2019 P Cr (PLP)

ABDULLAH BALOCH, J.

This judgment disposes of Criminal Appeal No.58 of 2018 filed by the appellant Ehsam-ud-Din son of Abdul Qadir, against the judgment dated 29th September, 2018 (hereinafter referred as, "the impugned judgment") passed by the learned Sessions Judge Pishin, (hereinafter as, "the trial Court"), whereby the appellant was convicted under section 337-F(ii), P.P.C. and sentenced to suffer R.I. for one (01 year) and to pay Daman of Rs.30,000/- (Rupees Thirty Thousand) to the injured Syed Iqbal and he shall not be released till payment of Daman amount. The benefit of section 382-B, Cr.P.C. has also been extended in his favour.

2. Facts of the case are that on 16th May, 2018, the complainant Syed Iqbal son of Syed Muhammad Tahir, lodged FIR No. 13 of 2018 at Levies Station Huramzai, district Pishin, under section 324, Q&D read with sections, 506, 504, 34, P.P.C., with the averments that on the day of occurrence at about 11.00 a.m. he went towards shop for purchasing household articles and found a stranger in the street, hence he inquired from him that as to why he is standing there; who replied that he came to Ehsam-ud-Din. The complainant informed him that the street is closed ahead and the same thoroughfare is being used by their womenfolk. In the meantime, the appellant Ehsam-ud-Din came out of his house, started abusing him as to why he has stopped his guest and took out his pistol and made firing upon him, due to which one bullet hit at the right leg of complainant. After commission of crime, the appellant and his guest escaped from the place of occurrence.

3. Pursuant to above FIR, investigation was carried out and the appellant was challaned before the learned trial Court, who indicated the charge, which was denied. Hence, at the trial the prosecution has produced five witnesses, whereafter the appellant was examined under section 342, Cr.P.C. However, neither he has recorded his statement on oath nor produced any witness in his defence. On conclusion of trial, the appellant was found guilty of the charge and was convicted and sentenced as mentioned above in para No.1. Whereafter, the instant appeal has been filed.

4. Heard the learned counsel and perused the available record. The admitted feature of the case is that the prosecution in order to establish the charge has produced the evidence of five witnesses. The complainant of the case appeared as PW-2, who made certain dishonest improvements and contradictions from his earlier deposition as contained in his fard-e-bayan. PW-2 has failed to mention the month on which the occurrence had taken place. In the fard-e-bayan the PW-2 has mentioned that on coming out in the street, he found a person, to whom he enquired the purpose of his presence in the street, but in his Court statement he has stated that he found an Afghan refugee coming out from the house Ehsam-ud-Din and told him that since he used to visit the house of appellant, thus he should use the thoroughfare meant for gents and not from the thoroughfare meant for ladies. In his Court statement PW-2 has mentioned that the Afghan Refugee tried to restrain the appellant, but his fard-e-bayan is silent in such behalf. PW-2 has admitted in his court statement that he has not mentioned in the fard-e-bayan about coming out of Afghan refugee from the house and his restraining by the appellant. It has further been observed that PW-2 has made an attempt to conceal his relation with the appellant, but in his cross-examination he has admitted that the appellant is his cousin. According to this witness, the witnesses Ahmed and Asadullah were also present in the hospital, when the I.O. was recording his statement. PW-3 Qurban is the shopkeeper and is the sole eye-witness of the occurrence, but his statement is a hearsay evidence as the occurrence had not taken in his place rather according to him he enquired from the complainant, who disclosed that the appellant fired upon him. Thus, the statement of this witness is not helpful to the case of prosecution. However, through the statement of this witness it has come on record that there exists a landed dispute in between the parties, while such fact was concealed by PW-2. PW-4 Asadullah is the recovery witness of blood stained Shalwar of the injured. PW-5 is the Investigating officer of the case, who counted the steps taken by him during the course of investigation.

5. The re-appraisal of the statements of all the prosecution witnesses would divulge the fact that the same are contradictory in nature. Though, soon after the commission of crime the appellant was arrested by the Levies from his own house, but the recovery of the crime weapon was not effected from his possession. Even otherwise, according to Investigating Officer of the case, soon after the occurrence he visited the place of occurrence, but has not found the empties and the blood stained earth from the site. Hence, non-recovery of the crime weapon, empty and blood stained earth has created a reasonable doubt with regard to occurrence at the relevant time and place.

6. The medical evidence in this case has been furnished by PW-I Dr. Ali Mardan, Police Surgeon, Civil Hospital Quetta, yet the fact remains that medical evidence is only used for confirmation of ocular evidence regarding seat of injury, time of occurrence and weapon of offence used, etc. but medical evidence itself does not constitute any corroboration qua the identity of accused person to prove their culpability. However, it was opined in the medical report by PW-1 that the victim had received injury on his left thigh, while complainant/PW-2 himself contradicted the same in the FIR and stated that he had received fire arm injury on his right thigh, hence the MLC is not in line with the assertion of victim. Reliance in this regard can be place on the case of Muhammad Sharif and another v. The State (1997 SCMR 866).

7. In view of the contradictory ocular testimony of the prosecution witnesses and dishonest improvements in their testimony, lacking independent corroboration in material aspects, existence of previous disputes, the false implication of the appellant by the PWs cannot be ruled out of consideration as the appellant while recording his statement on oath has taken specific plea of his false implication by PWs due to previous dispute. The perusal of impugned judgment reveals that the same is suffering from mis-appreciation of material available on record. The above defects in the prosecution case were not considered by trial Court and wrongly the benefit of such doubts was not extended in favour of the appellant. Needless to emphasize that accused was entitled to be extended benefits of doubt as a matter of right. Even an accused cannot be deprived of benefit of doubt, merely because there is only one circumstance, which creates doubts in the prosecution story, whereas in the case in hand there are series of doubts. Reliance in this regard is placed on the case of Tariq Pervaiz v. The State 1995 SCMR 1345, wherein the Hon'ble Supreme Court has held as under: "The concept of benefit of doubt to an accused is deep-rooted in our country. For giving him benefit of doubt it is not necessary that there should be many circumstances creating doubt if there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused then accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right." For the reasons discussed hereinabove, the appeal is accepted, the impugned judgment dated 29th September 2018 passed by learned Sessions Judge Pishin is set aside and while extending the benefit of doubts, the appellant Ehsam-ud-Din son of Abdul Qadir, is acquitted of the charge. The appellant is on bail; his bail bonds are discharged after lapse of appeal period. Above are the reasons of my short order dated 9th April, 2019. SA/23/Bal. Appeal accepted.