2018 P Cr (PLP)

OMAR SIAL, J.

This appeal has been preferred against a judgment dated 27-1-2016 passed the learned Additional Sessions Judge, Naushero Feroze. In terms of the said judgment, the Appellants were convicted and sentenced as follows: a) For an offence under sections 148 and 149, P.P.C.: R.I. for one year. b) For an offence under section 337-F(i), P.P.C.: Rs. 2.000 as daman (or R.I. for one year more in default). c) For an offence under section 337-U, P.P.C.: To pay Rs.19238.43 as arsh. d) For an offence under section 337-H(2), P.P.C.: S.I. of one month.

1. Brief facts of the prosecution case are that on 25-11-2009 at about 1915 hours, one Sardar Ali lodged a report at the police station complaining about an incident that had occurred earlier that day at 1400 hours. He stated that he had a water rotation dispute with the Appellants and while he was cultivating his land the Appellants appeared, along with four others, and started beating him with lathies, kicks, fists and butt blows with the weapons they carried. As a consequence his lower teeth broke and he sustained injuries on the finger of his right hand. The FIR was lodged.

2. The charge against the Appellants was framed on 204-2010 and then an amended charge was framed on 31-3-2012 to which they pleaded not guilty and claimed trial.

3. In order to prove its case, the prosecution examined eight witnesses. PW-1 Sardar Khan was the complainant. PW-2 Ghulam Ali was an eye-witness. PW-3 Fateh Muhammad was an eye-witness. PW-4 Nek Mohammad was the police officer who wrote down the FIR. PW-5. Dr. Muhammad Ibrahim was the doctor who examined the injured. PW-6 Muhammad Chuttal was the witness to the memo of inspection of injuries. PW-7 Muhammad Ramzan was the witness to the Memo of site inspection. PW-8 Ghulam Asghar was the investigation officer of the case.

4. On 23-11-2015, the Appellants statement under section 342, Cr.P.C. were recorded. The Appellants pleaded innocence and cited on going disputes between the parties as a reason for their false involvement.

5. The impugned judgment was announced on 27-1-2016.

6. I have heard the learned counsel for the Appellants as well as the learned APG and examined the record with their assistance. The complainant and his counsel remained absent despite notice. My observations are as follows.

7. In his testimony, the complainant cited four persons as eye-witnesses to the occurrence. One was a man named Azizullah who was driving a tractor on the complainant's land when the incident occurred. Ghulam Ali and Fateh Mohammad were the other two witnesses who were examined as PW-3 and PW-4 by the prosecution. The fourth was a man named Rustam. Azizullah and Rustam were not examined in trial. The complainant deposed that he was saved from the beating by Azizullah. Contradicting the complainant, Fateh Mohammad deposed that he along with Ghulam Ali and Rustam saved the complainant from the beating. Finally, contradicting them both Ghulam Ali deposed that a lady had come to the site with the Holy Quran and it was upon her intervention that the complainant was saved from the beating. In such a situation where the witnesses cannot agree upon a basic fact, suspicion is cast whether the ostensible eye-witnesses were even present on the site.

8. The complainant deposed that the accused made "one or two" aerial fires on the spot but that the police recovered three empties from the site the next day. This discrepancy could be acceptable. However, the eye-witness Fateh Mohammad stated that the accused made five or six fires; finally the other eye-witness Ghulam Ali deposed that the accused made "30/50/100" fires. The recovery of the empties as alleged by the complainant remained unproved in trial. The gradual exaggeration in the statements of the witnesses once again sheds doubt on their credibility.

9. The story of the complainant does not appeal to a prudent mind. Nine armed persons beat him mercilessly according to him for a period of ten minutes with kicks, punches and lathies as well as the butts of their weapons. Yet, the only injury he received was a broken tooth and a swollen little finger. The ostensible broken tooth which the complainant said was handed over to the police was never produced in trial. No medical certificate to evidence the injuries the complainant sustained was produced in trial. The complainant's explanation to the absence of the medical certificate was that he went to the hospital but there was no doctor available as it was Eid. Then he went after the Eid holidays and the doctor said that his injuries had cured. The explanation for the non-production of a medical report after an alleged severe beating does not appeal to logic. To make matters worse, PW-5 Dr. Muhammad Ibrahim deposed that the complainant had appeared before him in the hospital on 25-11-2009 with a whole tooth in his hand, was hospitalized for two days and then told to show himself to the dental surgeon but that he did not appear before the dental surgeon. He did not produce the final medical report in trial. It is obvious that either the complainant or the doctor were being dishonest. The casualty however in this dishonesty is the prosecution case. PW-8 Ghulam Asghar gave a completely different story in trial by stating that he had taken the injured to the Taluka Hospital Naushero Feroz on 25-11-2009.

10. The memo. of injuries prepared at the police station on 25-11-2009 at 2000 hours cites PW-6 as a witness. In trial, PW-6 does not mention that there was a broken tooth. In his cross-examination this witness deposed that "It is a fact that the injured did not show us the broken tooth".

11. The memo of site inspection prepared on 26-11-2009 at 0700 hours cites PW-8 Mohammad Ramzan as a witness. This witness in his testimony deposed that the police officer who prepared the memo. had not read out the contents of the same to him.

12. According to the complainant the land where the incident occurred was owned by him. No evidence to this effect was produced by him. To the contrary, his own witness Ghulam Ali deposed that the complainant does not own any land in the village where the incident occurred.

13. The complainant deposed that the dispute that day which led to the brawl was over rotation of water. In his cross-examination he first deposed that on that date "there was no rotation of water fixed on my land. Accused had came to their own land for rotating the water to it." Subsequently he deposed "on the day of the incident there was no rotation of water fixed for the lands of the accused." When neither party had a turn of rotation that date then what was the dispute about. The motive ascribed to the incident went unproved.

14. No recovery of any nature was made by the police. There was no evidence produced that corroborated the account of the complainant. The complainant is an accused in an FIR lodged earlier by the accused party. In fact when the complainant reached the police station to lodge his FIR, he was arrested by the police in the earlier FIR. False implication of the Appellants in such a situation cannot be ruled out.

15. The learned trial court has erred in its reading of the evidence before it. The decision reached by it on the evidence available before it is rather surprising.

16. The prosecution failed to prove its case beyond reasonable doubt. Above are the reasons for my short Order of 16-5-2017 in terms of which I allowed the appeal and acquitted the Appellant of the charge(s). The Appellants were present in person. Their bail bonds were cancelled and sureties discharged. JK/P-4/Sindh Appeal allowed.