1. ' MUNIB AHMED KHAN, J.---Through this appeal, the appellant has challenged the judgment of learned Sessions Judge Tharparkar at Mirpurkhas dated 11-11-1994 in S.C. No,156/1990 under section 459, P.P.C. Convicting thereby appellant for R.I. Of seven years and to pay fine of Rs,5,000 and in default thereof to suffer R.I. For one more year. The appellant was further ordered to pay Rs,15,000 as compensation to, the heirs of deceased Dodo in terms of section 544-A, Cr.P.C. And in default thereof to suffer R.I. For six months.
2. ' According to the facts as narrated in the F.I.R. It has been stated by the complainant that he, his father Dodo, cousins Misri, Khano, Moro reside within one of the same hedge, on 30-9-1990 they slept in the houses as usual when at about 2-00 a.m. They all woke-up on the cries of complainant's father Dodo who was sleeping in the open space. They saw in the electricity light and identified Mengho S/o Mannu Odh having hatchet in his hand along , with unknown person who was having lathi standing beside the cot of his (complainant's father Dodo) on which he
(Dodo) he was sleeping. They raised cries of "thief" "thief", on which accused person started running. The complainant party chased them and one of the accused persons fired from his pistol at them which was missed. They stopped out of fear and the accused person made their escape good. The complainant party then returned to their house and saw that Dodo had sustained injuries by sharp side of hatchet on the left side. The injured Dodo informed the complainant party that accused Mengho Odh had inflicted sharp side hatchet blow to him. Complainant Harchand then went to his Nekmard Rehmat-Ullah Marri who advised him to lodge report. He then brought the injured Dodo and leaving him at the hospital went to Police Station Umar Kot and lodged the F.I.R.
3. ' The learned trial Judge examined following witnesses:-- {{DATA UNARRANGED}}
(1) Harchand the complainant Exh.7
(2) Ramchand the Mashir of various event Exh.8
(3) Misri the eye-witness. Exh.9
(4) Khanu another eyewitness. Exh.10
(5) Moro the third eyewitness. Exh. 11
(6) Dr. Omparkash the M.O. Who examined the injuries of Dodo. Exh. 12
(7) A.S.-I. Mathino Khan the Investigation Officer who Investigating the case. Exh. 13 {{DATA UNARRANGED}} ' The learned trial Judge in his finding held the accused guilty under section 459, P.P.C. As according to him it was established by the evidence that Dodo, father of the complainant, sustained injuries as a result of violence and secondly the accused Mengho committed lurking house tress pass in the house of complainant and caused injuries to Dodo by sharp side of hatchet.
4. ' Learned counsel for the appellant has assailed the judgment on the ground that accused and complainant are living at the distance of 20 feet only along with several other persons of Hindu Brothery and that is surrounded by a hedge which can be considered as common protective wall while everybody within the hedge has excess to other persons, therefore, there cannot be house lurking and case does not fall within the meening of section 459, P.P.C., and at the most accused could be tried for grievous injuries. In this respect he has pointed out at page 131 of the paper book which is .a sketch of the incident showing thereby that the house of the complainant as well as of the accused has been shown under one protective hedge while there are several rooms. The learned counsel has submitted that ingredients of section 459, P.P.C. Have not been kept in mind and no evidence specifically in this respect has been provided to show that the case of house lurking is made out. According to learned counsel, the complainant himself was living in the same protective hedge which is common to other residents and belong to same community, therefore, section 459, P.P.C. Is not attracted.
5. ' On the above points, learned Assistant A.-G. Has stated that within the same protective hedge there were separate units and although the factual position as given in the map at page 131 is not disputed but the residents in that very hedge were maintaining there own privacies. Learned Assistant A.-G. Could not point out as to which wall was scaled or which door was broken by the accused to reach complainant's father and how the case fall within the meaning of section 459, P.P.C.
6. ' On the issues of injuries, the learned counsel has stated that the accused that has been involved because of enmity as admittedly it is coming out through the witnesses of the prosecuting that there was a dispute between the complainant party and the accused on the ground of water rotation, therefore, the accused has been involved only due to enmity. The learned counsel has submitted that he is not disputing the injuries to the complainant's father but that might have been caused by some other person/persons as according to F.I.R. There were two persons, one was holding hatchet and one lathi but since the complainant could not capture those persons, therefore, to take the benefit of the situation, complainant involved accused person. It has also been submitted that according to injured Dodo as well as complainant and witnesses, one injury was caused to Dodo but the medical report shows that there were two injuries, one caused by sharp object and another by blunt weapon, therefore, the injuries given by the complainant and by the medical report do not tally with each other and create a lot of doubt. He has further pointed out that mashirnama of the hatchet (Exh.8-D) clearly shows that it was not blood-stained and that the hatchet was recovered after about seven days from a distance of half mile. Moreover, there is no chemical examination report is respect to the hatchet. He has further, pointed out that it was very strange that a person equipped with hatchet and pistol is not using the pistol and that an accused alone is going in the den of several persons who are close relatives. According to learned counsel; had the accused any intention to kill the complainant's father, he could do it with the pistol or at some other lonely place. He has further pointed out that after the F.I.R., there is nothing on record as to what happened to -the unknown persons mentioned in the F.I.R., and that lathi he was holding.
7. He has also pointed out that there is contradiction in the statements of the witnesses as witness Misri is showing that they chased the accused up to half a mile and thereafter stopped as accused started firing while other witnesses do not corroborate this statement. The learned counsel has also pointed out that the witnesses are closely related and despite the fact that more persons of same brothery are living in the hedge have not been brought as a witnesses notwithstanding the fact that it was very natural that they would woke-up after the commotion. He has further stated that the accused has examined himself on oath but nothing has been brought out from his evidence.
8. He has argued that in the above given circumstances there is not only lot of doubts but even uncertainty to the complainant's version is prevailing and, at least, keeping in view the above factual position which is lacking evidence, the% accused may be given benefit of doubt. In this respect he has relied upon 2003 PCr.LJ 1847 of which head note is reproduced as under:- ' "-S. 302(a)-Appreciation of evidence-Benefit of doubt-Rule of prudence-Rule of benefit of doubt which was described as golden rule, was essentially the rule of prudence which could not be ignored while dispensing the justice according to law-Such rule was based on maxim "it is better than ten guilty persons be acquitted rather than one innocent person be convicted"-Said rule occupied a pivotal place in Islamic Law and was enforced vigorously in view of saying of Holy Prophet (p.b.u.h.) that "mistake of Qazi in releasing a criminal was better than his mistake in punishing an innocent".
9. ' The learned Assistant A.-G. Has requested for calling of jail record to see as to how much imprisonment has been gone through by the accused person but the counsel for the appellant has calculated the same as two years, eight months and 21 days.
10. I have gone through the case and have also seen statement of Dodo at page No, 113 of the paper book recorded under section 161, Cr.P.C. Although the said statement has not been exhibited nor statement of Dodo could be recorded as after sometime he died natural death from his statement it is apparent that he has alleged one stroke of hatchet and not two as given by the medical report.
11. It is also a question which could not be established as to whether there was electricity at the place of wardat or not and turther it is quite impossible that at 2-00 a.m. In the night one would keep the electricity bulb illuminating to identify the accused immediately. Here at the first instance availability of the electricity has not been proved arid secondly the identification of the culprit of the incident is doubted. The reasoning given by the learned counsel for the appellant have, force and find support from material on record.
12. ' In the circumstances, given benefit of the doubt to the accused persons, I convert the sentence awarded by the Sessions Judge to the sentence which has already undergone through by the accused and with this modification, I allow the appeal. The appellant is on bail, his bail bond stand discharged.