S.A. RABBANI, J.--- The 1st Additional Sessions Judge, Larkana tried the present appellant on the charges under sections. 148, P.P.C. 11 and 16, Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with section 149, P.P.C. And sections 324/337-A(i), P.P.C. After examining nine prosecution witnesses and recording statement of the accused/appellant, the trial Court convicted him under section 366, P.P.C. The appellant has been sentenced to ten years' rigorous imprisonment, with a fine of Rs,5,000.
2. The appeal was sent from jail and Qazi Wali Muhammad, Advocate was assigned the task of representing the appellant at State expenses. The witnesses examined before the trial Court include complainant Ali Asghar, the alleged abductee Mst. Mussarat, P.W. Wazir Ali, P.W. Nazir Ahmad, P.W. Muhammad Usman, Dr. Muhammad Nawaz, P.W. Amir Ali, P.W. Ghulam Shabbir and A.S.-I. Ashiq Ali. The F.I.R. Lodged in this case mentioned the name of one accused Hazoor Bakhsh, who received fatal injuries during the incident.
3. Qazi Wali Muhammad, learned counsel representing the appellant submitted that, according to the evidence brought on record, the parties had a matrimonial dispute and consequent enmity. He contended that there was allegation of use of fire-arms by the accused party, but neither any fire- arm injury was not found during medical examination, nor any weapon or empties were recovered during the investigation. He submitted that according to prosecution evidence itself, the parties had a matrimonial dispute and related to each other and they had an enmity that led to a fight between them, but no independent witness was examined to support the version of the complainant party. In support of his contention that when there is an enmity between the parties, evidence of independent witness to corroborate the testimony of alleged witnesses was essential, he cited the case of Ghulam Shabbir v. Bachal and another 1980 SCM R 708.
4. Mr. Arshad Lodhi, learned Assistant Advocate-General, contended that the prosecution evidence amply proves that there was a fight between the parties, but conviction under section 366, P.P.C.
Awarded by the trial Court was not justifiable.
5. Complainant Ali Asghar has given his relationship with other prosecution witnesses and he claimed that they were living in the same enclosure. He stated that Shafi Muhammad was his uncle and was father of the alleged abductee Mst. Musarrat. This Shall Muhammad was not examined during the trial. The complainant further stated that Ghulam Sarwar, an absconding accused in this case, and brother of the present appellant was son-in-law of this Shafi Muhammad He said that Ghulam Sarwar was pressing Shafi Muhammad for marriage of his another daughter Mst. Musarrat with the present appellant.
6. The prosecution case was that since Shafi Muhammad did not agree to give Mst. Mussarrat in marriage to Muhammad Hassan, he along with the other co-accused persons, including his brother Ghulam Sarwar and Hazoor Bakhsh, entered in the house of the complainant party at night and attempted to abduct Mst. Mussarrat. According to the complainant, Ghulam Sarwar caused "Lathi" blow to P.W. Amir Ali and the accused persons also fired at the complainant party. According to the complainant, Ghulam Sarwar gave "Lathi" blow, but Mst. Mussarrat stated that Ghulam Sarwar and Muhammad Hassan were armed with guns. Mst. Mussarrat said that she was dragged to a distance of 15/16 paces. Dr. Muhammad Nawaz examined injured witness Amir Ali and found one lacerated wound above his left parietal region caused by hard and blunt substance. This injury is attributed by the complainant as well as by the injured witness to the absconding accused Ghulam Sarwar and not to the present appellant Dr. Muhammad Nawaz also conducted examination post-mortem on the dead body of Hazoor Bakhsh. According to him, the fatal injuries on the dead body were caused by hard blunt substance.
7. All the injuries found in this case were caused by hard blunt substance and one of the alleged accused persons lost his life as a result of the fight. There is no independent evidence on record to establish as to which party was aggressor. The injury caused to witness Amir Ali is attributed to the absconding accused Ghulam Sarwar and not to the present appellant. One of the alleged accused persons lost his life and it is not known whether anybody was tried for killing him.
8. The evidence placed on record thus, falls short of that needed for conviction of the appellant awarded by the trial Court in this case. He was entitled to benefit of doubt in the circumstances of the case. Accordingly, the appeal is allowed and the conviction and sentence is set aside. He shall be released forthwith in this case.