' By this appeal the appellants Ghulam Abbas and Muhammad Rafique have assailed the judgment, dated 12-9-1998 passed by the learned IInd Additional Sessions Judge, Karachi-South convicting and sentencing the appellants under section 324, P.P.C. To suffer R.I. For two years each.
2. The brief facts of the prosecution case are that the complainant Muhammad Salim lodged a report on 5-3-1995 at Police Station Bughdadi wherein it was stated that he was informed by his sister that her children were quarrelling with the neighbours. On hearing this, the complainant alongwith Abdul Razzaq went to the Dossa Compound near Gulzar Mosque. At about 9 p.m. He saw that appellants/accused Ghulam Abbas, Muhammad Rafique and Muhammad Yaqoob armed with Lathi and Chhuri respectively attacked upon the complainant party. Appellant/accused Ghulam Abbas and his companions caused Lathi and Chhuri blows to the complainant who received Lathi blows on various parts of his body and Chhuri blows on his belly. Due to these injuries the complainant was taken to Civil Hospital by P.W. Abdul Ghani. The incident was allegedly witnessed by P.W. Abdul Razzaq, Abdul Ghani and other persons.
3. After usual investigation, the appellants/accused as well as co-accused Muhammad Yaqoob were sent up to stand trial. During the course of trial, co-accused Muhammad Yaqoob, however, expired.
4. After completing all the formalities the trial Court framed formal charge against the accused under section 324/34, P.P.C. On 19-7-1995. Appellants/accused pleaded not guilty to the said charge.
5. In support of its case the prosecution examined P.W.1 Muhammad Salim Exh.6, who produced F.I.R. Exh.7, P.W.2 Muhammad Hassan Exh.8, P.W.3 Usman Ghani Exh.9, who produced Mashirnama of Wardat Exh.10, Mashirnama of arrest Exh.11, P.W.4 Dr. P.S. Dolatani Exh.12, who produced Medico-legal Certificate of injured Muhammad Salim Exh.13 and final report Exh.14, P.W.5 Haq Nawaz Exh.14-A, who produced entry No,44 of Police Station, Bughdadi with regard to the admission of injured in the hospital Exh.15, letter of Investigating Officer Exh.16, F.I.R. Exh.17 and P.W.6 Abdul Razzaq Exh.19.
Thereafter, the prosecution closed its side vide statement dated 16-5-1998 as Exh.20. Trial Court examined the appellants/accused under section 342, Cr.P.C. Wherein they denied the prosecution case and stated that they have teen falsely implicated in this case and that the prosecution witnesses were interested. The appellants/accused did not examine themselves on oath under section 340(2), Cr.P.C.
6. The trial Court convicted and sentenced the appellants/accused as stated hereinabove.
7. I have heard Mr. Shaikh Muhammad Mushtaq on behalf of the appellants/accused and Mr. Habib Ahmed, learned Assistant Advocate-General, Sindh on behalf of the State. The latter supports the impugned judgment. This matter was previously heard on 24-4-2000 when Mr. Habibur Rasheed, learned Advocate appeared on behalf of Advocate-General for the State but he did not support the impugned judgment. Besides, the State Counsel named herein Mr. Muhammad Ismail privately engaged as counsel by the complainant had also appeared on that date.
8. The perusal of the material placed on record shows that all the prosecution witnesses were interested. The incident occurred in a thickly populated area and admittedly many other independent private persons were available but they were not examined. The name of the P.W.
Muhammad Hassan does not transpire in the F.I.R. The alleged incident occurred in front of the house of the said Muhammad Hassan. P.W. Muhammad Salim stated that he took Abdul Razzaq to the scene of the offence whereas P.W. Muhammad Hassan stated that Muhammad Salim was at his house at the time of incident whereas Abdul Razzaq stated that he was present at the Shrine.
The police reached the scene of offence short time after the incident but no blood was found at the scene of offence.
9. Investigating Officer, Haq Nawaz was examined as Exh.14-A. He stated that the statement of complainant was recorded under section 154, Cr.P.C. In hospital. The name of witnesses Abdul Razzaq and Usman Ghani did not transpire in the said statement. The Investigating Officer further stated that the said witnesses were not seen by him when he visited the place of incident. The record shows that the investigation commenced before lodging of the F.I.R. The enmity is admitted and the witnesses were hostile to accused party. In such situation, the evidence of interested witnesses requires independent corroboration, which is lacking in the instant case. The witnesses even do not belong to the place where incident took place.
10. There is gross conflict and inconsistency between the ocular and medical evidence as injured stated that two accused inflicted "Danda" blows on his head whereas according to doctor, he found only one lacerated wound on his head. The complainant has stated in his statement before the Court that appellant Muhammad Rafique inflicted Chhuri blows on his chest and on his abdomen whereas doctor found only two incised wounds on his person. The ocular evidence is thus, materially contradicted by the medical evidence.
11. No source of light was disclosed in the Mashirnama of the scene of offence. Moreover, the weapons used in the commission of offence were not recovered from any of the appellant/accused. The ocular evidence is not corroborated by any material evidence. It is well- settled that it is not necessary that there should be many reasons for creating doubt but a single infirmity which creates reasonable doubt is sufficient to discredit the prosecution story and benefit thereof is to be extended to accused. The reliance can be placed upon the case of Tariq Pervez v.
The State 1995 SCM R 1345.
12. Consequently, in view of the above facts and circumstances, benefit of doubt is extended to the appellants/accused and the impugned judgment of conviction and sentence is set aside. The