1. The appellant/complainant Muhammad Punhal son of Khuda Bux by case Chacher has assailed the judgment of acquittal passed by the learned 1st Additional Sessions Judge, Ghotki.
2. The brief facts of the prosecution case as disclosed in the F.I.R. Lodged by the complainant are that there was dispute of complainant party over the house with Babu Shah and others, who were living in the same village. On the day of incident i.e. 30-7-1995 at about 9 a.m. The complainant was going from Qadirpur Road, when he reached near Government Park near Bagio Wah, he saw respondents/accused Zulfiqar Shah (he is not nominated as respondent in the appeal), Shah Nawaz Shah, Rafique Moughal, Fazal Shah, Mumtaz Shah and four unidentified persons standing.
3. The accused Zulfiqar Shah was armed with gun, Shah Nawaz and Rafique Moughal were armed with hatchets and rest of the accused were armed with lathies. The accused Shah Nawaz Shah abused the complainant and threatened him that since there is dispute with him over the house as such he could not be spared. Accused Zulfiqar Shah fired upon complainant, with the result complainant sustained injury on the right feet. Accused Shah Nawaz Shah caused hatchet injury on the palm of the left hand and accused Rafique Moughal caused hatchet blow on his head and rest of the accused caused lathi injuries to the complainant. On the cries of complainant P.Ws. Abdul Rehman and Muhammad Hashim Chacher and others came and rescued the complainant.
4. Thereafter, accused ran away and P.Ws. Brought the complainant at Police Station and lodged the report.
5. After usual investigation the accused were sent up to stand trial.
6. The trial Court after completing the codal formalities, framed the charge against the accused to which they pleaded not guilty and claimed to be tried.
7. Prosecution in support of its case examined Doctor Hassan Shah Medical Officer Exh.30, Complainant Muhammad Punhal Exh.40, P.W. Abdul Rehman Exh.50, P.W. Muhammad Hashim Exh.60, Mashir Nabi Bux Exh.70; SIP Muneer Ahmed Phuploto, Investigating Officer Exh.80 and prosecution closed its side. The statements of accused were recorded under section 342, Cr.P.C.
8. Wherein they denied the allegations levelled against them and pleaded innocence. The accused Shah Nawaz Shah acid accused Muhammad Rafique Moughal examined themselves on oath as contemplated under section 340(2), Cr:P.C. Vide Exhs. 30 and 31 respectively. The accused examined D.Ws. Muhammad Ibrahim Chacher, Abdul Ghaffar Lakho, Haji A.I Hassan Shahani and Abdul Majeed Chandio. The perusal of the impugned judgment shows that during the pendency of proceedings before the trial Court one of the accused Kaloo expired.
9. The learned trial Court acquitted the accused by impugned judgment, dated 24-5-2000.
10. I have heard Mr. Shamsuddin Kobhar learned counsel for the appellant/complainant and examined the material placed on record.
11. The perusal of the impugned judgment shows that the evidence of the prosecution witnesses was contradictory and discrepant one. It will be pertinent to reproduce hereinbelow the operative party of the impugned judgment of the trial Court:-- "Admittedly the accused Kaloo has expired and proceedings against him have been abated.
12. Moreover, the accused Kaloo and Gulbahar have not been fully implicated by the complainant and the P. Ws. And there is no iota of evidence against them, as such they are acquitted of the charges levelled against them. As regards the other accused the complainant and P. Ws. Have implicated them, but their evidence is contradicting to each other. According to the complainant the Zulfiqar Shah was the first person who intercepted him and thereafter remaining accused appeared, near Government Park Bagho Wah. In the F.I.R., it is stated that he was intercepted near Government farm near the village Islamabad. Moreover, he states that he received fire-arm injury on his leg.
13. Neither the medico-legal-certificate shows any injury having been caused by discharge from fire- arm, nor the Doctor has deposed as such. In fact the injury No.7, is shown to be on lower half of left leg on the lateral side which is certified to be caused by pointed hard and blunt substance which is different from fire-arm injury. The P.W. Abdul Rehman says that he was about 2/3 knis away from the place' of incident when he heard fire-arm report and cries. It is surprising to see that the witness was very strong enough to hear the fire-arm report and cries of the complainant from such a long distance and reached there during the presence of the accused persons. According to him, he had seen only Rafique and Shahnawaz, armed with guns and others carrying lathies, causing injuries to the complainant but he has not seen any unidentified person present there. He further states that they had taken the complainant to P.P. Qadirpur. He only identified the accused Shahnawaz, Rafique and Majeed as against them the. Evidence of P.W. Muhammad Hashim is that he heard fire-- arm reports from the distance of two furlongs and P.W. Abdul Rehman was also with him and both of them went to the place of incident. He alleges the accused Shahnawaz Shah and Rafique Ahmed tobe armed with hatchets which is contradictory to the statements of the P.W.
14. Abdul Rehman who claims the accused Shahnawaz Shah and Rafique armed with guns.
15. Surprisingly accused Zulfiqar Shah is not implicated in the case, by the prosecution.
16. The contradiction regarding the place of incident, the arms carried by the accused and the role played by them could have been ignored had there been no defence version/counter-claim against the complainant party. The accused have examined defence witnesses Muhammad Ibrahim Chacher and Abdul Ghafoor Lakho to show that there was a Faisla between the parties in which the complainant party was proved to be at fault. Although these D.Ws. Were cross-examined by the D.D.A., but nothing fruitful could be extracted from their cross-examination. The accused Shahnawaz Shah in his statement on oath, has also filed photostat copy of the direct complaint making allegations against the complainant party including the Mashir Nabi Bux, Mashir Arbab and others that he and accused Rafique Mughal were forcibly kidnapped by them and put up in the lock-up of P.P. Qadirpur. He has also filed the original Faisla held by Ameen Ghulam Mustafa Abro at Exh.30-B and the original Faisla held by Syed Imdad Hussain Shah, Raees Muhammad Ibrahim, Niaz Muhammad Chacher and Syed Noor Hassan Shah. Out of them Raees Muhammad Ibrahim was examined by the accused, who has confirmed the holding of Faisla. The said Raees Muhammad Ibrahim has gone to the extent of saying that since the complainant party could not prove their claim against the accused as such the present case can be said to have been fabricated against the accused.
17. D.W. Abdul Ghafoor Lakho has also confirmed holding of Faisla in between the parties in which the complainant party was found to be at fault. The complainant has stated in his evidence that he had gone to P.S. Ghotki and lodged F.I.R. And that he pointed out the place of incident, to the police.
18. As against that the P.W. Abdul Rehman says nothing about this fact while P.W. Muhammad Hashim says that the complainant was taken to P.P. Qadirpur in a Tonga where he lodged his report. He has also implicated only accused Shahnawaz Shah, Rafique Mughal, Majeed Mughal, Fazal Shah and Murtaza Shah saying that the others were not seen by him. The Mashir is also admittedly related, to the complainant against whom the accused had made certain allegations in his direct complainant, therefore, his evidence also appears to be interested one.
19. The perusal of the impugned judgment shows that every aspect of the matter was considered by the trial Court. The evidence was evaluated by the trial Court in consonance with the principles laid down by the apex Court for the appreciation of the evidence.
20. No illegality has been pointed out or urged from which it could be deducted that the trial Court acted contrary to law or ignored any material fact.
21. It is well settled that the considerations for appeal against acquittal are quite different from the appeal against conviction. Once an order of acquittal is passed in favour of accused there arises strong presumption of innocence in his favour.
22. For the foregoing reasons the appeal stands dismissed in limine.