CRIMINAL ACQUITTAL APPEAL NO.28 OF 2006

Date of hearing: 15.04.2009

Appellant: Allah Wadhayo through

Mr. Shaikh Amanullah Advocate

Respondents: No.1 to 6 through

Mr.Ghulam Shabir Shar Advocate

Respondent No.7: The state through

Mr.Ali Haider Dareshani, State Counsel.

J U D G M E N T

ARSHAD NOOR KHAN, J:- By this acquittal appeal, the appellant has challenged the acquittal of the respondent No.1 to 6 vide judgment dated 31.5.2006 passed by the learned I-Civil Judge and Judicial Magistrate Mirwah, whereby extending the benefit of doubt the respondents were acquitted from the charge u/s 245(i) Cr.P.C.

The facts leading to the present appeal in brief are that the complainant Allah Wadhayo lodged FIR on 7.7.2005 stating therein that on 03.07.2005 he alongwith his nephew Iqbal s/o Allah Bux, his wife Mst.Bakhshai Bibi and his niece Mst.Shahnaz Bibi wife of Khalid Hussain were present at the plot situated at town Tando Mir Ali Wah Deh Tano Mir Ali Wah village No.5. At about 7:30 a.m. Muhammad Nawaz, Muhammad Haneef, Muhammad Afzal, Altaf, Ghulam Muhammad and Ikram duly armed with lathi reached there and asked that the said plot belongs to them and why they have visited the said plot to which complainant replied that the said plot belongs to his father-in-law Waryam which has been sold out to his son Liaquat Ali. On such reply Muhammad Nawaz and Haneef and Afzal inflicted lathi blows to his nephew Iqbal, respondent Altaf Hussain inflicted lathi blows to his wife Mst.Bakhshai and respondent Ghulam Muhammad inflicted lathi blows to his niece Mst.Shahnaz Bibi they raised alarm which attracted to Muhamamd Rafique and Ahmed Ali as well as so many other villagers who reached at the spot and seen the respondents running from there. The complainant therefore, went to P.P.Tando Mir Ali, who was given letter for medical examination and after medical examination the FIR was registered on 07.7.2005.

After registration of the FIR the respondents were arrested and were produced before the learned judicial magistrate-I Mirwah where the evidence of P.W-1 Allah Wadhayo s/o Bahawaluddin was recorded vide Exh.9, P.W-2 Muhammad Iqbal s/o Allah Bux vide Exh.10, P.W-3 Mst.Allah Bachai d/o Allah Wadhayo vide Exh.11, P.W-4 Muhammad Ameen s/o Bahawaluddin vide Exh.12, P.W-5 Mst.Shahnaz d/o Khalid vide Exh.13, P.W.6 Muhamamd Mithal M.O. vide Exh.14, P.W-7 Hashmat Ali s/o Gul Hassan vide Exh.15, P.W-8 Hussain Bux s/o Muhammad Umar vide Exh.16 and closed the side of prosecution.

The statement of the respondents u/s 342 Cr.P.C. were also recorded wherein they denied the allegations of the case of the prosecution.

The learned judicial magistrate after hearing of the learned counsel for the parties was of the view that the case of the prosecution was highly doubtful and acquitted the respondents from the charge, hence the present appeal.

I have heard Mr.Shaikh Amanullah advocate for the appellant, Mr.Ghulam Shabir Shar advocate for the respondents No.1 to 6 and Mr.Ali Haider Dareshani advocate for the state.

Learned counsel for the appellant vehemently contended that the evidence of the complainant and the other injured received no material dent and their testimony is supported with the medical evidence available on record and that the prosecution succeeded in bringing the guilt of the respondent at home but the learned magistrate wrongly extending the benefit of doubt while acquitting them as such the acquittal of the respondents was against the evidence available on record which fully implicated them in the present crime.

Mr.Ghulam Shabir Shar learned counsel for the respondents No.1 to 6 supported the judgment passed by the lower court and has contended that the evidence of the prosecution witnesses is full of contradictions and that the parties have dispute over a plot of land and the appellant falsely implicated the respondents and no independent evidence has been brought on record to support the version of the prosecution as such the learned trial court rightly acquitted the respondents.

Mr.Ali Haider Dareshani advocate for the state while supporting the arguments advanced on behalf of the respondents has further contended that the medical evidence available on record is contradictory with the ocular evidence available on record, therefore, the learned trial court rightly acquitted the respondents and no discrepancy is available on record to interfere with the judgment passed by the lower court.

I have considered the arguments advanced on behalf of the parties and have gone through the material available before me.

The incident allegedly took place on 03.07.2008 when the respondents duly armed with lathi came at the plot where the complainant party was residing and attacked on them thereby inflicting lathi blows to the complainant as well as to the P.W. Muhammad Iqbal, P.W. Mst.Allah Bachai and P.W.Mst.Shahnaz Bibi. All the said alleged injured examined before the learned lower court where as P.W.Muhammad Iqbal, P.W.Mst. Allah Bachai and P.W.Mst.Shahnaz Bibi in their examination-in-chief have not stated the nature of weapons with which the respondents allegedly inflicted injuries to them which evidence of the alleged injured is completely inderogation with the evidence of P.W. Allah Wadhayo who has stated about inflicting of the injures by the respondents with lathi. Admittedly there is dispute in between the parties over the plot in question and P.W-2 Muhammad Iqbal in his cross-examination has admitted that the respondents had demanded the plot from the complainant which the complainant did not hand over to them. He further admitted the suggestion in the cross-examination that they are on inimical terms with the respondents on the point of said plot. P.W.Mst.Shahnaz in her cross examination has also admitted that they had given the plot to the respondents. The complainant in his statement has denied the dispute over the plot which is a material contradictions in the testimony of the material witnesses which adversely reflected on the case of the prosecution. It is also an admitted position that on hue and cry of the appellant and his family so many other persons were also attracted including P.W.Rafiq and P.W.Ahmed Ali. Apart from the family members of the complainant both the P.Ws who have been nominated as witness in the FIR have not been produced by the prosecution. Non-examination of the P.W.Rafiq and Ahmed Ali who according to the case of the prosecution independent witnesses is of much significance which infirms that they are not going to support the case of the prosecution, therefore, the prosecution did not examine them.

Admittedly the incident took place on 3^rd July 2005 but the FIR was registered after the delay of four days and in the peculiar circumstances of the present case when there is admitted enmity in between the parties over the plot, the delay of four days in registration of the FIR adversely reflect on the case of the prosecution and deliberations as well as consultation in the registration of the FIR to implicate the respondents could not be ruled out. The medical evidence brought on record is also inconflict with the ocular testimony available on record. Infact the case of the prosecution is full of discrepancies which creates reasonable doubt in the case of the prosecution and the learned trial court rightly extended the benefit of doubt while acquitting the respondents from the charge and I do not find any infirmity or illegality in the judgment impugned herein so as to interfere in it. The appeal was dismissed in the morning after hearing of learned counsel for the parties, for the reasons to be recorded later on and these are the reasons for the same.

JUDGE

Imran