1. ' SALMAN HAMID, J.---By this Order I intend to dispose of Criminal Acquittal Appeal No, 46 of 2010, whereby by the Appellant/Complainant, Abdul Hafeez Sangi has assailed the judgment of acquittal dated 27-5-2010, passed in Sessions Case No, 214 of 2005 Re.: State v. Mir Mohammad, arising from Crime No,24 of 2005 of Police Station Dhamrah, registered for an offence under sections 324, 109, 504 and 34 Pakistan Penal Code 1860.
2. ' Briefly, the facts of the case, in a nutshell, are that on 24-5-2005 at 0900 hours Appellant/Complainant lodged F.I.R., wherein it was mentioned that on 23-5-2005 he along with his father, Abdul Majeed went on their lands for making paddy seedlings. On their return home around 07:15 post-meridian, while they were crossing Hameer Wah, (sic) was making complaints against their relative, Muhammad Siddique, they will not spare them. The respondent No,1 fired directly Appellant's! Complainant's father, which hit him on his right arm. Saifullah also fired which hit his father on his right thigh. The appellant/complainant. Cried and one Ahmed Ali Sangi came running when the respondent No,1 fired again from his repeater at his father which hit him on his abdomen.
3. Only upon Allah Almighty's sake, which the appellant/complainant had given to the respondent No,1 and to Saifullah, they escaped from the scene. That because of above shooting, appellant's/complainant's father Abdul Majeed fell unconscious in to Hameer Wah, and was later taken to hospital in a rickshaw for treatment where he was operated. The appellant/complainant lodged F.I.R. Next morning (24-5-2010) to the above effect.
4. ' After registration of the F.I.R., investigation followed. The challan was submitted on 15-6-2005 by showing the respondent No,1 in custody, while Saifullah was shown in column No,2 of the Challan for lack of evidence. Respondent No,1 was to face trial. Mohammad Siddique was shown as an absconder, in the challan..
5. ' The formal charge was framed against the respondent No,1 as Exhibit 5 whose plea was recorded as, not guilty and he claimed his trial.
6. ' Thereafter the prosecution examined the appellant/complainant as Exhibit 6, who produced copy of F.I.R. As Exhibit 6/A; P.W/injured Abdul Majeed as Exhibit 8, P.W Ahmed Ali as Exhibit 9, mashir Chulam (sic) respectively; SIP Jarar , Hussain Qadri, the Investigating Officer of the case as Exhibit 12, who produced mashirnama of arrest and recovery as Exhibits 12/A and B respectively; SIP Muhammad Amin Khoso as Exhibit 13, who arrested the respondent No,1 and also registered F.I.R. Of appellant/complainant whereafter the side of prosecution was closed.
7. ' Statement under section 342, Cr.P.C. Was recorded as Exhibit 13, wherein the respondent denied the prosecution's case and claimed innocence on the ground that he was falsely implicated.
8. However, the respondent No,1 neither examined himself on oath as required under section 340(2), Cr.P.C. Nor led any evidence in his defence.
9. ' Subsequently, after hearing the Respondent No,1 in person and the learned D.D.P.P for the State and appraisal of the evidence, the learned trial Court passed the impugned judgment dated 27-5- 2010 whereby the respondent No,1 was acquitted while the case against the absconding accused Mohammad Siddique was kept on dormant file.
10. ' Heard learned counsel for the parties and perused the material brought on record as well as scanned the prosecution evidence with the assistance of learned counsel.
11. ' It was mainly contended by learned counsel for the appellant/complainant that the trial Court has not appreciated the evidence of prosecution witnesses, including injured and have not given due consideration to the medical evidence; the delay was plausibly (sic) Jurh Itlaf-i-Salahiyyat-i-Udwa and Jurah Jaifah and therefore both were punishable for ten years as Tazir. The learned counsel for the appellant/complainant urged that on all these, the prosecution has successfully established its case against the respondent No,1 ane therefore, his acquittal was not justified and sustainable under the law and therefore be reversed.
12. ' Though, the state, at trial stage contested the case vigorously, supported the impugned judgment on the grounds: that the trial Court has passed a well-reasoned judgment which does not require any interference; that no incriminating evidence against the Respondent No,1 was brought; that the witnesses were related to the appellant/complainant aid therefore interested to have the respondent No,1 convicted. It was further argued that the guilt, as attributed to the respondent No,1 was not proved to the hilt as it was not made clear whose fire-shot hit the father of the appellant/complainant inasmuch as that no Ballistic report was produced though the cartridges and the weapon was recovered which was essential and simply could not have been dispensed with as the case was not of capital punishment. It was also urged that letting of the co-accused, Saifullah, the real brother of respondent No,1 for lack of evidence was also very material to be looked into inasmuch as that it was not challenged by the appellant/complainant. Irrespective of the fact that the respondent No,1 was acquitted, absence of cross-examination by the court in terms of section 340, Cr.P.C. For him was also raised in the light of the fact that the respondent No,1 remained (sic) allegedly respondent No,1 fired two shots from his repeater at Abdul Majeed which hit him on his arm and abdomen while co-accused Saifullah also fired from his gun which hit him on his leg, but surprisingly co-accused Saifullah was found innocent by the I.O. And his name was kept in column No,2 of the challan, which caused a blow to the prosecution case inasmuch as that such placement was also not challenged by the appellant/complainant before any court of law. All the P.Ws. Were highly interested and hostile to the respondent No,1, out of whom P.W./complainant Abdul Hafeez and P.W./Mashir Ghulam Hyder happen to be the real sons of injured Abdul Majeed and P.W. Ahmed Ali was the brother-in-law of injured. Therefore, independent corroboration was lacking in the case. The ocular account was in contradiction with the medical evidence as in the F.I.R. The injured Abdul Majeed allegedly received three firearm injuries by means of three separate fires whereas according to the mashirnama of injuries, injured sustained only two pallet wounds one at his right arm and the other at left leg while the medical certificate only speaks about injury No,1 1cm x lcm muscle deep at right elbow joint, the injury No,2-A 1 cm x 1 cm muscle deep at left inguinal region being wound of entry and injury No,2-A 1-1/2 cm x 1-1/2 cm muscle deep at left thigh being wound of exit of injury No,2-A. Admittedly the injured had fallen down unconscious in the Hameer Wah after sustaining injuries as per prosecution story but the clothes of the injured were not produced. Not only this, according to the Investigating Officer and/or his evidence there was no blood-stains at place of occurrence as there was dust. (sic) stained. There was a delay in recording statement of P.Ws. As statement of injured Abdul Majeed was recorded on 9-7-2005 while the injured stated in his evidence that the police visited at hospital and examined his injuries on 23-5-2005 when he was brought at hospital which also was contradictory to the mashirnama of injuries prepared on 24-5-2005 at about 1300 hours. The mashirnama of the place of occurrence says that there were no blood-stains at the place of occurrence due to availability of water but the I.O. Stated in his evidence that there was no blood stains due to dast. Learned trial Court also pointed out improbable timings from the time of occurrence up to the examination of injuries by the Medical Officer inasmuch as that incident occurred on 23-5-2005, the F.I.R. Was registered on 24-5-2005, but surprisingly the mashirnama of injuries was prepared on 24-5-2005 at 1300 hours whereas the Medical Officer examined the injured after receiving police letter at 08.15 p.m. On 23- 5-2005 whereas the incident said to have occurred at 7-15 p.m. On 23-5-2005 and the distance between place of occurrence and Police Station is one hour. Therefore, it does not appeal to a prudent mind that within one hour of sustaining injuries, the complainant party arranged conveyance, reached at Police Station and after narrating the story of occurrence received letter to hospital for providing first aid to the injuries sustained by injured Abdul Majeed and also reached at Hospital. The calculation of all these timings of above happenings does not seem to be convincing and creates doubts in the prosecution case.
13. ' (sic) his credit. It is under such like circumstances that the provisions of section 340(1), Cr.P.C.
14. Comes in which provides that right of a person accused of an offence before a criminal court or against whom proceedings are instituted under this Criminal Procedure Code, is to be defended by a pleader. Being mindful of the fact that such a provision would come in entailing a capital punishment, it is incumbent on me to say that in cases where the accused is unrepresented it becomes even more important a duty of trial Judge to put up a cross on behalf of the accused which in the present case was lacking. Had the respondent No,1 not acquitted because of the lapses of the prosecution, grave injustice would have been caused to the respondent No,1, merely because he could not afford a counsel.
15. ' From the above discussion, I find that the prosecution case against the present respondent No,1 suffers from various dents one of such was that the empty cartridges recovered from the place of occurrence and the repeater being crime weapon allegedly recovered from the possession of the respondent No,1 were not sent for the requisite test to bring home the guilt. It is thus clear that there was no independent corroboration to the prosecution together with the fact t that the prosecution itself miserably failed to prove its case beyond a shadow of reasonable doubt. For these reasons, this Appeal must fail and the same is dismissed in limine. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.