This appeal has been directed against the judgment of Tehsil Criminal Court Sehnsa dated 28.9.2007, whereby the accused-respondents were acquitted of the charge.
The facts briefly stated are that Muhammad Siddique, complainant, lodged an oral F.I.R on 31.01.2007 at 9:00 a.m. at Police Station Sehnsa alleging therein that on 6.1.2007 at 2:00 p.m.
Shahnawaz, Maroof, Shahzad and Shahid entered into the disputed land one after another and started pulling out the stones and digging the land. The complainant Khatoon Bibi and Atique went to forbid the accused-persons, upon which they enraged and launched an attack upon them.
Maroof accused, pelted stone at Khatoon Bibi, which hit at her nose whereas Shahnawaz accused pelted stone, which hit her mouth. Shahzad attacked the complainant with stick, which hit him upon his knee whereas other accused-persons inflicted injuries with stick. The complainant Khatoon Bibi, Muhammad Atique and other inhabitants of the village, witnessed the occurrence.
The motive behind the occurrence has been stated to be a land dispute.
On this report, a case under Sections 337-A(1-3), 337-F-1, 337U-1 and 34 APC. After necessary investigation, the accused were challaned before Tehsil Criminal Court, Sehnsa, The charge was framed on 24.3.2007. The accused did not plead guilty and claimed the trial.
In support of its case, the prosecution produced Muhammad Siddique (P.W.1), Mst. Khatoon Bibi (P.W.2), Muhammad Atique (P.W.3), Muhammad Shabbir (P.W. 4), Dr. Shahnawaz Khan (P.W. 5), Dr. Safeer Iqbal (P.W.6), Abdul Qayyum head constable police (P.W.7) and Mirza Muhammad Maqsood SI/SHO (P.W.8).
After completion of the prosecution evidence, the salient feature of the evidence and incriminating material was put to the accused-respondents for their explanation as required by Section 342, Cr.P.0 but they refuted the prosecution evidence and claimed to be innocent. However, no evidence was produced in defence.
The trial Court after hearing the arguments of the learned Counsel for the parties, acquitted the accused-respondents of the charge while extending benefit of doubt in their favour vide judgment dated 28.9.2007. Hence, this appeal.
Assailing the impugned judgment, Ch. Mahboob Elahi, the learned Counsel for the complainant argued that the prosecution witnesses have fully proved the case and categorically deposed about the specific role of each accused-person. The learned Counsel for the appellant further contended that the medical evidence also supports the oral version but the trial Court miserably failed to appreciate the evidence of the prosecution in a legal fashion and misconstrued itself while passing an order of acquittal. The learned Counsel finally submitted that while accepting the appeal, the impugned judgment may be set-aside and the accused-persons may be convicted and sentenced in accordance with law. In support of the arguments the following authorities were cited:--
1. 1992 SCR 294.
2. PLJ 2003 Sh.0 AJK 1.
3. MLR 2004 Cri. 380.
Raja Khurshid Ahmad Khan, the learned Asst. A.G. appearing on behalf of the State fully owned and supported the arguments raised by the learned Counsel for the complainant-appellant.
On the contrary, Muhammad Saghir Butt, the learned Counsel for the accused-respondents vehemently contended that the prosecution evidence is vague and self-contradictory which cannot- be relied upon. According to the learned Counsel, all the eye-witnesses are closely related to each other and not a single independent witness has corroborated the prosecution version. The learned Counsel further argued that the prosecution witnesses have also made numerous improvements, which are fatal to the prosecution story. The learned Counsel pointed out that the complainant has not mentioned in his oral F.I.R about uprooting the fence or catching hold by accused Shahid and Shahzad but in his examination-in-chief, he categorically deposed that he forbade the accused-persons not to uproot the fence and he further stated that Shahzad and Shahid caught hold of him. Similarly, the complainant further testified that Shahnawaz pelted a stone upon him but in his. F.I.R he also did not mention this fact. The learned Counsel maintained that the name of Muhammad Shabbir P.W. does not find place in F.I.R but latter on he was also nominated as eye witness, which creates suspicion and doubt about the prosecution version. The learned Counsel laid great stress upon the point that evidence of Muhammad Shabbir (P.W.4) is not reliable because he is nominated as accused in the counter case but during his statement he refuted the fact, admitted between the parties. The learned Counsel further agitated that according to the F.I.R Shahid s/o Shan Muhammad has been nominated as an accused but Shahid s/o Bagh Hussain was challaned before the trial Court, which adversely affects the prosecution story. The learned Counsel pressed into service the submission that the blood-stained clothing of the injured P.Ws. and the weapon of offence stones and sticks have not been recovered during the investigation and the police official who prepared Exh.PF, lodged by the complainant was not produced for its corroboration. The learned Counsel also criticized the medical evidence and submitted that according to Mst. Khatoon Bibi, she was examined on 7th of January 2007, whereas according to Dr. Safeer Iqbal (P.W.6), she was examined on 15.01.2007. Furthermore, the medical report Exh. PB does not disclose the name of her husband or father; therefore, it, cannot be taken into consideration. The learned Counsel zealously argued that the prosecution story is full of material defects and legal infirmities; therefore, the impugned judgment may be upheld. In support of the arguments, reliance was placed upon the following authorities:--
1. NLR 2002 Cri. 321.
2. NLR 2006 Cri. 618 .
3. 2007 M LD 613.
4. PLJ 2007 Cri. Cases (Lah.) 229.
I have very carefully taken into consideration the points canvassed by the learned Counsel for the parties, after perusing the record made available. In the instant case, an oral F.I.R has been allegedly lodged by Muhammad Siddique (P.W.1) but he deposed in the trial Court that the report was not lodged by him but by his brother. Moreover, the police officer, who recorded the report in daily register {{URDU TEXT}} was also not produced before the trial Court; therefore, the filing of F.I.R and its registration could not be proved by the prosecution, which adversely affects the case of prosecution. Thus, F.I.R cannot be used as a corroboratory piece of evidence to the ocular account and the prosecution evidence has to be seen with care and caution. (PLJ 2007 Cri. Cases Lahore 929 DB).
It is also admitted on the record that all prosecution witnesses are closely related to the complainant and not a single independent witness was produced to corroborate the evidence of highly interested witnesses; who were also inimical to the complainant party. Mst. Khatoon Bibi (P.W.2) and Muhammad Atique (P.W.3) have categorically admitted that the accused-party has also got registered a case against the complainant party and they have been nominated accused in the aforesaid case. Therefore, the evidence of eye-witnesses is not believable. (NLR 2006 Criminal 618). Furthermore, the evidence of prosecution is self-contradictory which suffers from material irregularities. The prosecution witnesses have also made numerous improvements during the trial. For instance, Khatoon Bibi (P.W.2) deposed that in consequence of the attack by the accused-persons her nasal bone and a tooth were broken but the aforesaid fact does not find place in her statement recorded under Section 161, Cr.P.C. The complainant alleged in the F.I.R that the accused-persons pulled out stones from their land but during his statement before the trial Court, he testified that the accused-persons also uprooted the fence of the land. Similarly, medical evidence is also vague and doubtful. According to Dr. Safeer Iqbal (P.W.6), he examined the injured Mst. Khatoon Bibi on 15.1.2007 and he did not mention the address, name of her husband or father in the medical examination certificate but Mst. Khatoon Bibi testified that she was referred to Kotli hospital on the next date of occurrence. There is another aspect of the case, which creates more difficulty for the prosecution i,e, the statements of P.Ws. recorded after eight days C of occurrence; thus, the, belated statements of P.Ws. cannot be relied upon. As far as the statement of Muhammad Shabbir (P.W.4) is concerned, is also not worthy of credence because he was not nominated in the F.I.R although according to Mst.
Khatoon Bibi (P.W.2), he arrived during the occurrence.
It is also admitted by the prosecution that F.I.R was lodged against Shahid s/o Shan Muhammad but Shahid s/o Bagh Hussain was challaned before the trial Court, which shows slackness and carelessness on the part of prosecution.
A careful scrutiny of the prosecution evidence reveals that the prosecution case is based upon surmises and conjectures. No valid, legal and cogent evidence has been produced to prove the guilt against the accused-persons. In this view of the matter, the trial Court has extended the benefit of doubt to the accused-respondents in a legal fashion, which does not call for any interference by this Court.
It is by now an enriched principle of criminal jurisprudence that for extending benefit of doubt to an accused, it is not necessary to dig out many infirmities, if a single circumstance creates a reasonable doubt in a prudent mind about guilt of accused, the accused will be entitled to benefit of doubt not as a matter of grace or concession but as a matter of right. In this regard, reference can be made to a case reported as Taj Muhammad & 4 others V. The State (2007 M LD 613), wherein the following principle was enunciated at page 617 of the report:-- "It is a known and settled principle of law that. prosecution primarily is bound to establish guilt against the accused without shadow of reasonable doubt by producing trustworthy, convincing and coherent evidence enabling the Court to draw conclusion whether the prosecution has succeeded in establishing accusation against the accused or otherwise and if it comes to the conclusion that the charges so imputed against the accused have not been proved beyond reasonable doubt, then the accused becomes entitled for his release on getting benefit of doubt in the prosecution case. The requirement of the criminal law is that the prosecution is duty bound to prove its case beyond any reasonable doubt and if any single and slightest doubt is created, it must go to the accused and is sufficient to discredit -the prosecution story and entitles the accused for acquittal.
The aforesaid proposition was affirmed in case tilted Ghulam Qadir & 2 others V. The State [2008 PSC (Cri.) 691] at page 700 as under:-- "It needs no reiteration that for the purpose of giving benefit of doubt to an accused person, more than one infirmity is not required, a single infirmity creating reasonable doubt in the mind of a reasonable and prudent mind regarding the truth of the charge makes the whole case doubtful.
Merely because the burden is on the accused to prove his innocent it does not absolve the prosecution from its duty to prove its case against the accused beyond any shadow of doubt and this duty does not change or vary in the case. A finding of guilt against an accused person cannot be based merely on the high probabilities that may be inferred from evidence in a given case.
Mere conjectures and probabilities cannot take the place of proof. Muhammad Luqman V. The State (PLD 1970 SC 10)."
So far as the other authorities cited by the learned Counsel for the parties are concerned, do not need any detailed analytical survey because of distinguishable facts.
In the light of above discussion, no error or illegality has been committed by the learned Tehsil Criminal Court while recording, order of acquittal in favour of accused-respondents. Resultantly, the appeal having no force stands dismissed.