' SHAHNAWAZ TARIQ, J.---Through the instant criminal revision application, applicant Ghulam Shabir son of Dhani Bukhsh impugned the Judgment dated 31-12-2013, passed by the learned IInd- Additional Sessions Judge, Dadu whereby his Criminal Appeal bearing No36/2013 was dismissed.
2. Relevant facts involved in instant criminal revision are that on 29-6-2011 at 1300 hours, complainant Ali Ahmed lodged F.I.R. At Police Station Khudabad, alleging therein that on 28-6-2011 he along with his brother Muhammad Hassan, maternal cousin Nabi Bukhsh and cousin Kouro Khan went to sleep after closing door of the house from inside. On 29-6-2013 at about 0130 hours, they woke up on barking of dogs and saw accused persons namely Ghulam Shabir armed with gun, Razaq with K.K, Meer with Repeater all by caste ehandio, Ali Asghar Rahopoto with K.K and two unidentified accused duly armed, who after committing theft of articles from the iron box lying in the house, were going back, whereupon they raised cries of thieves, and accused made straight firing upon complainant party with intention to commit their murder. The complainant party in retaliation also fired upon accused with their licensed weapons, and apprehended accused Ghulam Shabir in injured condition along with SBBL gun, while remaining culprits fled away by climbing over the wall and taken away stolen articles. On checking, the complainant found that four Tola gold, two citizen wrist watches and cash Rs, 45,000 were missing. The complainant informed the police through mobile phone and police reached at the spot immediately and they handed over custody of injured accused Ghulam Shabir along with gun to police and lodged F.I.R.
3. In order to prove its case, prosecution examined P.'W.1, -A.S.-I. Imdad Hussain at Exh. 7 who is author of F.I.R. And produced the same at Exh. 7/A, memo of arrest/handing over custody of applicant Ghulam Shabir Hussain at Exh. 7/B, P.W.2 complainant Ali Ahmed at Exh. 8, P,W.3 Muhammad Hussain at Exh. 9, P.W.4 Mashir Muhammad Hayat at Exh. 10, who produced mashirnama of place of wardat at Exh. 10/A, mashirnama of arrest accused Razaq and Mir Chandio at Exh. 10/B, P.W.5, I.0 SIP Mumtaz Ali Buriro at. Exh.
11. Thereafter learned DDPP for the state closed the side of prosecution vide statement as Exh.
12.
4.. The learned Trial Court recorded statements of applicant and other co accused under section 342 Cr.P.C. As Exh. 13 to 16 respectively, whereby they denied the allegation and pleaded their innocence and claimed to be involved due to political enmity, however, neither they examined themselves on oath nor produced any witness in their defence.
5. After hearing the arguments of the parties, the applicant was convicted and sentenced by the trial Court vide impugned judgment, however, remaining accused persons were acquitted by extending benefit of doubt. The applicant agitated his, conviction by preferring criminal appeal before the Court of Session which was also declined by the learned appellate Court vide impugned judgment dated 31-12-2013.
6. Learned counsel for the applicant has contended that applicant is innocent and has falsely been implicated by the complainant due to political rivalry. The trial Court as well as learned appellate Court have ignored the material 'contradictions made by prosecution witnesses in their depositions. Prosecution witnesses are close relatives of the complainant as such they are highly interested witnesses and their statements could not be relied upon. The applicant was acquitted in connected case lodged under section 13-D Arms Ordinance vide judgment dated 21-9-2013.
Learned counsel further contended that the complainant has deposed that incident occurred at 0130 hours and police reached there immediately; while A.S.-I. Imdad Hussain (Exh.6) has deposed that he reached at village Ali Muhammad Rind on 29-6-2013 at 2.05 P.M and brought the accused and property at Police Station. These material contradictions have made prosecution story highly doubtful. He further contended that A.S.-I. Imdad and SIP Mumtaz Ali have not produced copies of entries made at Police Station regarding their departure and arrival at Police Station regarding visiting of place of wardat and arrest of accused etc. Before the trial Court. He lastly contended that applicant has been involved in the present crime in league with the area police, as in fact the applicant was going to his village after purchasing house-hold articles 'from Bhan and on the way complainant party played a drama and fired upon the accused Shabir and managed the false case to save their skin, therefore, applicant may be acquitted by extending benefit of doubt.
7. Learned APG has contended that the applicant was apprehended at the spot by the complainant party and, he also sustained injuries due to cross-firing as he along with his other companion, has tress-passed into the house of the complainant and committed theft of articles as well as cash. The applicant has failed to point out any illegality in the impugned judgment.
8. I have heard the learned counsel for the applicant and learned APG for State and have examined the material available on record meticulously.
9. For appropriate conclusion, it would be proper to discuss the relevant portion of the evidence of material witnesses, adduced by the prosecution during the trial.
10. The relevant portion of evidence of F.W.1 A.S.-I. Imdad Hussain Qambrani (Ex 06) is reproduced as under:- "On 29-6-2011 was posted as ASI/Duty Officer at Police Station Khudabad. On the same day one Ali Ahmed had informed me on telephone that they have apprehended one thief. I left Police Station along with PC Zameer Ahmed, PC Wazeer Ali and PC. Ghulam Shbeer in police mobile and went to village near Ismail Khaskheli Taluka Dadu vide Entry No,20 at 1.45 p.m. And reached at village Ali Ahmed Rind at 2.05 p.m. Where Ali Ahmed Rind handed over custody of apprehended accused Ghularn Shabir Chandio in injured condition alongwith SBBL gun and one live cartridge. I prepared such memo in presence of mashirs Muhammad Hussain and Kouro Khan. Thereafter I brought the accused and property -at PS. I recorded his F.I.R. As per his true verbatim and read over the contents to him who admitted the same to be true and correct and affixed his LTI on it. He admitted that he has not noted the mobile number of the complainant through which he informed him about the incident. He admitted that he has not produced the entry under which he left Police Station. He admitted there were no blood marks at the place of incident".
11. The relevant portion of evidence of P.W.2 complainant Ali Muhammad (Exh.7) is reproduced as under:- .
"On 26-9-2011 at 1.30 a.m. (night) we woke up on barking of dog and saw Asghar Rahapoto with KK and two unknown persons. We saw that accused had taken away the household articles by committing theft so we raised hue and cries. Accused made straight firing upon us with intention to commit our murder. We also made firing in our defence and during firing one of the culprits, namely Ghulam Shabbir sustained injury while remaining accused fled away by climbing over, the wall by taking away the stolen articles. We apprehended accused Ghulam Shabbir in injured condition along , with gun. Thereafter we informed the Khudabad Police. After some time police of Police Station Khudabad came there, we handed over the custody of apprehended accused to them along with gun. Thereafter, I went to Police Station Khudabad at 01.00 and lodged the F.I.R. Of the incident. My fire hit to the injured accused Ghulam Shabir and I have owned licensed Repeater.
The accused sustained injury at the distance of 20 feets. Police Station Khudabad is about 2/3 kilometer away from place of wardat. Police came at the place of wardat (in my house). We handed over the custody of apprehended accused from outside the house. The entire village people were with me when 'I went to police for lodging F.I.R.. The firing was continued for about 45 minutes. During firing police came there and by seeing the police they ran away".
12. The relevant portion of evidence of P.W.3 Muhammad Hussain (Eye-witness Exh.8) is reproduced as under:-- "Thereafter we informed the police and police came at the place of wardat at 2.35(night). The A.S.- I. Imdad Qambrani alongwith subordinate staff reached there. We handed over the custody of accused to police Khand signed. The firing was made at the distance of 5/10 feet. The firing was continued for about 30/45 minutes. The police took the accused Ghulam Shabir inside the house.
The complainant' alone went to Police Station for lodging FIR. Police obtained my LTI one white papers. Again say on written paper".
13. The relevant portion of evidence of P.W.4 Muhammad Hayat (Exh.9) acted as under:-- "On 29-6-2011 police inspected the place of wardat in my presence and co-mashir Anwar. Police secured five empty of KK and three empty of cartridges from the place of wardat".
14. The relevant portion of evidence of P.W.5 SIP Mumtaz Ali, Investigation Officer (Exh.10), is reproduced as under:- "When I received gun and two live cartridges from Police Station Khudabad, the property was not sealed. It is fact that I do not remember the entry number under which I left Police Station for visiting the place of wardat nor I produce the same. It is fact that the empties recovered from place of wardat were not sealed at the spot. It is fact that I did not produce the arrival entry of Police Station".
15. In case of Abdul Sattar and others v. The State (2002 PCr.LJ 51), it has held that non production of entry in rozanamancha by the prosecution in Court to prove the movement of the police from the Police Station to the place of recovery of weapons cuts at the root of the prosecution case making the entire episode doubtful and the prosecution version unbelievable.
16. From perusal of the above evidence of the prosecution witnesses it glaring discrepancies which have shaken and shattered the entire structure of the prosecution story. The material contradictions are reproduced as under:-
(i) Complainant Ali Ahmed Rind in F.I.R. Has nominated accused Ghulam Shabir, Razzak, Meer, Ali Asghar Rahopoto and two unidentified culprits all armed with lethal weapons, while in examination-in-chief he has nominated only Ali Asghar and two unidentified accused duly armed who committed the alleged offence.
(ii) Complainant has stated in F.I.R. That incident occurred on 29-6-2013 at 0130 hours, and he informed the police and police arrived at the spot immediately and they handed over the apprehended accused Ghulam Shabir along with SBBL gun and one live cartridge, while P.W.1 A.S.-I.
Imdad Hussain has stated in his evidence that complainant Ali Ahmed came at Police Station on 29-6-2013 at 1300 hours and lodge F.I.R. Which was incorporated by him in his verbatim, and vide entry 20, he left Police Station at 1.45 p.m and reached at the place of wardat at 2.05 p.m where the complainant handed over the custody of the apprehended accused along with gun and he shifted the accused and property at Police Station P.W.3 Muhammad Hassan (Exh. 8) has deposed in his evidence that after the incident they informed thei police and A.S.-I. Irndad Hussain along with subordinate staff reached at place of wardat at 2.35 a.m. Night and they handed over the custody of accused Ghulam Shabir to him.
(iii) Complainant has deposed in his evidence that exchange of firing was made from the distance of 20 feet which continued for 45 minutes and accused Ghulam Shabir sustained injury, P.W.4 Mashir Muhammad Hayat (Exh.90 has stated that police secured five empties of KK. And three empties of cartridges from the place of wardat, which is also a strange fact that both parties were duly armed with lethal weapons and alleged exchange of firing continued for 45 minutes within the house the complainant but total eight empties were recovered from the spot.
(iv) Complainant has stated in F.I.R. And also deposed in his evidence that after incident he informed the police through phone and police reached at the spot immediately and he handed over the apprehended accused along with a gun, but he went at Police Station at 1300 hours and lodged F.I.R. Which he saw as Exh. 6-B and admitted its contents to be true and correct.
(v) Complainant in his evidence has stated that entire village people were with him when he went to Police Station for lodging of F. I . R . , while P. W.3 Muhammad Hussain has deposed that the complainant alone went to Police Station for lodging F.I.R. ' and P.W.1 Imdad Hussain has also narrated same fact.
(vi) P.W.1 Imdad Hussain and P.W.5 SIP Mumtaz Ali have not produced copies of entries made by them in respect of their departure and arrival at Police Station and they admitted said fact in their respective statements.
(vii) Complainant has deposed that apprehended accused was handed over to the police from outside of the house, P.W.3 Muhammad Hussain stated that police took the accused inside the house, while as mashirnama of arrest Exh.6/A , the accused was arrested from outside the house.
(viii) P.W.1 Imdad Hussain has admitted that there were no marks of blood at the place of wardat.
(ix) Complainant has also deposed that the firing continued for 45 minutes. Co-villagers also came at the place of wardat and attacked the incident. During firing police came there and by seeing the police they ran away.
17. The assessm ent of iota of evidence adduced by the prosecution to establish the charge against the accused/applicant, revealed the variations, dissimilarities and discrepancies in statements of prosecution witnesses which are self-contradictory and same could not be ignored in any manner, particularly fluctuating versions of the complainant Ali Ahmed are fatal to the truthiness of the prosecution case. The defence has successfully caused various dents in the entire prosecution story which created serious doubts for consideration in favour of the defence.
18. For the foregoing reasons, in light of the above facts and circumstances, the prosecution has failed to bring guilt at home, therefore, by extending benefit of doubt, the instant criminal revision application stands allowed as prayed, and the applicant Ghulam Shabbir son of Dhani Bukhsh is hereby acquitted from the charge and impugned Judgment dated 31-12-2013 passed by the learned II ADJ Dadu in Criminal Appeal No, 36 of 2013 is hereby set-aside. The Superintendent Central Prison is directed to release the applicant Shabbir forthwith if he is no more required in any other case.