' The present appeal is directed against the judgment dated 31-7-1998 passed by the learned IIIrd Additional Sessions Judge, Karachi South in Sessions Case No,62 of 1994 State v. Allandad and others. Under the impugned judgment the learned Judge convicted the appellant for offences punishable under section 324 of P.P.C. And sentenced him to suffer R.I. For 4 years and fine of Rs,4,000 or in case of non-payment of fine to suffer R.I. For six months, under section 377-D, P.P.C.
For four years and under section 353 of P.P.C. To one year with benefit of section 382-B, Cr.P.C. All the sentences were directed to run concurrently. Whereas the remaining three accused were acquitted.
2. The facts giving rise to the present appeal are that on 30-11-1993 the complainant Sahibdad Shah was Head Constable in Police Station Baghidadi. He was on patrolling duty on a motorcycle.
P. Ws. A.S.-I. Muhammad Fayyaz and Cqnstable Mashkoor were also on patrolling duty on another motorcycle. On the above date at 8-00 p.m. They were passing from Shah Abdul Latif Bhittai Road near Kalimullah Stop. Suddenly a car came in front of them, therefore, the complainant stopped his motorcycle. He found the appellant Allahadad and his three companions sitting in the car. They took out their T.T. Pistols by telling the complainant as to why he had deposed against their relative in a case, therefore, the appellant fired from his pistol, which hit on the left side of the chest of the complainant. His other companions also fired at the complainant, which made poles in his clothes.
Thereafter, the complainant fell down on the ground and the culprits ran away. P. Ws. A.S.-I.
Muhammad Fayyaz and Constable Mashkoor arrived there. They found the complainant lying on the ground. Thereafter, they took the complainant to the hospital where his statement was recorded which was sent to police station for registration of case. The contents of the said statement were incorporated in 154, Cr.P.C. Book. The police after usual investigation challaned the appellant and three acquitted accused in the Court. The trial Court tried the case, acquitted the three accused persons whereas convicted the appellant as mentioned above under the impugned judgment, hence the present appeal.
3. The learned Advocate for the appellant has stated that the case rests upon two witnesses whose statements are contradictory to each other therefore, the same are not reliable; that there is enmity between the appellant and the complainant, therefore, the appellant has been involved in the case falsely; that the complainant received the injuries from the hands of one another pushcart vendors with whom he had altercation on the previous date; that the real culprit has been let off by the police and involved the appellant in the case in order to take revenge of previous enmity; that there is conflict between medical and oral evidence, therefore, the case of the prosecution is highly doubtful that the trial Court did not consider the evidence of defence witnesses which has caused miscarriage of justice.
4. Learned State Counsel has conceded that the case rests upon two prosecution witnesses but they have fully supported the case; that the evidence is trustworthy; that there is no conflict between medical and oral evidence. He has fully supported the prosecution case.
5. I have given due consideration to the arguments, gone through the material available on the record and find that the case rests upon ocular testimony which consists of two witnesses viz. Complainant Sahibdad and P.W. Mashkoor. The statement of complainant Sahibdad reveals that a car had intercepted the motorcycles of the complainant and P.Ws. From where the appellant fired from his pistol at the complainant which hit him on his chest and the remaining three culprits also fired from their pistols at him which made holes in his clothes and then the P.Ws. Took him to the hospital. Whereas the statement of P.W. Mashkoor reveals that the motorcycle of the complainant was at their back. They heard fire-arm reports, therefore, they returned to the pointed place where they found the complainant lying injured on the ground who informed them that the appellant Allandad caused him firearm injury. The complainant in his deposition did not state that he had informed the P.Ws. That the appellant Allandad fired at him. As such the statement of P.W.
Mashkoor to the above effect is hearsay evidence which is inadmissible evidence hence the Same is discarded. If that piece of evidence is taken out of consideration then it would appear that P.W.
Mashkoor did not witness the incident. However, his evidence reveals that while coming to the place of incident they found a car in which the appellant and three other persons were sitting. This by itself is not enough to connect the appellant with the commission of this crime unless the statement of the complainant Sahibdad is believed to the above extent. The statement of complainant Sahibdad appears to be doubtful as according to him the other three culprits also fired at him which made holes in his clothes. The evidence of Medical Officer reveals that there were no such holes in the cloihes of the complainant but he found the holes in the shirt and vest of the complainant corresponding to the injury, which he had received on his chest. Furthermore, only one empty cartridge was secured from the place of incident and no other empty cartridges were secured from there as such the statement of the complainant to the above extent is neither supported nor corroborated by any piece of evidence.
6. Now I will take the defence of the appellant. The appellant in his statement recorded under section 342, Cr.P.C. Has stated as under:-- "I am innocent, I have been involved in this case due to enmity with the police. On 14-12-1992 I along With my brother Badshah, nephew Farooq, went to Police Station Baghidadi as we have come to know that my nephew Naeem and Sultan have been arrested, by complainant Sahibdad, P.C.
Mashkoor and other police officials and at present he is confined at Baghidadi Police Station. On inquiry from police station they demanded Rs,20,000 for their release. On our refusal the police officials got annoyed and involved my nephew in the false case. My nephew already produced the relevant documents. The real facts of this case are that complainant Sahibdad and P.C. Mashkoor have been collecting Bhatta from the Reriwala and on the day of incident on his demand he was caused hurt by fire-arm and the culprits ran away. The police could not apprehend the real culprit.
Due to enmity I along with four. Accused have been falsely implicated in this case."
7. In support of the case the appellant examined two witnesses Ibrahim and Muhammad Yousaf.
Their evidence reveals that they were running fruit selling business on pushcarts at the, place of incident. On the date and time of the incident they were present at the place of their business when the complainant came there on which Amin Chachi took out the pistol and fired at the complainant which he received therefore, they hide themselves. The said incident took place as on the previous date there was altercation between the complainant and Amin Chachi over the recovery of Bhatta. Their evidence further reveals that none of the accused or the appellant was present at the time of the incident. Both the witnesses were cross-examined by the learned prosecutor but he did not challenge the statements of the defence witnesses that they were not running the fruit business at the place of incident; or that they were not present at the scene of incident at the time of incident or that the complainant did not receive the injuries from fire-arm shot of Amin Chachi or that the affairs of altercation between them on the previous date did not occur, or that the appellant and co-accused were not present at the place of incident at the scene of incident. Thus, on the above points the statement of both these defence witnesses went unchallenged. It is well-settled principle of law that if any piece of evidence is not challenged by the other side then it is presumed to be accepted by the said party. Such presumption can fairly be drawn in this case.
8. From the evidence of prosecution and the defence it is clear that there are two theories available on the record one favoring the prosecution and other the appellant. It is well-settled principle of law that if two theories emerge from the evidence the theory favorable to the accused is to be accepted.
9. In the case of Ashiq Hussain v. State 1993 SCM R 417 it has been held that the defence plea is required to be considered in juxtaposition with the prosecution case and if in final analysis defence plea is proved then the prosecution case is shattered and discarded. If defence plea is substantiated to the extent of creating doubt about the credibility of the prosecution case that would be enough but in case it is not established no benefit accrues to the prosecution. Keeping in view the above dictum of the Honourable Supreme Court of Pakistan it is clear that the defence theory has been proved by the appellant in this case therefore, the prosecution case has been shattered and discarded. Even otherwise the case of the prosecution is highly doubtful as discussed in the earlier part of the judgment; therefore, the appellant is entitled to the benefit of doubt.
10. As the prosecution case is highly doubtful therefore, the benefit of doubt was given to the appellant by my short order, dated 25-8-2004 under which the appellant was acquitted. These are the reasons of my said short order.