KHADIM HUSSAIN M. SHAIKH, J. The captioned appeal is directed against the judgment dated 27.09.2018, passed by the learned 1st Additional Sessions Judge, Thatta, in Sessions Case No.323 of 2014, re-The State v. Ali Nawaz and others, emanating from Crime No.21 of 2014, registered at Police Station Kinjhar Lake, whereby appellant Maqbool Ahmed son of Fazal Ahmed Sodo has been convicted for offence under sections 365-B, 511 and 324, P.P.C. and sentenced him to suffer imprisonment for five [05] years for offence under sections 365-B and 511, P.P.C. and to suffer imprisonment for five [05] years for offence under section 324, P.P.C., extending him benefit of section 382-B, Cr.P.C; the said sentences were ordered to run concurrently and whereas all the rest of the accused, namely, Ali Nawaz Sodho, Najamuddin Sodho, Deedar Sodho, Abdul Qadir Soomro, Abdul Haq alias Nathoo Sodho and Muhammad Bux Sodho along with the absconding Abdul Hafeez Sodho, Muhammad Talib Sodho, Papu Soomro and Turab Ali Soomro have been acquitted of the charge.
2. Briefly the facts of the prosecution case as per FIR are that on 02.09.2014 at 1600 hours, complainant Usman Taro appeared of Police Station Kinjhar Lake and lodged his FIR, stating therein that he is beldar in Irrigation Department. On 01.09.2014 at night time on account of rain, he [complainant] came at the house of his brother-in-law Dino Taro situated on Sonda-Hilaya Protective Bund in front of his village and stayed there for night. In the said house, he, his sister's son Haroon Taro, Imdad Ali Taro and Mst. Bachan [wife of Haroon] along other inmates after taking night meals went to sleep.. It was 01:30 a.m. [night], when they woke up on the challenges and saw 15 to 20 persons armed with weapons' they identified Malook Ahmed Sodo armed with gun [2] Ali Nawaz do, [3] Abdul Hafeez Sodo armed with rifles, [4] Natho Sodo armed with repeater, [5] Najam Sodo armed with repeater [6] Deedar Ali Sodo armed with gun, [7] Muhammad Talib Sodo armed with repeater, [8] Qadir Soomro armed with repeater [9] Muhammad Bux Soomro armed with gun
10. Papoo Soomro armed with gun [11] Turab Ali Soomro armed with repeater and others were unknown, who would be dentified it seen again. The accused persons were annoyed over the love marriage of Ghulam Mustafa Taro with the girl of Soda community and such dispute was going on.
It was alleged that accused Qadir Soomro and Turab Ali Soomro pointing towards Mst. Bachan, the wife of Haroon Taro to be the sister of Ghulam Mustafa Taro, asked the other accused to abduct her, to which the rest accused allegedly confined them in the room house when Haroon attempted to save his wife Mst. Bachan, the accused persons by causing him butt blows, injured him, while accused Maqbool Ahmed allegedly fired from his gun straight at Haroon with intention to kill him, which hit on the back of Haroon, who fell down. The accused persons then, leaving Haroon in serious condition, started forcibly taking away Mst. & whin, in the meanwhile on cries and gunshot reports, the villagers came running by making fires, with the result that the accused leaving Mst.
Bachan [wife of Haroon] went away towards river side by taking advantage of the darkness of the night. The complainant party and the village people then took injured Haroon to Civil Hospital, Makli, Thatta, where the police of Police Station Kinjhar came and issued letter for his treatment and wherefrom injured Haroon was referred to Civil Hospital, Karachi. Then the complainant leaving injured there returned to his village and after consultation with his elders, had appeared at Police Station, Kinjhar and lodged the subject FIR. After usual investigation, the report under section 173, Cr.P,C., was submitted, whereupon the learned trial Court took cognizance.
3. After completing all the formalities, a formal charge was framed against accused Ali Nawaz, Najamudin, Deedar Ali, Qadir Soomro and Abdul Haq alias Natho on 13.03.2016, to which they pleaded 'not guilty' and claimed their trial. Subsequently, absconding accused Muhammad Bux Soomro and the let-off accused Maqbool Ahmed Sodo ["the appellant"] joined the trial. After completing the formalities, the amended charge was framed against all the aforesaid accused on 13.04.2017 at Ex.11, to which they pleaded not guilty' and claimed to be tried vide their pleas at Ex.11/A to Ex.11/G respectively.
4. In order to prove its case, the prosecution examined in all nine [09] witnesses, namely, complainant Usman as PW-1; PW-2 injured Haroon Taro; PW-3 Imdad Ali Taro; PW-4 Mst. Bachan Taro; PW-5 Abdullah Taro; PW-6 SIO Imam Bux Nahyo; PW-7 SHO Bashir Ahmed Malah; PW-8 HC Farman All Bhutto; and, PW-9 Dr. Ghulam Sarwar Channa, Medical Officer. All the necessary documents in including mashirnama, provisional and final medico legal certificates etc., were produced by the prosecution. Then the prosecution closed its side vide statement dated 22.03.2018.
The statement of accused Maqbool Ahmed under section 342, Cr.P.C. was recorded, wherein he denying the allegations of the prosecution, professed his innocence and false implication in this case due to enmity on account of lodgment of the FIR No.6 of 2014 under sections 395, 365-B, 506(2), P.P.C. at Police Station Gharo against the complainant party, he produced certified copy of the said FIR. and charge sheet and further stated that he was not -present at the relevant time at the place of incident, hence he moved such application to the concerned Magistrate, acquitted him, he produced certified copies of statements under section 164, Cr.P.C. of DWs, he neither examined himself on oath nor did he examine any person as his defence witness. At the conclusion of trial and after hearing the learned counsel for the parties and learned DDPP for the State, the learned trial Court convicted and sentenced the appellant, acquitting co-accused Ali Nawaz Sodo, Najam-u-Din Sodo, Deedar Ali Sodo, Abdul Qadir Soomro, Abdul Haq alias Natho Sodo and Muhammad Bux Soomro and absconding accused Abdul Hafeez Sodo, Muhammad Talib Sodo, Papoo Soomro and Turab Ali Soomro, who were having the similar role, vide impugned judgment dated 27.09.2018 as discussed in paragraph-1 [supra].
5. Having felt aggrieved by the said judgment, appellant Maqbool Ahmed has preferred this criminal appeal.
6. The learned counsel for the appellant has mainly contended that there was delay of more than fourteen [14] hours in lodgment of the FIR without proper explanation thereof; that the appellant was found innocent during the investigation and was let off, placing his name in Column No.II of the challan, but he was subsequently joined on 07.02.2017 on the application under section 193, Cr.P.C., moved by the complainant; that the medical evidence is in conflict with the ocular evidence; that there are material and glaring contradictions in the evidence led by the prosecution; and, that the prosecution has failed to prove its case against the appellant beyond the reasonable doubt, but the learned trial Court without appreciating the evidence brought on the record, convicted the appellant vide impugned judgment dated 27.09.2018; and, that the parties have now settled their differences and are on visiting terms with each other. The learned counsel prays that the impugned judgment, conviction and sentence awarded to the appellant may be set-aside, and the appellant may be acquitted of the charge.
7. Complainant Usman Taro and injured Haroon Taro, who both are present, have submitted that they have settled their differences with the appellant and they are now on friendly terms with each other and they have no ill ill against each other; and, that they have no objection to the acquittal of the appellant. Learned Additional Prosecutor General has contended that since the parties have settled their differences and complainant Usman Taro and injured Haroon Taro, who are present in person, having also no objection to the acquittal of the appellant, therefore, he has also no objection, if this appeal allowed and the appellant is acquitted of the charge.
8. I have considered the submissions of learned counsel for the appellant, complainant Usman Taro, injured Haroon Taro and learned Additional Prosecutor General and have gone through the material brought on the record with the assistance of the learned counsel for the appellant and learned Additional Prosecutor General.
9. From a perusal of the record it would be seen that there was delay of fourteen [14] hours in lodgment of the FIR as the incident was shown to have taken place on 02.09.2014 at 02:00 a.m. and whereas the FIR was lodged on 02.09.2014 at 1600 hours i.e. at 04:00 p.m., without proper explanation for such an inordinate delay in lodgment of the FIR and under the given circumstances, the possibility of false implication of the appellant after consultations and deliberations could not be ruled out, more particularly, when the complainant in the FIR has stated that it was lodged by him after the consultations with his elders; the motive was not directed against the appellant to commit the alleged offence rather the motive to commit the offence was directed against accused Qadir Soomro and Turab Ali Soomro. who both allegedly instigated the other accused to commit the offence, have been acquitted of the charge vide impugned judgment, but no appeal against their acquittal has been filed either by the complainant or by the State as is conceded by the learned Additional Prosecutor General; during the investigation appellant Maqbool Ahmed Sodo was found innocent and his name was placed in Column No.II of the challan, but the trial Court had joined him in the trial without any material worth consideration against him; the alleged injuries on the person of injured Haroon Taro were on the . back of right side of his chest; admittedly, the night of the incident was a dark night and there was no proper source of identification, per complainant, the source of identification of the accused was the light of a hurricane lamp [lantern] and it is hardly believable that on the light of a hurricane lamp the accused numbering [11] could be recognized with descriptions of the weapons allegedly carried by them and that too under such terrorized circumstances; the alleged hurricane lamp [lantern] was not secured by the police during the investigation; complainant Usman Taro, who was resident of village Aloo Taro at the distance of one mile from village of injured Haroon Taro, was apparently a chance witness and he is not alleged to be an injured person and his presence in the house of injured Haroon Taro during odd hours of the night at 02.30 a.m. could not be established by the prosecution; PW injured Haroon Taro deposed that accused Maqbool Ahmed ['the appellant'] by putting his weapon on my back made fire and his wife Mst. Bachan deposed that 'the accused Maqbool Ahmed fired upon my husband from very close range' and whereas; per PW-MLO Dr. Ghulam Sarwar Channa the fire shot was made at the injured from the distance of 25 feet and there was no blackening around the injuries; the Medico Legal Officer Dr. Ghulam Sarwar Channa stated that the sizes of the injuries are not the same; I had received the reports from Civil Hospital Karachi in respect of injured after one year; I issued final medico legal certificate on 02.11.2016; PW-1 complainant Usman Taro stated that injured Haroon remained admitted in Hospital at Karachi for one month and three days, while PW injured Haroon Taro stated that he remained admitted in Hospital at Karachi for about two [2] months, while PW-3 Imdad Ali stated that injured remained admitted for a month and few days and whereas the final Medico Legal Certificate, produced by the Medico Legal Officer at Ex.21/B reveals that injured Haroon Taro was admitted in Surgical Unit-I Civil Hospital Karachi on 02.09.2014 and was discharged on 12.09.2014 i.e. for ten [10] days and thus the medical evidence is in conflict with the ocular evidence; there are also Other material and glaring contradictions in the evidence led by the prosecution e.g. PW-1 complainant Usman Taro stated that the injured was taken in ambulance to Karachi Hospital; the injured was admitted in Civil Hospital Karachi Ward No.13, Muhammad Ali accompanied with injured Haroon Taro: Ahmed also accompanied with Muhammad Ali, who later on returned from Karachi while PW injured Haroon Taro stated that 'I was taken in ambulance from Makli to Karachi, Muhammad Ali, Usman and Imdad Ali accompanied with me to Civil Hospital, Karachi' and whereas PW-3 Imdad Ali stated that 'I, Ahmed and Muhammad Ali took the injured to Civil Hospital, Karachi in ambulance'; PW-3 Imdad Ali stated that 'there were 4/5 villagers attracted to the place of incident' while PW-1 complainant Usman Taro stated that 'there were about 50/100 villagers attracted to the place of incident' and whereas PW-4 Mst. Bachan stated that 'the villagers thousands in number had gathered at the time of incident' and she further stated that the villagers were armed with hatchets and lathies; the villagers were not armed with weapons, while PW-1 complainant Usman Taro stated that the villagers were also armed with guns and there were 4/5 villagers, who also made aerial firing; and whereas PW-3 Imdad Ali stated that Mst. Bachan made shouts while she was being abducted on which the villagers attracted to the place of incident along with their licensed weapons; PW-1 complainant Usman Taro stated that there are 3/4 houses near the house of injured Haroon Taro, while PW-2 injured Haroon Taro stated that there would be about 400 hundred houses in mi village; PW-3 Imdad Ali stated that I was sleeping in my house adjacent to the house of my brother Haroon Taro; there is a wall in between in our houses; the accused trespassed into my house and in the house of Haroon Taro; firstly the accused persons namely Ali Nawaz, Qadir, Turab Ali, Maqbool, Talib and Hafeez trespassed into my house; the other accused persons trespassed in the house of Haroon; I was sleeping in my house with my family members, I, my father Lakhidino and my maternal uncle Usman; the wall in between our houses is about 10 feet high and whereas PW-1 complainant Usman Taro stated that I was available in the house of my nephew Haroon; the other family members namely Imdad Ali, Haroon, Lakhidino and women folks were available in the house, and they all [all the accused] criminally trespassed into the house of the Haroon; they detained us in a room and whereas PW-injured Haroon Taro stated that we were sleeping in our house, I along with maternal uncle Usman my wife Mst. Bachan, my mother, my father Lakhidino and brother Imdad Ali and other family members were sleeping, when they all (all the accused] trespassed into our house; PW-1 Usman Taro stated that villagers tried to rescue Mst. Bachan on which the accused persons made aerial firing and decamped towards river side leaving Mst.
Bachan behind, while PW-3 lmdad Ali stated that Gazi and Imam Bux rescued Mst. Bachan and whereas PW-4 Mst. Bachan stated that I rushed into the house of Kumbhar to save myself and she further stated that my statement was recorded at Police Station Kinjhar Lake, while PW-6 Investigating Officer SIP Imam Bux stated that he recorded the statements of PWs Mst. Bachan and Imdad Ali at the place of incident. Apart from the above material and glaring contradictions, inconsistencies in the medical and ocular evidence, dishonest and deliberate improvements made by the PWs during the trial, rendering the prosecution case doubtful, there are many other material discrepancies in the prosecution case, which need not to be discussed just to save the space, and the same were not at all attended to by the learned trial Court, while passing the impugned judgment 27.09.2018, convicting and sentencing the appellant, as discussed supra, although the benefit of doubt, if any, arising in the prosecution case is to be extended to the accused not as a matter of grace, but as a matter of right. And, thus the impugned judgment suffers from misreading and non-reading of the evidence, which is not sustainable. Reliance in this context can be placed on the case of Muhammad Akram v. The State (2009 SCMR 230), wherein 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 the 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."
10. In view of what has been discussed above I am of the considered view that the prosecution has failed to prove its case against the appellant beyond a reasonable doubt and the impugned judgment passed by the learned trial Court, convicting and sentencing the appellant are liable to be set-aside. Complainant Usman Taro and injured Haroon Taro, who are present in person, have categorically stated that they have settled their differences with the appellant on the intervention of their 'Nek Mard' and they have no objection, if the appellant is acquitted.
These are the reasons of short order announced by me on 11.08.2020, whereby this appeal was allowed and the conviction and sentence awarded to the appellant vide impugned judgment dated 27.09.2018 were set-aside and the appellant was acquitted of the charge.