1. ' Appellant Alidino has called in question the judgment dated 19-4-1999 passed by the learned IV- Additional Sessions Judge, Hyderabad, whereby he has been convicted and sentenced to suffer R.I.
2. For 10 years and to pay fine of Rs,50,000 in case of default in payment of fine. Alidino has to undergo further R.I. For one year under section 324, P.P.C. If fine is paid by the appellant Alidino, half of the same is to be paid to the complainant Ali Bux and P.W. Mukhtiar. Appellant Alidino has also been convicted under section 337-A(i), P.P.C. For causing hurt to complainant Ali Bux and sentenced to pay fine of Rs,50,000 as Daman to the complainant. The appellant has also been convicted under sections 337-F(i) and 337-F(vi), P.P.C. Or causing hurt of Damiyah and Munaqqilah to P.W. Mukhtiar and sentenced to pay Rs,50,000 for each hurt, total Rs,1,50,000 as Daman to P.W.
3. Mukhtiar and also to suffer R.I. For one year under section 337-F(vi), P.P.C. All the above sentences shall run concurrently. The appellant Alidino has also been accorded the benefit of section 382-B, Cr.P.C. Hence this Appeal.
4. ' Brief facts of the case are that on 18-4-1997 complainant Ali Bux son of Chanesar Khaskheli resident of near Mir Paro, Tando Jam City, Taluka Hyderabad, lodged report stating therein that . He alongwith two brothers namely Mukhtiar Ali and Ayaz Ali are residing together at the abovementioned address. The complainant himself is cleaner on the vehicle of WAPDA, while his brother Mukhtiar runs a Tyre Puncture Shop on the main Road near Police Station. Ayaz Ali also runs his Puncture Shop at Soomro Petrol Pump. They had dispute with Alidino on a ditched plot and Alidino and other had blocked their drain water on the back of their house and constructed a path thereon, as such, they are not on good terms with each other. On 16-4-1997, it was Eidul Azha day; complainant alongwith his brother and neighbourers, namely, Raja and Abdul Sattar were available in his Otaq, when at 1600 hours, who was Alidino having single barrel gun in his hand, from the side of demolished walls of Otaq fired from his gun straightly towards them by standing which hit him on forehead. On receiving one pellet shot injury, blood started oozing. On this Rajab Ali and others gave hakal to Alidino, do not the men (sic). On this Alidino loaded the gun and fired second shot, which hit his brother Mukhtiar Ali on left arm and left side ribs, who receiving pellet injuries fell down on the ground and started oozing the blood. Thereafter, appellant Alidino went away alongwith his gun while he and his brother Mukhtiar were removed to Police Station by Rajab and Abdul Sattar where the complainant lodged the Report that because of dispute over plot, Alidino in order to commit the Qatl-e-Amad of them, straightly fired upon them from gun and thereby caused injuries to him and his brother Mukhtiar Ali.
5. ' A.S.I. Ali Nawaz recorded the F.I.R. Of the complainant. He then prepared the mashirnama of injuries on the person of injured.Mukhtiar and complainant Ali Bux in presence of mashirs Roshan and Jan Muhammad Exhs.13 and 14 and then referred both the injured to RHC Tando Jam for treatment and certificate. He also recorded statement under section 161, Cr.P.C. Of Abdul Sattar and Rajjab and then proceeded towards the place of incident alongwith above P.Ws. And mashirs and prepared mashirnama of wardat Exh.15 and also secured one pallet and one empty from there. On 24-4-1997 he arrested accused Alidino who produced by his brother Basar at Police Station under mashinama Exh.16 in presence of the above said mashirs. Appellant Alidino has produced a single barrel gun bearing No,25294 and Licence No,540 which he secured under mashinama Exh.17. On 27-4-1997 he recorded the statement of injured Mukhtiar at L.M.C.H., Jamshoro. On 1-5-1997 he received provisional medical certificate of injured person and after completing the investigation, he handed over the case papers to S.H.O. For submission of challan.
6. ' Charge Exh.2 was framed for the offence punishable under section 24, P.P.C. Against the appellant to which he pleaded not euilty and claimed to be tried.
7. ' The prosecution during the trial examined P.W.1. Complainant/injured eyewitness Ali Bux at Exh.
7. He has produced the F.I.R. At Exh. 8: P.W.2 injured eyewitness Mukhtiar at Exh.9, P.W.3 Abdul Sattar eye-witnesses at Exh.10, P.W.4, Rajjab another eye-witness at Exh.11; P.W.5 mashir Roshan Ali as Exh.12, who produced the mashinama of injuries of both injured, wardat, arrest of appellant Alidino, recovery of gun and its licence at Exhs.13 to 17; P.W.6 Dr. Irfan Ali at Exh.18. He has produced the Provisional and final medico-legal certificate of both injured at Exhs.19 to 22. The prosecution lastly examined P.W.7 A.S.-I. Ali Nazar, the Investigating Officer at Exh.23 and thereafter closed its side vide statement at Exh.24.
8. ' Appellant Alidino has been examined under section 342, Cr.P.C. At Exh.25. He has denied the prosecution allegations. He has filed his written reply at Exh.26. In his written reply he has stated:-- "that I had dispute with complainant party over the plot which is adjacent to my house whereas the house of complainant party is separated from the said plot by a Road. The dispute was taken before the Mukhtiarkar Taluka Hyderabad. Assistant Commissioner Taluka Hyderabad, Assistant Commissioner Taluka Hyderabad and S.H.O. Police Station Tando Jam. Ultimately, the matter was resolved in my favour and plot was given to me. Outwardly, the complainant remained mum but was in the look out to find some opportunity to grab the plot.
(2) Two days prior to incident my mother-in-law had fallen ill, therefore, I had taken my wife and children to Rajo Khanani bore town of in-laws in Taluka Tando Bogo to attend her. I celebrated Eidul Azha at Raju Khanani with my in-laws. After 1/2 days of Eidul Azha I learnt that in an incident my elder brother Basar had been arrested by police in my place. I took my family from Raju Khanani and came to Tando Jam where I came to know that my licenced gun which had been left by me in my house had been secured by police in a case filed against me by the complainant and that my brother Basar had been detained by police. In the town Muhammad Achar Katiyar who is peon in Municipal Committee Tando Jam told me that on the day of incident he had seen Ali Bux and Mukhtiar being brought in Suzuki at about noon time in injured condition from outside Tando Jam.
9. That he also learnt that while committing some offence they had been caused injuries by the victims of the incident.
(3) That I voluntarily appeared at the Police Station and courted my arrest, whereafter my bother Basar was released. After 2 or 3 days, I was produced before the Magistrate for remand. I am innocent. I have been falsely implicated so that I should surrender the plot to the complainant.
10. ' Appellant Alidino has also examined Bachayo and Muhammad Achar as his defence witnesses at Exhs. 27 and 28; though he also cited his brother Basar as D.W. But vide Statement at Exh.29, learned counsel for appellant gave up Basar and closed the side of appellant.
11. ' Learned trial Court, after going through the evidence, passed the judgment in terms as stated above.
12. ' I have heard Mr. Hadayatullah A. Abbasi, learned counsel for the appellant; Mr. Anwar Hussain, learned counsel for A.-G. For State, who has not supported the judgment. Mr. Hadayatullah A.
13. Abbasi had canvassed before me that motive has been assigned by the prosecution that there is dispute over the plot and according to him, in cross-examination, the complainant has stated that the dispute over the plot is settled on account of intervention of Mohalla people thereafter it was settled before Assistant Mukhtiarkar; the dispute has also been settled before S.H.O. All the three settlements were made before the incident. He has further admitted in cross-examination that as per 3 settlements, the plot was given to the appellant Alidino. Mr. Hadaytullah A. Abbasi has further submitted that in examination-in-chief Complainant has stated that his brother Mukhtiar came and asked him to go to plot as some guests had arrived there and he went there; Abdul Sattar and Rajjab Ali were sitting there when appellant came there and started firing on complainant who sustained fire-arm injury on his fore-head and Mukhtiar also sustained fire-arm injury on his left shoulder and back side. P.W. Mukhtiar in examination-in-chief has stated that on the day of incident, he Rajab, and Abdul Sattar had come at the plot, it was 3-00 p.m.,; Rajjab and Abdul Sattar were sitting there. Thereafter, Mukhtiar went to take meal from his house which was also there. There was a road in between in his house and plot; thereafter he brought Jug and glass frog his house and have Rajjab and Abdul Sattar; in the meantime, appellant Alidino whose house is also near to that place came there and made fire at his brother Ali Bux, whom he had brought from the house. The fire hit Ali Bux on his fore-head. Thereafter, Alidino made second fire, which hit him on his left arm and left side of back. P.W. Abdul Sattar has also stated in examination-in-chief before the trial Court that at 4-00 p.m. He had gone to Mir Paro Tando Jam at the plot of Mukhtiar and Rajab Ali. Mukhtiar and Rajjab Ali were also present at the plot. They had come there after slaughtering the goat. In that time Mukhtiar went for taking meal, and water. In the meantime.
14. Appellant Alidino came there and fired from his gun upon Mukhtiar who was standing there.
15. According to Mr. Hadayatullah Abbasi no person from the locality has been collected although according to the prosecution case there were gun reports and so many people had gathered but none of them has been examined by the prosecution.. Mr. Hadayatulah has further contended that medical evidence contradicts the ocular evidence and impugned judgment lacks the reason with regard to medical evidence. The has further contends that Investigating Officer being dishonest Police Officer has also deposed before the trial Court that disputes were going on between the parties and incident took place at the plot which was in possession of the appellant. Mr. Hadayatullah has further contended that no Jug, plates and other utensils have been secured from the place of wardat. According to him the injured persons had walked down to Police Station and had left trail of blood but nothing is mentioned in mashirnama of wardat. Mr.Hadayatullha has contended that the incident has not taken place in a manner being narrated by the prosecution and the incident has taken place somewhere else and the different story is being narrated by the witnesses. According to him, the evidence of Investigating Officer is not inspiring evidence. Medical evidence belies version of injured witnesses and so also other witnesses; recovery of gun from the appellant Alidino is also doubtful; mashirnama has not been signed by mashirs. Learned counsel for appellant has further submitted that the defence witnesses have also deposed before the trial Court that one Suzuki Van came and stopped in front of the house of Mukhtiar and on that Suzuki Van complainant and Mukthiar were lying in injured conditions; Abdul Sattar and Rajoo were with them and the house of defence witness Aachar is situated at the distance of 15 yards from the house of complainant. On his enquiry Rajjab and Sattar informed him tht there was fight outside Tando Jam which resulted in injuries sustained by complainant and Mukhtiar and according to him, the incident is said to have taken place at some different place. He has further canvassed that had the incident taken place at the place being claimed by the prosecution; the police would have recovered the jug and glass from the place of wardat; blood-stained earth etc., and there is no recovery of such articles, therefore, the version of the prosecution is nothing but a sadistic-lie.
16. According to Mr. Hadayatullah A. Abbasi, learned counsel for the appellant the medical evidence is not supporting the version of the witnesses as being narrated with regard to the commission of the offence mashirnama of injuries describes about eleven holes on forehead of Ali Bux, the same is not being supported by the Doctor. He has lastly submitted that the case of the prosecution is riddled with material contradictions and has prayed for the acquittal of the appellant.
17. ' On the other hand, Mr. Anwar Ansari, learned counsel for A.-G. For the State has not controverted the contentions raised by Mr. Hadyatullah A. Abbasi.
18. ' I have very carefully gone through the arguments rendered by the learned counsel for the parties; have examined the material available on record; with their assistance I have also gone through the evidence of witnesses.
19. Admittedly, the motive assigned by the prosecution is not being established. In view of the fact that the claim of the prosecution is that there was dispute between the appellant and the complainant party over a plot but at the same time it has been admitted by the complainant, Mukhtiar, Abdul Sattar and Rajjab that there was settlement between the party over the plot and the plot was in possession of the appellant, and therefore, the cause of incident is not being supported by the prosecution itself. I have also very carefully examined the evidence of Doctor and such evidence has not supported the statement of the injured/complainant and Mukhtiar with regard to the injuries sustained by them. The Investigating Officer has become party himself in the matter who is dishonest police officer, who bas stated before the trial Court that the dispute was going on between the parties and incident took place for plot which was in possession of the accused.
20. Neither blood-stained earth has been secured from the place of the Wardat nor the jug and glas, as being claimed by the prosecution. Injured have gone on foot to Police Station and there was trail of blood right from the place of Wardat to the Police Station but nothing is mentioned in the Mashirnama of Wardat; nor the Investigating Officer has deposed in this regard. The evidence of injured witness is not inspiring-confidence; and his evidence has not been considered by the learned trial Court which leads to inference that incident has taken place at different place and the evidence of witness is full of material contradictions. No independent witness has been examined by the police. Even after the incident, so many witnesses have attracted and came at the place of Wardat but the Investigating Officer has failed to examine them on the factum of incident, who could have narrated before the trial Court that incident had taken place at the place being claimed by the prosecution but in the instant case no efforts have been taken by police for an independent witness on the factum of the incident.
21. In view of the above discussion I am of the considered view that the prosecution has miserably failed to make out its case beyond reasonable doubt. Accordingly, I give the benefit, particularly when the learned State Counsel has not supported the judgment. Appeal is allowed, the conviction and sentence of the appellant are set aside. Appellant Alidino shall be released forthwith if not required in any other crime.
22. ' The above are the reasons for m short order, dated 8-3-2001.