1. ' AFTAB AHMED GORAR, J.---Through this Criminal Acquittal Appeal appellant Mir Muhammad has challenged the Judgment dated 31-10-2010 passed by learned Additional Sessions Judge, Thatta in Sessions Case No.192 of 2008 whereby respondents Nos.2 to 5 have been acquitted under section 265-H(1), Cr.P.C.
2. ' Precisely the facts of the case are that complainant Mir Muhammad Hingorjo lodged F.I.R. At Police Station Jati on 5-9-2008 alleging therein that he is zamindar and there is dispute between him and accused Bachoo Hingorjo over the land. On 5-9-2008 the complainant along with his brother Ali Muhammad and his nephew Sher Ali and brother Hamzo were sitting in their house when at 7-00 a.m. They heard a call from outside the house on which his brother Ali Muhammad went out. In the meantime, they heard loud voice from outside whereupon they came out of the house and saw Siddique son of Bachoo Hingorjo armed with gun, Rafique son of Hassan Hingorjo armed with gun, Rasheed son of Hassan Hingorjo armed with hatchet, Hassan son of Jummo Hingorjo armed with pistol and Bachoo son of Jummo Hingorjo empty handed. They reprimand complainant's brother Ali Muhammad as to why still he had not withdrawn from the land. Thereafter, Bachoo instigated other accused persons on which accused Siddique directly fired from his gun to the complainant's brother Ali Muhammad which hit at his forehead who fell down and the accused went away towards their houses while firing in the air. Ali Muhammad soon died and the complainant leaving his dead body at the place of incident, came at the police station and lodged F.I.R.
3. ' After usual investigation and arrest of the accused persons, challan was submitted in court.
4. ' Formal charge was framed against the accused persons who pleaded not guilty and claimed to be tried.
5. ' The prosecution in support of its case examined P.W. Mir Muhammad (complainant) at Exh.8 who produced F.I.R., P.W. Sher Muhammad at Exh.9, P.W. Hamzo at Exh.10, P.W. Shoukat Ali at Exh.11 (1.0.) who produced several documents Exhs.11/A to 11/K, P.W. Ghulam Muhammad at Exh.12, P.W. Noor Ahmed (mashir) at Exh.13, P.W. Dr. Muhammad Javed Qureshi at Exh.14 who produced medical papers Exhs.14/A to I4/D. Prosecution closed its side vide statement Exh.15.
6. ' Thereafter statements of the accused persons were recorded under section 342, Cr.P.C. At Exhs.16 to 19 wherein they denied the allegations against them and claimed to be innocent however, neither they examined themselves on oath nor produced any witness in their defence.
7. ' After hearing the arguments of the Defence Counsel as well as DDPP for the State, the learned trial court acquitted all the accused persons under section 265-H(I), Cr.P.C. Vide impugned judgment, hence this Criminal Acquittal Appeal.
8. ' Learned counsel for the appellant contended that the trial Court did not properly appreciate the evidence adduced by the prosecution; that the reasoning given for acquittal are not in consonance with the law and the material available on the record; that the impugned judgment suffers from misreading and non-reading of the evidence; that the trial Court did not appreciate that the accused persons were nominated in the F.I.R. And that the motive was also disclosed therein besides their being convincing and confidence inspiring evidence of the witnesses. He prayed for setting aside of the impugned order.
9. ' Conversely, learned counsel for respondents Nos.2 to 5 argued that the judgment passed by the trial court is well-reasoned and in accordance with the law and cogent reasons have been assigned for acquittal of the accused persons. He further contended that there were material contradictions in the evidence of the prosecution witnesses as well as medical evidence, benefit whereof must go to the accused persons. He prayed for maintaining the judgment passed by the trial Court.
10. ' Learned A.P.G. Also supported the impugned judgment and contended that the judgment has been passed according to legal norms and cogent reasons have been given for acquittal of the accused persons.
11. ' I have heard learned counsel for the parties and have gone through the evidence of the witnesses and perused the material available on the record with the assistance of the learned counsel for the parties.
12. ' From the perusal of the evidence of the prosecution witnesses, I have found certain contradictions in the ocular testimony of the witnesses regarding the passage of time between receiving the injuries and the death. It is also worth-noting that although at the time of the incident the distance between the accused persons and the complainant party was only of few feet but despite even not a single scratch was received by any one except the deceased Ali Muhammad. Besides, the Medical Officer in his cross-examination stated that there is much difference between the injuries caused by bullet-holding weapons such as Pistol, K.K. Etc. And cartridges holding weapons such as gun, repeater, pistol .12 bore etc. He admitted that the injuries received by the deceased Ali Muhammad were not of gun/repeater which is not in consonance with ocular testimony. The I.O. In his evidence stated that the blood-stained earth and clothes were sent to the Chemical Examiner on 23-2-2009 whereas the incident took place on 5-9-2008 i.e. After a delay of about five months which could be fatal- to the prosecution case. He also stated that he did not recover any empty pallets from the place of incident. He also stated in cross-examination that witnesses were produced by the complainant at the police station whereas P.W. Hamzo stated in his cross-examination that his statement was recorded by the police at the Otaq on 6-9-2009.
13. It is well settled law that if there is doubt in the prosecution case, its benefit goes to the accused as it is the duty of the prosecution to prove its case beyond shadow of reasonable doubt.
14. Needless to emphasize that obvious approach for dealing with the appeal against the acquittal would be different and distinguishable from that of the appeal against conviction because in the former case presumption of double innocence of the accused is attached to the order of acquittal.
15. It is well settled that the order of acquittal can only be interfered with if the same, on the face of it appears to be perverse, arbitrary, illegal, wholly illogical or unreasonable or in case the reasons assigned by the trial Court for acquittal are speculative and of artificial nature or the findings are based on no evidence.
16. However, from perusal of the evidence adduced during the trial,. It appears that all the witnesses are in full agreement on the point that 'accused Siddique directly fired at deceased Ali Muhammad. There is also consensus in their depositions that the fire made by accused Siddique hit the deceased at his forehead and he fell down. It is also established from the medical evidence that the deceased received lacerated and puncture and hole type wound over his forehead.
17. In view of above, I am of the opinion that although the trial court was right in acquitting accused Bachoo son of. Jumo Hingorjo, Rafique son of Hassan Hingorjo and Rasheed son of Hassan Hingorjo giving them benefit of doubt, however, as there was direct unanimous evidence against accused Siddique son of Bachoo Hingorjo, he was not entitled to the acquittal.
18. Consequently, while dismissing the Criminal Acquittal Appeal in limine against appellants Bachoo, Rafique and Rasheed, I admit the appeal against respondent Siddique son of Bachoo Hingorjo. Let R&Ps be called for and paper book be prepared. Office to issue B.Ws against respondent Siddique in the sum of Rs.2,00,000 (Rupees Two Lacs only) for a date to be fixed by the office.