' SHAHNAWAZ TARIQ, J.-- Through this appeal, appellants namely Khuda Bux, Muhammad Hanif, Muhammad Ibrahim, Sanwal all sons of Mir Muhammad Rajar, Rajab Ali son of Muhammad Yousuf, Khan. Muhammad son of Muhammad Ramzan and Saleh son of Noor Muhammad have assailed the impugned Judgment dated 17-7-2012 passed by learned Additional Sessions Judge, Umerkot in Sessions Case No,20 of 2012 arising out of FIR No,29/2011 of Police Station Dhoro Naro District Umerkot under sections 395, 337 H(2), 506(2), P.P.C., whereby he has convicted the appellants as follows:--
(1) under section 395, P.P.C. To undergo R.I. For 10 years with fine of Rs,10,000 each and in default to suffer SI for six months;.
(2) under section 337 H(2), P.P.C. To suffer R.I. For 03 months.
(3) Under section 506(2), P.P.C. To suffer R.I. For 03 years.
(4) All the sentences were ordered to run concurrently. The appellant was also extended benefit under section 382(B), Cr.P.C.
2. Precisely, the facts of prosecution case are that complainant Khan Muhammad Chopan has lodged report that on 12-12-2011 he along with his cousin Moula Bux, nephew Ali Gohar, Walidad, were present at the lands of Jhooro Khan, where his nephew was grazing three buffaloes and two cows. At 6.00 p.m. Accused Hanif armed with repeater, Sanwal armed with gun, Ibrahim armed with Kalashinkov, Khuda Bux armed with repeater, Sikiladho armed with pistol, Rajab armed with hatchet, Khan Muhammad with rifle, and Saleh with pistol came there; they aimed their weapons upon the complainant party and issued threats of murder. The culprits demanded buffaloes and cows from the complainant party and on their refusal, accused persons made aerial firing, due to fear, complainant party remained silent and accused robbed three buffaloes and two cows and fled away towards their village. Complainant party returned to their village and narrated the facts to their Nek Mard who was at Hyderabad and on his advice after return, the complainant lodged FIR at Police Station.
3. At the trial to establish its case, the prosecution has examined following witnesses:--
(i) P.W.1 complainant Khan Muhammad at Exh.5, who produced FIR at Exh.5/A,
(ii) P.W.2 Ali Gohar at Exh.6,
(iii) P.W.3 Moula Bux at Exh.7,
(iv) P.W.4 mashir Muhammad Hassan at Exh.8, who produced mashirnama of place of wardat at Exh.8A and memo of recovery at Exh.8/B respectively.
(v) P.W.5 SIP Bego Khan at Exh.9 and thereafter prosecution closed its side vide statement at Exh.10.
4. Statements of accused under section 342, Cr.P.C. Were recorded at Exh.11 to 17 respectively, wherein they denied prosecution allegations and claimed to be innocent and prayed for mercy.
5. Learned counsel for the appellants contended that the appellants are innocent and have falsely been implicated in the case due to enmity and such criminal cases are pending between the parties. The FIR is delayed by one day without any plausible explanation. Allegedly the complainant party was grazing their cattle in the land of Jhooro Khan but he was not examined by the prosecution to establish their presence at his land. There are material contradictions between the evidence of the P.Ws particularly with regard to the details of the incident as P.W.2 Ali Gohar and P.W.3 Moula Bux did not disclose the details of arms holding by the accused persons. Learned counsel contended that it is a normal routine in rural areas, that their cattle are returned at home before the sunset, but the alleged incident took place on 12-12-2011 at 1800 hours, while on that day the sunset time was 5.38 p.m., therefore, the claim of grazing of cattle after sunset in dark is extremely false and very occurrence is highly doubtful. As per FIR, after the incident complainant went to Nek Mard and on his advice, he lodged FIR, but he neither disclosed the name of said Nek Mard nor examined him at the trial. Learned counsel further submitted that no recovery was affected from the appellants and there are so many circumstances which have created serious doubt, therefore, conviction awarded by the trial court is not sustainable in law and is liable to be set aside.
6. In rebuttal the learned counsel for the complainant argued that the appellants are nominated in the FIR with their specific role and all the P.Ws have supported the prosecution case and their evidence is consistent with each other that the accused persons duly armed with deadly weapons came at the place of incident and committed dacoity, therefore, mere relationship of P.Ws with the complainant is no ground to discard their evidence. The snatched buffaloes were recovered from the house of accused Sikiladho. Learned counsel submitted that the impugned Judgment is not suffering from any illegality or infirmity, and instant appeal merits no consideration and is liable to be dismissed.
7. Learned Assistant P.G. Adopted the same arguments as advanced by the learned counsel for the complainant and opposed this appeal being meritless.
8. I have heard the learned counsel for the appellants, learned counsel for the complainant, learned APG for the State and have gone through the material available on the record with their assistance.
9. To scan the evidence adduced by the prosecution in support of charge, it would be appropriate to have a glance upon the relevant portion of evidence of main witnesses.
10. P.W.1 Complainant Khan Muhammad (Exh.5) has deposed as under:- "They (accused) are known to us and they are zamindars of deh Jhirkiyari. It is correct that FIR bearing No,02 of 2009 of Police Station Khipro in which accused Khuda Bux is complainant. It is also correct to suggest that in FIR No,03 of 2009 of Police Station Khipro wherein I am accused. Both the cases are pending in the court at Sanghar. It is correct that case FIR No,22 of 2011 of Police Station Dhoronaro in which accused Abu Bakar and Sulleman are facing trial before the court of IInd Assistant Sessions Judge, Umerkot. It is incorrect that my brother deceased Ismail Chopan was criminal type of person and involved in many crimes. It is correct that the FIR regarding kidnapping of one Naveed Rangar was tried before the court of ATC at Mirpurkhas, but my deceased brother Ismail was acquitted from the charges. I do not know that the complainant of that case has preferred appeal before the honourable High Court against the judgment of ATC Court, Mirpurkhas.
It is correct that all the accused persons are affiliated with Pakistan Muslim League (F). It is correct to suggest that I am affiliated with Pakistan Peoples Party. It is incorrect to suggest that before lodging this FIR I had tried to register the FIR at Sanghar but the petitioner Muhammad Ibrahim has filed C.P. No,S-236/2010 before the honourable High Court of Sindh, Circuit Court, Hyderabad, therefore, I could not succeed to get register FIR at Sanghar and after that I lodged the present FIR against the accused persons. It is correct that at the time of incident I had not informed the police on telephone. The accused persons came on foot. I went police station alone for registration of FIR.
On 18-12-2011 police recovered three buffaloes from near the house of Sikiladho."
11. P.W.2 Ali Gohar (Exh. 6) has deposed as under:-- "It is incorrect to suggest that the accused persons are zamindars. I do not know their land is situated in deh Jhirkiyari taluka Pithoro. It is correct that counter cases registered against complainant and accused are pending in the Court at Sanghar. Deceased Ismail Chopan was criminal type person."
12. P.W.3 Moula Bux (Exh. 7) has deposed as under:-- "This incident took place on 12-12-2011, it was about 6 p.m. I was available on my land near the land of Jhooro Khan. Walidad was grazing cattle. Accused namely Muhammad Hanif, Sanwal, Saleh, Khuda Bux, Ibrahim, Sikiladho, Rajab Ali, Khan Muhammad came there. They were armed with deadly weapons, advanced threats of dire consequences, on the show of weapons, the accused taken away 3 buffaloes and 2 cows, and also made aerial firing. I do not know that the accused are zamindar of deh Jhirkiyari, but I know that they are zamindar of Khipro. It is correct that the criminal cases against the accused and complainant are pending trial before the Court at Sanghar. It is correct that accused are followers of Pir Sahab Pagaro, and they are affiliated with Pakistan Muslim League (F). It is correct that we are affiliated with Pakistan Peoples Party."
13. P.W.4 Muhammad Hassan (Exh.8) has acted as mashir of place of wardat and recovery has deposed as under:-- "On 18-12-2011 I also acted as mashir of recovery at about 1030 hours. Three buffaloes were recovered in my presence near the house of accused Sikiladho from jungle."
14. P.W.5 SIP Bego Khan (Exh.9) who lodged FIR and conducted investigation, has deposed as under:-- "It is correct that the accused are residents of District Sanghar. It is correct to suggest that accused and complainant party have political rivalry with each other. The place of incident is situated in the lands of Jhooro Chopan. It is correct that I have not recorded the statement of said Jhooro Chopan under section 161, Cr.P.C., nor I had shown him as witness in the challan. It is correct that nothing was recovered from the possession of accused persons. The distance between place of incident and recovery of buffaloes would be 10/12 kilometers. It is correct that the village Dasrio is in District Sanghar. It is correct that I had not made any entry with concerned police station in which village Dasrio is situated in District Sanghar. It is correct that a case bearing FIR No,22/2011 is pending in Umerkot, in which accused Ibrahim is the complainant. It is correct to suggest that empties were not stained with mud/earth. It is correct that the accused persons are respectable of the locality. It is correct to suggest that except present crime no other case is registered at police station against the present accused persons."
15. In ease of Mehmood Ahmad v. State 1995 SCM R 127, it has been held that in peculiar circumstances of the case, delay of two hours in lodging FIR, has great significance. It can be attributed to consultation, taking instructions and calculatedly preparing report keeping names of accused open for roping in such persons whom ultimately prosecution may wish to implicate.
Delay in particular circumstances of case, has not been explained and it creates doubt on testimony of eye-witness.
16. In case of Khizar Hayat v. State (2009 M LD 325), it has been held that delay of 13 hours in lodging FIR was not natural and explanation for such delay stood, falsified through the statements of the Investigating Officer, which cast doubt on the prosecution story. Statements of the eye-witnesses were not confidence inspiring and they were capable of making false statements. Place of incident was being used by the people, but no witness from the locality, except for close relatives of the deceased were produced by the prosecution, was not safe to rely upon the statements of the close relatives of the deceased for maintaining the conviction in a murder case. Case against accused, therefore, case was not proved against accused beyond doubt. Impugned judgment of conviction and sentence recorded by the Trial Court was set aside.
17. In case of Muhammad Luqman v. State (2011 PCr.LJ 361), it have held that it would be contrary to the rule of safe administration of justice in criminal cases to sustain conviction under sections 365- A/ 34 recorded against both accused when eyewitnesses were closely inter-related and were inimically designed against both accused. In this view, High Court accepting appeal of both accused and setting aside conviction/life imprisonment recorded against them by trial Court. It has further held that motive in criminal cases is a double edged weapon as it cuts both ways and in what way it actually cuts would depend upon peculiar circumstances of each case. FIR recorded with unexplained delay of full one month after deliberation, consultation and preliminary investigation would not be a genuine document which could be relied upon in support of prosecution case. It has further held that eye-witnesses who are closely inter-related with each other and are inimically designed against accused would not be reliable witnesses.
18. In case of Misri v. State (2012 PCr.LJ 1218), it has been held, that prosecution witnesses while appearing in Court made improvements in their statements to strengthen prosecution case, such improvements in their statements had caused serious doubt in veracity of such witnesses. Such witnesses did not seem to be worthy of reliance and had created doubt about their truthfulness.
Prosecution having failed to prove its case against accused beyond any shadow of doubt, for extending benefit of doubt, it was not necessary that there should be many circumstances creating doubt. Single instance creating reasonable doubt in a prudent mind about the guilt of accused, would make him entitled to its benefit, not as a matter of grace and concession, but as a matter of right. Conviction and sentence awarded to accused, were set aside.
19. In case of Abdul Ghafoor v. State, (2013 PCr.LJ 1185), it has been held that for acquitting the accused from the charge, it was not necessary that there would be many circumstances creating doubt, but slightest doubt in the prosecution case was sufficient for such purpose.
20. In case of Bijar Khan v. State, (2011 PCr.LJ 170), it has been held that eye-witnesses would not be reliable witnesses when they have contradicted each other regarding manner of murder occurrence. Recovery of empties from place of murder occurrence would be inconsequential when no recovery of firearm was effected from possession of accused to match the recovered empties.
21. From the above detailed discussion, it has reflected that admittedly complainant party and appellants are already at litigations and their cases are still pending adjudication before the concerned courts. It is also an admitted fact that the complainant party is belonging to Pakistan Peoples Party and appellants are belonging to Pakistan Muslim League (F). SHO/ Investigating Officer has admitted in his deposition that appellants are respectable persons of locality and no other FIR was ever registered against them, however, he has admitted that there is political rivalry going on between the parties. It is also worthwhile to mention that the complainant himself has admitted that appellant are Zamindar of deh Jhirkiyari.
22. Another important aspect of the case, is claim of the complainant that his cattle were grazing in the lands of one Jhooro Khan, but said Jhooro Khan was neither examined before the trial court nor he was produced before the Investigating Officer to prima facie establish said fact. Allegedly the appellants came at spot on foot and even they forcibly taken away cattle on foot from the place of wardat which is situated in District Umerkot while appellants are residing in District Sanghar, but amazingly, the complainant and P. Ws. Neither informed the police station which is situated at the distance of 4 kilo meters from the place of wardat nor they followed the culprits by calling the public from their own village which was also not away from the place of wardat, particularly keeping this fact in consideration that the buffalo moves slowly, therefore, to chase the culprits walking on foot was not a big deal for the complainant party. Accordingly, the manner of occurrence could not be believed that the appellant came on foot at the spot and after snatching cattle, they again taken away cattle on foot.
23. The another aspect of delay of one day in lodging of FIR has also not been plausibly explained.
Allegedly, the complainant has stated that their Nek Mard was at Hyderabad, therefore, on his advice he approached the police and lodged FIR, but neither he disclosed name of said Nek Mard nor he was produced before the police as well as the trial court to furnish plausible explanation for said delay. The factum of unexplained delay of one day prima facie proves that FIR was result of deliberation, consultation and afterthought.
24. While touching the recovery of snatched cattle, it was admitted by the recovery mashir that the snatched buffaloes were recovered from the jungle allegedly near from the house of accused Sikiludho. On other hand, the Investigating Officer has admitted in his evidence that nothing was recovered from accused. In the above peculiar circumstances, the recovery of cattle from the jungle could not be counted as recovery from the possession of any of appellants.
25. There are several facts and circumstances which have created serious doubt regarding the truthfulness of the prosecution story, therefore, it can easily be concluded that instant FIR was lodged only to settle their inimical accounts.
26. It is well settled law that every coin of doubt shall be deposited in the account of defence. It is a sad state of affairs in which fear of litigation is used for the purpose of harassing and taking revenge rather than to ensure the administration of justice. Such a practice has paralyzed the evolution of Justice System in our society, thus, making people to seek justice elsewhere, and the present case is one of such example.
27. The upshot of the above discussion is that I am of the considered view that prosecution has failed to bring home the charge against appellants beyond reasonable doubt and the defence has succeeded to cause fatal dent and reasonable doubt in the prosecution story. Consequently, instant appeal is accepted and the impugned judgment dated 17-7-2012, passed by the learned and ADJ Umer Kot set aside and appellants above named are hereby acquitted from the charge.
The Superintendent of concerned Prison is directed to release the appellants forthwith if they are no more required in any other case.