1. ' By this single judgment, I propose to dispose of Criminal Appeal No,64 of 1991 filed by the appellant Ali Nawaz and Criminal Appeal' No,68 of 1991 filed by the appellant Khairo as the same arise out of the same judgment, dated 7-8-1991.
2. ' Both the appellants have been convicted under section 323 read with section 34, P.P.C. By Sessions Judge, Badin and sentenced to six months rigorous imprisonment.
3. ' The facts as stated by complainant Allah Dino in his F.I.R. Lodged at Police Post Kadhan are that on the fateful night of 13th September, 1989, he alongwith his son Siddique and family members were sleeping in Court yard of their house. At about 12-30 a.m. He lit a "Beeri" and found four persons standing at his street. Complainant woke up, his son Siddique and they identified three out of four to be Ali Nawaz armed with Lathi, Ghulam armed with pistol, Khairo armed with Lathi, whereas fourth one who had Lathi in his hand could not be identified. The complainant challenged them and asked them as to why they had come there to which Ghulam fired from pistol at him. The complainant caught hold of accused Ali Nawaz and accused Khairo caused Lathi blows to him, whereas accused Ghulam fired from pistol to him which hit him but yet he did not leave Ali Nawaz.
4. They raised cries which attracted prosecution witnesses, Hashim, son of Punhoon, Dur Muhammad, Mir Muhammad and Vikio. Three assailants took to their heels, whereas they apprehended appellant Ali Nawaz. The complainant then saw that accused Ali Nawaz had pellet injuries on his arm. The complainant sent his son Siddique to inform the Zamindar Muhammad Hussain. He brought said Zamindar to Wardat. The complainant left prosecution witnesses for the guard of Ali Nawaz and he himself proceeded to police post where he lodged F.I.R. Motive of the said incident is alleged to be that accused Ghulam had abducted the daughter of complainant which he returned on the intervention of Nekmards but he was annoyed and as such he came with the intention to kill him.
5. ' The police challaned both the appellants and acquitted accused Ghulam alias Ghulam Rasool in the Sessions Court, Badin. The learned trial Court framed the charge (Exh.2) against all the three accused under section 307 read with section 34, P.P.C. And sections 325, 323 read with section 34, P.P.C.
6. ' The prosecution during trial examined Dr. Mahboob Ali (Exh.8) who produced Provisional and Final Medical Certificates of the injured Allah Dino as Exh.8-A and Exh.8-B, respectively. The said witness also examined appellant Ali Nawaz and produced his medical certificates as Exhs.8-C and 8-D, P.W. Allah Dino (injured) Exh.9, P.W. Siddique Exh.10, P.W. Hashim Exh.11, Mashir Muhammad Aslam Exh.13, who produced Mashirnamas of the injuries of injured Allah Dino Exh.13-A, Mashirnama of place of incident Exh.13-B, Mashirnamas of the arrest of the appellant Ali Nawaz Exh.13-C, Mashirnama of the arrest of the acquitted accused Ghulam Exh.13-D and Mashirnama of the recovery of the country made pistol from acquitted accused Ghulam Exh.13-E and lastly Investigation Officer Ahmed Khan Exh.16.
7. ' The Appellants Ali Nawaz and Khairo in their statements Exh.18 and Exh.20 have denied prosecution case and claimed innocence. Both the appellants examined themselves on oath and also examined defence witnesses Hashim and Khair Muhammad.
8. ' The learned Sessions Judge, Badin by the impugned judgment has acquitted the co-accused Ghulam but convicted appellants under section 232 read with section 34, P.P.C. And sentenced them to six months' R.I. The Appellants have challenged their conviction in this appeal. Both the appellants are on bail granted by this Court.
9. ' I have heard Mr. Muhammad Ashraf Leghari, learned counsel for the appellants Ali Nawaz and Mr. Rasool Bux Unnar, learned counsel for the appellant Khairo. I have heard also Mr. Agha Khuda Bux, learned counsel for the State who has not supported the impugned judgment and conviction of the appellants.
10. ' Learned counsel for the appellants have submitted that prosecution has not proved its case against the appellants, not only motive as alleged was not proved but it adversely effected the entire prosecution case, ocular evidence was interested, which was without any independent corroboration, which was also in conflict with medical evidence, the eye-witnesses having been disbelieved against acquitted accused could not be believed against the appellants. They argued that the evidence of alleged recoveries was of no help to the prosecution case.
11. ' I have heard the learned counsel for the parties. I have gone through the entire evidence produced by the prosecution as well as the appellants and the impugned judgment of the trial Court.
12. ' Before I consider the arguments of the learned counsel for the parties I would like to discuss the prosecution evidence.
13. ' Star witness is P.W. Allah Dino who has stated that he resided with his son Siddique in one and the same house. On the date of incident at about 12-00 in the night he woke up for smoke and saw four persons and identified three of them in the moonlight as Ali Nawaz, Ghulam and Khairo but could not identify the with culprit. Accused Ghulam fired at him which missed. The appellant Ali Nawaz grappled with him and appellant Khairo caused him Lathi injury. Thereafter, accused Ghulam fired at them which hit him and the appellant Ali Nawaz, who was apprehended at the spot. On cries Dur Muhammad, Hashim, Mir Muhammad and Vikio came. The remaining three accused made their escape good while appellant Ali Nawaz was apprehended.
14. ' P.W. Siddiq Exh.10, who is the son of the P.W. Allah Dino deposed in the same manner as his father Allah Dino.
12. P.W. Hashim Exh.11, deposed that on the night of the incident at 12-30 in the night he woke up on gun shot report and went to the house of Allah Dino and saw accused Ghulam armed with pistol.
15. P.Ws. Dur Muhammad, Mir Muhammad and Vikio had also come to the place of Wardat. Appellants Ali Nawaz and Khairo were armed with Lathis. Accused Ghulam fired from his gun which hit Ali Nawaz and Allah Dino and then accused ran away. He could not identify the fourth accused. In cross examination he admitted that the complainant Allah Dino was related to him.
16. ' P.W. Muhammad Aslam is the Mashir of the injuries on the person of Allah Dino, place of incident and recovery of two cartridges from the place of Wardat. He is also Mashir of arrest of the appellant Ali Nawaz. He, however, deposed that accused Ghulam Rasool did not produce any pistol in his presence, but the police informed him that the pistol was recovered from the accused Ghulam Rasool.
17. ' Defence witness Khair Muhammad deposed that about 18/19 months back he and Ali Nawaz were present at the land where police and Allah Dino came at 8-00 or 9-00 a.m. And arrested accused Ali Nawaz. D.W. Hashim deposed that 18/19 months back accused Khairo had complained him that he gave buffaloes on grazing terms to complainant and he sold one of his buffaloes but complainant was not prepared to give him share and he had threatened the accused to see him and involve him in the false case.
18. ' The learned trial Court did not believe ocular evidence against the acquitted accused Ghulam which was according to the learned trial Court was totally in conflict with medical evidence. The alleged motive was also not believed, so also the recovery of pistol. As such, the accused Ghulam was acquitted by the trial Court. The motive against the accused Ghulam was that he had kidnapped the daughter of the complainant.
19. Thus, it is clear from the prosecution evidence that the appellants had no motive to attack, the complainant and to cause him injuries. It is well-established law that once prosecution has set up a motive, then it is duty bound to prove it, failure to prove will affect the prosecution case adversely and benefit will go in favour of accused.
20. ' In the case of Hakim Ali and others v. The State reported in 1971 SCMR Page 432, it was held by the Honourable Supreme Court that though prosecution not called upon the establish motive in every case, yet once it has set up a motive and failed to establish, Prosecution must suffer consequences and not the defence.
21. ' In Rasool Bux and another v. The State 1980 SCMR page 225 it was held by Honourable Supreme Court that the motive coming from the mouth of same witnesses whose evidence sought to be corroborated by motive hence of no corroborative value.
22. By acquittal of accused Ghulam, the entire prosecution case has fallen on the ground. Not only motive has been disproved but it has adversely affected the ocular evidence.
23. ' The ocular evidence has also not inspired confidence, which has been disbelieved by the Trial Court against the main accused Ghulam who has been acquitted. All the eye-witnesses are related inter se. P.W. Siddique is the son of complainant, P.W. Hashim as per his own admission is related to the complainant. It is surprising that the disinterested witnesses who allegedly came to the place of incident namely Mir Muhammad, Dur Muhammad and Vikio have not been examined by the Prosecution.
24. ' Article 129 (g) Qanun-e-Shahadat Order lays down that evidence which could be and is not produced would, if produced be unfavourable to the person who withholds it.
25. The Prosecution having not produced disinterested and independent witnesses namely Dur Muhammad and others, had damaged its own case as the inference would be that if the abovenamed witnesses would have been produced they would have not supported the prosecution case but deposed the true facts of the incident.
26. ' In the case of Mangio v. The State reported in 1976 PCr.0 page 243 it was held by the D.B of this Court that person of non-Partisan character and natural witnesses of occurrence not examined by Prosecution, the inference would be against the prosecution and not against the defence.
27. ' From the discussion of above case-law, its is clear that if the above witnesses would have been examined they would have deposed against the complainant and by withholding the said witnesses the Prosecution has suppressed the real facts and it has examined only interested witnesses who have also not been believed against the main accused.
28. It is also well-settled law that witnesses disbelieved against the acquitted accused cannot be believed against the remaining accused without independent corroboration.
29. ' In the case of Wajjan Shah v. The State, reported in 1997 MLD 1730 (D.B.) of this Court, held that "it is settled principle of the administration of Justice that if the prosecution witnesses are discredited in respect of majority of accused, it is never treated to be safe to believe their evidence in respect of other accused unless there is some independent and strong corroboration. Therefore, it can be said that if on the same set of evidence one accused is acquitted then on the same evidence the other co-accused cannot be convicted unless such evidence is distinguishable"
30. ' Bashir Ahmed and others v. Ali Muhammad and others reported in 1994 SCMR 1157, the Honourable Supreme Court held that accused could not safely be convicted on the same discrepant prosecution evidence on which benefit of doubt had been extended to the acquitted co-accused, in the absence of strong corroboration or confirmatory circumstance conclusively proving his participation in the crime, accused was acquitted in the reported case.
31. ' Yet in another case of the Supreme Court reported as Feroz Khan v. Fateh Khan and others 1991 SCMR 2220 it was held by the Supreme Court: .. But, as further contended by him the first mentioned set of accused was acquitted on account of extension of benefit of doubt, therefore, the remaining accused cannot be convicted on the basis of the testimony of the same witnesses."
32. In view of the above legal position, the evidence of P.W. Allah Dino and other eye-witnesses once disbelieved against the main accused cannot be believed against the appellants as such, I am of the view that ocular evidence does not inspire confidence and is without any corroboration. The Trial Court has also disbelieved medical evidence against the main accused Ghulam, as such, this finding has adversely affected ocular evidence and proved it that they eyewitnesses had not witnessed the incident or at least if they could speak lies against one accused than they could also depose falsely against the appellants, Moreso, evidence of independent witnesses has been withheld by the prosecution.
33. ' Now remains the evidence of the recoveries of the Lathis from the two appellants. Admittedly, the Lathis are not blood-stained as such even if a evidence of the recoveries be believed they will not advance the case of the prosecution or prove the prosecution case when the ocular evidence has been disbelieved and discarded.
34. ' In the case of Muttali v. The State, report& in 1972 SCMR 278, it was held by the Supreme Court that evidence of eye-witnesses having been rejected, recovery of blood-stained hatchet and Chaddar from the house of the accused was of no avail to the prosecution case. Recovery of incriminating articles by itself does not prove case against the accused. In the resent case the alleged recovery of Lathis under the circumstances of the case is of no help to the prosecution case, when the ocular evidence stands disbelieved for the reasons stated above.
35. ' The learned Trial Court in impugned judgment does not seem to have applied its judicial mind to the facts of the entire case including the 'defence pleas and the evidence produced by the appellants. The appellants had examined two witnesses in defence but the learned Trial Court has not even discussed about the defence evidence on the record, and it has confined only to the prosecution evidence and the prosecution case against the appellants.
36. ' In the case of Syed Shah Muhammad v. The State reported as 1991 SCMR page 2016, the Supreme Court held "Even if a plea advanced by an accused is not accepted by the Court, the conviction has to be recorded after the prosecution has established the guilt of the accused. There is no positive finding by the Trial Court that the defence witnesses are set up witnesses". From the perusal of the impugned judgment it appears that the learned Trial Court without application of mind to the case of the appellants and without discussing the defence evidence has convicted the appellants and, thus, the judgment of the learned Trial Court is not written in its true spirit as required under section 367, Cr.P.C. Which can be declared as illegal under the law.
37. ' Considering all the aspects of the case, and the case law discussed above, I am of the view that the prosecution has failed to prove its case against the appellants beyond any reasonable doubt. I, therefore, allow both the appeals, set aside the impugned judgment, conviction of the appellants and acquit them. They are on bails and their bail bonds stand discharged.