2021 P Cr (PLP)

MUHAMMAD SALEEM JESSAR, J.

Through this Criminal Revision Application applicants have assailed the judgment dated 01.01.2018 handed down by learned 2nd Additional Sessions Judge, Badin in Criminal Appeal No.47 of 2017 whereby he upheld the judgment dated 14.12.2017 passed by learned Civil Judge and Judicial Magistrate, Golarchi at Badin in Criminal Case No.28 of 2017 (old)/Criminal Case No.68 of 2017 (new) (re-The State v. Abdullah and others) whereby he convicted the accused/appellants for an offence punishable under section 148, P.P.C. and sentenced them to undergo R.I. for two years and to pay fine of Rs.2,000/- each and in default of payment thereof to undergo R.I. for one month more. They were also convicted and sentenced to jointly pay Arsh amounting to 5% Diyat under section 337 A(ii), P.P.C. read with 149, P.P.C. to the injured Majid son of Pervaiz. Accused were also convicted and sentenced to pay jointly Arsh amounting to 5% of Diyat, Daman under section 337-L(2) and daman in sum of Rs.10,000/- under section 337-F(v) read with section 149, P.P.C. to the injured Sajid son of Peraiz. Accused were also sentenced to pay Daman in sum of Rs.10,000/- under section 337-L(2), P.P.C. and Daman in sum of Rs.10,000/- under section 337-F(v), P.P.C. read with section 149, P.P.C. to injured/complainant Abdul Razzaq. Accused were also sentenced to pay daman in sum of Rs.10,000/- under section 337-L(2), P.P.C. read with section 149, P.P.C. to injured Amjad. Accused were also sentenced to pay daman in sum of Rs.5,000/- under section 337-A(i) read with section 149, P.P.C. to injured Bilawal. In default of payment of Arsh and Daman, the accused were ordered to be dealt with in accordance with sections 337-X and Y, P.P.C.. All the sentences awarded to the accused were ordered to run concurrently. However, accused were extended benefit of section 382-B, Cr.P.C.

2. Brief facts, relevant for the purpose of deciding instant Criminal Revision Application, are; that on 23.6.2017 at about 1400 hours near the agricultural land of complainant situated at Ali Bandar Road, Deh Singaari, Taluka Badin, accused named above in furtherance of their common object armed with hatchet and lathies on the dispute regarding farming of land so also upon the loan amount, fought with complainant party and caused injuries to the complainant, his sons namely Bilawal, Amjad and his nephews Majid and Sajid. After the incident the injured were taken to the police station where their injuries were noted and after receiving police letter they were provided medical treatment and on the same day case was got registered against the accused named above.

3. After usual investigation, I.O. of the case submitted challan before the concerned Court showing therein accused Faiz Muhammad as absconder. After fulfillment of usual legal formalities, accused Faiz Muhammad was declared as proclaimed offender vide Ex-2.

4. A formal charge was framed against the accused vide Ex-04 to which they pleaded not guilty and claimed to be tried vide their Pleas Ex.4- A to 4/D respectively.

5. In order to prove its case, prosecution examined PW-1 MLO Dr.Muhammad Ilyas at Ex-5, who produced police letter of the injured, provisional/final medical certificates of injured as Ex-5/A to 5/K respectively. PW-2 Complainant Abdul Razaq was examined at Ex-6, who produced FIR as Ex-6/A. PW-3 injured Bilawal, PW-4 injured Muhammad Amjad, PW-5 injured Muhammad Sajid and PW-6 injured Majid Ali were examined at Exs.7, 8, 9 and 10 respectively. PW-7 ASI Muhammad Sharif, I.O. of the case, was examined at Ex-11, who produced memo of injuries of injured, letter for medical treatment of the injured, Roznamcha entries Nos.9 and 19, memo of inspection of place of incident, memo of arrest of accused, Memo of recovery as Ex-11/A to 11/I respectively. Lastly, PW-8 Allah Bux was examined at Ex-12. Thereafter, prosecution side was closed vide statement dated 18.9.2017 Ex-13 filed by learned A.D.P.P. appearing for the State.

6. Statements of accused were recorded vide Ex-14 to Ex-17, wherein they denied the allegations of prosecution and pleaded their innocence. However, neither they examined themselves on oath, nor produced any witness in their defense.

7. I have heard the applicants who were present in person on bail, as well as learned A.P.G. appearing for the State and perused the material available on the record.

8. The applicants submitted that they have been falsely involved in the present case. They further submitted that there are material contradictions in the evidence of prosecution witnesses and also there are discrepancies in the investigation, whereby serious doubts have been created in the prosecution case, benefit whereof must be given to the accused. They prayed for allowing instant revision application, setting aside the impugned judgment and for their acquittal of the charges.

9. Conversely, learned A.P.G. submitted that specific role of causing hatchet injury to injured Bilawal has been assigned to co-accused Faiz Mohammad; however, the applicants have been assigned collective role of causing injuries to injured persons. She formally opposed the appeal.

10. At the very outset, it may be observed that although present applicants were tried along with co-accused Faiz Mohammad; however, by the impugned judgment present applicants have been convicted, whereas there is no mention about the fate of prosecution case against co-accused Faiz Mohammad, thus the impugned judgment is defective to such extent.

11. It has been admitted by the prosecution witnesses, particularly P.W. Mohammad Sajid that there is a distance of about one and a half acres between their houses and the houses of accused persons and that the place of incident is situated at a distance of about 150 feet from the place of incident. It has also been admitted that the alleged eye-witnesses and injured namely, Mohammad Amjad, Mohammad Sajid and Majid after hearing commotion, proceeded towards place of incident by foot. It seems to be nearly impossible that after hearing the commotion of the injured, while going on foot, the aforesaid alleged eye-witnesses would have reached at the place of incident so promptly that they also saw the accused persons while causing injuries to the complainant and his son Bilawal.

12. Another surprising, rather unbelievable, fact is that the alleged incident took time of about 30 minutes, as is evident from the deposition of P.W. Mohammad Amjad. It is also surprising that despite the fact that the accused continued causing injuries for about 30 minutes, despite that the complainant and other injured witnesses only sustained injuries which were not so serious as to have caused death of any of them. Even otherwise, it seems to be ridiculous that the accused would stay at the place of incident for about 30 minutes, so that they could be seen by the people, particularly the relatives of the complainant. Needless to emphasize that in such like situation, the accused persons always try to disappear from the scene of offence very promptly but, in the instant case, the accused strangely enough remained at the place of incident for such a long time. This creates serious doubts in the prosecution in the happening of alleged incident in the manner as stated by the complainant and other alleged eye-witnesses.

13. It has also come in evidence that the complainant took the injured persons to police station and they reached at police station at 0510 hours where they stayed for about 15 minutes. It has also been admitted that the distance between the police station and the place of incident is about five kilometers and that the distance between the P.S. and the hospital at Kadhan where the injured were taken for treatment is about four kilometers. If the complainant had reached the police station at 1510 hours and they stayed there for about 15 minutes, then they would have left the police station for proceeding to the hospital at about 1530 hours, whereas the MLO has deposed that the injured were brought at the hospital at 0530 hours. This also creates doubt.

14. Another significant point in the instant case is that although the I.O. of the case namely, ASI Mohammad Sharif has deposed in his evidence that after the arrest of accused namely, Abdullah, Din Mohammad and Mohammad Rahim on 24.6.2017, on the same day they produced the lathis which were recovered under mashirnama in presence of mashirs. However, there is nothing on the record, nor the I.O. has said in his evidence that the said lathis recovered on the pointation of the accused were sent to chemical examiner for examination and report, particularly in view of the medical evidence that the injuries sustained by injured Majid and Mohammad Sajid by means of lathis were lacerated wounds with bleeding. There is indication as to whether the allegedly recovered lathis were bloodstained or not. If they were bloodstained, then as to why they were not sent to Chemical Examiner for ascertaining as to whether the blood found on the said lathis was human blood and, if so, whether the same matched with the blood of the abovesaid injured or not and in case such lathis were not stained with blood, then the recovery of said lathis was of no evidentiary value.

15. The I.O. of case ASI Mohammad Sharif also admitted in his cross-examination, "I did not seal recovered case property i.e. lathies. " Superior Courts have also not appreciated such conduct on the part of the investigating agency. In this connection reference may be made to the judgment of a Division Bench of this Court passed in the case of Mashooq Ali Mallah v. The State reported in 2016 PCr.LJ Note 8, wherein case was decided in favour of the accused while holding as under: "While appreciating above evidence, it is manifest that the mashirnama of arrest and recovery dated 02.12.1998 reflects that KK allegedly recovered from the possession of the appellant was neither sealed at the spot nor it was sent to the forensic and ballistic expert in order to know if the K.K allegedly recovered from the possession of the appellant was in working condition."

16. Similar observations were also made by this Court in the latest case of Riaz alias Raja v. The State reported in 2019 PCr.LJ 70.

17. It has also come in evidence that injured Bilawal sustained hatchet injuries at the hands of accused Faiz Mohammad, whereas other injured persons sustained injuries by means of lathies. In this view of the matter and also in view of the medical evidence, as stated above, no bloodstained earth or bloodstained clothes were secured by the I.O. This also put severe dents in the prosecution case.

18. In the case of Syed Manzar Abbas v. The State reported in 2002 PCr.LJ 1566 [Lahore], the accused was acquitted, inter alia, on the ground that no bloodstained earth or crime empty was taken into possession by the police from the place of incident. Yet in another case reported as Mohammad Shahbaz v. State (2009 PCr.LJ 1428 [Lahore], the accused was acquitted, inter alia, for the reason that during investigation last-worn clothes of the deceased were not recovered by the police. In the case reported as Pervez Masih v. The State (2005 PCr.LJ 1232) a Full Bench of Honourable Federal Shariat Court held as under: "However, we are afraid evidence of the recovery of crime weapon by itself being evidence of purely corroboratory nature, in the absence of any direct or substantive evidence alone, was not sufficient to bring home charge against the appellant, particularly when neither Serologist's report nor Chemical Examiner's reports were produced or tendered in evidence so as to prove that the "Churri" was bloodstained and if it was so, it had human blood and was of the same group as was of the deceased."

19. It has time and again been held by the Superior Courts that conviction must be based and founded on unimpeachable evidence and certainty of guilt, and any doubt arising in the prosecution case must be resolved in favour of the accused. In the case reported as Wazir Mohammad v. The State (1992 SCMR 1134) it was held by Honourable Supreme Court as under: "In the criminal trial whereas it is the duty of the prosecution to prove its case against the accused to the hilt, but no such duty is cast upon the accused, he has only to create doubt in the case of the prosecution."

20. In another case reported as Shamoon alias Shamma v. The State (1995 SCMR 1377) it was held by Honourable Supreme Court as under: "The prosecution must prove its case against the accused beyond reasonable doubts irrespective of any plea raised by the accused in his defence. Failure of prosecution to prove the case against the accused, entitles the accused to an acquittal. The prosecution cannot fall back on the plea of an accused to prove its case.......Before, the case is established against the accused by prosecution, the question of burden of proof on the accused to establish his plea in defence does not arise."

21. Keeping in view aforesaid admissions made by the prosecution witnesses, so also the contradictions, as well as infirmities and lacunas in the prosecution case, as stated above, it can safely be held that prosecution has not succeeded in proving its case against the accused / appellant beyond shadow of reasonable doubt. Needless to emphasize the well settled principle of law that the accused is entitled to be extended benefit of doubt as a matter of right and not as a grace or concession. In the present case, there are various contradictions in the evidence of the prosecution witnesses which create doubts in the prosecution case. Even an accused cannot be deprived of benefit of doubt merely because there is only one circumstance which creates doubt in the prosecution story. In the case reported as Tariq Pervaiz v. The State 1995 SCMR 1345 the Honourable Supreme Court held as under:- "The concept of benefit of doubt to an accused person is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right."

22. For the aforesaid reasons, by a short order dated 27.11.2019, instant appeal was allowed. Consequently, the impugned judgment passed by learned 2nd Additional Sessions Judge, Badin in Crimimal Appeal No.47 of 2017 whereby he upheld the judgment dated 14.12.2017 passed by learned Civil Judge and Judicial Magistrate, Golarchi at Badin in Criminal Case No.28 of 2017 (old) / Criminal Case No.68 of 2017 (new) (re- The State v. Abdullah and others) was set aside. Accordingly, applicants were acquitted of the charges. They were present on bail, their bail bonds were cancelled and the sureties furnished by them were also discharged.

23. Above are the reasons for the said short order. JK/A-118/Sindh Bail confirmed.