' ABDUL RASOOL MEMON, J.---The appellant. Mir Hassan has impugned the judgment dated 5-10- 2011 passed in Sessions Case No,37 of 2010 by learned Additional Sessions Judge, Umerkot whereby acquitted respondents Nos.2 to 7 from the charge under sections 497, 337 and 337-F(i), 504, P.P.C.
2. The prosecution case in brief is that on 28-4-2010 the appellant along with his cousin Mumtaz Ali and uncle Lutuf Ali left their village for their lands on a motorcycle bearing Registration No,HYD- 4664, Model-2007 at 7-30 a.m. When they reached on metalled road leading from town of Chhore to Town of Dhoro Naro near Haji Arbab Market they were accosted by respondents Nos.2 to 7 and five other unknown assailants. Respondent Haji Arbab Ali was armed with rifle, respondent Mir Muhammad was armed with a DBBL gun, respondents Sher Muhammad and Mir Hassan were carrying pistols, respondent Hidayatullah was armed with a lathi while respondent Abdul Wahab was armed with hatchet. Respondent Abdul Wahab gave hatchet blow with back side to Mumtaz Ali on his abdomen and respondent Sher Muhammad fired a shot from pistol upon Lutuf Ali which hit his left arm. The respondents Sher Muhammad robbed Rs,35,000 and Nokia Phone from PW Lutuf Ali whereas the respondent Mir Hassan snatched their motorcycle on gunpoint. The appellant by shifting the injured Mumtaz Ali and Lutuf Ali to Chhore Hospital reported the matter to Police vide F.I.R. No,6/2010. The motive as alleged in the F.I.R. Is that the respondents were on dispute over agricultural land with complainant party.
3. The police after registration of F.I.R. Carried out investigation besides inspection of place of wardat recorded statement of witnesses under section 161, Cr.P.C. On 8-5-2010 and noted the injurires of injured Mumtaz Ali and Lutuf Ali at Exh. 7/B. After investigation the respondents. Nos.2 to 7 were sent up to face their trial before the Court of Session Umerkot from where the case was transferred to the Sessions Judge, Umerkot.
4. The charge was framed against the respondents Nos.2 to 7 which they pleaded not guilty and claimed their trial.
5. At trial prosecution examined Mir Hassan complainant and P.Ws. Mumtaz Ali, Lutuf Ali, mashir Nazir Ahmed, Dr. Lachmandas and A.S.-I. Dur Muhammad. The statement of the accused under section 342, Cr.P.C. Was recorded wherein they denied the allegations of the prosecution and did not examined themselves on oath within the purview of section 340(2), Cr.P.C. And also did not lead any defence. However, the appellant Arbab Ali produced certain documents in respect of litigation between the parties at Exh. 12/A. The trial Court on conclusion of trial after hearing the advocate for the parties acquitted the respondents Nos.2 to 7 vide impugned judgment dated 5-10-2011.
6. The learned counsel for the appellant has argued that respondent No,3 Sher Muhammad has caused fire-arm injuries with pistol to P.W. Lutuf Ali and Medical Board on examination of injured Lutuf Ali opined that the certificate issued by Dr. Lachmandas was incorrectly issued and observed that it was caused with fire arm injury. He has contended that the prosecution version in respect of receipt of the injuries by P.Ws. Mumtaz Ali and Lutuf Ali has been established by the prosecution and the trial Court seriously erred in holding that the respondents Nos.2 to 7 gave injuries to appellant/complainant in self-defence. He has contended that the plea of self-defence was neither taken by the respondents in this case nor established it. He has contended that sufficient material is available on record to connect the respondents Nos.2 to 7 with the commission of alleged offence and there is misreading and non-reading of the evidence on the part of trial Court.
He has prayed that findings of the trial Court may be reversed and the respondents Nos.2 to 7 may be convicted.
7. Learned counsel for the respondents Nos.2 to 7 has argued that there are counter-cases and respondents were able to bring on record that the present appellant party was aggressor and the trial Court has rightly held the injured Mumtaz All and Lutuf Ali have made attack at the market and house of Haji Arbab Ali respondent No,2 where they have caused injuries to respondents Haji Arbab Ali, Sher Muhammad and Amir Hassan. He has contended that on the point of robbery, the findings of the trial Court does not require any interference while the trial Court has given cogent reason in respect of injuries sustained by injured Lutuf Ali and Mumtaz Ali. He prays that no ground for reversing the findings of the trial Court are available on record, therefore, the appeal filed by the appellant may be dismissed.
8. I have considered the submission made by the counsel for the parties and gone through the evidence available on record and also gone through the cited cases relied upon by the learned counsel for the parties. It is settled principle of criminal jurisprudence that burden of proof lies on the prosecution and it has to prove the charge beyond reasonable doubt. It is also settled principle of law that accused after acquittal from criminal charge enjoys double presumption of innocence, one before the trial of case and second after his acquittal, thus courts while dealing with an acquittal appeal are bound to examine whether court below had not ignored any evidence on record or had discarded any evidence for the reasons not recognized by law. Reference is made to a case of Barkat Ali v. Shaukat Ali and others (2004 SCM R 249).
9. Analyzing the above evidence of the prosecution on the above touch stone, it is to be seen whether appellants namely Haji Arbab, Sher Muhammad, Hafiz Mir Muhammad, Abdul Wahab, Amir Hassan and Hidayatullah have rightly been acquitted by the trial Court.
10. It is an admitted fact on record that the ocular testimony in this case consist of evidence of complainant Mir Hassan, his cousin Mumtaz Ali and uncle Lutuf Ali and thereby these witnesses are closely related to each other. The complainant Mir Hassan in his evidence has though concealed the enmity with the respondents but admitted the pendency civil suits before the courts, the respondent Arbab Ali in his statement under section 342 has also produced copies of First Class Civil Suit No,102 of 2009 filed by respondent No,3 Sher Muhammad against P.W. Mumtaz All and others so also order of Magistrate for discharge to the accused Arbab Ali in Crime No,13 of 2010 dated 7-7-2010 wherein P.W. Mumtaz Ali is shown as complainant and Arbab Ali respondent No,1 who is father of respondent Nos.3, 4 and 5 as an accused. The above oral and documentary evidence shows that complainant and respondents are on disputed terms over agricultural land, thus the complainant party is hostile and inimical towards the respondents as such per settled rule, their evidence being interested is to be scrutinized with care and caution where parties had longstanding enmity against each other during course whereof they remained involved in cases, to ascertain whether evidence furnished by the prosecution witnesses rang true or not is necessary.
However, for safe administration of justice it become the duty of court to look forward for independent corroboration. Reliance is placed on the cases of Jehangir v. Nazar Farid (2002 SCM R 1986) and Mst. Jallan v. Muhammad Riaz (PLD 2003 Supreme Court 644). In this case where all the witnesses are related inter se then for safe administration of justice it becomes duty of the court to look forward for corroboration of such evidence from independent source with a view to explore, truth for the purpose of reaching at just conclusion.
11. It is the case of the prosecution that the incident took place in a thickly populated area in a day time. The complainant Mir Hassan has admitted in his cross-examination that near the place of wardat a petrol pump is situated. The case of prosecution is that incident had taken place near Arbab Market but the complainant said that market was closed while P.W. Mumtaz Ali said that it was open at the time of incident and admitted the presence of four persons in the market. P.W.
Lutuf Ali denied the presence of any person at the place of wardat. The complainant has also admitted in his cross that houses of Meghwar community and others were situated in front of place of wardat but surprisingly none of them has been cited or examined as a prosecution witness, therefore, independent corroboration is lacking in this case.
12. There are major contradictions in between the evidence of prosecution witness which makes the whole case of prosecution doubtful. The complainant Mir Hassan concealed the enmity with the accused party and in cross-examination, in the same breath he admitted pendency of the civil suits before the civil court and also admitted registration of two criminal cases by Hafiz Mir Muhammad against them and others. The complainant and P.W. Mumtaz has deposed that while going towards their land they were attacked by the complainant party while P.W. Lutuf Ali who is injured in this case states while going Haji Arbab Market, they were attached upon. P.W. Mir Hassan and Mumtaz have stated that Rs,35,000 and Nokia Phone was snatched from P.W. Lutuf Ali but P.W.
Lutuf Ali who is important witness on this point has not said that any amount was snatched from him or motor cycle was robbed by the accused. Nazir Ahmed mashir in his statement has deposed that on 8-5-2010 the police prepared the mashirnama of injuries in his presence but in his cross- examination he said to have seen the injuries of injured by him in the hospital where he attested the mashirnama of injuries. This version of the mashir is neither supported by the investigation officer nor the contents of mashirnama shows that it was prepared at hospital. While Exh. 7/B reveals that after 10 days of the incident, the mashirnama of injury was prepared when the injuries were already treated by the doctor. As such it indicates neither mashir of injuries nor I.O. Of the case had seen the actual injuries. It appears that memo of injury has been prepared on the instance of complainant. The complainant and P. Ws. Were put in cross-examination that they have caused injuries to Arbab Ali, Sher Muhammad and Amir Hassan in Crime No,5 of 2010 but they have denied even they have denied the registration of counter case. Concealing of injuries and registration of counter cases by the complainant Mir Hassan and P.W. Mumtaz and Lutuf Ali also adversely affect their credence and their evidence is not confidence inspiring. These contradictions on the very face of it have affected the reliability of the eye witnesses and creates shadow of doubt on the prosecution case, thus, the evidence of above witnesses cannot be held reliable.
13. Apart from it there is also an important point which may also not be lost sight of i,e, the incident allegedly taken place on 28-4-2013 at 7-30 a.m. Whereas the F.I.R. Was registered bearing Crime No,6 of 2010 at 1500 hours while the Police Station is at the distance of 6/7 kilometer from the place of wardat. Moreover, the statements of witnesses under section 161, Cr.P.C. As per A.S.-I. Dur Muhammad were recorded on 8-5-2010 after delay of 10 days and the mashirnama of injuries was also prepared on 8-5-2010. This delay in recording the F.I.R. While the Police Station was at the distance of 6/7 kilometer from the wardat, recording of the statements of witnesses after 10 days of the incident without any explanation cannot safely be relied upon. In these circumstances I am fortified by the case of Saeed Muhammad Shah v. The State (1993 SCM R 550). Apart from this ocular testimony and medical evidence are also contradictory to the stance taken in the prosecution case. Dr. Lachmandas says that he has not mentioned the time of arrival of injured in his provisional medical certificate at Exh. 9/B and D respectively. However, he has produced a letter of investigation of police for referring him the injured Mumtaz Ali and Lutuf Ali which he has produced as Exh. 9/A. In the said letter Crime No,6 of 2010 is mentioned. Perusal of contents of F.I.R.
No,6 of 2010 reveals that it was recorded at 3-00 p.m. In the provisional medical certificates of injured P. Ws. Lutuf Ali and Mumtaz All at Exh. 9/B and 9/D the doctor has shown duration of injuries two hours back. If this statement of the doctor be accepted as true then the incident would have taken place at 1-00 p.m. Which is not the case of the prosecution. According to Dr. Lachmandas he referred the X-ray of injured Lutuf Ali and Mumtaz All to LMUH for opinion of Radiologist and the nature of injuries were kept reserved for the opinion of radiologist report of LMUH but surprisingly on the next day on receiving the radiologist report from Rural Health Centre Chhore he issued the final medical certificate. It is interesting that no opinion of expert from LMUH was produced by PW Dr. Lachmandas.
14. The evidence of the I.O. Is procedural and contains only events of investigation carried out by him. The respondents Nos.2 to 7 in their statements have produced documents referred above claiming enmity with the PW Mumtaz.
15. On the point of robbery of Rs,35,000 and Mobile phone robbed from P.W. Lutuf Ali, who during his evidence before the trial Court not stated a single word in respect of alleged robbery of cash and mobile from him. However, there is no recovery of any sort either of robbed property or weapon used in, this crime from the possession of the respondents. Therefore, finding of the trial Court on the point of robbery is rbaed on cogent reasons, So far as sustaining of injuries by P.W. Lutuf Ali and Mumtaz Ali, perhaps the trial Court has been influenced from the injuries indicated in the medical certificates. The alleged injuries have not been proved, through independent evidence to have been caused by the respondents.
16. In view of above, I am of the opinion that evidence furnished by the prosecution is of interested witnesses and no independent corroboration is available on record. There is contradiction in medical evidence and ocular account in respect of time of incident and the medical record has not been produced in shape of opinion of radiologist etc. Moreover, the accused/respondents had earned acquittal in their favour, hence they enjoyed double presumption of their innocence and court while examining the case of such accused must be very careful and conscious in interfering with acquittal order and normally should not set aside the same merely on the reason that some other view was also possible. Inference however, could be made under section 417, Cr.P.C. If it was proved that court whose judgment was under scrutiny had misread such evidence. I am fortified by a case of Jallan v. Muhammad Riaz (PLD 2003 Supreme H Court 644).
17. Analyzing the evidence of the prosecution on above criteria given in the above referred case, I am of the opinion that appellant have failed to prove that any evidence is misread or received such evidence illegally. However, the respondents are able to create shadow of doubt on the prosecution case, therefore, they were entitled to its benefit not as a matter of grace or concession but as a matter of right. Reliance is placed on the case of Tariq Pervez v. The State reported in 1985 SCM R 1345. Accordingly I find no merits in this Criminal Acquittal Appeal, and dismiss the same accordingly.