SYED MUHAMMAD FAROOQ SHAH, J.---Vide impugned judgment, rendered and pronounced on 05.03.2018, by the learned 2nd Additional Sessions Judge, Badin, in Direct Complaint No,04/2016 (re-Nazar Ali v. Ibrahim and others ), the appellants namely Ibrahim, Khamiso and Mumtaz were convicted, as under:- "Under sections 394/51 1, P.P.C. read with section 34, P.P.C. and .sentenced to suffer R.I. for 07 years and to pay fine of Rs,50,000/-; each in lieu of fine amount, they shall suffer R.I. for six months more; convicted under section 341, P. P. C. read with Section 34, P.P.C. and sentenced to suffer S.I. for one month; convicted under Section 336, P.P.C. read with Section 34, P.P.C. and sentenced to suffer R.I. for three years as Ta'zir and to pay Arsh for 'Itlaf' of both legs of injured Bashir Ahmed, in failure to pay the Arsh, the accused shall remain in jail till realization of Arsh amount; they were also convicted under Section 337-D, P.P.C. read with Section 34, P.P.C. and sentenced to suffer R.I. for three years as Ta'zir and to pay Arsh amount, which shall be one-third of Diyat 'to the legal heirs of injured Bashir Ahmed; in failure to pay the Arsh,'accused shall remain in jail till realization of Arsh amount."
Benefit as provided under Section 382-B, Cr .P.C. was extended to them.
2. The impugned judgment has been assailed by the appellants through the captioned appeal, on facts and grounds averred therein, with a prayer that on accepting the appeal, the judgment be set-aside.
3. Initially , FIR (Exh:10/A) of the alleged incident was recorded and registered at Police Station Khorwah on 31.03.2016, under Sections 324, 341, 403, 34, P.P.C. viz. Crime No, 06/2016, after seven days of the incident occurred on 24.03.2016. Averments of the FIR, lodged by the Complainant transpires that on eventful day, the appellant No,1 Ibrahim son of unknown along with two unidentified persons on motorcycle intercepted the complainant and Bashir Ahmed and asked them that despite their directions they did not close pan cabin; suddenly , appellant Ibrahim Jatoi took out pistol from fold of his shalwar and fired straight upon the complainant party , which hit PW Bashir Ahmed on left upper side of abdomen, who fell down from the Motorcycle. Occurrence was witnessed by Ali Muhammad son of Suleman Bhutto and Meer son of Juman, who reached there on motorcycle.
Thereafter , they took injured Bashir Ahmed for treatment after arranging vehicle and also informed the police on cell phone. First aid was provided in Golarchi Hospital to injured Bashir Ahmed, who disclosed that Nokia Mobile with Telenor SIM had been lost by him. On completion of usual investigation, the challan was submitted under Section 173, Cr .P.C. before the competent Court for trial.
4. By narrating the facts of alleged inciden t in direct complaint case (Exh:5/A), the complainant stated that he along with brothers used to run small business of Pan Shop at Golarchi Town and Khorwah Town at District Badin. On 24.03.2016, the Complainant and his elder brother namely Bashir Ahmed were travelling on motor cycle from Golarchi to their village. When at about 8:00 P.M, they reached at Riaz Ahmed Arain poultry farm, situated at Badin- Karachi road, accused persons following them on motorcycle, overtook and signaled them to stop, on which they stopped their motorcycles. The accused aimed their weapons on the complainant and his brother and attempted to rob them. On resisting, accused Ibrahim fired from his pistol upon Bashir Ahmed which hit on his left side of abdomen. Accused Khamiso also fired from his pistol upon Bashir Ahmed which hit on his left side of abdomen, due to which he fell down. Accused Mum taz robbed an amount of Rs, 86000/-, one Nokia Mobile Phone worth of Rs, 3000/- and three CNICs from the pocket of injured Bashir Ahmed. Meanwhile, PWs Ali Muhammad and Meer Khokhar also came there from Golarchi side on their own motorcycle; they saw and identified the accused persons.
Thereafter , accused persons went back to Golarchi side. The complainant and others arranged a Suzuki and took injured Bashir Ahmed to Khorwah Chowk and informed such fact to police post Khorwah Chowk , brought the injured to Golarchi for medical treatment along with a police constable, wherefrom the injured was referred to Civil Hospital, Hyderabad. The injured was remained in the said hospital at Hyderabad for eight days and then he was referred to Jinnah Hospital Karachi, wher e the injured was under treatment till filing of the complaint. It is averred by the Complainant that on 31.03.2016, he came at Police Station Khorwah and lodged the FIR but police did not mention the facts disclosed by him nor read over contents of the FIR to him. Further stated that due to serious condition of injured, the complainant and his relatives did not pursue the matter properly , nor police investigated the case properly and when the complainant came to know that his case was not properly registered by the police as per his verbatim, he again went to the Police Station Khorwah and requested the concerned police to register his case according to original facts but police refused to register his case, hence, the complainant instituted the direct complaint.
5. On institution of present complaint, the statement of Complainant Nazar Ali was recorded under Section 200, Cr.P.C. and then preliminary inquiry was conducted under Section 202, Cr.P.C., wherein statements of witnesses namely Ali Muhammad, Meer , injured Bashir Ahmed and Dr. Ashfaq Ahmed were recorded; on registration of complaint vide order dated 17.10.2016, process were issued against the appellants, to procure their attendance.
On their appearance, copies as required under Section 265-C. Cr.P.C. were supplied to them, charge was framed (Exh:4) by the trial court, to which the appellants pleaded not guilty and claimed to be tried.
6. At the trial, deposition of PW1/Complainant Nazar Ali (Exh:05) was recorded, who produced the complaint as (Exh:05/A), PW Ali Muhammad (Exh:06), PW3 Meer (Exh:07), PW4 Dr. Ashfaque Ahmed (Exh:09), who produced provisional and final medical certificates (Exhs: 9-A to 9-C), PW SIP Burhan-- Ali (Exh:IO); produced FIR (Exh:10- A), memo of Wardat and recovery of an empty (Exh:10-B), memo of arrest of accused Ibrahim Jatoi and Mumtaz Khoso (Exhs: 10-C and 10-D) respectively and after recording further statement of the Complainant (Exh:10-E), learned Counsel closed the side of evidence of Complainant.
7. Statements of the accused under section 342, Cr.P.C. were recorded by the trial Court. In their respective statements, the appellants have denied the allegations of the prosecution and profe ssed their innocence. However , the accused neither examined them on oath nor led any evidence in their defence.
8. Worthy submissions advanced by the learned Counsel for the appellants, Complainant and learned State Counsel are considered and with their able assistance, the material evidence has been thoroughly scanned.
9. Mr. Muhammad Sachal R Awan, Advocate representing the appellants argued that in preliminary enquiry under section 202, Cr.P.C, both eye-witnesses did not support the complainant with regard to the alleged robbery and that this is a case of double version. Moreso; medical officer noted a single bullet injury 'on the person of injured Bashir but complainant attributed specific role of inflicting two injuries by two accused separately on the person of injured.
That there was no source of electricity and the incident had taken place during darkness; identification in headlight of the motorcycle is a weak source of identification; that seven days delay in lodging the FIR without any plausible reason or sufficient cause reflects deliberation, consultation and afterthought; more particularly , the entry , if any, made by the police in daily diary/register regarding the incident has not been exhibited. Learned counsel 'argued that the learned trial Court has seriously erred to record the conviction on the strength of inconsistent and contradictory deposition of PWs; contradiction in between medical and ocular testimony is also evident. Lastly , the learned counsel argued that a single circumstance creating doubt in the prosecution case is sufficient to extend benefit in favour of the accused, as a matter of right. Reliance in this regard is being placed on the cases of Tariq Pervez v. The State (1995 SCMR 1345 ), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221 ), Muhammad Akram v. The State (2009 SCMR 230), Muhammad Zaman v. The State (2014 SCMR 749), Muhammad Mansha v.
The State (2018 SCMR 772), Sarfraz alias Safri and others v. The State and another (2017 PCr.LJ 246), Pervaiz Haider Khan v. The State and others (2018 PCr.LJ 77), Aitbar Shah and 4 others v. The State and another (2018 PCr.LJ 566) and Jabbar v. The State (2014 YLR 135). Learned counsel Os also placed reliance on the cases of Imran v. The State (2018 PCr.LJ 716), Allah Dino and 2 others v. The State (2018 PCr.LJ 200), Sarfraz alias Safu and others v . The State (2017 YLR 220) and Lal Bux v . Dhani Bux and 3 others (2013 PCr .LJ 345).
10. Conversely , learned Deputy Prosecutor General assisted by Mr. Riaz Hussain Soomro, Advocate representing the Complainant supported the impugned judgment and submitted that prosecution has fully established the charge against the accused, therefore, the appeal in hand is not sustainable in law and deserves to be dismissed.
11. Ocular account of the prosecution case hinges on testimonies of Complainant and two prosecution witnesses namely Ali Muhammad and Meer . By narrating the story of occurrence, the complainant stated in examination-in- chief (Exh:05), that the appellants Ibrahi m, Mumtaz and Khamiso duly armed with pistols riding on motorcycle, closed the road, at 7:45 PM; suddenly appellant Ibrahim made straight fire, which hit left side of abdomen of his brother Bashir Ahmed. Accused Khamiso also made fire from his pistol, which hit at backside bone of his brother .
Accused robbed Rs, 86000/- and three CNICs cards from his brother injured Bashir . In the meanwhile, PW Ali Muhammad and Meer came at the place of Wardat on motorcycle and accused went away towards Golarchi on their motorcycle. His brother Bashir was remained unconscious for seven days and regained his senses in the hospital. Thereafter , on 31.03.2016, he lodged the FIR against the accused; contents of the FIR were not read over to him hence he instituted the direct complaint in the Court. He did not produce his statement recorded under Section 200, Cr .P.C. In cross-examination, Complainant Nazar Ali stated that: "It is correct to suggest that place of wardat is busy road. It is correct to suggest that other local persons were also available there at the time of incident. Those persons available on ' two motorcycles were my cousin and another by caste Bhutto. It is correct to suggest that the incident took place on dark night on 24.03.2016. It is correct to suggest that I lodged the FIR on 31.03.20 16. It is correct to suggest that I have not lodged any N. C. report in my name. It is correct to suggest that Wazir Ali is not PW in both the challan as well as instant complaint case. We fell down on earth with motorcycle after receiving injury to my brother . It is correct to suggest neither my brother nor I received injury while we fell down on the road with motorcycle. My brother became unconscious at the spot. It is correct to suggest that I have not mentio ned in my direct complaint that accused persons closed the road. It is correct to suggest that my witnesses have not deposed in their 161, Cr. P. C. statements that we were robbed. It is correct to suggest that when injured received injury he became unconscious. It is correct to suggest that I filed instant complaint after three months of registration of my FIR."
12. PW/2 Ali Muhammad (Exh: 06) stated in examination-in-Chief that they saw five persons riding on two motorcycles came there including the appellants. Further stated that he saw the accused Khamiso made straight fire at Bashir and thereafter accused persons went away towards Golarchi from the scene, on their motorcycles.
Thereafter , they brought injured firstly at Taluka Hospital Golarchi, wherefrom he was referred to Hyderabad Hospital, where he was operated and thereafter he was shifted to Karachi hospital. PW Ali Muhammad, who was claiming to be an eye-witness, did not support the complainant with regard to alleged robbery as disclosed by the complainant that an amount of Rs, 86000/-, three CNIC cards, two cards were of his sister and sister-in-law .
Moreso, he had not supported the complainant that appellant/accused Ibrahim Jatoi made straight fire, which hit left side of abdomen of his brother Bashir Ahmed. In cross-examination, he has stated that the incident had been occurred in dark night but he identified the accused in light of the motorcycle. He further stated that police did not record his statement after registration of the case. Further stated in cross that:-- "It is correct to suggest that I have not deposed in my statement under Section 202 Cr.P.C. that we were robbed nor in my 164, Cr.P.C. statement." With regard to his statement under Section 164, Cr.P.C. this witness had stated that, my 164, Cr.P.C. statement was not voluntarily and it was recorded on the force of police. It is correct to suggest that I had not disclosed that fact before Magis trate. Again says that the said statement was voluntarily ."
13. Another eye-witness, PW Meer Muhammad (Exh:07), stated in examination-in-chief that he saw Bashir Ahmed and Nazar Ali and so also accused Ibrahim, Mumtaz and Khamiso at the place of occurrence in the light of motorcycle. In his presence, accused Khamiso Jatoi made straight fire at Bashir Ahmed, who had fallen down with motorcycle on earth. Accused Mumtaz Khoso snatched cash of Rs,86000/-, Nokia Mobile Phone and three CNIC cards from Bashir Ahmed and thereafter they fled away towards Golarchi. In cross-examination, he has firstly stated that police did not record his statement under Section 164, Cr.P.C.; again stated that his statement under Section 164, Cr.P.C. was recorded before Magistrate on directions of police. He has admitted that there is no mention of robbery in his 164, Cr . P. C statement.
14. Medical Officer Dr. Ashfaque Ahmed has shown following single bullet injury on the person of injured Bashir Ahmed though testimony of the Complainant, as supra, depicts two persons inflicted bullet injuries separately to the injured Bashir:- "Lacerated wound of entrances measuring 1 cm x lower chest oval in shape. Blackl ish in colour with sign of profuse bleeding and a lacerated wound of exit with averted margin measuring 2 cm x 1.5 cm over right side of lower hack with bleeding".
15. PW SIP Bahadur Ali (Exh:10) produced the FIR (Exh:10/A), stated that he recovered one empty of .30 bore pistol from the place of incident, prepared necessary memos, recorded the statem ents of witnesses under Section 161, Cr.P.C. On 04.04.2013, he arrested accused Ibrahim Jatoi and accused Mum taz Khoso. Further statement of complainant was recorded on 13.04.2016 and statements of PW Ali Muhammad and Munir under Section 164, Cr.P.C. before the magistrate and on completion of investigation he submitted the challan. He categorically denied that he had not recorded the FIR of the complainant as per his verbatim nor read over its contents to him, which was reduced in writing by W.H.C. on his dictation. Further stated that prior to lodging the FIR, no N.C. was registered; admitted, in cross-examinatio n that according to entry No, 17, dated 24.03.2016, injured appeared at Police Station and he disclosed that two unknown persons had Hit him. He has also admitted that statements of vicinity persons have not G been recorded by him.
16. A perusal of prosecution evidence reflects material contradictions and Bashir . Moreso; complainant stated .that injured became unconscious for seven days, however , medical officer stated in cross-examination that injured came in the hospital in conscious condition. PW Ali Muhammad (Exh:6) and PW Meer (Exh.7) being eye-witnesses of occurrence stated in examination-in-chief that accused Khamiso made straight fire on the person of injured Bashir and they did not assign any role of causing fire arm injury by the appellant/accused Ibrahim.
17. Direct complaint was instituted before, the competent, Court of law with reasons that police malafidely missed the real facts of the case in the FIR, which had not been recorded as per verbatim of complainant as fact of robbery was missing. In evidence, complainant Nazar Ali emphatically stated that accused robbed Rs, 86,000/- and three CNICs from injured Bashir . However , PWs did not involve the accused persons in commission of alleged robbery .
18. Suffice it to say that the conviction could not be maintained solely on the basis of presumption; rather it was duty of the prosecution to establish the charge through consistent and confidence inspiring evidence, which was lacking in the present case. As discussed supra, medical evidence did not support the allegations levelled by the complainant with regard to assigning separate role of causing bullet injuries by the accused Ibrahim and Khamiso, though remaining eye-witnesses did not involve the accused Ibrahim for making bullet shots, allegedly hit to the injured Bashir. Moreso; the medical officer affirmed one injury on the person of injured. Entire material, so produced by the prosecution did not connect the appellants in any manner. Prosecution case against appellants/ accused being highly doubtful, the learned trial Court without appraisal of material evidence available on record had recorded conviction. Medical evidence adduced by the prosecution is not corroborating ocular account furnished by the prosecution witnesses. It need not to be reiterated that prosecution had to prove its case against accused by standing on its own legs and could not take any benefit from weakness of the defence case, but prosecution has miserably failed to discharge its responsibility of proving the case against the appellants/accused beyond shadow of doubt. It is settled proposition of law as held in the case law cited by the learned counsel for the appellants that single circumstance, which could create reasonable doubt regarding the prosecution case, was sufficient to give benefit of the same to accused was replete with circumstance which created serious doubts about the prosecution case; more particularly, prosecution had failed to produce cogent, reliable and trust-worth evidence to prove the charge against appellants/accused.
Above are the reasons of short order of even date, whereby the appeal was accepted, conviction and sentence recorded by the trial Court were set-aside, accused were acqu itted of the charges levelled against them, extending J them the benefit of doubt.