' ABDUL RASOOL MEMON, J.---The appellant Mir Muhammad was tried by Additional Sessions Judge Umerkot for an offence punishable under sections 394, 337-A(i), 337-A(ii) and 34 P.P.C., on the allegation that he along with two others namely Ahmed and Gul Hassan on 30-9-2010 at about 1700 hours at pali water situated at village Haji Pir Shah link road of Shadi Pali Taluka Pithoro duly armed with weapons given hatchet blows to complainant Thawardas and P.W. Chetan and thereby caused injuries to them, declared by doctor as Shajjah-e-khafifa and Shajjah-e-Madiha and robbed motorcycle and Rs,800 from the complainant and Rs,600 from P.W. Chetan and thereby fled away from the place of wardat.
2. That appellant pleaded not guilty and claimed his trial.
3. At trial prosecution examined H.C. Hussain Bux at Exh. 6, Dr. Hari Kirshan Medical Officer at Exh.7, Thawardas complainant at Exh.8, Police Inspector Maqsood Ali at Exh.9, mashir Chetan at Exh.11 and Police Inspector Ali Asghar at Exh.
12. The prosecution closed side and statement of the accused was recorded wherein he denied the prosecution evidence and claimed his innocence.
4. The trial court after considering the evidence and hearing the counsel for the parties convicted the accused for an offence under section 394 sentenced him for 10 years and fine of Rs,50,000 and in default he was ordered to suffer six months imprisonment. The benefit of section 382-B, Cr.P.C.
Was also extended to the appellant by judgment dated 14-2-2011. The said judgment is impugned in this appeal.
5. The learned counsel for the appellant has argued that the complainant Thawardas and mashir Chetan were declared hostile It is settled law that hostile witnesses were neither the witness of prosecution nor of the defence. The injured P.W. Chetan was not traceable therefore, he was not examined by the prosecution, therefore, in such situation only the contents of F.I.R. Remain in field which is not substantive piece of evidence and it always need proof. The evidence of the doctor and I.O. Is formal in nature because the doctor has only examined the injuries on the person of injured and his evidence cannot suggest that the present appellant caused the injuries while the I.O. Has only deposed regarding the events of investigation made by him and the other police officials have only supported the arrest and recovery of pistol from possession of appellant and that case was separately registered under section 13-D Arms Ordinance, from the said charge he was acquitted. He has contended that this is a case of no evidence and hardly any piece of evidence is brought on record connecting the applicant with the commission of offence. He prayed for setting aside the judgment of the trial court and acquittal of the appellant.
6. Learned A.P.-G. On behalf of the State has frankly conceded the submission made by the learned counsel for the appellant.
7. It is admitted fact on record that F.I.R. Is delayed about 5 hours which has not been plausibly explained. The complainant Thawardas has not identified the appellant in court to be the culprit of the incident. He has deposed that he has given the names of the culprits in F.I.R. Due to suspicion, he was declared hostile by the prosecution but even though learned prosecutor in cross- examination could not bring any material which connect the present appellant with the commission of alleged robbery or causing of the injuries by the present appellant to complainant and P.W. Chetan. The said important witness Chetan who was allegedly injured in this case has not been examined by the prosecution to support the robbery and so also injuries attributed to the present appellant.
8. The mashir of injuries and wardat namely Chetan Exh.11, has turned hostile and stated that his signatures were obtained by the police on plain paper. The second mashir Hayat was not examined. Non-examination of co-mashir by the prosecution is also fatal to the prosecution case in respect of corroboratory evidence for mashirnama of injuries to the complainant and P.W.
Chetan and wardat. The medical evidence of Dr. Hari Krishan only establish the injuries sustained by the complainant and P.W. Chetan but it does not point out the culprits who caused them the injuries. The evidence of I.O. Namely Ali Asghar is formal in nature for arrest of accused and inspection of place of wardat and injury while other police officer Maqsood Ali has arrested the accused in another case under section 13-D Arms Ordinance being Crime No, 30 of 2010 Police Station Shadi Pali where from the accused has been acquitted vide judgment dated 24-2-2011, therefore, very arrest and recovery of pistol from his possession has not been believed by the learned Magistrate.
9. As the complainant and P.W. Chetan mashir of wardat and injury has been declared hostile and the hostile witness is no longer the witness for prosecution or defence. This dictum is laid down in the case of Shah Muhammad v. The State (1976 PCr.LJ 719).
10. In the above situation where complainant and P.W. Chetan (mashir) have not supported the prosecution case then only the F.I.R. Remains in field. The purpose of section 154, Cr.P.C. Is to give information of a cognizable offence to Station House Officer to set the machinery of law into motion. The fate of accused nominated in F.I.R. Cannot be solely decided on the allegations made in the F.I.R. With regard to commission of a particular offence until and unless some evidence connecting the person with the alleged crime would have produced in court. It is settled proposition of law that F.I.R. Cannot be treated as substantive piece of evidence. It could be used for corroboration or contradiction. In this respect reliance is placed on the case of Muhammad Hafeez v. Special Judge ATC Mirpurkhas (2001 PCr.LJ 199).
11. It is settled proposition of law that prosecution has to prove the case against the accused beyond any reasonable doubt. In the present case only the name of the accused is mentioned in the F.I.R which is not sufficient for establishing his guilt, until and unless it is proved through cogent and convincing evidence during trial. During trial the complainant did not support the prosecution case. He even did not identify the present appellant being the culprit of the instant incident. The P.W Chetan whose name is also mentioned in the F.I.R. And as per the contents of F.I.R. Has received the injuries on the hands of culprits has not been examined by the prosecution. The medical officer has only deposed regarding the injuries on the person of Chetan which is not sufficient evidence for proving that the said Chetan received the injury on the hands of present appellant so the evidence of the medical officer is formal in nature and no corroboratory evidence has been brought by the prosecution to substantiate the allegations that the present appellant caused the injuries to him. The I.O. Is also a formal witness as I have already discussed above that the mashir of wardat and injuries has also turned hostile and co-mashir has not been examined. In such circumstances, learned D.P.G. Has rightly conceded the contention of the learned counsel for the appellant that the prosecution has failed to prove the case against the appellant.
12. In view of my above discussion, I am of the opinion that the prosecution has miserably failed to prove the charge against the accused beyond any reasonable doubt. Accordingly, no material was available with the trial court for establishing the charge against the accused, therefore, the judgment of the trial court is not sustainable and is hereby set aside and thereby conviction and sentence awarded to the appellant is set aside, consequently, the appeal is allowed and appellant is hereby acquitted. He shall be released forthwith if not required in any other case. The office is directed to issue release writ accordingly.