' MRS. YASMIN ABBASEY, J.--- Case of prosecution as incorporated in the F.I.R. Is that on 13-3-1998, when complainant Qaim Mastoi along with his son Muhabat Khan was present at his agricultural land. Accused Gul Hassan, Meenhoon, Loung duly armed with hatchets, and Ghulam Hussain Mastoi, Mir Hassan and Ali Hassan duly armed with Lathies came there and asked that why he has purchased the land from Allandino Mastoi. On this query, according to complainant, there was exchange of hot words in between him and the accused persons, and during that accused attacked on his son Muhabat with hatchet and Lathi with intent to commit his murder. Kicks and fists blows were also inflicted to the complainant. On cries, Mumtaz grandson also came there.
Accused persons also attacked on him with Lathies and hatchets. Due to the hue and cry raised by the complainant, Muhabat and Mumtaz, other villagers of the locality also came there on seeing them accused persons left the place of incident. It is stated by the complainant in the F.I.R. That a year prior to the incident he had purchased 8 acres of land from Allandino Mastoi, which annoyed the accused persons. Complainant reported the matter at police station, injured were referred for medical treatment and as per medical report injured Muhabat received in all about 17 injuries on his person, which were declared as Shajjah-i-Khafifah. Ghayar Jaifah, Damiyah and Hashimah whereas the injured Mumtaz Ali received 6 injuries on his person, which were declared as Ghyar Jaifah Damiyah and Shajjah-iKhafifah. On the basis of medical reports, produced, case was challaned against accused persons under sections 324, 337-F(i), 337-A(i), 147 to 149, P.P.C.
2. Charge was framed against the accused persons on 3-7-1998. Prosecution examined in all about 7 persons.
3. By judgment dated 28-11-2000 giving benefit of doubt accused Gul Hassan, Loung and Meenhoon were acquitted from the charge whereas accused Ghulam Hussain, Mir Hassan and Ali Hassan were convicted under section 337-A(i), 337-F(i), 337-A(ii) and 337-L(ii), P.P.C. With fine of the respective charges proved against these appellants.
4. According to learned counsel, the learned trial Court has not appreciated and applied the evidence adduced by the prosecution in its literal spirit. At one hand for one pair of accused, it was observed that presence of the witnesses i,e, complainant Qaim, Soomar and Atta Muhammad at the place of incident appears to be doubtful whereas on the basis of same evidence, these 3 persons have been convicted. For ready reference that portion of the judgment, referred by learned counsel for appellants is reproduced as under:-- "So far the evidence of the complainant Qaim is concerned, his presence to Vardat appears as doubtful for the reason, firstly that despite the fact that he is father of injured Muhabat and was together with him at the time of attack at the hands of large number of accused, but surprisingly he did not sustain any single injury. Secondly it could be believed that six accused opening assault with Lathi weapons due to alleged enmity upon landed property with complainant would save the complainant himself and caused injuries to his son. Thirdly that version of complainant that he was given kicks and fists blows, also created doubt about his presence on Wardat at the time of alleged incident. The accused persons who were allegedly armed with Lathies and hatchets could be believed to through their weapons and then to give kicks and fists blows to the complainant whom they had dispute over the land."
5. With reference to the statement of P.W. Soomar, it is expressed in the judgment that he has not stated a single word about giving of kicks and fists blows by accused to the complainant. For Atta Muhammad, it is observed that he is interested witness. He was not present at the place of Wardat, on hearing cries he came at the place of Wardat. And that it is unbelievable that being a real brother he did not try to save his brother and kept quiet. Therefore, it was held that their presence is doubtful.
6. In disagreement to the observation learned counsel for appellant has referred 1999 SCM R 40, wherein, it is observed that:-- "The learned trial Court did not give any sound reasons for disbelieving the eye-witnesses against the five acquitted accused. It simply convicted the appellant because he was alleged to be armed with a hatchet during the occurrence and the same had been recovered at his pointation. It completely lost sight of the fact that it was recovered more than 2 months after the occurrence and the appellant could have easily destroyed it. No public witness was examined to prove it and both the recovery witnesses were the Police Officers. Though, the learned High Court did not rely on this piece of evidence, it is nevertheless, maintained the conviction and sentence of the appellant on the solitary statement of Bashir Ahmad, the injured P.W. Without caring to take notice of the fact that he had been disbelieved qua five other accused persons."
7. Reference has also been made to 1997 SCM R 866, wherein on the rule of consistency, it is held that:- "Next adverting to real controversy regarding evidence against acquitted four accused and appellant being manifestly identical and not distinguishable from each other, the rule of consistency requires that appellants should have similar treatment by allowing them same benefit.
In this matter apart from eye-account motive is apparently common to all the accused persons and case of none is distinguishable, therefore, conviction of appellants cannot be sustained."
8. In context to the observation made by apex Court the examination of appellant's case reveals that the learned trial Court has contrary viewed the case of appellants from those of acquitted accused, on the ground that as per medical report, the nature of weapon used on the injured while causing hurt to them was hard and blunt substance.
9. As per ocular evidence the accused initially challaned in the matter were divided in two sets. Gul Hassan, Loung and Meenhoon had hatchets with them, while Ghulam Hussain, Mir Hassan and Ali Hassan are reported to have Lathies with them.
9-A. So it was observed that involvement of Gul Hassan, Loung and Meenhoon, in view of medical report appears to be doubtful, whereas trial of appellants having Lathies, which is a hard and blunt substance, connects them with the commission of offence.
10. With reference to the observations made in against to appellants, if the evidence of the complainant is examined, he has deposed that all the accused persons jointly had attacked on Mumtaz and Muhabat, which finds corroboration from the statement of injured namely Mumtaz and Muhabat. P.W. Muhabat has deposed that all accused persons collectively attacked on him with Lathies and hatchet. This statement of P.W. Muhabat finds support from the statement of Mumtaz, who in his cross-examination had specifically named Gul Hassan, Meenhoon and Loung having inflicted hatchet blows to him.
11. From the above referred statement of both injured coupled with the statement of complainant, it reveals that all the six persons challaned in the matter, both those who have been acquitted and the present appellants jointly attacked on complainant party. Therefore, to discriminate in between them on the basis of solitary medical evidence that as per medical report injuries were through hard and blunt substance is not a sound and sufficient ground to form any opinion in against to appellants.
12. Medical evidence as placed on record shows that beside other injuries as appearing in medical report some of the injuries received by injured are:--
(1) Lacerated wound 10 c.m. x 1 c.m. Skin deep at mid of forehead curved towards right side.
(2) Lacerated wound 5 c.m. x 1 c.m. Scalp deep starlet shaped at vertex of head.
(3) Lacerated wound 2-1/2 x 1/2 c.m. Scalp deep at left parietal region.
(4) Lacerated wound 1 c.m. x 1/4 c.m. Skin deep at left side of forehead, caused to injured Muhabat.
13. Injured Mumtaz received
(1) Lacerated wound 8 x 1 c.m. Scalp deep at occipital region.
(2) Lacerated wound 3 x 1/2 c.m. Scalp deep at vertex of head.
14. From the nature of injuries referred above it is hardly difficult to ascertain that what was the nature of weapon used in the offence and to rely with full firmness on a particular nature of weapon is unsafe particularly when recovery of crime weapon includes both hatchet and Lathi.
15. P.W. Soomar who is son of complainant and P.W. Atta Muhammad, a resident of very locality, who reached at the place of Vardat on hearing cries had also deposed about joint attack of appellants and acquitted accused by both Lathi and hatchets. Therefore, to fix a charge on appellants just because they were having Lathis, which could be said to be hard and blunt substance, has no justification.
16. The nature of injuries received by injureds as explained by the Medical Officer, it appears that some of them were inflicted by sharp-edged weapon. So to totally discard the statement of very injured whose presence, in no way, can be suspected at the place of incident by observing that: "This medical evidence has falsified the version given by the both injured with regard to sustaining of hatchet injuries. Had the accused armed with hatchet caused such blows, the Medical Officer must have certified the same." ' is a misappreciation of evidence. Medical evidence is normally used for confirmation of ocular testimony, as regards injuries caused to injure or any prosecution witness. Such evidence certainly cannot constitute corroboration qua the accused persons for proving their involvement.
17. Perusal of judgment reveals that trial Court has disbelieved a major portion of eye-witnesses including injured. The sole evidence i,e, of Medical Officer is the basis of conviction to appellants.
18. If the trial Court was of the opinion that there were discrepancies in prosecution evidence, then the same should had been clarified at the trial stage, on failing the same by prosecution, the benefit will go to the accused, as is appearing in the present case.
19. By producing crime weapons i,e, Lathi and hatchets along with memo. Of their recoveries, prosecution has tried to establish his case. The same has not been believed by the trial Court. Even otherwise, the alleged recovery of crime weapon from appellant Ghulam Hussain on 30-3-1998 after about 17 days of incident when appellant Ghulam Hussain had sufficient time to destroy the same is hardly believable in the circumstances of the case.
20. On assessm ent of evidence brought on record it appears that the relation in between complainant and accused persons were strain due to dispute over some agriculture land said to had been purchased by complainant's son Muhabat. Civil litigations in connection with that land are pending between the parties in Court. This plea taken up by the appellant Ghulam Hussain in his statement with no suggestion to the prosecution witnesses in their cross, can be taken as piece of evidence, but totally cannot be relied upon.
21. In view of the evidence brought on record as discussed above, there are number of discrepancies therein. Observations made by Lordship in 1995 SCM R 1345 are needful to be reproduced for proper appreciation of present case, which reads 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. In view of above discussion, appellants are acquitted. They are on bail. Bail bonds stand discharged.
Appeal allowed.