' SYED MUHAMMAD FAROOQ SHAH, J.---Appellant Hakim Ali assailed the impugned judgment dated 24-12-2010, delivered in Sessions Case No,-210 of 2008, bearing Crime No, 138 of 2008, under sections 302, 324, 337-A(i), 34, P.P.C., lodged at Police Station Matli, whereby he was' convicted by the learned Sessions Judge, Badin, after full dressed trial, to undergo life imprisonment and compensation of Rs,50,000 to the L.Rs, of deceased Muhammad Amin and in nonpayment, to undergo R.I for six months more. He was also convicted and sentenced under section 324, P.P.C. To suffer R.I. For 07 years and compensation of Rs,10,000, in non-payment he shall suffer S.I. For one month more. He was further sentenced under section 337-A(i), P.P.C. To suffer R.I. For two years as Tazir for injury caused to the complainant with direction that all the sentences shall run concurrently with benefit of section 382-B, Cr.P.C. Whereas co-accused Akbar and Dodo, to whom identical role in commission of offence was assigned, were acquitted by the trial court.
2. Necessary facts leading rise to instant appeal are that complainant Muhammad Bachal son of Allandad alias Dadoo Halepoto lodged F.I.R. At Police Station Matli on 16-6-2008 at 0400 hours, stating therein that he is 'Hari' on the land of Abdul Rasheed Noonari. He had planted seed of paddy crop in the land of his brother in law Jameel situated in Deh Baran, with his permission, where Jameel had also planted seed of paddy crop. Said Jameel after uprooting paddy seed, planted the same in his lands whereas remaining four "Bans" of paddy seed were given by him to Hakim Halepoto. It is stated that on 16-6-2008 in the evening time, said Jameel informed the complainant on telephone that Hakim Halepoto and others were uprooting his paddy seed so also seed of complainant. Thereafter, complainant along with his elder brother Muhammad Ameen Halepoto, his uncle Ali Nawaz Halepoto and Zulfiqar Bhatti together went on tractor at the land at night time, where they saw paddy seed was uprooted which they put in tractor trolley and they were putting water machine in tractor trolley, when at about 10:00 p.m. Hakim son of Haji Halepoto, Akbar son of Muhammad Uris Halepoto came on motorcycle. They stopped motorcycle, took out pistol from their folds and called Dodo whereupon Dodo along with one unidentified person to whom they saw on the light of tractor and will identify him, who were armed with pistols came out from sugarcane crop. In the meantime, Hakim asked the complainant party as to why they have taken his paddy seed whereupon the complainant replied that it belonged to them, on this, Hakim fired straight from his pistol to Ameen which hit him at left side shoulder and neck who raised cries and fell down and died within their sight. Akbar Halepoto fired from his pistol at complainant which crossed by touching his left ear. Other accused also fired upon them. Thereafter, Ali Nawaz Halepoto and Zulfiqar Bhatti requested accused and saved the complainant and accused went away. Thereafter, the complainant along with his uncle Ali Nawaz and Zulfiqar Bhatti took dead body of Ameen to Taluka Hospital Matli, where he leaving P. Ws Ali Nawaz and Zulfiqar Bhatti at the dead body went to Pofice Station and lodged the F.I.R. Alleging that Hakim Ali Halepoto, Akbar Halepoto, Dodo Halepoto along with unidentified person to whom he and his witnesses will identify on seeing, have murdered his brother Ameen by firing straight shots and have also fired upon him with intention to kill him and have injured him. Police after registering the F.I.R. Took up investigation and on completion of investigation submitted the challan.
3. The case papers as required under section 365-C Cr.P.C. Were supplied to the appellant,'charge was framed on dated 20-11-2013, under sections 302, 324, 34 P.P.C., to which the appellant did not plead guilty and claimed to be tried. At the trial, prosecution examined as many as 10 prosecution witnesses and thereafter closed it's side. In defence, statement of the appellant was recorded under section 342 Cr.P.C. The appellant has denied allegation of prosecution and claimed his innocence. He has further submitted that he has been involved due to enmity.
' Appellant has also raised the plea of alibi. In defence, he has examined D.W-1 Ali Murad, who produced copy of his Nikahnama performed at the time of occurrence at. Karachi in which the appellant had participated and other documents, thereafter defence side was also closed by counsel for the appellant.
4. The trial court has framed four points for determination. Point No,1 was pertaining to unnatural death of deceased Muhammad Ameen son of Allah Dad on account of receiving firearm injury, which was answered in affirmative. Point No,2 relating to murder of deceased Muhammad Ameen caused by all the three accused was answered in the manner that prosecution has proved charge against appellant Hakim Ali under section 302(b) P.P.C., whereas the prosecution failed to prove it's case against co-accused Akbar and Dodo, therefore, the point No,2 against accused Hakim Ali was answered as proved and against accused Akbar and Dodo as doubtful. Point No,3 as framed by the trial court is that the appellant along with others attempted to, commit murder of P.W.
Muhammad. Bachal and accused Akbar fired pistol shot at Muhammad Bachal which hit at left side of his temporal region and face. The point No,3 was answered in the manner that appellant caused fire shots to the complainant in same manner like upon deceased Muhammad Ameen but luckily the complainant was survived hence the offence of attempt to commit Qatl-e-amd stands established against accused Hakim Ali. While discussing point No,3, the learned trial Judge has observed that complainant malafidely tried to entangle co-accused Akbar who is nephew of accused Hakim Ali. Point No,4 is that what offence, if any, is committed by the accused persons was concluded in the manner of awarding conviction and sentence to the appellant and consequently, the co-accused. Muhammad Akbar and Dodo were acquitted on the ground that the prosecution has failed to prove the charge against them beyond reasonable shadow of doubt.
5. Arguments advanced by Mr. Ayaz Hussain Tunio, learned Advocate for the appellant and Syed Meeral Shah, Deputy Prosecutor General are considered and record has also been perused, in light of the case-law relied upon by the learned counsel for appellant.
6. On examination of ocular account of the alleged incident, it appears that complainant Muhammad Bachal who has implicated the appellant Hakim Ali in murder of his brother Muhammad Ameen has also stated that co-accused Akbar (acquitted accused) also fired pistol shots upon him, which hit him at the left side of his temporal and in the meanwhile prosecution eye-witnesses namely Ali Nawaz and Zulfiqar Ali intervened. Thereafter, they all took the dead body of deceased Muhammad Ameen to the hospital. Perusal of evidence adduced by the eye- witnesses namely Ali Nawaz and Zulfiqar Ali transpires that they have been declared hostile as they did not support the prosecution version, while deposing in examination in chief that they do not know about the incident nor their statement was recorded by the police. P.W. Zulfiqar Ali even did not identify the accused persons present in court. It appears that in a very technical misleading, sophistry and fallacious manner the impugned judgment has been twisted in a way that co- accused Akbar to whom specific role of causing injury by the complainant assigned was, acquitted. Need arises to reproduce the relevant part of the impugned judgment as discussed in point No,3 in the following manner:-- "I have come to the conclusion that accused Hakim Ali fired upon the complainant but the complainant malafidely to entangle co-accused Akbar who is nephew of accused Hakim All has stated so in the F.I.R. As well as during his evidence. The reliance has already been placed upon 2007 PCr.LJ 821 (Re-Khizar Hayat and others v. The State) as such roman maxim "Falsus in uno falsus in omni bus" is not applicable to criminal proceedings in Pakistan, therefore, cannot be accepted as mandatory rule but rule of sifting the gain from chaff is to be followed in order to fix the responsibility on real culprits, therefore, by relying upon the Forensic Science Laboratory report both fire shots have been fired from the pistol produced by accused Hakim Ali, therefore, accused Hakim Ali caused fire shots also to the complainant in the same manner like upon deceased Muhammad Ameen but luckily the complainant survived and the offence of attempt to commit Qatl-e-Amd stands established against accused Hakim Ali."
7. Learned counsel for the appellant submits that the appellant was roped in the case due to existing enmity between the parties as both eyewitnesses did not support the occurrence by stating specifically and categorically that they did not witness the occurrence which shows that the statement of complainant was contradicted by them. Learned counsel submits that in such view of the matter the prosecution case is doubtful. In support of his contention reliance is being placed on Muhammad Afzal v. The State (2007 M LD 275), Dhani Bux and others v. The State (1984 PCr.LJ 2533). It is argued that the evidence of two alleged eyewitnesses, who did not support the case of the prosecution, the incident furnished by the prosecution is based on sole testimony of complainant, which is not corroborated by eye-witnesses, therefore, the prosecution in the circumstances failed to bring home guilt to the accused/appellant beyond any reasonable doubt and impugned judgment being based on non-reading and misreading of evidence is not maintainable in law and the trial court has wrongly concluded that the prosecution has succeeded to establish the charge against appellant. Learned counsel submits that the ocular account shows that prosecution has failed to bring any cogent, reliable or unimpeachable evidence or any sort of circumstantial evidence to connect the appellant with the crime in question. To support his contention, learned counsel placed his reliance on the case of Ali Muhammad and others v. The State 2007 YLR 894, Amir Bux and others v. The State (2012 YLR 498) and once again reiterated that no credibility is attached to the hostile witnesses. To support his contention, learned counsel referred the case of Laaik All alias Jangu v. The State (1983 PCr.LJ 1378). Reliance has also been placed on Zulfiqar Ali Rahar v. The State. (2011 PCr.LJ 890), wherein a single Judge of this court while placing reliance on 1995 SCM R 1345, 1997 SCM R 25 and 2008 SCM R 1221, held that even a simple circumstance which would create doubt as to the guilt of accused to the offence, he was charged with, would entitle him to acquittal, not as a matter of concession but as a matter of right and a 'single reason could be a source of discrediting the entire evidence of a witness. Consequently the judgment of the trial court was set aside in circumstances. It is further argued that non-association of any independent respectable witness from the locality with the recovery proceedings in the absence of any explanation having no evidentiary value. Reliance is being placed on the case of Mehmood Ahmed and 3 others v. The State (1995 SCM R 127).
8. Conversely, learned Dy: Prosecutor General submits that the evidence of complainant is sufficient to award conviction and sentence to the appellant but he has miserably failed to make necessary clarification that as to how and what manner the remaining two co-accused have been acquitted, though the complainant. Has implicated them, more particularly, acquitted accused Akbar against whom a .Specific role of causing bullet injury with pistol shot on the left side temporal region of complainant is assigned. He has candidly admitted that there were .Only two eye-witnesses of the alleged incident and both did not support the prosecution case at all, after when they were declared hostile.
9. Since there is sole ocular testimony of complainant, therefore, need arises to scrutinize the same with great care. In his cross-examination, the complainant Muhammad Bachal admitted that at the time of incident neither his 'harries' namely Ali Machhi and Ismail Sehto, nor any one from two villages of ' Syeds' and 'Sabha Leghari' came at the place of occurrence. He has also admitted that his 'hari' All son of Abdullah Machhi is mashir in this case and mashir Abdul Rasheed is his zamindar, while another mashir Karim Bux is his friend. He has admitted in cross examination that he had taken out procession along with his mother Mst. Husna against the doctor of Taluka Hospital Tando Muhammad Khan, who had not given proper medical treatment to his brother Muhammad Ameen and on request of Tando Muhammad Khan police, the dead body was shifted to Taluka Hospital Matli and after funeral of his deceased brother Muhammad Ameen, he never gone to Police Station Matli. He has denied the suggestion of defence counsel that eye-witnesses Ali Nawaz and Zulfiqar All were not with him at the time of incident.
10. The most significant aspect of the matter as noted during worthy arguments advanced from both sides is that there were in all two eyewitnesses of the incident and both have not supported the case of prosecution. The version of the complainant is also not inspiring confidence due to admitted enmity with appellant.
11. Medical version of the case in hand is based on the evidence of doctor Muhammad Yousif who was Medical Officer Matli and conducted the autopsy of deceased. He has also examined the injured Muhammad Bachal (complainant) and found firearm injury wound over left side of temporal region and a swelling below the left area of nose above the upper lip measuring 0.25 cm x 0.25 cm. Both the injuries were declared as shujjah-e-khafifa under section 337-A(i) P.P.C. He has observed that on external examination of dead body of deceased Muhammad Ameen, he found a gunshot lacerated wound which was sufficient to cause his death.
12. Perusal of the evidence of formal witnesses reveals that Tapedar who has prepared the sketch of scene of occurrence, stated in cross-examination that he has prepared the same at the pointation of complainant Muhammad Bachal. He has further admitted that he had not pointed out the place where P.Ws.1 and 2 namely Ali Nawaz and Zulfiqar were said to be standing and further admitted that he had also not pointed out the place where the tractor along with trolley was parked, therefore, he has not mentioned such fact in the sketch. P.W. Abdul Rasheed who acted as a mashir stated that he was called on telephone by the complainant and acted mashir of dead body and injury, inquest report, place of occurrence, recovery of clothes of deceased and memo of arrest of appellant etc.
13. P.W Muhammad Akram Additional S.H.O. Police Station Matli, who conducted the investigation admitted in cross that he called the mashir through complainant though there were residential houses and shops at the place of arrest and peoples were found available at the time of arrest of accused. He was remained there for 15 to 20 minutes. He has further stated that the place of recovery of crime weapon is 12/13 kms away from police station. He collected the mashirs before reaching at the place of recovery, which is adjacent to the 'otaq' of Jameel Ahmed Halepoto in the crop of sugarcane. He has further stated that he has not produced entry regarding inspection of place of incident, entry of arrival back and departure from police station. He has further stated that he did not found number of pistol but admitted that words "automatic made in Pakistan CAL 7-61 MML" are mentioned over the pistol and it was sealed and sent to chemical examiner after 6/8 days. He has admitted that the 3 live bullets allegedly recovered were not available in court and blood stained earth does not bear the seal of chemical examiner. Examination report of ballistic expert produced by the investigation officer does not reflect that as to when the two empty bullets were fired from the recovered pistol of .32 bore. P. W-9 namely Ali son of Abdullah Machhi in whose presence the crime weapon was secured, did not support the recovery while deposing in his examination in chief that the accused Hakim Ali did not produce the pistol along with magazine 'and bullets from sugarcane crop beside Jameel Halepoto on 31-7-2008 and categorically stated that the mashirnama of recovery of crime weapon was not prepared in his presence. He was declared hostile and cross-examined by the prosecution but the prosecution could not succeed to prove the recovery of said weapon through P.W. Ali. In cross he has specifically stated that police obtained his L.T.I. Over a paper and shown pistol to him. He has further stated that he cannot say that the paper was written or not. The police officials namely Riaz Ahmed and Zulfiqar Ali acted as a mashir, stated that different mashirnamas were prepared in their presence.
14. Appellant Hakim Ali has denied the allegation of the prosecution and stated that the weapon has been foisted upon him at the instance of complainant who is inimical to him. He has further stated that no P.W. Deposed against him except the complainant, who deposed due to enmity and matrimonial affairs. He has further stated that he produce newspaper daily "Ibrat" and "Khabroon" dated 17-6-2008, wherein it was published that no postmortem of deceased Amin Halepoto was conducted as Exh.30-A and 30-B respectively. He producd original affidavit, on stamp paper at Exh.30-C and original Qaboolat / Iqrarnama dated 21-4-1984 at Exh.30-D which according to the complainant party, the same was fraudulently got executed against affidavit dated 10-12-1975 Exh.30-C in their favour. He also produced original affidavit of Mst. Gul Naziran dated 15-12-1980 on stamp paper, who is sister of mother of the complainant and .She contracted marriage with her maternal uncle Juman Halepoto and the same produced at Exh.30-E. He prayed for justice. The appellant Hakim Ali has taken plea of 'alibi'. To support his contention he examined D.W. Ali Murad and Altaf Ahmed both have supported his contention and submitted that accused Hakim Ali during the incident on 15-6-2008 in between 8:00 p.m. And 9:00 p.m. Participated in his Nikah at Karachi.
Nikah was performed by Hafiz Azizullah Muhammad Phul. He has produced the copy of Nikahnama of Ali Murad Dahri with Kousar daughter of Yar Muhammad, performed on 15-6-2008. He has also produced the invitation card of the marriage. D.W. Altaf Muhammad supported his words and during cross-examination of both D. Ws no material contradiction has come out, which fact has not been considered by the trial court. The defence evidence if inspire confidence needs to be considered particularly plea of alibi has been taken by the appellant/accused. The trial court on one side has discarded and disbelieved the version of complainant with regard to causing him bullet injury by co-accused Akbar and on other side admitted remaining evidence of complainant relating to causing bullet injury to deceased.
15. Whatever mentioned above, I reached at the irresistible conclusion that prosecution evidence does not inspire confidence and is full of doubt. There were two eye-witnesses of the prosecution and both have resiled from their 161, Cr.P.C. Statements. Private mashir Ali Muhammad has also been declared hostile, after when he did not support the case of prosecution, relating to recovery of crime weapon. On the contrary, the appellant Hakim Ali has established the plea of alibi by showing his presence at Karachi in a marriage ceremony at the time of occurrence, therefore, his false implication in the case cannot be ruled out, more particularly, the animosity in between both parties over agricultural land and matrimonial affairs is an admitted fact. Suffice is to say that the learned trial court has seriously erred to award conviction and sentence to, the appellant which is not sustainable in law, in the light of the golden principle that if a single circumstance creating doubt in the prudent mind is sufficient to extend benefit of doubt to the appellant/accused, not as a matter of concession but as a matter of right, as held in the cases cited at bar mentioned supra.
Resultantly, by short order dated 11-2-2004, the appeal was accepted and the appellant was acquitted from the charge of this case, the judgment of the trial Court was set aside. These are the reasons of said short order.