RASHEED AHMED SOOMRO, J.---The appellant, namely, Sudhir son of Mohammad Essa was tried by the learned II-Additional Sessions Judge, Khairpur in Sessions Case No. 433/2008, for the offences under sections 324 and 34, P.P.C., registered at Police Station Mirwah, vide Crime No. 170/2008. The appellant was convicted and sentenced to suffer imprisonment for 3 years and to pay fine of Rs.20,000/- as Daman to injured Bisharat Bibi vide judgment dated 05.10.2009. Benefit of section 382-B, Cr.P.C. was also given to the appellant.
2. Brief facts of the prosecution case as narrated in the FIR are that the complainant Allah Wadhayo Islami had restrained the accused Sudheer from coming in his house due to his bad character, on which the accused became annoyed upon the complainant, and threatened that he will teach lesson to complainant. On 17.09.2007, the complainant along with his brother Jani Khan, daughter Mst. Bisharat and relative Shaman Islami was going to pick the grass from land and at about 8.00 a.m. they reached near the land of Mohammad Khan Bhabhan when accused Sudheer with mouser and other accused Bago having lathi came and accused Sudheer made direct fire upon Mst. Bisharat with intention to cause her Qatl-i-amd and she received injuries and fell down and then the accused escaped, thereafter the complainant lodged the FIR at Police Station Mirwah against the appellant Sudheer and other accused Bago.
3. The trial court framed charge against accused Sudhir and Bagan at Ex.02. The accused pleaded not guilty and claimed to be tried.
4. In order to substantiate the charge, the prosecution examined P.W-1 complainant Allah Wadhayo Islami at Ex. 5, who produced the copy of private faisla at Ex.6 and FIR at Ex.7. Prosecution also examined P. W2 Jani Khan Islami at Ex.8, PW-3 Shaman Islami at Ex.9, PW-4 Investigation Officer, A.S.I. Abdul Haque Shar at Ex.10, who produced mashirnama of injuries at Ex.11 and mashirnama of place of wardhat at Ex.12, P.W-5 Dr. Mohammad Mattal Jogi at Ex.13, he is medical officer and examined injured Mst. Bisharat Islami and produced letter of police at Ex.14, provisional medical certificate at Ex.15, report of radiologist at Ex.16, final medical certificate at Ex.17 and X-Ray report at Ex.18. PW-6 A.S.I, Ali Nawaz Shar at Ex.19, he is author of FIR, PW-7 Mst. Bisharat at Ex.20, she is injured, PW-8 Mohammad Islamil Islami at Ex.21, he is mashir and thereafter learned D D. P. P for the State closed the prosecution side vide statement at Ex.22.
5. The statements of both accused were recorded under section 342, Cr.P.C. at Ex.23 and 24, in which they denied the allegations of the prosecution leveled against them and claimed their innocence. However, neither they have examined themselves on oath nor they led any sort of evidence in their defense.
6. Trial Court passed the impugned judgment dated 05.10.2009, in which the co-accused Bagan was acquitted while the present accused Sudhir was convicted as stated above, who has filed the instant criminal appeal.
7. Mr. Irfan Ahmed Baloach, learned counsel for the appellant has argued that the judgment of the trial court is much against the law, facts and equity. Trial court has failed to appreciate the factual as well as legal aspects of the case while convicting the appellant and there are major contradictions in the prosecution case, as the complainant has given contradictory statement with the version of FIR. He next contended that according to contents of FIR, the complainant was present at the place of occurrence at the time of incident, while the complainant has stated in his statement before the trial court that he was not present, at the place of incident and he was informed about the incident by his minor nephew. He next contended that the P.Ws namely Shaman and Jani Khan even the injured P.W Mst. Bisharat have given contradictory statements with their 161, Cr.P.C. statements before the trial court. He next contended that there is delay in lodging the FIR about more than 09 months, which has not been plausibly explained. Lastly he has prayed for setting aside the impugned judgment and acquittal of the appellant.
8. Conversely the learned Deputy Prosecutor General has admitted that there are material contradictions in the depositions of P.Ws which have been pointed out by the learned counsel for the appellant. Therefore, he has not supported the impugned judgment passed by the trial court.
9. I have considered the above contentions of learned counsel for the appellant and learned Deputy Prosecutor General and have gone through the entire evidence minutely. As per FIR, the complainant Allah Wadhayo is eye-witness of alleged incident, but in his evidence before the court, the complainant has taken somersault by deposing in cross examination that:- "I did not witness this incident. My minor nephew Akhtiar came and disclosed to me that accused Sudheer fired at baby Bisharat and then escaped".
10. Moreover, complainant in the FIR had disclosed that co-accused Baggan having lathi, was with the appellant/accused Sudheer at the time of incident and caused lathi blows to him, but in his evidence he has deposed that:-- "No other person was accompanied the accused Sudheer at the time of incident".
11. Furthermore complainant in his evidence has deposed that:- "My daughter Bisharat was at the distance of about 01 mile when accused Sudheer fired shot at her".
12. This version of the complainant is contradicted by medical officer Dr. Muhammad Mattal, who in his cross-examination has deposed that: "The distance of fire was about 06 feet".
13. Apart from that complainant in the FIR had disclosed that his brother Jani Khan was also with them, but in evidence he did not depose that his brother Jani Khan was with him. Moreover, P.W/victim Mst. Bisharat in her cross-examination has deposed that "it is correct to suggest that my uncle Jani was not with me at the time of offence".
14. Apart from the above mentioned glaring contradiction, mashir Muhammad Ismail put dent in the persecution case. He in his cross-examination has deposed that:- "Police obtained my signatures on the day of incident. The contents of papers were not read over to him on which I put my LTI. I had seen fresh injuries of injured when she received injury and blood was oozing."
15. This shows that police obtained the L.T.Is of this mashir on blank papers. The prosecution has not produced the second mashir to support the version of I.O. ASI Abdul Hague. Moreover, I.O. ASI Abdul Hague visited the place of incident on 25-08-2008 i.e. after two months of lodgment of FIR so also on the same date recorded 161, Cr.P.C. statements of P.Ws Shaman and Jani. There is no explanation on record such delay in visiting the place of incident and recording statements of witnesses under section 161, Cr.P.C.
16. It is pertinent to mention here that as per medical officer Dr. Muhammad Mattal, injured Mst.
Basharat was referred to civil hospital, Khairpur for X-Ray and better treatment; but as per P.W the victim Mst. Basharat, on the same day of incident she was taken to private doctor after getting bandage in the Government hospital and her private treatment continued for 2/3 months. The complainant in cross-examination has supported the version of injured Bisharat by deposing that:- "injured was referred from Mirwah hospital to Khairpur hospital but he did not bring the injured to Khairpur hospital and the nek mards arranged treatment from Dr. Qurban Sahito privately."
17. If the evidence of complainant and victim Bisharat is believed to be true to the extent that injured Bisharat was not taken to the civil hospital Khairpur for further treatment then question arise that from where medical officer arranged the X-Ray report of injured Bisharat and issued final medical certificate by declaring the injury as Jurh Ghayr Jaifah Mutalahimah and this aspect of the case also makes the final medical certificate of the injured doubtful.
18. The complainant had lodged FIR with a delay of more than 09 months and for such a long delay the complainant has given the reason that he has lodged the FIR with such a long delay because the accused did not fulfill the private Faisla. The complainant has produced "Faisla" which is written on stamp papers in evidence. As per private "Faisla" the accused party was bound to fulfill the terms of giving the amount from 28.09.2007 to 28.11.2007. If the reason for delay in lodging the FIR as disclosed by the complainant is presumed to be true even then FIR is delayed by about 07 months after expiry of fulfillment of the condition of the private Faisla; as such in these circumstances and in view of the material contradictions, it can be held safely that complainant has lodged instant FIR after due deliberation and consultation due to his grudge against the present appellant/accused, hence the unexplained delay in lodging of the FIR in these circumstances of the case is fatal to the prosecution.
19. It is settled principle of law that for giving benefit of doubt to accused it is not necessary that there should be many circumstances creating doubt, if a simple circumstance creates reasonable doubt about the guilt of accused he will be entitled to such benefit not as a matter of grace and concession but as a matter of right. In this view I find support from case of Tarique Pervez v. The State (1995 SCM R 1345).
20. For the above reasons and grounds, instant criminal appeal is allowed. The impugned judgment dated 05.10.2009 is set aside. The appellant is present on bail, he is acquitted from the charge. His bail bond stand cancelled and surety discharged.
21. These are the reasons of my short order dated 21.04.2017.