2006 PLP 3194 (YLR)

RAHMAT HUSSAIN JAFFERI, J.

Brief facts leading to the present appeal are that on 30-9-2003 the complainant Allah Ubhayo, P. Ws. Abdul Rasheed and Qurban were sleeping in the Otaq situated in village Mian Bachal Pirzada, Taluka Kandiaro. At about 3-00 a.m. they woke up on the noise of cattle. On electric bulb light, they saw three persons who had muffled their faces armed with rifle, gun and pistol. They challenged the complainant and told him that he should withdraw the murder case of his son deceased Mahboob otherwise they would kill him and then the culprits started firing; therefore, they put themselves on the ground to save themselves. On the commotion, his relatives P.W. Zahid Ali and others reached at the place of incident by firing from their weapons in the air to challenge the culprits. The culprits started running; therefore, they followed him but one of the culprits Anwar the present appellant along with his pistol and live bullets was apprehended. P.W. Zahid sustained injury on his arm. Thereafter, the remaining culprits ran away. The complainant then went to the police station and lodged the report. The police arrived at the place of incident, arrested the appellant, secured the pistol and bullets which were produced by the complainant. After usual investigation the appellant was challaned in the Court of law. The learned Additional Sessions Judge, Kandiaro Mr. Muhammad Ishaque Arbani tried and convicted the appellant for offence punishable under section 324, P.P.C. and sentenced him to suffer R.I. for seven years and fine of Rs.10,000 or in default thereof to suffer R.I. for three years with benefit of section 382-B, Cr.P.C. under the impugned judgment dated 30-9-2004. I have heard the Advocate for the appellant, Assistant Advocate-General for the State and perused the record of this case very carefully. The learned counsel for the appellant has stated that all the witnesses are interested, hostile and inimical to the appellant; that there is recorded enmity between the parties over the murder of the son of the complainant which was filed against the appellant as admitted by the complainant; that the incident has not been supported from the circumstantial evidence of recovery of crime empties from the place of incident; that nobody has received fire-arm injury or seen the appellant firing at the complainant party or victim; that the P.W. Zahid Ali and complainant did not state that the appellant caused Lathi injury to Zahid Ali; that the Medical Officer stated that the injury on the person of Zahid Ali could be self-suffered; that the accused was severely beaten by the complainant in order to take the revenge of the murder of the son of the deceased; therefore, he has been falsely implicated in the case. The learned Assistant A.-G. has stated that the witnesses have supported the prosecution case but frankly conceded that the empty bullets of fire-arm weapons were not available at the scene of incident and that the P.Ws. did not state that the appellant had fired from his weapon at them or anybody received fire-arm injury. Therefore, he has not supported the charge for offence punishable under section 324, P.P.C. but he has stated that the appellant would be responsible for causing injury to the injured Zahid Ali and that the offence would fall under section 337-F(i), P.P.C. ' that is punishable up to one year; therefore, the appellant may be convicted adequately. He has further stated that the appellant has remained in jail for a period beyond the punishment provided under section 337-F(i), P.P.C. He has supported the judgment to the above extent. I have given due consideration to the arguments, gone through the evidence with the help of learned counsel for the appellant and found that the case rests upon ocular testimony of the three witnesses viz. P.W.1, complainant Allah Ubhayo, P.W.2, Niaz Ali and P.W.4, Qurban Ali. P.Ws.1 and 4 gave the same details of the incident as mentioned in the earlier part of the judgment. P.W.4, further added that on the cries and fire-arm reports P.W. Zahid Ali and other villagers came. They fought with the appellant; therefore, the appellant gave Lathi blows to P.W. Zahid Ali and then P.W. Zahid Ali also gave lathi blows to the appellant who received injuries and then they apprehended the appellant along with pistol which contained four live bullets. The evidence of P.W. Zahid Ali reveals that when he and other villagers reached at the place of incident while firing in the air, there was scuffle between the accused persons and villagers and during that scuffle he received the injury. He did not specify as to who caused him the injury. From the above evidence, it appears that the three culprits had fired at the complainant party. The villagers also fired in the air but it is surprising to note that none from either party received any fire-arm injury and not a single empty cartridge or bullet was secured from the place of incident. It is also pointed out that no fire; arm shot holes were found at any wall, tree or any place. A person can lie but the circumstances cannot. The oral evidence is neither supported or corroborated by the circumstantial evidence. As such the learned Asstt. A.-G. was right in not supporting the charge under section 324, P.P.C. As regards the injury caused to the P.W. Zahid Ali, the complainant and P.W.2 Zahid Ali did not state that the appellant had caused injury to P.W. Zahid Ali. Only P.W.4 Qurban Ali stated that first appellant Anwar gave Lathi blow to P.W. Zahid and then P.W. Zahid Ali caused the Lathi blows to the appellant. None of the witnesses stated that the appellant was also armed with Lathi. Therefore, it is not known from where P.W.4 has brought the fact that the appellant was armed with Lathi. However, his evidence further reveals that P.W. Zahid had also caused injuries to the appellant but P.W. Zahid Ali did not support him as he did not state that he was armed with Lathi or caused Lathi injuries to the appellant. The medical evidence shows that the appellant had five injuries caused by hard and blunt substance on various parts of his body out of them one injury on the arm had a fracture whereas the injury on the person of P.W. Zahid was a abrasion on the front of right fore-arm. According to the doctor the injury to Zahid Ali could be self-suffered. In these circumstances, the evidence of P.W. Qurban is neither supported or corroborated by any piece of evidence; therefore, it is unsafe to rely upon his evidence. Other villagers also came, participated in the incident and with their help allegedly apprehended the appellant, but they have not been examined for the reasons best known to the prosecution. As such oral evidence is not supported from their independent evidence. Apart from the above, the complainant has admitted in his cross-examination that there was a murder case of his son against the appellant. This clearly establishes that there was serious enmity between the parties. Furthermore, all the three witnesses are closely related to each other but it is surprising to note that in the beginning the P.W. Zahid and Qurban had tried to conceal their relationships by saying that they knew the complainant whereas in the subsequent statement P.W. Zahid Ali admitted that the complainant and prosecution witnesses were his relatives whereas P.W. Qurban admitted that complainant was his uncle. The concealment of the inter se relationship between the complainant and the P.Ws. put me on the guard to examine their case minutely because when a witness conceals the relationship between themselves, they want to show that they are independent and unrelated witnessed. This can only be done by a person who has a guilty conscious. Thus from the evidence it is clear that all the three witnesses are closely related to each other; therefore, the witnesses are not only interested, hostile but inimical to the appellant due to the murder case of the son of the complainant against the appellant; therefore, the possibility of false implication in the circumstances of the present case cannot be ruled out. The injuries on the person of the appellant with fracture on his arm clearly indicates that the appellant was beaten by the complainant party and it further appears that in order to save themselves from the said offence and to take revenge of the murder of the son of the complainant, further supports the allegation of false implication of the appellant. Even otherwise, the prosecution has not supported the charge under section 324, P.P.C. but has requested that the appellant be convicted for causing injury to the P.W. Zahid Ali. The said fact has also not been proved beyond any reasonable doubt; therefore, the appellant is entitled to the benefit of doubt in respect of the injury caused to P.W. Zahid Ali. After considering the material available on the record, I am of the considered view that the prosecution case is highly doubtful against the appellant; therefore, he is entitled to the benefit of doubt which was accordingly given to him at the time of passing short order dated 16-8-2006 by which I had allowed the appeal. These are the reasons of the said short order. S.M.B./A-112/K????????????????????? ??????????????????????????????????????????????????????????? Appeal allowed.