#TBS 1113 #TBE ' SYED MUHAMMAD FAROOQ SHAH, J.---Appellants named above assailed the judgment dated 10- 3-2010, passed by learned 1st Additional Sessions Judge Sehwan in S.C. No. 40 of 2006 (re-State v.
Usman and others) in Crime No.43 of 2006 of Police Station Bhan, for an offence punishable under sections 302, 324, 504 and 34, P.P.C., whereby the appellant Usman son of Akber Birhamani (appellant No.1) and Ghulam Rasool son of Kalu Birhamani (appellant No.2) have been convicted under section 265-H(2),. P.P.C. For an offence punishable under section 302(b) r/w section 34, P.P.C.
And each were sentenced to undergo imprisonment for life and pay fine of Rs.1,00,000 each or in case of default in payment of fine to undergo. R.I for 02 years more. The 50% of the fine if recovered be paid to the L.Rs. Of deceased Usman as provided under section 544-A, Cr.P.C. The appellant Palyo (appellant No.3) has also been convicted under section 265-14(2), Cr.P.C. For an offence punishable under section 337-A(i), 337-L(2), P.P.C. And sentenced to pay Daman amount of Rs.30,000 to injured P.Ws. Bashir -and the appellants have been further convicted for offence under section 504 r/w section 34, P.P.C. And sentenced to undergo R.I. For 2. Years each. All the sentences were ordered to run concurrently. However, the benefit of section 382-B, Cr.P.C. Was extended to each accused until Daman amount of Rs.30,000 is not paid by the convict Palyo, who shall be kept in jail and dealt in the same manner as if sentenced to simple imprisonment.
2. Feeling aggrieved by the impugned judgment, the appellants have preferred the captioned appeal under section 410, Cr.P.C. Prayed therein that this court to set aside the impugned judgment dated 10-3-2010 and acquit the appellants on consideration of the facts and grounds set out in the memo of appeal.
3. Prosecution story as narrated in the F.I.R. Lodged by complainant Haji Usman is that on 10-6-2006 at 1200 hours he visited his relatives Bashir Birhamani at village Abad where Achar Lashari was also present, offered Juma prayer and after prayer the complainant along with his brother deceased Urnar, relative Bashir. And Achar were returning back towards their houses, at about 1430 hours when they reached near the otaq of Usman Birhamani they saw appellants having "Dandas" in their hands and accused Usman abused P.W. Bashir and asked him that he was demanding money from him and all three accused abused him, on which deceased Usman and Ghulam Rasool gave "Danda" blows to Umar on his head and arms, accused Palyo gave danda blow to Bashir Birhamani on his head and arms and back, in result of which deceased Umar and injured Bashir fell down and thereafter complainant and P.W Achar beseeched the accused person, whereafter all the accused ran away towards West. It is alleged that the complainant along with injured and others proceeded towards Bhan by foot and complainant sent both the injured to police station for obtaining letter while he and P.W Achar went to Bhan Hospital where injured Bashir and his brother deceased Umar also arrived and took treatment. Due to 'serious condition deceased Umar was referred to Dadu Hospital, from where he was referred to Jamshoro Hospital and on 10-6-2006 at 0540 hours injured Umar succumbed to injuries and complainant brought the dead body of his brother to Bhan Hospital where he left the dead body and informed his relatives and subsequently he lodged the F.I.R. Against the appellants. During investigation police had arrested the accused Usman and Ghulam Rasool and let of accused Palyo. Subsequently, all three accused/appellants were tried by the court framing framing of charge against them.
4. To substantiate the charge, prosecution examined complainant Haji Usman as Exh.9, Achar as Exh.10, Dr. Abdul Sattar Exh.11, who produced medical certificate of injured Bashir and post mortem report of deceased Umar as Exh.12 and 13 respectively, mashir Jamal Din as Exh.14, who produced different mashirnams as marginal witness. P.W. A.S.-I. Mehboob and Yousif were given up by the prosecution vide statement Exhs. 18 and 19 respectively, A.S.-I. Saeed Ahmed as Exh.10, who has also produced different mashirnam at Exh.21 to 25 respectively, A.S.-I. Muhammad Rajab as 411.26, Tapedar Imdad Ali Exh.27 who produced sketch of place of occurrence Exh.27-A to 27-C, thereafter, the prosecution closed its side by statement filed by learned DDA as Exh.28.
2. On conclusion of prosecution evidence, statement of accused persons were recorded under section 342, Cr.P.C. In which they have vehemently denied the prosecution allegations and claimed themselves to be innocent, stated that P. Ws. Have deposed against them due to enmity and they were interested in prosecution and hostile to them. Accused Usman and Ghulam Rasool denied the alleged recovery of "DANDA" on their pointation and stated that same have been foisted against them at the instance of complainant. Accused Palyo has taken plea of alibi and stated that he was not present at the spot at the time of alleged incident and during investigation he was not found involved and let off by the police.
6. It appears that there is counter version as the accused/appellants herein have also lodged F.I.R.
Against the complainant party. Need arises to reproduce the relevant part of the impugned judgment wherein counter version has also been described by the learned Trial Judger-- "Conversing to the version put forth by defence that there was an amount outstanding against P.
W. Bashir and on demand by the accused persons P.W. Bashir along with Wazir, Misri and Kamal duly armed with dandas came to otaq of accused Usman Birhamani and abused them and gave danda blows to accused Usman, Ghulam Rasool, Karim Dad, Patio and Allah Dino and such V. C was lodged by accused Usman on 9-6-2006 at 1645 hours at Police Station Bhan, which subsequently on 18-6-2006 at 1210 hours was incorporated in F.I.R. Being Crime No. 46/2006, under section 337-A(1), A (ii ), F(i), L(2) QDO and 504, P.P. C.
' The perusal of counter F.I.R. Bearing Crime No. 46 of 2006, registered by accused usman reveals that there was an amount of accused Usman against PW Bashir and on 9-6-2006 at 12-30 p.m., while accused Usman along with Ghulam Rasool Karim Dad, Patio and Allah Dino were sitting in their otaq , P. W. Bashir along with his brother Wa-ir, Misri and Kamal Lashari duly armed with dandas came there and abused them as to why they were demanding money and gave them danda blows, on which they raised cries, which attracted villagers and on seeing them the accused persons fled away, thereafter, their relative Hussain Birhamani took injured in a rickshaw and while coming towards Bhan, on the way deceased Umer Lashari and Allah Dino met them and abused them and gave them lathi blows. But accused Usman has not disclosed in his F.I.R.
Regarding the injuries received by P. W. Bashi,- and deceased Umer. The accused persons on account of their guilty conscience want to suppress the-truth and they had not come with clean hands.
' In the counter-case evidence adduced by accused Usman and others is not only contradictory to each other, but also not fully supported by the medical evidence, therefore, the version put forth by the defence is seems to be after thought and managed one, hence the version given by prosecution is seemed to be probable".
7. While examining the impugned judgment, I find that the same is consisting on two parts, i.e. First part of the judgment relates to the reasoning and discussion favouring the appellants and in the later part of the judgment, the learned trial Court considered them guilty. It would be advantageous to reproduce the relevant part of the judgment, whereby learned trial Court disbelieved and brushed aside the ocular testimony of star witnesses of the prosecution viz. Complainant, Haji Usman and P.W Achar. The relevant part of the judgment reads as under:-- "Though the complainant has supported the case of prosecution, but his evidence is not believable for the number of reasons. Such as he has stated in F.I.R. That after incident he and P.W.
Achar came to Hospital for making arrangement while sent injured Bashir and Umer to Police Station Bhan for obtaining letter, though it is the case of prosecution that injured Umer was in serious condition and complainant, who is brother of deceased Umer has not accompanied him to Police Station or he has not brought the injured persons directly at Hospital for their immediate treatment. It is also the case of prosecution that during incident the accused persons have also received injuries, but complainant has not attempted to intervene and rescue his brother deceased Umer, while the accused persons were causing danda blows to him because he has not received any injury or even an scratch, which leads inference that he was not present on the spot at the time of incident, even in the counter-case the accused persons have not shown the presence of complainant at venue at the time of incident. Admittedly complainant is residing at a distance of about 30 kilometers away from the place of incident. In cross-examination he has stated that he and his brother Umer reached at village Abad at about 12:00 noon or 12-30 p.m., while P.W. Bashir (Exh.9) has stated that complainant and PW Umer came to his house at 11-00 a.m., whereas P.W. Achar (Exh.10) has stated that he came to house of P. W. Bashir one day prior to incident and -'complainant and deceased Umer also came to P. W. Bashir on the same day at evening time, therefore, the presence of complainant on the spot at the time of incident is not free from doubt, hence his evidence cannot be believed.
' Similarly the evidence of P. W. 3 Achar is not believable, though he has supported the case of prosecution and corroborated the version of complainant and identified the accused present in the Court to be same, but he is not a chance witness. According to him he came to the house of P.
W. Bashir one day prior to this incident, while P. W. Bashir has stated that P.W. Achar came to him at morning time on the day of incident. He deposed that after incident he and complainant took both the injured to. Police Station Bhan by foot and received letter and sent to Rural Health Center, Bhan for making arrangement of treatment, while both injured went to Police Station Bhan for obtaining letter from police for their treatment. Moreover, in the counter-case the accused persons have not shown the presence of this witness at the time of incident, nor he has received any injury or even an scratch during scuffle, which suggests that he is a set up witness, hence his ,evidence cannot he believed".
8. I have considered the respective contentions of learned Defence Counsel and also of learned D.P.-G., in light of material available on the record.
9. Learned Defence counsel by reading the aforementioned part of the judgment contended that learned Judge himself appreciated the evidence of complainant Haji Usman and P.W. Achar being not believable and he also appreciated that the presence of complainant on the spot at the time of alleged incident was not free from doubt and the Point that the evidence of above said witness cannot be believed. It is further stated that both the above said witnesses are alleged eye- witnesses of the occurrence and on one hand the learned Trial Judge has no confidence/trust over the above said eye-witnesses but on the other hand he relied upon their evidence and such legal approach of the learned Trial Judge shows that he has no command over the criminal law, therefore, while passing the judgment he has ignored all these things and doubts by using judicious mind and legal appreciation to the case. Learned counsel further contended that there are material contradictions in the statements/evidence of P. W's and there is no reliable evidence on record to sustain-conviction. That the prosecution case is highly discrepant and improbable, and motive advanced by the complainant is also probable and not proved, that the place of occurrence is doubtful as the purpose of visiting the house of accused person has not been satisfactorily explained, with the statement of Umar who was injured and was in senses for sufficient period but his statement or dying declaration has not been recorded. In support of his contention learned counsel placed reliance on labal alias Bhala and 2 others v. The State (1994 SCM R 1), Muhammad Aslam and another v. The State (PLD 1978 SC 298), Abdul Razik v. The State (PLD 1965 SC 151), Muhammad Abdullah v. Muhammad Safdar Khan and another (1973 SCM R 26), Muhammad Ali and another v. The State and another (2005 PCr.LJ 830), A.R Awan and 2 others v.
City District Government, Karachi and another (2011 SCM R 691), Ghulam Qadir and 2 others v. The State (2008 SCM R 1221).
10. On the other hand, learned D.P.-G. Supported the impugned judgment, however, he has admitted the aforementioned part of the judgment leading towards acquittal of the accused, particularly the learned Trial Court did not accept the authenticity of two material eye-witnesses.
11. In the case of Muhammad Ali and another v. State (2005 PCr.LJ 830) it was held that "it is established principle of law that one piece of tainted evidence cannot corroborate another tainted piece of evidence". It was further held that statement of complainant who being brother of the deceased was interested witness did not inspire confidence, without corroboration from any independent source. Delay in recording statement of witness under section 161, Cr.P.C. Was also not explained and accused was acquitted in the circumstances.
12. It has been held by honourable Supreme Court in the case of Ghulam Sikandar and another v.
Mamaraz Khan and others (PLD 1985 SC 11) that the eyewitnesses who had been disbelieved by the learned Trial Court to the extent of some accused person could not be believed against the other accused persons unless the statement of such eye-witness received independent corroboration to the extent of other accused persons.
13. Perusal of the record reveals that the case of the prosecution is doubtful in nature, in respect of appellants. The evidence available on the record in no way sufficient to lead to a conclusion that the accused/ appellants can be convicted of the offence alleged against them. In such circumstances, I arrived at the conclusion that the learned Trial Judge has seriously erred by observing in the later part of the judgment that the prosecution has succeeded to bring home the charge against the accused beyond shadow of reasonable doubt. The findings of Trial Court are not based on any valid evidence. The court has to juxtapose both the conflicting evidence in order to arrive at a conclusion as to which A one of them to be chosen for reliance as true. In criminal trials under the general law, the onus always lies on the prosecution to prove its case and the prosecution has to succeed upon the strength of its own case and not on the weakness of defence.
It is well-settled principle of the safe administration of criminal justice that accused has only to show a dent having created in the case of the prosecution and that he is entitled to benefit of even single doubt depicts in the prosecution evidence and he has not to show that it is a case suffers from more than one doubt. It is an admitted position that it was a day time incident in thickly- populated area but no respectable inhabitants of the locality has come forward to have witness the occurrence. The statement of P. Ws. Regarding witnessing the occurrence is not inspiring confidence, therefore, cannot be relied upon the same without independent corroboration. It needs no reiteration that for the purpose of giving benefit of doubt to an accused person, more than one infirmity is not required, a single infirmity creating reasonable doubt in the mind of a reasonable and prudent mind regarding the truth of the charge-makers, the whole case doubtful. Merely because the burden is on the accused to prove his innocence, it does not absolve the prosecution from its duty to D prove its case against the accused beyond any shadow of layout and this duty does not change or vary in the case. A finding of guilt against an accused person cannot be based merely on the high probabilities that may be inferred from evidence in a given case. Mere conjectures and probabilities cannot take the place of proof. Muhammad Luqman v. The State (PLD 1970 SC 10).
14. Learned Trial Judge acted mechanically by pronouncing the judgment in haphazard manner, suffers from legal infirmities, lacunas, whimsical and arbitrary, without exhibiting least application of judicious mind and such approach of a senior judicial officer is not appreciable at all and he must improve his quality of writing of judgments/orders.
15. For what has been discussed above, I find that the related inimical and interested witnesses produced by the prosecution in this case, two of them had been disbelieved by the learned Trial Court, and the prosecution has failed to receive any independent corroboration so as to believe that the said eye-witnesses were trust worthy. In these circumstances, a safe conclusion that the prosecution has failed to prove its case against the appellant beyond reasonable doubt is emanating. Resultantly, the appeal in hand is allowed, the conviction and sentence of the appellants recorded by the learned Trial Court are set aside and the appellants are acquitted of the charge by extending the benefit of doubt to them. They shall be released from jail forthwith if not required in any other case.