1. Accused/respondents Eijaz Hussain, Umer Shaikh and Raeesuddin Shaikh were tried by the Court of IXth Civil Judge/Judicial Magistrate Karachi East, in Criminal Case No, 135 of 2003 for allegedly committing offences punishable under Sections 337-A(iii), 504/34 P.P.C. pertaining to FIR No, 230/2003 and vide judgment dated 15th August 2006, were acquitted; the relevant observations of the Magistrate to grant acquittal to the accused/respondents read as under: From the perusal of evidence of P.Ws and facts of the case, it appears that FIR was lodged after the delay of 20 hours of the incident and SIP Saeed Gahni P.W-7 has deposed that he after making the roznamcha entry he did not seen any injury on the body of the complainant and he deposed that complainant did not informed him about the breaking of his bone. The version of the police officer, creates doubt the prudent mind of the Court. Further the complainant appeared before the doctor after about 26 hours of incident and MLO Dr. Zeeshan Hyder has marked probable duration of injury 14 hours old defused swelling on his nose and later on found fracture on nasal bone. Thus the difference between the time of causing injury also fortifies the view of manipulation of the injury.
2. Further more of the defence evidence is kept in juxtaposition to the prosecution evidence it also clarifies that scuffle took place between the parties on the marriage ceremony of the house of in laws of both the parties and on intervention of Holy Quran by the mother-in-law of complainant as well as accused persons same was resolved. The injury certified by the MLO appears to be manipulated by the complainant Pervez in order to strengthen the case against the accused persons. The time of incident and examination, by the doctor differs by 12 hours which makes the case of prosecution doubtful and accused can not convicted in such circumstances.
3. In the above circumstances, I am opined that prosecution has failed to prove it case beyond the shadow of reasonable doubt hence the Point No, 1 is answered as doubtful.
4. Point No, 2.
5. In view of discussion make in Point No, 1 and finding thereto it is evidence that prosecution has failed to prove its case under Section 337-A(iii)/504/34 P.P.C. against the accused persons namely Ejaz Hussain son of Muhammad Younus (ii) Umar Shaikh son of Shaikh Zaheeruddin and Raeesuddin Shaikh son of Khaliluddin Shaikh beyond the shadow of reasonable doubt and I therefore, acquitted them under Section 245(i) Cr.P.C. Accused persons are present on bail. Their bail bonds stand cancelled and sureties discharged."
6. In support of the case of the prosecution Muhammad Fahad Perveez Khan complainant, Syed Musharraf Ali, SIP Muhammad Akram, Muhammad Siddiq, Dr. H. Zeeshan Haider and SIP Saeed Ghani were examined.
7. In their statements under Section 342 Cr.P.C., accused/ respondents denied the allegations and pleaded innocence. They also examined themselves on oath as their own defence witnesses respectively alongwith D.Ws Mst. Mumtaz Begum and Mst. Yasmeen.
8. Prosecution story is to the effect that during the night in between 13th and 14th July 2003 a marriage ceremony/function was arranged in the house of sister-in-law of complainant Perveez Khan, wherein complainant's children went to participate but at about 12:00 night, his children alongwith his wife returned back to the house while some marks of violence were seen by him on the face of his daughter Mst. Hani; her hair were also found in scattered position and he was informed that aunties of his children had beaten them while their uncles used abusive language, after some hot words were exchanged with daughters of the Aunts.
9. Complainant went to the house of his in-laws while the marriage was still being celebrated, and asked them as to the treatment so meted out to his daughters, whereupon accused Ejaz, Raees, and Umar started beating him by means of inflicting fists blows, to the extent that blood came out from the nose and mouth of the complainant. P.W. Musharraf took him to his house on a motorcycle. At the first instance, complainant did not like to lodge FIR with the police, looking at the close relationship with the accused persons, but then he started feeling pain in his entire body, and swelling occurred on his face also; therefore, on 14th July 2003, he lodged repot at Police Station Korangi at 7:00 P.M. and was referred to the Medical Officer.
10. Heard Mr. Arshad Mehmood for the appellant, Mr. Mehmood A. Qureshi for the accused/respondents and Ms. Afsheen Aman for the State.
11. The reasons for the acquittal of the accused/respondents, recorded by the Magistrate, have been reproduced above. He has not discussed the evidence of the witnesses examined by the prosecution in support of its case. The Magistrate failed to discharge his duties cost on him under Section 367 Cr.P.C; the trial Court, after recording the evidence of the parties and after hearing them has to appraise the entire evidence and then either to convict the accused or to acquit them.
12. Medical evidence is only of confirmatory in nature. If the same suffers from any defect, on the face of the other confidence inspiring evidence (which may be available. on the record of the case), then conviction can safely be recorded on such confidence inspiring evidence; merely because medical evidence is not sufficient to prove the injuries on the person of the injured, the Magistrate would not stand absolved from discussing the entire evidence of the prosecution available on the record of the case; if defence evidence is relied upon, then also detailed reasons are to be recorded to discard the evidence produced by the prosecution; the judgment suffers from impropriety, non-application of mind and arbitrariness.
13. Hence through a short order dated 24th July 2007, this criminal acquittal appeal was admitted and was allowed; impugned judgment was set aside and case remanded to the trial Court with direction to re-hear the parties on merits of the case, by appraising entire evidence, together with the medical evidence, and to decide the case afresh, particularly keeping in view the case law to the effect that medical evidence would be only confirmatory in nature and if ocular evidence, produced on the record of the case, inspires the confidence, the medical evidence whatsoever cannot be allowed to destory such a case; above are the reasons for the said short order.