1. ' Appellants have called in question the judgment, dated 20-1-2000 passed by the learned IVth Additional Sessions Judge, Hyderabad in Sessions Case No,4 of 1996, whereby they have been convicted and sentenced to suffer under section 324 read with section 34, P.P.C. R.I. For seven years each and to pay a fine of Rs,10,000 each to be payable to injured Muhammad Rafiq. The appellant Jhoonjhar is further convicted under section 337-F(iii), P.P.C. And sentenced to suffer R.I. For one year and to pay Rs,25,000 as Daman to injured Muhammad Rafiq. The sentence of imprisonment awarded to accused Jhoonjhar on the above two counts shall run concurrently, hence this appeal.
2. ' Brief facts of the case are that complainant Ghulam Hyder Talpur son of Naseer Khan Talpur on 10-12-1995 at 21-45 hours lodged F.I.R. Stating therein that on the day of occurrence at 9-15 p.m. He alongwith his family members was available in his house, when suddenly he heard two fire-arm shots and commotion. On this he, his brother Qurban Ali, cousin Anwar Ali son of Muhammad Rahim and Hussain son of Ali Muhammad came out of the house; and found Muhammad Rafiq lying in injured condition being blood was oozing from his stomach, near the door of their house in the street. They all wrapped the towel over the said injury. On their query, Rafique informed them that he was going towards his house and when reached at the lands of Haji Talpur, when Ramo, Jhoonjhar and Soaz Ali alias Officer, all sons of Beero Khan alongwith and muffled faced person, stopped him. Rano and Soaz Ali threatened him while the unidentified muffled man put cloth in his mouth. Thereafter, they all told him that why he (injured) is not remaining away from Khairunnisa daughter of Shamsuddin and wife of Faiz Muhammad, as Shamsuddin had first promised to give the hand of Khairunnisa to injured and then got her married with Faiz Muhammad. The injured then raised cries on which the accused who were armed with guns, fired two shots upon him with an intention to commit his murder. The fire shot hit the injured on his stomach on left side. In the meanwhile other villagers also collected there. Thereafter, the complainant party brought Suzuki of Ghulam Talpur from the village and brought the injured to police station in the company of P.Ws.
3. Abdul Aziz son of Bijar Khan, Shafi Muhammad son of Muhammad and Khan Muhammad son of Bijar Khan. Police after completing the investigation submitted challan against the accused.
4. ' Charge Exh.6 for the offences punishable under section 324, Qisas and Diyat Ordinance read with section 34, P.P.C. Was framed against the appellants to which they pleaded not guilty and claimed their trial.
5. ' During the trial prosecution examined P.W.1 injured/eye-witness Muhammad Rafiq at Exh.12, P.W.2 complainant Ghulam Hyder at Exh.13, who has produced the F.I.R. At Exh.14, P.W.3 Niaz Hussain at Exh.15, who has produced his 164, Cr.P.C. Statement at Exh.16, P.W.4 Qurban Ali at Exh.17, P.W.5 Mashir Haji Khan at Exh.18. The Mashir has produced the Mashirnama of Wardat at Exh.19, P.1,11.6 Muhammad Anwar has been examined at Exh.20, P.W.7 Dr. Imdad Hussain the Medical Officer at Exh.23 who has produced the provisional medical certificate and attested photo copy of final medical certificates of injured Muhammad Rafiq at Exhs.24 and 25 respectively. P.W.B. S.H.O.
6. Muhammad Siddik Manghi has been examined at Exh.27. P.Ws. Noor Hussain and Hussain Bux were given up by the prosecution vide statements at Exhs.22 and 26 respectively. Thereafter, the prosecution closed its side by Exh.20.
7. ' The appellants were examined under section 342, Cr.P.C. At Exhs.29 to 32 respectively. They all have denied the prosecution allegations and claimed false implication due to enmity. They neither examined themselves on oath nor examined any witness in their defence. Appellant Jhoonjhar in statement under section 342, Cr.P.C. Has further stated that on the night of incident he alongwith his brother Soaz Ali was on water rotation at his agricultural land. At that time he was having his licensed gun while Soaz was empty handed. P.W. Rafiq duly armed with pistol alongwith his three companions namely his brother Shafi Muhammad and maternal nephews Aziz and Khan Muhammad came there. P.W. Rafiq fired upon him. Rafiq and others assaulted upon the appellants at their land with an intention to kill and threatened other accused because of the enmity over the girl Mst. Khairunnisa whose marriage has already been consummated with his brother Faiz Muhammad. He has further deposed under section 342, Cr.P.C. That the witnesses have deposed against them because of enmity with the injured Rafiq.
8. ' Learned trial Court after hearing learned counsel for the parties convicted and sentenced the aforementioned appellants in the terms as stated above.
9. ' I have heard learned counsel for the appellants Mr. Allah Bachayo Soomro and Mr. A.H. Motiwala for the State and with their assistance I have gone through the material available on record.
10. ' Learned counsel for the appellants has firstly argued that there is a counter-case bearing Sessions Case No,3 of 1996 titled State v. Shafi Muhammad and others Crime No,32 of 1995 which has been registered with the same Police Station under section 324, Qisas and Diyat Ordinance in which the father of the appellant Jhoonjhar is injured and Shafi Muhammad, Khan Muhammad, and Rafiq, present injured in Crime No,32 of 1995, have been nominated as accused and such case being Sessions Case No,3 of 1996 is still pending trial before the learned IVth Additional Sessions Judge, Hyderabad. Learned counsel for the appellants has further submitted that during the proceedings of the case, accused in Crime No,32 of 1995 in Sessions Case No,3 of 1996 have absconded away and till today they have not been apprehended. Learned counsel submits that the learned trial Court has not mentioned with regard to this counter-case filed by the appellants being Sessions Case No,3 of 1996 in which the Muhammad Rafiq (injured) has been nominated as main accused and thus the learned Judge has not taken into consideration the entire facts of the case. He has further elaborated his contentions that the witnesses in the present case namely and respectively Ghulam Hyder, Qurban Ali, Niaz Hussain, injured Muhammad Rafiq, Muhammad Anwar have suppressed the facts of Crime No,32 of 1995, particularly they have suppressed the role of injured Muhammad Rafiq who has injured the father of Jhanjhroo who is one of the appellants in the above appeal and has contended that they are dishonest witnesses and their evidence cannot be relied in the instant case. He has further contended that the fundamental requirement before the trial Court is not to see as to who is interested witness or disinterested witness but the fundamental requirement is to see whether the witness is honest or dishonest and in the present case all the witnesses who have been examined by the prosecution are dishonest witnesses as they have suppressed their role which they have played during the commission of offence and they are accused in Crime No,32 of 1995 under section 324, Qisas and Diyat Ordinance. In support of his contention learned counsel for the appellants has placed reliance on 1979 SCM R 214. He has further contended that there are material contradictions between the ocular evidence and medical evidence. The contents of the F.I.R. Are being belied by the ocular evidence. He has further drawn my attention that the three witnesses namely and respectively Qurban Ahmed, Niaz Hussain and complainant are close relative to injured Muhammad Rafiq and one of the witnesses Muhammad Anwar is a cast fellow and it is an admitted position that the other villagers were attracted on the cries of injured Muhammad Rafiq but police have not examined the independent witnesses and the independent evidence is lacking in the case of false implication cannot be ruled out on account of enmity over the matrimonial issue which is an admitted fact. Learned counsel has further submitted that it is the claim of the prosecution that firing has taken place but no empty has been recovered from the place of Wardat which belies the version of the prosecution.
11. He further submitted that there is no recovery of gun. Mashirnama of recovery is not available.
12. According to him the injured Muhammad Rafiq has only sustained one, injury and in that event the intention of killing is lacking and he has further submitted that the plea of self-defence can be gauged from the material on record. He has further contended that the statement of the witnesses have been recovered after seven days when they were easily available at the place of Wardat and such delay of recording the statement under section 161, Cr.P.C. Goes unexplained by the prosecution. As far as statement under section 164, Cr.P.C. Is concerned those have been recorded on 31-12-1995 and there is violation of section 265(J), Cr.P.C. According to the Investigating Officer he had sent notice to the accused persons who were on bail and one of them was in custody but the same notice has not been served and yet the statement of witnesses under section 164, Cr.P.C.
13. Have been recorded and thus, there is violation of section 265(J), Cr.P.C. In support of his contention he has placed reliance on PLD 1982 Kar.
975. With regard to the delay in recording of statements of the witnesses under section 161, Cr.P.C.
14. Learned counsel for the appellants has placed reliance on PLD 1963 SC 17 and 1993 SCM R 550. He has further argued that a case is doubtful and the appellants are entitled to the benefit of doubt.
15. ' On the other hand learned counsel for the State Mr: A.H. Motiwala has argued that the case has been proved against the appellants and has supported the impugned judgment. When asked with regard to the counter-case being Sessions Case No,3 of 1966 in which injured Muhammad Rafiq has been nominated as main accused and the learned trial Judge has not discussed with regard to counter-case while delivering the judgment, learned counsel for the State submitted that it is not necessary. Learned counsel for the State could not answer on the query that why no empty has been recorded from the place of Wardat when it is claim of the prosecution that the firing has taken place, the learned counsel for the State has not been able to rebut the contentions raised by the learned counsel for the appellants so also could not rebut the contentions with regard to the delay in recording the statements of the witnesses under section 161, Cr.P.C. And the violation of section 265(J), Cr.P.C. In recording statements under section 164, Cr.P.C. And the gun which has not been produced. On the contrary learned counsel for the State submitted that the gun was produced before the Court and was exhibited and shown to the injured P.W. Muhammad Rafique.
16. When learned counsel for the State was confronted that nowhere the gun has been produced in Court nor shown to the injured nor exhibited, learned counsel for the State invited my attention on the impugned judgment and submitted that there is a properly order passed by the learned trial Judge that the double barrel gun Article A and Arms Licence Article B being the property of accused Jhoonjhar be returned to him after expiry of appeal period. But the learned counsel for the State failed to submit any satisfactory reply over the question on recovery and lastly supported the impugned judgment.
17. ' I have gone through the record and proceedings of the case and I have very carefully examined the impugned judgment delivered by the learned trial Court and with the assistance of the learned counsel for the parties. I have gone through the evidence of the witnesses. The learned counsel for the appellants has also placed on record copies of the counter-case being Sessions Case No,3 of 1996 bearing Crime No,32 of 1995 and he has also filed the depositions of the present appellants namely and respectively Jhoonjhar and Soaz Ali and the learned Judge has not discussed with regard to the counter-case being Sessions Case No,3 of 1996 which impels me to believe that learned trial Judge has not taken into consideration the entire evidence, had he taken the entire evidence, the conclusion would have been different as the present witnesses have suppressed their role during the commission of offence in which they have played a very vital role particularly Muhammad Rafiq (injured) who injured father of one of the appellants Jhoonjhar and which shows that the material facts have been suppressed by the witnesses and since they have suppressed the material facts of the case, they cannot be called honest witnesses and in view of authority reported in 1979 SCM R 214, they are dishonest witnesses and their evidence cannot be relied upon.
18. Close relationship has been admitted by the witnesses and independent evidence is lacking in the present case although it is the claim of the prosecution that other villagers were gathered and in the present case independent evidence is a must in view of the admitted enmity over the matrimonial issue. Admittedly firing has taken place but no empty has been recovered from the place of Wardat, there is no recovery of gun even there is no Mashirnama of recovery. Statements under section 161, Cr.P.C. Of the witnesses have been recorded after 7 days which goes unexplained by the prosecution.
19. ' There is a violation of section 265(J), Cr.P.C. As the notice has not been served upon the appellants before recording the statements of the witnesses under section 164, Cr.P.C. Self-defence can be gauged from the record and material available on record. No doubt that no suggestion has been given by the defence to the prosecution witnesses with regard to their involvement in counter-case being Sessions Case No,3 of 1996 but it was the duty of the witnesses to tell the Court that they are also accused in counter case being Sessions Case No,3 of 1996. It is startling to note that during the proceedings of Sessions Case No,3 of 1996 in which one of the witnesses namely Muhammad Rafiq (injured) is main accused has absconded away alongwith co-accused and that case is still - pending trial before the same trial Court and yet the trial Judge has not discussed with regard to counter-case while Delivering the judgment. Injured Muhammad Rafiq has sustained only one injury as per medical certificate although there were four accused who were duly armed and they could have killed the injured but only injured sustained one injury and in these circumstances the benefit of doubt goes to the appellants. The evidence of the prosecution is contradictory and no property has been produced in Court nor' shown to the injured nor exhibited.
20. ' Upshot of the above discussion is that the prosecution has miserably failed to prove its case beyond reasonable doubt against the appellants. In result the conviction and sentence are set aside. Appeal is allowed. Appellant Jhoonjhar who is in custody shall be released forthwith if not required in any other case. The other co-appellants are on bail and their bail bond and surety stand discharged.
21. ' Above are the reasons of my short order, dated 13-12-2001.