' RIAZAT ALI SAHAR, J.---The appellant was convicted and sentenced by the learned Ist Additional Sessions Judge Jacobabad for offence under section 436, P.P.C. To suffer R.I. For three years and to pay fine of Rs,20,000 and in default in payment thereof to further suffer. S.I. For six months. Benefit of section 382-B, Cr..P.C. Was extended to the appellant, vide Judgment dated 29-4-2004.
2. The relevant facts of the prosecution case are that on 29-11-2002 at about 9-00 a.m.
Complainant Ali Gohar, his brother P.W. Ghulam Qadir, his cousins P. Ws. Haji Naseer and Faizal were sitting in front of the shop of his maternal uncle. Haji Ahmed, when accused More (appellant), Malook, Shahoo, Walidad all armed with guns, Akhtiar with Kalashanikov, Saindad, Ghulam Hyder and Karimdad all three armed with hatchets came there, claimed the plot of Otak of complainant to be their and they threatened the complainant to be murdered. After that accused More set the Otak on fire with help of match box, while accused armed with guns and Kalashanikovs made aerial firing, accused Saindad, Ghulam Hyder and Karimdad gave hatchet blows to Ghulam Qadir, brother of complainant, who fell down. On cries, people of the village gathered there and accused persons made their escape good. Complainant noticed that his brother sustained hatchet blows on his head, took him to P.S. And lodged report.
3. After completion of investigation case was challaned against accused Shahoo alias Shah Muhammad, More, Malook and Walidad while accused Akhtiar, Ghulam Hyder, Saindad and Karimdad were shown absconders. Subsequently accused Akhtiar joined the trial while accused Ghulam Hyder, Saindad and Karimdad were declared proclaimed offenders and proceedings against them under sections 87 and 88, Cr.P . C. Were initiated by the trial Court.
4. The trial Court framed charge against the appellant and other accused under section 265-D, Cr.P.C. At Exh.3 for offences punishable under sections 324, 436, 337A(ii), H(2), 148 and 149, P.P.C. On 21-6-2003, to which appellant did not plead guilty and claimed to be tried.
5. In support of its case, the prosecution examined P.W.1 Complainant Ali Gohar at Exh.10. He produced F.I.R. At Exh.10/A, P.W.2 injured Ghulam Kadir at Exh.11, P.W.3 Haji Naseer Ahmed at Exh.12, P.W.4 Doctor Muhammad Siddique at Exh.13. He produced provisional medical certificate at Exh.13/A and final medical certificate at Exh.13/B, P.W.5 Willayat Ali at Exh.14, P.W.6 Khuda Bux at Exh.15. He produced the mashirnama of arrest of accused More (appellant) at Exh.15/A. P.W.7 I.O. Maqsood Ali as Exh.16. He produced the mashirnama of injuries at Exh.16/A, mashirnama of place of incident at Exh.16/B, mashirnama of arrest of accused Shahoo at Exh.16/C. Thereafter prosecution closed its side vide statement as Exh.17.
6. Statement of appellant under section 342, Cr.P.C. Was recorded by the trial Court at Exh. 22, wherein he denied all prosecution evidence.
7. After hearing the parties, learned court acquitted co-accused Shahoo alias Shah Muhammad, Malook, Walidad and Akhtiar while extending benefit of doubt and convicted the appellant for offence punishable under section 436, P.P.C. While case against absconding accused Saindad, Karimdad and Ghulam Hyder was ordered to be kept on dormant file.
8. It is inter alia contended by the learned counsel for the appellant that prosecution has failed to prove its charge against the appellant beyond. Shadow of reasonable doubt; there are major contradictions and discrepancies on the part of prosecution, which make the entire prosecution case as doubtful. I.O. SIP Maqsood Ali in his examination-in-chief stated that he found the hedges of Otak were burnt but his evidence has not been supported by the complainant, who stated in cross-examination that accused More set the Otak on fire while P.W. Ghulam Qadir stated in his cross-examination that accused More had set the "Kandhi" (hedge) of Otak on fire; P.W. Haji Naseer in his cross-examination stated that Cots, Beds and other articles were burnt and that he do not know whether entire Otak was burnt or not. Learned counsel submitted that these contradictions are sufficient to make the case of prosecution as doubtful and it is well settled law that if a single circumstance creates doubt in the prudent mind, its benefit must be extended to accused as a matter of right.
' Learned counsel prayed for setting aside the impugned Judgment and acquittal of the appellant.
9. Learned State Counsel as well as the complainant present in person raised no objection to allowing the appeal and acquitting the appellant.
10. I have carefully considered the respective submissions of learned counsel for the appellant, learned State Counsel and also examined the record.
11. On careful examination of evidence of the P.Ws., I find that there are material contradictions between the evidence of complainant and eye-witnesses and discrepancies on the point of prosecution. The appellant has been convicted and sentenced on the charge of setting Otak of complainant on fire, therefore, entire prosecution case, so far this, appeal is concerned, hinges upon the evidence of complainant and P.Ws. Haji Naseer Ahmed, P.W. Ghulam Qadir and SIP Maqsood Ali who are said to be eye-witness as well as injured and I.O. Who visited the place of incident and prepared such mashirnama. Complainant in his cross-examination stated that Otak is situated without walls and even no hedge is around the Otak. P.W. Ghulam Qadir in his examination-in-chief stated that accused More set the Otak on fire with the help of stick of match- box while in his cross examination he stated that accused More set "Kandhi" of Otak on, fire.
Likewise P.W. Haji Naseer Ahmed stated in his examination-in-chief that accused More set the Otak on fire with the help of stick of match-box and in his cross-examination he stated that Otak was completely burnt-out even cots, Beds and other articles were burnt out. P.W SIP Maqsood Ali, who investigated the case, in his examination-in-chief stated that he visited the place of incident and found that hedges of Otak were burnt-out and that said Otak was of Sher Dil. In his cross- examination, this witness stated that there was one room in the Otak surrounded by hedge, the hedge which was set on fire was 3/4 paces away from the room of Otak. Besides nothing has been secured and produced before trial Court in respect of source of fire like "match box", or any other thing. It is unbelievable to a prudent mind that entire Otak including furniture can be burnt out by setting it on fire with the help of a single stick of match box and too without help of Kerosene Oil or anything else. So far the injuries allegedly caused to P.W. Ghulam Qadir are concerned, the allegations are levelled against accused Saindad, Karimdad and Ghulam Haider that they had given hatchet blows to P.W. Ghulam Qadir, those accused persons have been declared as proclaimed offenders, whereas the other accused Shahoo alias Shah Muhammad, More (appellant), Malook and Walidad are concerned, they have not been alleged to have caused any injury to the P.W. Injured. Such point has rightly been discussed by the trial Court, therefore, charge for offence punishable under sections 324, 337A(ii), 337H(2), 148 and 149, P.P..C. Was not proved.
Furthermore, enmity between the parties over the plot is admitted, therefore, false implication of appellant on account of such enmity, cannot be ruled out.
12. From the above noted contradictions a reasonable doubt existed regarding guilt of the appellant. It is well-settled law that for the purpose of benefit of doubt to an accused more than one infirmity is not required. A single infirmity, creating reasonable doubt in a prudent mind regarding the truth of the charge, is sufficient to give benefit of doubt to the accused.
13. The upshot of the above discussion is that the appellant is entitled to the benefit of doubt as the prosecution has failed to prove charge against him beyond any reasonable doubt, therefore, the appellant while extending benefit of doubt is acquitted from the charge.
' By the short order dated 2-8-2012, the appeal was allowed and impugned Judgment dated 29-4- 2004 was set aide and the above are the, reasons for the same.