2015 PLP 339 (MLD)

ABDUL RASOOL MEMON, J.

Appellants Nisar Ahmed and his three sons namely Shahid Ali, Yasir and Khalid were tried for having caused fist and kicks blows to Ghulam Nabi and assaulted complainant Mst. Zakia broke her teeth caused injuries to her mother Mai Rani and sister Mst. Shamshad with intent to cause outrage. On 14-12-2913, Abdul Shakoor Shaikh, Addl. Sessions Judge (Hudood), Sukkur, convicted all the four appellants and awarded them sentence of 5 years' R.I. They were also awarded sentence under section 354 to suffer R.I. for two years and to pay a fine of Rs.50,000 in default to undergo six months' R.I. Their sentences were ordered to run concurrently. The convicts have come up in appeal.

2. In the morning on 21-3-2011 P.W Ghulam Nabi brother of complainant left home for duty in WAPDA at 8.00 a.m. Complainant Mst. Zakia heard cries of her brother, on which she, her mother Rani and sister Shamshad came out they saw accused Shahid Ali, Yasir, Khalid and their father Nisar Ahmed were beating Ghulam Nabi. Complainant, her mother and sister tried to rescue her brother. Accused Shahid Ali and Yasir inflicted fists blow on mouth of complainant resultantly her teeth were broken. Accused Nisar and Khalid dragged Shamshad from hairs and thrown her, then they inflicted lathi blows to Ghulam Nabi, he fell down and went unconscious. After abusing the complainant party, accused went away. After obtaining letter injured went to Civil Hospital. Ultimately on the orders of court F.I.R. of complainant was registered. After completing the investigation accused were sent up for trial.

3. All accused denied guilt and pleaded innocence. Relying on the testimony of complainant Mst. Zakia and injured P.Ws. Ghulam Nabi, Mst. Shamshad and Mst. Rani and medical evidence, trial court came to the conclusion that the prosecution proved case under sections 324 and 354, P.P.C. against all the appellants.

4. In support of this appeal the learned counsel for the appellants has contended that complainant had been disbelieved to the extent of mouth injury allegedly broken her four teeth. He further contends that the sentence awarded under section 324 P.P.C., to all the appellants on the very face of it is illegal.

5. I have considered the matter. It is admitted fact on record that charge under section 324, P.P.C. was not framed in the case, even then appellants were convicted under said Section. It is settled law that the charge must contain all material particulars as to time, place as well as specific name of the alleged offence, the manner in which the offence was committed and the particulars of the accused so as to afford the accused an opportunity to explain the matter with which he is charged. Purpose behind giving such particulars is that the accused should prepare his case accordingly and may not be misled in preparing his defence. The charge framed in this case has no nexus with offence under section 324, P.P.C.

6. Moreover none of the alleged injured witnesses said if accused persons made murderous assault upon them, nor any sort of question relating to this charge was put to accused in their statements recorded under section 342, Cr.P.C. In case of Munir Ahmed alias Munir v. The State (2001 SCMR 56) honourable apex Court has observed that conviction cannot be based where an incriminating piece of evidence is not put to an accused during recording of their statements under section 342, Cr.P.C. same could not be considered as evidence against them, as such the sentence and conviction awarded to appellant under section 324, P.P.C. is not sustainable in law as stated hereinabove.

7. The next question for consideration would be whether reliance could be placed upon the testimony of the eye-witnesses. Undoubtedly, both parties were already on disputed terms, as such, as per settled rule their evidence being interested is to be scrutinized with care and caution. Complainant had already been disbelieved by the trial court to the extent of injuries allegedly sustained by her and held that charge under section 334, P.P.C. could not be established by the prosecution. Neither complainant party nor State counsel challenged the above findings of trial court, thus has attained finality. So far evidence of injured Ghulam Nabi and Mst. Shamshad is concerned, their evidence carries major contradictions. Mst. Shamshad deposed that all the four appellants inflicted blows to her brother Ghulam Nabi with lathi and Dandas, but P.W. Ghulam Nabi has not supported this version of his sister. He has deposed that all four accused caused fists and kicks blows to him and only accused Shahid inflicted lathi blow to him on shoulder. P.W. Ghulam Nabi further deposed that accused Shahid caused fist blow to his sister Zakia in her mouth resultantly blood came out from it. Medical evidence falsified this version P.W Ghulam Nabi. Dr. Farzana clearly deposed that Mst. Zakia had no any violence mark on her body and face and according to Dental opinion socket of her one teeth was completely healed up and slightly hazy pour oral hyena. 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 SC 644) the evidence of above witnesses cannot be relied upon.

8. Apart from above, admittedly, the alleged occurrence took place on 21-3-2011 at 8.O'clock but injured P.W Ghulam Nabi appeared before Dr. M. Iqbal on next day viz. 22-3-2011. No explanation is furnished as to why he did not appear before M.O. for his examination that he sustained injuries as is alleged in the case, he would have gone to hospital on same day of alleged incident. Under these circumstances, avoiding of injured P.W. Ghulam Nabi to go the Medical Officer on same day of the incident and non-sustaining of injury of complainant Mst. Zakia has created serious doubt in the prosecution case.

9. It is settled law that whenever a large number of accused are involved and there is admitted enmity between the parties, then independent corroboration to the prosecution version is necessary. In this regard reliance is placed on case of Muhammad Irshad and another v. The State (1999 SCMR 1030). The prosecution case is that the alleged incident occurred near Islamia College and it has come on record that P.W Gulam Nabi had named two persons Niaz and Abid as witnesses of the alleged incident but there was no reason as to why these independent witnesses were not cited/examined in the case, thus, the independent corroboration to the ocular account furnished by the prosecution is lacking.

10. For the foregoing reasons I am of the view that prosecution case is not free from doubt. Giving the benefit of doubt to the appellants I accept the appeal, set aside their convictions and sentences and acquit them of the charges. They are on bail their bail bond stands cancelled and surety is discharged. HBT/N-22/Sindh Appeal accepted.