' SYED MUHAMMAD FAROOQ SHAH, J.---Vide judgment dated 16-11-2010, pronounced by learned Additional Sessions Judge Umerkot (Syed Manazir Hussain Zaidi) appellant Mohan Menghwar was convicted under section 392, P.P.C. To suffer rigorous imprisonment for 10 years and fine of Rs,50,000, in default of payment of fine he has to suffer three years simple imprisonment and under section 394, P.P.C., the appellant was also awarded rigorous imprisonment for 10 years and fine of Rs, 50,000 and in default of payment of fine he has to suffer 3 years simple imprisonment. It was ordered that both punishments shall run concurrently. Benefit of section 382-B, Cr.P.C. Was also extended to the appellant.
2. This is a very brief appeal; received from the jail, spreading on two pages written in Sindhi language, wherein the appellant has prayed for justice and mercy.
3. Succinctly, the relevant facts leading to this appeal are that on 26-5-2009, complainant Poonjo Bheel lodged FIR at Police Station Umerkot, wherein he has stated that on the captioned date, he along with Neebo and brother-in-law Aloo came at Umerkot on motorcycle and after finishing work they were returning to their house. It was 02.30 p.m. When they reached near Motoo Malhi Umerkot-Samaro road, they saw two persons standing on both sides of road and tied a rope, due to which, their motorcycle was slipped and hit to the person carrying hatchet, his brother Neebo received injuries. They identified the person carrying hatchet as Mohan son of Rano alias Revo Menghwar and other as Naban son of not known by caste Shar. Accused Naban took out pistol from the fold of his shalwar and robbed motorcycle. Thereafter, injured accused Mohan was apprehended, who was admitted in hospital due to injuries. Perusal of the impugned judgment reveals that the case- of co-accused Naban was bifurcated on 2-3-2010 bearing Sessions Case No,43-A/2009, which was already disposed of vide judgment dated 9-8-2010. Learned counsel representing the appellant, stated at the, bar that the co-accused Naban to whom main role of snatching motorcycle on gun point has been assigned, acquitted before framing the charge of this case.
4. Perusal of the impugned judgment reveals that after framing of the charge against the appellant, wherein he 'pleaded not guilty, the prosecution examined P.W. Chatoon Mal as Exh.4, P.W.
ASI Muhammad Essa as Exh.5, who produced FIR as Exh.5-A, P.W. PC Walhomal as Exh.6, P.W. Poonjo as Exh.7, P.W. Chatoon as Exh.8, who produced 4 mashirnamas as Exh.8-A to 8-D, P.W. Neebo as Exh.9 and P.W. Soofi Aurangzeb as Exh.10. Thereafter, prosecution closed its side. Statement of the accused was recorded under section 342, Cr.P.C. And after framing the point for, determination that as to whether the accused Mohan has committed robbery of Super Star motorcycle from the complainant and caused hurt to P.W. Neebo?, the learned trial Court has answered the point in affirmative. The reasons recorded on points No,/ and 2 by the learned trial Court are spreading on one page only, wherein the Court while placing reliance on the case of Sohail Amjad v. The State (1986 SCM R 1482), awarded the conviction..
5. Heard the learned counsel for the parties and perused record.
6. Miss Nasira Shaikh, Advocate representing the appellant, at the very outset contended that the injuries on the person of accused/appellant and complainant party may be affirmed by medical evidence, which admittedly has not been brought on the record. She has further stated that the appellant was unrepresented before the learned trial Court, hence he has not afforded proper opportunity of cross-examining the prosecution witnesses and it was also the duty of the trial Court to put the material relevant questions to the witnesses, but the learned trial Court did not discharge its burden, as provided under Article 161 of Qanun-e-Shahadat, reproduced herein below:-- "161. Judge's power to put question or order production. The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties about any fact relevant or irrelevant, and may order the production of any document or things and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question."
7. Learned counsel for the appellant also pointed out material contradictions amongst the depositions Hof prosecution witnesses and stated that the complainant Poonjo though stated in the FIR that on his information on telephone the concerned police and many persons gathered there and chased the accused persons and they took his injured brother Neebo to the Civil Hospital and thereafter he lodged the FIR, but in his deposition he has stated that his brother did not stop motorcycle and hit the same to the accused persons, which hit on the leg of accused Naban; his brother also fell down on the ground and in the meantime bus was going towards Umerkot and persons coming from the bus, saved his brother and in the meantime police also came and arrested the accused Mohan. He did not utter a single word regarding the accused found armed with hatchet and he has also not spoken about the firearm weapon(pistol). P.W. Walhoo (Exh.6) stated that Aloo disclosed them that Naban and Mohan Menghwar have committed robbery of motorcycle, >but said Aloo Bheel has not been examined by the prosecution. The record does not show that Aloo Bheel has appeared and he was given up Mashir Khatoon stated that hatchet with wooden rod and motorcycle was recovered, but nowhere the registration number and make of the motorcycle has been mentioned and registration book or other documents of the, motorcycle have not been produced/recovered. The mashirnama of recovery (Exh.8), shows that the motorcycle was, having registration number as Nil. Mashir Chatoon (Exh.8) has also acted as mashir of injuries of injured P.W. Neebo and mashirnama of injuries on the person of co-accused Mohan as well. It is an admitted position that neither the pistol has been used in commission of the alleged crime, nor it was secured by the police. The I.O. Of the case stated that he along with others chased the culprits and found one was lying on the ground along with motorcycle and the person who was lying on the ground, on enquiry, disclosed his name as Mohan. Investigating Officer has also stated regarding the preparation of memo of arrest and recovery, but the contents of memo of arrest and recovery (Exh.8) reveals that they found one culprit Mohan sitting on the motorcycle.
The description of hatchet allegedly recovered from accused Mohan was shown in the mashirnama having a bamboo rod, but mashir Chatoon stated that it was having wooden rod.
8. Conversely, Syed Meeral Shah, learned Deputy Prosecutor General argued that in memo of arrest and recovery, the description of motorcycle has been provided but he has admitted that the owner of the alleged snatched motorcycle did not produce any proof showing his ownership over it, particularly, the motorcycle was having no registration number at all Learned D.P.G. Further contended that the appellant did not avail the opportunity of cross examining the prosecution witnesses and he himself crossed the witnesses. Perusal of the depositions of P. Ws. Reveals that a specific question in cross-examination was put to all the prosecution witnesses by the accused himself that they are deposing falsely and this was sufficient to raise the defence plea. Learned D.P.G. Further pointed out that the learned trial Court by order under section 517, Cr.P.C. Which is part of the impugned judgment, observed that the case property will remain intact till expiry of appeal period, and so also till disposal of the appeal of co-accused Naban Shar, but last line at page-1 and first line at page-2 of the impugned judgment reveals that the case of co-accused Naban Shar was bifurcated on 2-3-2010 bearing S. Case No,43-A/2009 and has already been disposed vide judgment 9-8-2010". Even otherwise, contents of charge reveal that case of Naban Shar was bifurcated and has been disposed of vide judgment dated 9-8-2010, therefore, the contentions of learned D.P.G. Are not relevant. Of-course, there is contradiction in between the observation made by learned trial Court with regard to disposal of case against co-accused Naban Shar, though property order passed in this case speaks otherwise, which is also fatal to the prosecution, as it is a settled law that benefit of slightest doubt goes in favour of the accused.
Learned D.P.G. Supports the impugned judgment, which is nothing but depends upon a citation, mentioned as supra. Admittedly, the mentioned case law is not attracting in the circumstances of present case, as in the instant case neither P.W. Aloo has been examined, nor Medico Legal Officer appeared to produce the Medico Legal Certificate. The learned Senior Judicial Officer is supposed to be aware of the legal implications of the case while awarding conviction to a person who is behind the bars since last more than three years excluding remissions. Perusal of impugned judgment transpires that the learned trial Judge acted mechanically and hurriedly by pronouncing the judgment . In haphazard manner, suffers from legal infirmities, lacunas, without exhibiting least application of judicial mind and such approach is not appreciable at all and he must improve his quality of judgment writing.
9. It is settled proposition in law that benefit of every doubt is to be resolved in favour of the accused So, the motive setup by the prosecution in this case is not such thing that it necessarily be viewed alone in favour of prosecution. The prosecution could not use the motive part of its story to corroborate its ocular account. The background of enmity definitely existed between the parties, which has been suppressed. Anyhow, enmity is a double edged weapon if prompts one to cause harm to his adversary and the same also can be a factor with other to rope in him falsely.
10. Suffice is to say that the Trial Court while attending the plea of the appellant/accused facing trial by reading the evidence may judge credibility and demeanor of the witnesses, in view of the principle that 'every person is presumed to be innocent unless proved guilty. On reappraisal of the evidence on record a different view may be drawn with regard to manifest wrong, perversity or uncalled conclusion from facts provided on record as material evidence has been misread blatantly to an extent that miscarriage, of justice has occasioned. The appellant has served almost more than half of the awarded sentence, though there was no sufficient corroboratory evidence brought by the prosecution on record to award him conviction.
11.
From perusal of the record it transpires that the learned Trial Court has not only misread the evidence but also mis-exercised its jurisdiction by placing undue reliance on some extraneous consideration, particularly, the prosecution had failed in bringing on record sufficient evidence whereby guilt of appellant and his active participation in the commission of offence is established.
The Trial Court unjustifiably drawn arbitrary inferences and conclusion against the norms of justice in evaluation of evidence. The ocular evidence is quite in conflict with the circumstantial evidence, it lacks corroboration and is unworthy of credit and unbelievable, more particularly, in absence of medical evidence. Even the recovery of case property viz. Motorcycle without registration number and registration book showing the name of its, owner, from the possession of appellant is having no significance.
12. For what has, been discussed above, it is settled that for extending benefit of doubt it is not necessary that there should be many circumstances creating, doubt and if there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right. As discussed above, in the instant case there are sufficient circumstances which create' doubt upon the prosecution case, particularly, ocular testimony is not supported by medical evidence, as admittedly neither medical certificate, if any, brought on the record, nor medical officer has been examined. The conviction cannot be recorded merely on probabilities and presumptions and prosecution has to prove its case beyond any shadow of doubt, which the prosecution has miserably failed to prove in the instant case. Resultantly, the appeal is allowed and the conviction and sentence awarded to the appellant is set aside. The appellant is in jail.
Office is directed to issue release writ. The concerned Superintendent Jail is required to release the accused/appellant forthwith, if not required in any other case.