted the hue and cry. Complainant Hafiz Mir Muhammad has deposed that Haji Nawab Ali and Dost Muhammad Khaskheli and others had appeared on wardat but surprisingly none of them has been examined in the case. P.W. Haji Arbab Ali has deposed that shopkeepers and so many people gathered at wardat and P.W. Amir Hussain has also deposed that beside Haji Nawab Dost Ali and others had also come there. It is pertinent to mention here that Dost Ali Khaskheli was independent witness of the alleged incident but there is no reason as to why this important witness or other villagers who witnessed the incident are not cited/examined in the case thus the independent corroboration to the ocular account furnished by the prosecution is lacking.

11. Learned counsel for complainant contended that when the presence of witnesses at scene of incident has been established beyond any reasonable doubt and they actually saw the occurrence and identified the accused, their evidence could be relied without corroboration in this regard, he has placed reliance on cases of Mst. Naseem Jehan v. Khawaj Muhammad and State v. Khan Muhammad alias Khanu (supra).

12. I have gone through the citation relied by the learned counsel for the for the complainant in the case of Mst. Naseem Jehan, the presence of eye-witness Khawas was established at the distance of 200/250 paces from wardat and no question of enmity was put to him and claim of defence regarding enmity with his maternal nephew was not believed hence he was termed as disinterested person but in the case in hand, there is direct and admitted enmity between the complainant/P.Ws. accused thus this case law referred by the complainant's counsel is based on different facts and circumstances while in case of the State v. Khan Muhammad @ Khanu the F.I.R. was properly lodged by complainant within a span of 30 minutes while the statements of the witnesses were also recorded without any delay wherein in the case in hand the F.I.R. was lodged with delay of 6-1/2 hours and statements of the witnesses were recorded by the Investigating Officer after 10 days thus this case is also not helpful to the case of complainant.

13. From close scrutiny it is revealed that the evidence of eye-witnesses carries major contradictions, which makes the whole case of prosecution as doubtful.

14. In the F.I.R. no specific role is assigned to appellant Mumtaz Ali even the complainant P.Ws. Haji Arbab Ali and Sher. Muhammad have not implicated him specifically. As per F.I.R. the evidence of complainant as well as eye-witnesses, accused Lal Muhammad had caused hatchet injury on the head of P.W. Amir Hussain and accused Mandhal inflicted to hatchet injury on his hand. P.W. Amir Hussain has deposed differently that accused Mumtaz and Rehmatullah also caused him lathi blow on his head but as per medical certificate Exh. 7/F evidence of medical officer he sustained only one injury on his head.

15. According to the F.I.R. the complainant Hafiz Mir Muhammad all the 6 accused, four of them were allegedly armed with hatches and two with lathies caused injuries to P.W. Haji Arbab, the medical evidence does not support contents of F.I.R. and evidence of complainant. As per medical evidence P.W. Arbab sustained only one injury on his head. P.W. Haji Arbab has deposed that accused Lutuf Ali robbed Rs.30,000 from him but his statement is not supported by his son complainant Hafiz Mir Muhammad. He has not said single word if any cash amount was robbed from his father P.W. Arbab. It is relevant to mention here that as per contents of F.I.R. and eye-witnesses one M.M. Rifle of P.W. Arbab Ali was taken away by accused persons from the house of the complainant but P.W. A.S.-I. Dur Muhammad Investigating Officer of the case has falsified the above prosecution version by deposing that he investigated the crime No.13 wherein he recovered the alleged 7 MM from the possession of P.W. Arbab All under mashirnama dated 8-7-2010. It indicates that the said rifle was recovered from the possession of P.W. Arbab All meaning thereby the alleged rifle had not been stolen or taken away by the appellant or acquitted the accused but falsely alleged to have taken away by accused persons.

16. These contradictions have shaken the reliability of the eye-witnesses and creates serious doubts in the prosecution case and thus in view of case-law reported in Mst. JALLAN v. MUHAMMAD RIAZ and others (PLD 2003 Supreme Court 644) the evidence of above interested witnesses cannot be relied upon.

17. It is also important to note here that the alleged incident has taken place on 28-4-2010 at 7.30 A.M. whereas the F.I.R. was registered 1400 hours at Police Station Chhore which was at the distance of 6 to 7 kilometer from wardat. The simple explanation for delay of hours offered for it is that after shifting the injured to hospital the complainant lodged the F.I.R. There is no plausible explanation of delay in lodging the F.I.R. which has also created clouds of doubts in the prosecution story, as such by not lodging the F.I.R. timely, there is every apprehension and could be said that F.I.R. was lodged after due deliberation and consultation and in such circumstances of case false implication of accused cannot be excluded. Reliance is placed on a case of JEHANGIR v. NAZAR FARID and another (2002 SCMR 1986). Not only that but even no statement of injured eye-witnesses were recorded immediately. Admittedly statements under section 161, Cr.P.C. of injured P.Ws. were recorded on 8-5-2010 and there alleged injuries were also inspected by Police on said date whereas the alleged incident is said to have taken place on 28-4-2010, means 161 statement of witnesses of mashirnama of injuries were recorded and prepared after about 10 days. No explanation for such a long delay is furnished by the prosecution, as such no safe reliance can be placed on the evidence of injured witnesses. I am fortified by the case of Saeed Muhammad v. The State (1993 SCMR 550).

18. On going through the judgment I have noticed that the trial Court has believed the evidence of medical officer being doctor and not inimical to accused party. I do not agree with this observation of learned trial Court. No irrefutable presumption could be made that doctor is always truthfulness witness but his evidence is to be appreciated like that of any other witness. This proposition is laid down in a case of MAYUR PANABHAI SHAH v. THE STATE OF GUJARAT reported as (1982) Supreme Court Cases 396). In the case in hand the evidence of Dr. Lachmandas has been challenged being interested due to personal relation with complainant party though all the prosecution witnesses namely complainant Hafiz Mir Muhammad, P.Ws. Arbab Ali, Amir Hussain and Sher Muhammad denied that Dr. Lachmandas was occupying the shop in the market of P.W. Haji Arbab, but Dr. Lachmandas has falsified their version and admitted to have running his clinic in evening in the shop of P.W. Haji Arbab. This concealment of the fact by the prosecution witnesses in respect of running of the clinic by the Dr. Lachmandas also badly affected their veracity and truthfulness.

19. Analyzing the evidence of Dr. Lachmandas on above touchstone, it appears that no time of arrival of patient/injured Haji Arbab Ali and Sher Muhammad in hospital is mentioned in the medical certificates. However, he has produced the police letter as Exh. 7/A whereby Incharge Investigation Team of Police Station Chhore referred the injured, for examination and treatment. After that he examined the injured persons. It is also pertinent to note that Crime number, was mentioned in the Police letter. F.I.R. was registered at 1400 hours. Suffice it to say that Doctor would have examined the injured after 2-00 p.m. As per provisional medical certificate of injured Sher Muhamamd, Arbab Ali and Amir Hussain produced at Exh. 7/D to 7/F the duration of injury was given by the doctor as half hour meaning thereby the incident had taken place at about 1-30 p.m. and not at 7-30 p.m. as stated in the evidence of prosecution. According Dr. Lachmandas he referred prosecution witnesses/injured to LMUH and their injuries were kept reserved for final expert opinion of Radiologist about X-ray and CT Scan and opinion from Neurosurgeon and Orthopedic Surgeon was also sought but it is interesting to note that no Radiologist report or opinion of expert from LUMH was produced by P.W. Dr. Lachmandas. However, he only relied upon Radiologist report received from Incharge Rural Health Chhore where he was posed as Incharge Medical Officer and on the basis whereof issued final certificate. The evidence of Doctor is silent regarding opinion from the doctors of LMUH. Dr. Lachmandas has admitted that he is in possession of one shop of P.W. Haji Arbab Ali. The case of appellants and acquitted accused is that Dr. Lachmandas has obliged the father of complainant namely P.W. Haji Arbab Ali by issuing incorrect and false medical certificate. It has come on record that Dr. Lachmandas inspected/examined injuries sustained by the appellant Lutuf Ali which was opined caused with sharp-edge weapon but the matter was referred to Medical Board who opined that the injury sustained by appellant Lutuf Ali was declared to be fire arm injury therefore, reversion of his opinion by Medical Board in respect of injuries sustained by appellant Lutuf Ali loses intrinsic worth of his evidence. The evidence of mashir P.W. Muhammad Urs is of formal nature but he has also damaged the prosecution case. In his examination-in-chief he has stated that on 29-4-2010 Police examined the injured person but in the same breath he deposed that the police obtained his signature of mashirnama on the place of incident but the injured were not examined before him as they were at Hyderabad. The mashirnama of injury at Exh. 10-C has falsified the above statement of the mashir as (mashirnama of injuries) indicates that it was prepared on 8-5-2010. The P.W. Dur Muhammad, Investigating Officer of the case has clearly stated that he noted the injuries of the injured Haji Arbab Ali, Sher Muhammad and Mir Hassan on 8-5-2010 and then prepared mashirnama. There is no recovery of any sort from the appellants and acquitted accused.

20. The evidence of the I.O. is procedural and contains only events of investigation carried out by him:

21. The defence plea of the appellants and acquitted accused is that they have been involved falsely due to enmity and dispute over the agricultural land. Documentary evidence produced by acquitted accused Lal Muhammad fully supports the defence plea. The copy of F.I.R. No.6/2010 of Police Station Chhore produced with statement of accused Lal Muhammad at Exh. 13-A would reveal that on the same day and same time at same place the complainant party had also attacked upon the appellants and caused them fire arm and hatchet injuries. This fact of sustaining injuries by both of appellants on the same day of incident viz. 28-4-2010 is also admitted by Dr. Lachmandas, of course it is settled principle of law that merits of that case is not to be discussed in the present case and each cases to be decided on the basis of legal evidence produced therein, the purpose for trying counter-cases together is only to insure that inconsistent findings are not given but in the case in hand all the witnesses have concealed the fact of sustaining injuries by the appellants and on the contrary in cross-examination have denied to have caused any injury to the appellants. Concealment of material fact by the eye-witnesses had made them unreliable.

22. It is to be observed that learned trial Judge seems to have only been influenced by the fact that eye-witnesses sustained injuries but mere injury on their person itself is not indicative to the fact that prosecution witnesses have told the truth. Reliance is placed on the case of Nasir Ali v. Sajjad Ali (PLD 2006 Supreme Court 560), as such the judgment of the trial Court in view of the circumstances discussed above is not sustainable in law to the extent of recording the sentence against the appellant.

23. It is settled law that prosecution has to prove its case through independent uninterested and trustworthy evidence which in the case in hand is absolutely missing. The evidence of complainant injured P.Ws. being contrary and interested and medical evidence being inconsistent with ocular account and came through interested witnesses. The doctor has created doubt in the prosecution story set up in the F.I.R. In the above circumstances, firstly there are major contradiction in the evidence of complainant and alleged eye-witnesses/injured, secondly there exist enmity between the parties, thirdly no independent witness has been produced/ examined and fourthly there is long delay in recording 161 Cr.P.C. statement of the eye-witnesses and preparation of mashirnama of injuries so also lodging of the F.I.R. thus prosecution has failed to prove the charge against the appellant through an independent uninterested and trustworthy evidence.

24. With profound respect, the citations relied upon by the learned counsel for the complainant has no relevancy with the facts and circumstances of this case.

25. The result of whole prosecution is that the prosecution case is not free from doubt. It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused, therefore, Appeal No.428 of 2011 is allowed and conviction and sentence awarded to the appellant Lutuf Ali and Mumtaz Ali is set aside and they are acquitted. The appellant Mumtaz Ali is on bail, his bail bond stands cancelled and surety is discharged while appellant Lutuf Ali is confined in Jail, he may be released forth with if not required in any other case. Since no positive material has been brought on record for reversing the acquittal judgment passed by the trial Court in favour of the acquitted accused Lal Muhammad, Muhammad Ismail, Rehmatullah and Mandhal through Criminal Appeal No.433 of 2011 hence the same is dismissed being devoid of merits for the reasons recorded hereinabove. HBT/M-26/K Appeal allowed.