2009 PLP 2504 (YLR)

MUHAMMAD IQBAL MAHAR, J.

The appellants Noor Ahmad and Tarique Mehmood preferred the present appeal against their conviction and sentence awarded to them by the learned IInd Additional Sessions Judge, Mirpurkhas for offence punishable under section 354, P.P.C. to suffer one year's R.I. and pay fine of Rs.5000 each, in case of default in payment of fine, to suffer R.I. for three months more. They were also convicted and sentenced for three years' R.I. and fine of Rs.10,000 each. In case of default, in payment of fine, to suffer R.I. for six months more. The benefit of section 382-B, Cr.P.C. was extended to the appellants. The case of prosecution is that on 17-12-1990 at 2130 hours complainant Sultan Ali lodged the F.I.R., alleging therein that he has two sons and five daughters, out of them two are married while Mst. Sardaran Bibi, Mst. Mujahida and Mst. Wazir Fatima are unmarried and adults. On the night of incident at about 8-00 p.m. complainant was sitting in the house of his brother Muhammad Din and heard fire-arm reports from his house, then he and his brother Muhammad Din rushed towards the house and saw appellant Noor Muhammad firing in the air with pistol and appellant Tarique alias Pupoo beating his daughter, having hammer in his hands. He also found two unknown persons armed with lathies present there. The accused seeing the complainant party ran away by making fires. It is further alleged that wife of complainant Mst. Mukhtaran became unconscious due to beating and assault to outrage modesty of her daughter. Police took up the investigation, arrested the appellants and submitted challan against them along with absconding accused Javed who was subsequently declared as proclaimed offender. The learned trial Court supplied case papers to the appellants and framed charge to which they denied and claimed trial. The prosecution in order to establish the charge against the appellants, examined complainant Sultan Ali, who produced the F.I.R., P.W.2 Mst. Wazir Fatima, P.W.3 Mst. Mujahida, P.W.4 Mst. Mukhtaran Bibi, P.W.5 Muhammad Aslam, P:W.6 M.O. Rehmatullah, who produced the police letter and medical certificate, P.W.7 Muhammad Din, P.W.8 Mashir Muhammad Saleem, who produced Mashirnamas of injuries of Mst. Mukhtaran, place of wardat, arrest of appellants and P.W.9 Investigating Officer Muhammad Yousuf, who produced the police letter for medical examination. Thereafter, prosecution closed its side. The statements of appellants were recorded under section 342, Cr.P.C. in which they pleaded innocence and denied the prosecution allegations. Both the appellants examined themselves on Oath in terms of section 340(2), Cr.P.C. and also led evidence in their defence and examined D.W.3 Muhammad Maqbool, D.W.4 Muhammad Maqsood and D. W.5 Abdul Aziz. After hearing the learned counsel for the respective parties, the learned trial Court convicted and sentenced the appellants as mentioned above. The learned counsel for the appellants contends that learned trial Court has erred in convicting the appellants and not considered the evidence properly. He contends that there are exaggerations, improvements and material contradictions made by the complainant and witnesses in their depositions. He contends that though the appellants were shown armed with revolver and hammer but no such weapon has been recovered from the possession of appellants. He further contends that medical evidence is not corroborating the ocular testimony. He lastly contends that it is well settled principle of law that if a slightest doubt creates in the case of prosecution, that will must go in favour of the accused. He, therefore, prays for acquittal of the appellants/accused. On the other hand, the learned State Counsel opposes for acquittal of the appellants/accused on the ground that they have committed the offence of outraging the modesty of women folk. He contends that there are minor contradictions in the evidence of prosecution witnesses and the defence witnesses examined by the appellants are related inter se. I have heard the learned counsel for the parties and have gone through the evidence brought on record. Admittedly at the time of incident, the complainant was not present in his house but he stated in F.I.R. that on firing, he and his brother Muhammad Din rushed to the house and saw accused but his version is totally belied by his daughters namely Mst. Waziran, Mst. Mujahida and wife Mst. Mukhtaran as they have stated that he came at house at 9-00 p.m. after 1/2 an hour of the incident and they narrated the incident to him. The version of the complainant that he went on firing is again belied by star witnesses Mst. Mujahidan and Mst. Mukhtaran because they have not stated that any of accused made firing in air. P.W. Mst. Waziran stated that: "They pushed my mother who fell down on the ground and became unconscious." Mst. Mujahida stated that: "Accused Tariq gave beatings to my mother due to which she fell down and became unconscious." While Mst. Mukhtaran stated that: "Accused Tariq gave me hammer blow on my back side near shoulder due to which I fell down and became unconscious." But M.O. has totally belied this version and has stated that: "She has no any obvious recent injury or wound on her body. She was admitted in Female Medical Ward of the Hospital for opinion from Physician for her transient unconsciousness. According to him she is a fumetiand case." In view of the statement of M.O. reasonable doubt has been created. Apart from that the complainant and P.Ws in F.I.R. and 161, Cr.P.C. statements have not stated that accused were trying to untie the tape of the trouser of Mst. Mujahidan but at the time of evidence they made improvements. These questions were put to Investigating Officer who categorically stated that complainant and P.Ws have not stated so in F.I.R. and 161, Cr.P.C. statements. So far the evidence of Muhammad Aslam is concerned, he has stated that complainant informed him about the incident therefore, his evidence has no value. Apart from that it is also admitted by the P.Ws that appellants are brothers inter se and are sons of Abdul Majeed who is cousin of complainant from "Puphi side". In view of such blood bondage between the parties, it cannot be believed that a brother would do such ugly act in presence of his other brother to a lady which is also closely related to them. All these things create doubts and it is held in a case reported as 1995 SCMR 1345(b) that: -- "For giving benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If a single circumstance creates doubt in a prudent mind about the guilt of the accused, then he will be entitled to such benefit not as a matter of grace and concession but as a matter of right." In view of the above discussion and in the light of decision of Honourable apex Court, I am of the view that the prosecution has failed to prove it's case beyond any shadow of doubt and there is no substance in the judgment passed by learned trial Court. Therefore, the appellants are entitled for acquittal. The above are the reasons of my short order dated 4-6-2009 whereby I had allowed the appeal and acquitted the appellants. H.B.T./ N-31/K Appeal allowed.