1. ' ABDUL RASHEED KALWAR, J.---The appellant Mouj All son of Lal Bux Lund, along with co-accused Ali Dino, Mohib Shaikh and an unknown culprit was booked under section 17 (3) Offences Against Property (Enforcement of Hudood) Ordinance, 1979, vide Crime No,167 of 2004, Police Station Kotri.
2. The F.I.R. Was lodged on 30-10-2004 at 1515 hours, whereas the incident had taken place on 5-7- 2004 at 2200 hours, at place of incident near the Dergah of Mahmood Shah Bukhari Karachi Wah about 2 and half kilometers away from the police station. The appellant and co-accused Ali Dino were not arrested by police as they had obtained pre-arrest bail, whereas co-accused Mohib Ali absconded. However, after completing of investigation the case was challaned in the Court of 1st Civil Judge and Judicial Magistrate Jamshoro on 17-2-2005, wherefrom it was sent up to the Court of Additional Sessions Judge Kotri on 20-2-2005. Learned Additional Sessions Judge Kotri charged the appellant and co-accused Ali Dino under sections 337-A (iii), 337-L (ii) and 392 P.P.C. Vide charge dated 20-2-2006 and after holding trial acquitted accused Ali Dino and convicted the appellant and sentenced him to undergo rigorous imprisonment for 7-years for 337-A (iii) P.P.C.
3. And to pay arsh being 10% of Diyat i,e, Rs,47200/- and in default he was ordered to undergo simple imprisonment for 6 months more. The appellant was also convicted and sentenced to undergo rigorous imprisonment 2 years for 337-L (i) P.P.C. And rigorous imprisonment 7 years for 392 P.P.C.
4. All the sentences were ordered to run concurrently and benefit of section 382-B Cr.P.C. Was not extended, as the appellant had not remained in the jail. Being aggrieved by the conviction and sentences awarded vide judgment dated 18-8-2006, passed by Additional Sessions Judge Kotri, the appellant preferred appeal before this Court.
2. The prosecution story starts with the lodgment of the F.I.R. Containing the complaint of one Ghulam Rasool son of Muhammad Younis Channa resident of Daryabad Colony, Kotri, that on the day of incident he was present at this P.C.O. Shop, when one Mir Ahmed Junejo came to his shop and asked his son Asad Ali to accompany him for video recording of the program at Karachi Wah, whereupon Asad Ali accompanied him. On the day of incident at 2230 hours one neighbourer informed the complainant that his son was lying unconscious in Taluka Hospital Kotri, he rushed to the Taluka Hospital where he was informed that his son was taken to Civil Hospital Hyderabad as his condition was serious. The son of the complainant regained his sense after about 48 hours and then he was able to narrate the facts of incident to the complainant. The injured son told his father that two persons took them towards Karachi Wah when they alighted from Rikshaw at Karachi Wah and crossed the Railway lines, a person behind them asked them about their identity, whereupon the complainant's son and Mohib Shaikh replied, showing familiarity, when they reached near Dergah Mahmood Shah Bukhari another person also came closer to them and at that place the son of complainant and Mir Ahmed were attacked by four persons. Out of the assailants one was having pistol in his hand, who inflicted butt blow to Mir Ahmed and the son of the complainant. Out of them, three were identified as Ali Dino, Mouj Ali and Mohib Shaikh and forth person was unknown; but it has been claimed that the injured would identify him if he saw him again. Due to butt blow, the complainant's son and his companion went unconscious and after regaining sense, they saw that they were bathed into blood. The complainant's son saw that his companion was tied with the wire of the video camera. Later on, he was untied by the complainant's son. The complainant's son and his companion found that, their video camera, their two watches and Rs,400 were missing.
5. Thereafter both the injured slowly walked up to road. From there, they sat in a Suzuki and went to Police Station. They obtained the letter from police for their treatment. The injured first went to Taluka Hospital Kotri, thereafter the complainant's son was advised to have dressing from Civil Hospital Hyderabad, which had been having on daily basis for about one and half month.
3. After receiving challan documents were supplied to appellant and co-accused Ali Dino on 5-12- 2005 vide Exh. 9 and the charge was framed on 20-2-2006 vide Exh. 10, to which appellant and co- accused Ali Dino pleaded not guilty and their pleas were recorded at Exhs. 11 and 12. Then prosecution examined P. W/complainant Ghulam Rasool on 27-3-2006 at Exh.13, who produced copy of F.I.R. No,167 of 2004 at Exh.14. On the same day Court examined P.W.-2 Mir Ahmed at Exh.15, Pi W.-3 Asad Ali at Exh.16, P.W.4 Muhammad Arif at Exh.17. On 29-5-2006 P.W.-5 Shamsuddin S.M.O.
6. Taluka Hospital Motri was examined at Exh.18, who produced Medico legal certificates in respect of Mir Ahmed and Asad Ali Exhs. 19 and 20, respectively, and provisional Medico legal certificate of Asad Ali at Exh.21; P.W-6 Muhammad Hussain was examined at Exh.22, who produced notice dated 13-12-2004 at Exh.23; P.W.7/Mashir Imtiaz Hussain was examined at Exh.24, who produced mashirnama of place of incident at Exh.25 and mashirnama of injuries at Exh.26. On 27-6-2006 Investigating Officer Abdul Majeed was examined as P.W.8 at Exh.27, on the same day prosecution closed its side. On 7-7-2006 both the accused were examined under section 342 Cr.P.C., who termed the prosecution story false and claimed that their enmity with the P. Ws was a motive for deposing against them. Besides it, they pleaded innocence. Neither did they opt for examining any witness in their defence nor did they want to record statement under section 340(2) Cr.P.C. After hearing the Advocate for the accused, D.D.A. For the State and Advocate for the complainant learned Additional Sess ,ins Judge Kotri acquitted accused Ali Dino and convicted the appellan. In Sessions Case. No,5 of 2005 vide the impugned judgment, as stated above.
4. Learned Advocate for the appellant has assailed the impugned judgment on following grounds:
(a) On same set of evidence co-accused Ali Dino was acquitted, in this manner learned trial Court has disbelieved this evidence for co-accused Ali Dino and believed for the present appellant.
(b) No charge has been proved against the appellant, yet, the learned trial Court has awarded punishment separately under all heads of charge.
(c) Complainant is not eye-witness.
(d) There is unexplained delay of more than three months in lodging of F.I.R.
(e) The appellant and the injured were already known to each other, but from the record it appears that they have been assaulted by some unknown persons.
7. ' There is professional jealousy between the appellant and the injured, that is why, appellant has been falsely implicated.
8. ' No specific allegation has been levelled against the appellant. Allegation of robbery has not been levelled against the appellant. Nothing has been recovered from the place of vardat.
9. ' Injuries sustained by the injured have been examined by the police after three months, which carry no evidentiary value.
10. ' The doctor has opined that the injury may have been sustained during course of accident.
11. ' The prosecution story is improbable and doubtful.
6. Conversely, learned State counsel has strongly opposed the appeal and supported the impugned judgment saying that there is no contradictory material in the prosecution evidence, prosecution case has been fully proved against the appellant and the appellant has been rightly convicted.
7. Heard. Advocate for the appellant and learned Asst: A.G. And gone through R&Ps and paper book.
12. The F.I.R. And statement of complainant is based on hearsay as the story was told to him by his son Asad Ali. Neither the complainant is eye-witness nor his statement is relevant for the purpose of assessing ocular account of the incident. The F.I.R. Had been lodged after 3 months without any plausible explanation. Despite the fact that the F.I.R. Is not direct narration of the injured, yet it has not specifically mentioned that the appellant had inflicted butt blows to Asad Ali or Mir Ahmed.
13. Injures P.W. Asad Ali in his examination in chief has not specifically stated about causing injuries to him or to Mir Ahmed by the appellant. The relevant part of his statement is reproduced as under:- ' As soon as we crossed the Dargah and proceeded a little, the person who was coming behind us started causing injuries with the butt of the pistol on my head. The person who was in front of us caused injuries to Mir Ahmed Junjeo with some substance perhaps pistol. As I saw at my back, I saw accused Mouj Ali, meanwhile I went unconscious...
14. ' Further in examination-in-chief he said as under;- ' Accused Mouj Ali present in Court is same as was seen by me at place of wardat whereas accused Ali Dino present in Court was not seen by me at the place of incident...
15. ' In cross-examination, the said witness has admitted as follows:--I was assistant of Mir Ahmed. A person who had given Hakals was not identified by me nor he was identified by me previously. We were not given chance by accused persons to do anything in our defence. We were beaten by accused persons for about 4/5 minutes ' It is a fact that accused are also engaged in said profession of making movie. Accused Mouj Ali was known to me even prior to incident. It is incorrect that accused are known to me since long, and that professional tussle with each other...
16. It is clear that, in spite of having previous acquaintance with the appellant injured Asad Ali has not levelled the allegation of causing injuries to him or Mir Ahmed by the appellant. P.W Mir Ahmed in his examination-in-chief has stated as under:- ' After crossing railway track, when we proceeded further we heard voice that who were us to which the person who were with us informed that they were belonging to them, when we proceeded further and crossed the dargah, persons who were behind us came running, started beating us meanwhile another person joined them and all the three persons started beating me and Asad Ali Chana. They had beaten us with butts of pistols and caused injuries on our heads by butts and stones. Myself and Asad Ali became unconscious...
17. ' It appears that at the instance of Trial Court P.W. Mir Ahmed has pointed out towards Mouj Ali and stated as under:- ' P.W. Pointed towards an accused as the same, who had been seen by him at place of incident, on inquiry said person disclosed his name as Mouj Ali.
18. ' Accused who had disclosed his name as Mouj Ali had caused injuries to Asad Ali Chana whereas I was beaten by two other persons, they were the same who had come to take me, from my house...
19. ' In his cross-examination he has said as under;- ' I identified accused Mouj Ali when he had come near to us and started beating Asad Ali Chana.
20. Out of three persons one person of short height who had also come to my house had pistol in his hand. The others caused injuries with stone...
21. ' This part of statement of P.W. Mir Ahmed has not been corroborated by the injured Asad Ali as well as this statement does not find support from the contents of F.I.R. Which had been lodged by his father c his narration of the fact of the incident. Under a situation when P.W. Asad Ali himself is not implicating the appellant the statement of witness Mir Ahmed becomes unreliable. Both the injured witnesses have narrated the incident in different manner with different particulars of the transaction. They are not consistent about the number of assailants and the role played by each culprit. The place of wardat has been inspected on 31-10-2004, about 3 months and 25 days after the incident and no incriminating evidence was collected from there. The healed scares of both the injured P.Ws. Were inspected by the police on 31-10-2004. The statement of medicolegal officer and the contents of medico legal certificate shall not ipso facto establish guilt against the appellant in the absence of confidence inspiring evidence, sufficiently connecting the accused with the commission of offence. Yet the doctor has opined in cross-examination as under:- ' ....The nature of injuries could also have been caused to some accident....
22. ' None of the prosecution witnesses have ever said that the appellant has robbed articles and money from them. Co-accused Ali Dino had been acquitted on the same set of evidence. Since the incident had taken place near Dargah and presence of persons at Dargah in the evidence yet no independent witness has been examined by the prosecution to establish the offence. -The smell of professional jealousy between the appellant and injured is also traceable from the evidence. The appellant has all along denied the allegation at the time of framing of charge as well as during his statement recorded under section 342 Cr.P.C. The prosecution was .Duty bound to prove the case against the appellaht beyond reasonable about.
23. ' In the circumstances the commission of offence by the appellant is doubtful and by extending benefit of doubt to him this Court had set aside the impugned judgment and sentence awarded by the trial Court and acquitted him vide short order dated (sic) and these are the reasons thereof.