KHADIM HUSSAIN M. SHAIKH, J.---The captioned appeal is directed against judgment dated 29.05.2015, passed by 1st Additional Sessions Judge, Mipurkhas, in Sessions Case No,131 of 2013, re: State v. Babar and others, emanating from Crime No,19 of 2013 registered at Police Station Mehran Mirpurkhas for offence under section 397, P.P.C., whereby appellant Shehzad son of Mansha was convicted for the above offence and sentenced to suffer R.I for seven years, extending him benefit of section 382-B, Cr.P.C.
2. Briefly the facts of the prosecution case are that on 05.04.2014 at 1450 hours complainant Nazakat lodged report at Police Station Mehran Mirpurkhas, alleging therein that on 01.03.2013 he was present at his cabin when at 2350 hours, accused Shehzad alias Sono Masih, Babar Masih, Gudoo Masih along with two unknown persons duly armed with deadly weapons came there and robbed him of Rs,45000/- cash and two Nokia Mobile Phones. On seeing P.Ws Ashique Masih and Arshad Masih approaching accused Shehzad alias Sono made fires from his T.T. pistol which hit the complainant at his arm. Thereafter accused ran away along with robbed property. The P.Ws took the complainant to Civil Hospital, Mirpurkhas, wherefrom the complainant was referred to Civil Hospital Hyderabad and after his treatment, the complainant lodged the above FIR. After usual investigation appellant Shehzad and co-accused Babar and Ishtiaq alias Gudoo were sent up with the challan to face their trial.
3. After completing all the legal formalities, a formal charge was framed against the accused at Ex- 2, to which they pleaded not guilty and claimed to be tried, per their pleas at Exs.2/A to 2/C respectively.
4. In order to prove its case, the prosecution examined complainant Nazakat Ali at Ex.03, who produced letter and the FIR at Exs.03/A and 03/B; P.W-2 Ashique at Ex.05; P.W-03 Arshad at Ex.06; P.W-4 Nadeem at Ex.07, who produced mashirnama of place of incident at Ex.7/A, P.W-5 ASI Muhammad Saleem at Ex.08; P.W-6 SMO. Dr.Ghulam Jillani at Ex.09, who produced letter of the police for treatment of injured Nazakat Ali at Ex.09/A, Provisional and Final Medical Certificates at Ex.09/B and Ex.09/C respectively; P.W-7 ASI Muhammad Yousuf at Ex.10, who produced mashirnama at Ex.10/A; and, then the learned DDPP for the State closed the side of the prosecution vide his statement at Ex-11.
5. The statements of accused under Section 342, Cr.P.C. were recorded, wherein they denied all the allegations leveled against them and professed their innocence. They neither examined themselves on oath under section 340(2), Cr.P.C. nor did they examine any defense witness.
6. At the conclusion of trial, the trial Court convicted the appellant and sentenced him as discussed in paragraph-1 [supra] and acquitted co-accused Babar and Ishtiaque alias Gudoo, vide impugned judgment dated 29.5.2015.
7. The appellant Shahzad Masih having felt aggrieved by the said judgment, has preferred present appeal.
8. It is, inter alia, contended by the learned counsel for the appellant that the appellant is innocent and he has not committed the offence alleged against him; that complainant Nazakat Ali has made dishonest improvements and exaggerations during trial; that there are material contradictions in the prosecution evidence; that the complainant has enmity with Asif and Arshad on account of his contracting love marriage with their sister namely Sadaf without their consent and they had attacked upon the complainant, who had filed such application under sections 22-A and 22-B, Cr.P.C. before the Ex-Officio Justice of Peace, which was later on withdrawn due to settlement arrived at between them; that no independent person was cited as a witness or mashir although the place of incident is a thickly populated area where many shops are situated around the alleged place of incident and 20/25 persons allegedly gathered at the place of incident; "tnat no recovery of alleged robbed money or article was effected from the appellant; that the complainant went to hospital with letter of police for his medical treatment from the police, but neither FIR was lodged nor mashirnama of injuries was prepared or produced during the trial; and, that the prosecution has failed to prove its case against the appellant beyond a reasonable doubt.
She, therefore, prays that the appeal may be allowed and the appellant may be acquitted of the charge. She has placed her reliance on the cases of Mustaqeem v. Nawab Khan (2016 YLR 905), Khaista Meer and another v. The State (2013 PCr.LJ 474), Muhammad Arif and others v. The State (2005 YLR 1065), Ghulam Abbas v. The State (2002 PCr.LJ 1240), Abdul Sattar and others v. The State (2002 PCr.LJ 51), Nazar Ali and another v. The State (PLD 1992 Karachi 140), Aslam v. The State and another (2016 YLR 1674) and Gul Muhammad v. The State (1972 SCMR 435).
9. Learned advocate for the complainant has mainly contended that the complainant and P. Ws.
Ashique and Arshad have supported the prosecution case; that the medical evidence has also corroborated the prosecution case; that there are some ignorable contradictions in the prosecution evidence; and, that the prosecution has proved its case beyond any Shadow of doubt.
He, therefore, prays that the appeal may be dismissed. He has placed his reliance on the cases of Inayatullah v. The State (PLD 2007 Supreme Court 237), Suhail and 3 others v. The State (2001 PCr.LJ 1086), Imam Bux alias Mama alias Akhtar and another v. The State (2003 PCr.LJ 643), Yasin and another v. The State (2006 PCr.LJ 440), Bahawal Bakhsh v. The State (2002 PCr.LJ 1902) and Ali Imran v. The State (2002 PCr.L1 1856).
10. Learned Additional Prosecutor General, adopting the arguments of learned counsel for the complainant, has supported the impugned judgment and prayed for dismissal of the appeal.
11. I have considered the arguments of the learned counsel for the appellant, learned counsel for the complainant and the learned Additional Prosecutor General for the State and have gone through the material brought on record with the assistance of learned counsel for the parties and learned Additional Prosecutor General.
12. From a perusal of the record, it would be seen that the incident is alleged to have taken place on 01.03.2013 at 2350 hours and whereat FIR was lodged by complainant Nazakat at Police Station Mehran Mirpurkhas on 05.04.2013 at 1450 hours despite the fact that the complainant injured Nazakat Ali had gone to the Civil Hospital, Mirpurkhas for his treatment under police letter issued by ASI Police A Station, Mehran Mirpurkhas and after remaining in the hospital for nine days, the complainant came back to Mirpurkhas, but the subject FIR was lodged after 34 days of the incident and after 25 days of the complaint's returning home after discharging from. Civil Hospital Hyderabad and there is no plausible explanation for such an inordinate delay in lodging the FIR; the incident is shown to have taken place in the night, but no source of light is shown available at the place of incident; neither crime, weapon was recovered from the appellant nor robbed money or mobile phone was recovered from him; the place of incident was inspected on 05.04.2013 i,e, after 34 days of the incident and nothing favouring to the prosecution was found there; no independent person was cited as witness B. in the case although the place of incident is surrounded by the shops and 20/25 persons allegedly gathered there at the time of incident; even no effort is shown to have been made by the prosecution to examine any independent person from the locality; there are also material contradictions in the evidence led by the prosecution such as P.W.1 complainant Nazakat Ali deposed that he was sitting in his cabin situated in Christian Colony on 01.03.2013 at 11:50 p.m and P.Ws. Arhsad and Ashique were also sitting infront of his cabin, when the subject incident Of robbery from him took place, but P.W. Ashique stated that on 01.03.2011 he was present outside his house along with his son P.W. Arshad when they heard noises coming from kiosk of Nazakat Ali: P.W. Arshad has stated that on 01.03.2013 ad 11:50 p.m. he along with his father was sitting outside of his house at the time of incident and in cross-examination both of them have stated that they had not seen the act of snatching with their own eyes; P.W-6 SMO Dr. Ghulam Jeelani has deposed that on 01.03.2013 injured himself came at Civil Hospital Mirpurkhas with history of fire arm injury for his treatment under police letter No,296 dated 01.03.2013 Ex.9/A and he examined him on the same date at about 12:30 a.m.; he then referred injured Nazakat Ali to LUMHS hospital Hyderabad on the same date for further management and treatment; he had given him treatment up to one hour; during one hour police had not prepared the mashirnama of injuries.
Provisional medico legal certificate Ex.9/B, reflects the time and date of examination of injured Nazakat as 12:30 a.m. on 01.03.2013; and final medico legal certificate Ex.9/C, reflects the date of admission of injured Nazakat Ali in LUMHS hospital Hyderabad is 01.03.2013; and, whereas FIR Ex.3/B, charge Ex.2 and depositions of P. Ws Nazakat Ali, Ashique and Arshad reflect the date and time of incident as 01.03.2013 at 11:50 p.m. PW-01 complainant Nazakat Ali has deposed that they [Ashiq and Arshad] took him in a Rickshaw to Civil Hospital Mirpurkhas wherefrom he was referred to Hyderabad Civil Hospital and whereas PWs Ashiq and Arshad did not state about taking complainant Nazakat Ali in a Rickshaw to the Civil Hospital, Mirpurkhas; PWs complainant Nazakat Ali, Ashique and Arshad all stated that they went to the Civil Hospital, Mirpurkhas directly from the place of incident and no one among them has claimed to have obtained letter from the police for treatment, but the deposition of PW-06 SMO Dr. Ghulam Jeelani and the provisional medico legal certificate Ex.9/B reflect that injured complainant Nazakat Ali himself came to the Civil Hospital, Mirpurkhas under letter issued by the ASI of Police Station, Mehran Mirpurkhas Ex.9/A; and, the medical evidence is also not in line with the ocular account. Furthermore, co-accused Babar and Ishtiaque alias Gudoo have already been acquitted by the trial Court on the basis of the same set of evidence. A part from the above mentioned material contradictions, infirmities and discrepancies, there are many other infirmities and discrepancies etc., in the prosecution case, which need not to be mentioned just to save the space.
In case of Akhtar Ali and others v. The State (2008 SCMR 6), the Hon'ble Supreme Court of Pakistan has held that:- "It is also a settled maxim when a witness improves his version to strengthen the prosecution case, his improved statement subsequently made cannot be relied upon as the witness had improved his statement dishonestly, therefore, his credibility becomes doubtful on the well known principle of criminal jurisprence that improvements once found deliberate and dishonest cast serious doubt on the veracity of such witness. See Hadi Bakhsh's case PLD 1963 Kar. 805."
In the case of Muhammad Ryas v. The State (1997 SCMR 25), the Hon'ble Supreme Court of Pakistan has held that:- "It is well-settled principle of law that where evidence creates doubt about the truthfulness of prosecution story, benefit of such a doubt had to be given to the accused without any reservation. In the result, there is no alternative but to acquit the appellant by giving him benefit of doubt".
In the case of Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), the Hon'ble Supreme Court of Pakistan has held that:- "16. It needs no reiteration that for the purpose of giving benefit of doubt to an accused person, more than one infirmity is not required, a single infirmity creating reasonable doubt in the mind of a reasonable and prudent mind regarding the truth of the charge-makers the whole case doubtful. Merely because the burden is on the accused to prove his innocence it does not absolve the prosecution from its duty to prove its case against the accused beyond any shadow of doubt and this duty does not change or vary in the case. A finding of guilt against an accused person cannot be based merely on the high probabilities that may be inferred from evidence in a given case. Mere conjectures and probabilities cannot he the place of proof. Muhammad Lugman v. The State PLD 1970 SC 10."
In the case of Muhammad Akram v. The State. (2009 SCMR 230), the Hon'ble Supreme Court of Pakistan has held that:- "It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right."
13. Upon my own independent careful evaluation of the evidence, I have come to an irresistible conclusion that the aforementioned material .and glaring contradictions, infirmities and discrepancies etc., which did go to the root of the prosecution case, rendering it doubtful, were not at all attended to by the trial Court, while passing the impugned judgment dated 29.5.2015, convicting and sentencing the appellant, although benefit of doubt, if any arises in the prosecution case, is to be extended to the accused not as a matter of grace or concession, but as a matter of right, and, thus, the impugned judgment dated 29.05.2015, suffers from misreading and non- reading of the evidence.
14. The cases cited by the learned counsel for the complainant being distinguished on facts and circumstances are not attracted to the case one in hand, in as much as none of the cases cited by the learned counsel for the complainant involved delay of more than one month in lodgment of the FIR as is involved in the instant case. Moreover the case of Inayatullah (supra) involved double murder and there was strong circumstantial evidence coupled with the fact that prosecution witnesses were dis-interested, in the case of Sohail (supra) occurrence as well as its date and time was not disputed by the defence and statements of P. Ws had been corroborated by an independent witness of the locality and two accused were arrested at the place of incident along with pistols, in the case of Imam Bux @ Mama @ Akhtar (supra), the FIR was promptly lodged against unknown persons who had snatched away vehicle from the complainant and on the following day the culprits along with robbed vehicle were apprehended, in the case of Yaseen (supra) there was direct ocular evidence, medical evidence, recovery of crime weapon and the statements of the complainant as well as other witnesses were found consistent and natural and there was no delay in lodging the FIR, in the case of Bahawal Bakhsh (supra) there was no conflict between ocular and the medical evidence, electric light at relevant time was mentioned in the promptly lodged FIR and the case was involving murder on sectarian issue due to religious differences and the case of Ali Imran (supra) was again a case involving murder, which was committed in a broad day time and the statement of the complainant was corroborated by the independent persons; and, thus, none of the cases quoted at bar by the learned counsel for the complainant is helpful for him.
15. In view of what has been discussed above, I am of the considered opinion that the prosecution has failed to prove its case against appellant Shehzad son of Mansha beyond a reasonable doubt, and, therefore, extending him the benefit of doubt, the appeal is allowed and conviction and sentence awarded to the appellant vide impugned judgment dated 29.05.2015, passed by 1st Additional Sessions Judge, Mirpurkhas, in Sessions Case No,131 of 2013, re: The State v. Babar and others, are set-aside and the appellant is acquitted of the charge. The appellant is ordered to be released forthwith in this case, if he is not required in any other case.