AMJAD ALI SAHITO, J. Through captioned Appeal, the appellant Qalandar, Zulfiqar alias Zulfiqar Ali and Rehman alias Abdul Rehman have challenged the Judgment dated 08.01.2024, passed by the learned Additional Sessions Judge-II, Tharparkar at Mithi in Sessions Case No.179 of 2023, Crime No.93/2023 registered at P.S Islamkot for the offence under sections 324, 506(ii), 337-A(i), 337- F(i), 337-F(iii), 114 and 34 P.P.C, whereby the appellants were convicted and sentenced as under:-
(i) Under Section 324 read with section 114 and 34 P.P.C.
All accused are sentenced to undergo R.I for seven years and to pay fine of Rs.10,000/- (Rupees Ten thousand only) each and in case of failure of payment of fine, they shall further suffer S.I for three months more.
(ii) Under Section 337-F(iii) P.P.C..
Accused Zulfiqar alias Zulfiqar Ali son of Soomar is sentenced to undergo S.I for two years as Ta'zir and impose daman Rs.30,000/- (Rupees thirty thousand only) which accused is directed to pay to injured Hoat. In default of payment of Daman amount, accused shall be kept in jail for further three months S.I.
Accused Rehman alias Abdul Rehman son of Momin is sentenced to undergo S.I for two years as Ta'zir and impose daman Rs.30,000/- (Rupees thirty thousand only) which accused is directed to pay to injured Kanbeer. In default of payment of Daman amount, accused shall be kept in jail for further three months S.I.
(iii) Under Section 506(ii) P.P.C.
All accused are sentenced to undergo S.I for three years and to pay fine of Rs.10,000/- (Rupees Ten thousand only) each and in case of failure of payment of fine, they shall further suffer S.I for three months more.
2. Brief facts of the prosecution case are that complainant Razique son of Chhutto stated that that they have dispute over the landed property with Qalandar and others. On 02-08-2023 at 0700 hours, his cousins Hoat and Kanbeer, were standing at bus stop road and waiting for the bus and in the meantime, accused namely Qalandar armed with pistol, Zulfiqar and Rehman armed with gun came at bus stop and asked the complainant's cousins as to why they were standing at bus stop despite dispute with them. They replied that they are waiting for the bus and going to Islamkot town. Accused Qalandar shown his pistol and instigated co-accused not to spare them and on such instigation, accused Zulfiqar alias Zulfiqar made straight fires from his gun upon injured PW Hoat, with intention to commit his qatl-i-amd and he sustained injuries on his left thigh, left leg, left knee and right side foot; and accused Rehman made straight fires from his gun upon injured PW Kanbeer, with intention to commit his qatl-i-amd and he sustained injuries on his left knee, left leg, left foot beside right side knee and right side foot. They fallen on earth while crying, which attracted Arab and Halo, who rushed there, intervened and rescued injured. Thereafter, accused left the place of incident while issuing murderous threats. Halo arranged vehicle and brought injured at PS Islamkot, obtained letter for treatment and then got admitted at RHC, Islamkot. Thereafter, instant FIR was lodged.
3. On conclusion of investigation, a challan was submitted by the Investigating Officer against the appellants and thereafter a formal charge was framed against them by the trail court, to which they pleaded not guilty and claimed trial. In order to prove its case, the prosecution examined as many as 07 witnesses, viz complainant Razique, mashir Halo, injured Hoat, injured Kanbeer, WHC Miandad, I.O/ASI Mohan Lal and Dr. Kanwar Lal and produced number of items in their evidence which were duly exhibited at Ex. 03/A to Ex. 10.
4. The Statements of the accused were recorded under Section 342, Cr.P.C at Exh.11 to Exh.13 respectively, wherein they have denied the prosecution allegations levelled against them and lastly prayed for justice. However, none of them examined themselves on Oath nor examined any witness in their defense.
5. The learned Trial Court, after hearing learned counsel for the parties and appraisal of the evidence, convicted and sentenced the appellants/accused as stated above by extending them the benefit of section 382-B, Cr.P.C. The conviction and sentence recorded by the learned trial Court are impugned by the appellants before this Court by way of filing instant Criminal Appeal.
6. Learned counsel for the appellants mainly contended that the impugned judgment is against the law and facts of the case; that the present appellants are innocent and has falsely been implicated in this case by the complainant; that the complainant and eye-witnesses are related inter-se and inimical towards the appellant; that the evidence of prosecution witnesses is full of contradictions and discrepancies, which are fatal to the prosecution case. That Section 324, P.P.C. is not applicable in this case, as accused person have not repeated the fire upon the complainant party; that the conviction so recorded by the learned trial court under section 324, P.P.C. is against the law. Learned counsel for appellant Qalander argued that no role has been assigned against the accused Qalandar Bux and merely on the instigation he has been robed in this case due to enmity which was admitted by the complainant. They lastly contended that the prosecution has miserably failed to prove the case against the appellants and thus, according to them, under the above-mentioned facts and circumstances, the appellants are entitled for their acquittal.
7. On the other hand, learned Additional Prosecutor General for State and learned counsel for the complainant argued that there was no mala fide on the part of the complainant to implicate the appellants in this case falsely; that the appellants named in the FIR with the specific role of making direct fires of the pistol/gun up on the injured/witnesses with the intention to kill them; that the ocular testimony furnished by complainant Razique and injured Hoat and Kanbeer is corroborated with medical evidence. They further argued that the learned trial Court has rightly appreciated the evidence while recording the conviction and sentence of the appellants in accordance with the law, thus they lastly prayed for dismissal of the instant Crl. Appeal.
8. I have heard learned counsel for the parties and perused the material available on record.
9. From perusal of record it appears that Hoat and Kanbeer are eye/injured witnesses of the incident, who had received the injuries at the hand of appellants namely Zulfiqar and Rehman.
Both the witnesses with one voice deposed that on 02.08.2023 at about 07:00 a.m they were present at bus stop and waiting for Bus/vehicle. Meanwhile Appellant Qalandar having pistol, Zulfiqar having gun and Rehman having gun appeared there and asked the both the witnesses why they are here and we are at disputed. Both the witnesses replied that they are going to lslamkot and waiting for bus. On the instigation of appellant Qalandar, the appellant Zulfiqar made straight fire from his gun up on Hoat with intention to kill him, resultantly he received Multiple pallets injures on the different part of the bodies. Things are not ended here appellant Rehman also fired from his gun up on the PW Kanbeer and he had also received multiple pallets injuries in the different part of the bodies. This incident was witnessed by the PW Arab and Halo. PW Halo is also mashir of this case. The prosecution also examined him and he had also supported the version of the injured witnesses. He had produced memo of injures of the injured witnesses, memo of site inspection and memo of recovery of clothes at Ex. 4/A to Ex.4/C. The prosecution also examined the complainant and other witnesses including I.O. and other police officials. They have also supported the version of the injured witnesses.
10. The medical certificate of the injured Hoat and Kanbeer was produced by PW Dr. Kanwar Lal/PW-07 (Ex.No.09) also proves that the injured were referred to him on the date of the incident he examined them on the same date and found multiple injuries of same kind of weapon. Dr. Kanwar Lal further deposed that he was posted at RHC Islamkot and on the day of offence viz: 02.08.2023, two injured namely Hoat and Kanbeer, appeared at RHC Islamkot along with police letter. He produced the letter at Ex.9/A. He examined the injured Hoat and found multiple injuries of same kind as 1 lacerated wound of firearm multiple in numbers each measuring about 2 mm to 3 mm in size largest of 3 mm over (a) medial and anterior side of left thigh (b) anterior and lateral side of left leg (c) anterior aspect of left knee joint (d) right foot anterior, dorsal and medial aspect.
He was given first aid, kind of weapon firearm/shot gun and duration of injuries six to eight hours.
He has also issued provisional MLC and produced at Ex.9/C and he referred the patient to DHQ Mithi and he has produced referral letter at Ex.9/D. Finally, he has received file/record along with x-ray from DHQ Mithi and LUH Hyderabad and produced the same at Ex 9/E. He has also produced final MLC at Ex.9/H.
11. He/Doctor also examined injured Kanbeer and found multiple injuries of same kind as: 1. lacerated wound of firearm multiple in numbers each measuring about 2 mm to 3 mm in size largest of 3 mm over (a) anterior aspect of left knee joint (b) lateral and anterior aspect of left leg
(c) lateral side of left ankle (d) anterior and medial aspect of right ankle (e) anterior and medial aspect of right foot. All the injuries kept reserved and during of injuries four to six hours. He also issued provisional MLC and produced the same at Ex.9/J and he referred the patient to DHQ Mithi and finally he has produced file/record received from DHQ Mithi and LUH Hyderabad at Ex.9/L. He has also produced final MLC at Ex.9/O. During cross-examination, the Doctor denied the allegation for self-suffer injuries, however admitted that the injuries were caused at the distance of around 10 Meter. All the witnesses were cross-examined at length but the appellants could not shatter the evidence of the prosecution witnesses.
12. So far the plea raised by the counsel for the appellants that section 324, P.P.C. is not applicable in this case as accused persons not repeated fire upon the injured witnesses. It is suffice to say that the once an accused person pressed the trigger of his fire arm, Section 324, P.P.C. comes in action.
Section 324, P.P.C. consisted of two parts i.e., commission of an act with intention or knowledge to commit Qatl-i-amd, and in the second part, there is effect of the act done. Application of Section 324 P.P.C. has to be judge in background of the number of the accused persons, the weapon carried by them and the opportunity available to them to complete the intended offence. In the instant case, when both the injured present at the bus stop and waiting for the bus, the appellants duly armed with gun appeared at the place of incident by saying that there is enmity between them and why they are standing here and, on the reply of the injured witnesses they made straight fire upon them and resultantly they received multiple pallets injuries on the different part of the body., hence ingredients of section 324, P.P.C. are very much applicable in this case.
13. Although, the FIR was lodged with a delay of one day but police letters and medical certificates show that the injured appeared at PS and after getting a letter for medical treatment appeared at Hospital and were examined on the same date of the incident within 05 hours. The complainant has explained that first the injured got treatment and then he lodged the FIR; therefore, the delay that occurred in the lodgment of the FIR is/was fully explained. The prosecution has successfully proved allegations against accused/appellant Zulfiqar for causing firearm injuries to PW/injured Hoat. So also against appellant/accused Rehman who had caused fire arm injuries to PW/injured Kanbeer.
14. In the instant matter, the complainant, injured witness as well as all other eye-witnesses of the incident has fully explained the date, time, place of incident, manner of occurrence, and involvement of the appellants. There can be no denial to the legally established principle of law that it is always direct evidence that is material to decide the fact and to prove the charge.
Insufficient, contradictory, discrepant direct evidence is deemed adequate to hold a criminal charge as not proved but where direct evidence remains in the field with that of its being natural and confidence-inspiring then the requirement of independent corroboration is only a rule of abundant caution and not a mandatory rule to be applied invariably in each case. Reliance may be placed upon the case of Muhammad lhsan v. The State (2006 SCMR 1857) wherein the Apex Court has held that:
5. It be noted that this Court has time and again held that the rule of corroboration is rule of abundant caution and not a mandatory rule to be applied invariably in each case rather this Is settled principle that if the Court is satisfied about the truthfulness of direct evidence, the requirement of corroborative evidence would not be of much significance in that, as it may as in the present case eye-witness account which is unimpeachable and confidence-inspiring character and is corroborated by medical evidence."
15. From the perusal of the evidence of the injured/eye-witnesses and other private witnesses, it appears that they cannot be termed as chance witnesses rather would fall within the category of natural witnesses. From the appreciation of evidence, it is crystal clear that the prosecution remained successful to bring cogent and unimpeachable direct evidence well supported and corroborated by the medical version against the appellants Zulfiqar and Rehman. The evidence of the witnesses and injured witnesses cannot be discarded merely because they are close relatives inter-se particularly their presence at the place of occurrence was obvious as the incident took place in broad daylight.
16. Learned counsel for the appellant pointed out some minor contradictions and discrepancies in the evidence of witnesses, which in my observation are not adequate to grip that the case of the prosecution is doubtful. It is settled by now that, wherein the evidence, the prosecution established its case beyond a reasonable doubt by producing reliable, trustworthy and confident inspiring evidence supported by the medical and circumstantial evidence then if there may some minor contradictions which always are available in each and every case, such may be ignored, as it has been held by Honourable Supreme Court in case of Zakir Khan v. The State (1995 SCMR 1793). The relevant paragraph is reproduced as under:- "13. The evidence recorded in the case further indicates that all the prosecution witnesses have fully supported each other on all material points. However, emphasis has been laid by Mr. Motiani upon the improvements which can be found by him in their respective statements made before the Court and some minor contradictions in their evidence were also pointed out. A contradiction; unlike an omission, is an inconsistency between the earlier version of a witness and his subsequent version before the Court. The rule is now well established that only material contradictions are to be taken into consideration by the Court while minor discrepancies found in the evidence of witnesses, which generally occur, are to be overlooked. There is also a tendency on the part of witnesses in this country to overstate a fact or to make improvements in their depositions before the Court. But a mere omission by witness to disclose a certain fact to the Investigating Officer would not render his testimony unreliable unless the improvement made by the witness while giving evidence before the Court has sufficient probative force to bring home the guilt to the accused."
17. Considering the above facts and circumstances, I have concluded that the prosecution has successfully established its case against appellant Zulfiqar alias Zulfiqar Ali and Rehman alias Abdul Rehman, through ocular account furnished by the complainant and eye-witnesses/injured witnesses which is corroborated by the medical evidence coupled with circumstantial evidence.
Learned counsel for the appellants has failed to point out any material irregularly or serious infirmity committed by the learned trial Court while passing the impugned judgment to the extent of appellants Zulfiqar and Rehman which in my humble view is based upon proper appreciation of evidence and the same does not call for any interference of this Court. Thus, the Criminal Appeal No.S-01 of 2024 is dismissed to the extent of appellants Zulfiqar and Rehman and the conviction and sentence awarded to appellants/accused named above through impugned Judgment dated 08.01.2024 passed by learned Additional Sessions Judge-II, Tharparkar alias Mithi in Sessions Case No.179/2023 State v. Qalandar and others for the offence under Sections 324, 506(ii), 337-A(i) 337- F(i)-337-F(iii),114, and 34 P.P.C., Crime No. 93/2023 of Police Station Islamkot are maintained.
18. Reverting to the case of appellant Qalandar, from perusal of record, it reflects that only role assigned against him by injured/eye-witnesses that he has instigated both the accused persons resultantly both the appellants named above fired upon the injured Hoat and Kanbeer. From perusal of evidence of both the inured witnesses, it appears that he was armed with pistol but he did not caused any injury to the injured witnesses. Except role of instigation, no other connecting material has been brought on record by the I.O. of the case to connect the appellant Qalandar with the commission of offence. The rule of benefit of the doubt is essentially a rule of prudence, which cannot be ignored while dispensing justice in accordance with law. The conviction must be based on unimpeachable evidence and certainty of guilt and doubt arising in the prosecution case must be resolved in favor of the accused. The said rule is based on the maxim "It is better that ten guilty persons be acquitted rather than one innocent be convicted" which occupied a pivotal place in the Islamic Law and is enforced strictly in view of the saying of the Holy Prophet (PBUH) that the "mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent."
19. In view of the above, the prosecution has failed to prove the guilt to the extent of appellant Qalandar beyond any reasonable doubt and it is the well-settled principle of law that for creating a shadow of a doubt, it is not necessary that there should be many circumstances. If a single circumstance creates reasonable doubt in the prudent mind, then its benefit is to be extended in favour of the accused not as a matter of grace or concession, but as the matter of right. The reliance is placed on the case of Muhammad Mansha v. The State (2018 SCMR 772), wherein the Honourable Supreme Court of Pakistan has held that:- "4.......... Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of accused, then accused would be entitled to the benefit of such doubt, not as a matter of grace and concession but as a matter of right. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". Reliance in this behalf can be made upon 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) and Muhammad Zaman v. The State (2013 SCMR 749).
20. In this case, the learned trial Court has not evaluated the evidence in its true perspective to the extent of appellant Qalandar and thus arrived at an erroneous conclusion by holding the appellant guilty of the offense. Resultantly, the instant appeal is allowed to the extent of appellant Qalandar.
The conviction and sentence awarded to him are set aside and he is acquitted of the charge by extending him the benefit of the doubt. The appellant Qalandar Son of Hakam shall be released forthwith if he is no more required in any other custody case.