IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Cr. Rev. Appln. No. S-71 of 2011
Applicants Shabir Khoso, and nine others,
Through Mr. Asif Ali Abdul Razak Soomro, advocate,
Complainant Saeed Ahmed
Through Mr. Rafique Ahmed K. Abro, advocate
The State: Through Mr. Aitbar Ali Bullo,
Deputy Prosecutor General.
Date of hearing: 18-03-2021
Date of decision: 18-03-2021
Date of reasons: 06-04-2021.
J U D G M E N T
Zulfiqar Ali Sangi, J. Through this criminal revision application, applicants have called in question judgment dated 10.02.2011, passed by Civil Judge & Judicial Magistrate-1, Shahdadkot, in Criminal Case No.22/2010whereby the trial court convicted the applicants/accused U/S 245(ii) Cr.P.C and sentenced them as under:-
i) For offence u/s 148 PPC to suffer Simple Imprisonment for six months with fine of Rs.1,000/- (Rupees One Thousand) each accused and in case of default of fine amount all the accused shall suffer Rigorous Imprisonment for one month.
ii) For offence u/s 337-A(i) PPC to suffer Rigorous Imprisonment for one year as Tazir.
iii) For offence u/s 337-F(i) PPC to suffer Rigorous Imprisonment for one year as Tazir.
iv) For offence u/s 337-F(v) PPC to suffer R.I for two years as Tazir and to pay daman Rs.20,000/- (Rupees Twenty Thousand) for causing injuries to injured complainant Dr. Saeed Ahmed and also to pay Rs.10,000/- (Rupees Ten Thousand) to injured Mohammad Ali and Mohammad Aslam for causing injuries to them.
v) All the sentences were directed to run concurrently.
2. The applicants had challenged the judgment dated 10.02.2011, by filling the criminal appeal No. 01 of 2011 before Session Judge Kambar/Shahdadkot and the same was transferred to the court of Additional Session Judge Shahdadkot and the appeal was also dismissed and conviction and sentences awarded to the applicants were maintained vide Judgment dated: 22-10-2011, hence the applicants filed this criminal revision against both the judgments of the courts below.
3. Brief facts of the prosecution case as per impugned judgment of the trial court are that on 15-12-2009 the complainant Saeed Ahmed lodged the F.I.R, at police station Shahdadkot stating therein that his grandfather is owner of S. No. 1078 and 1079 situated in Ward “C” Shahdadkot where he has installed ara machine. The said plot was also demanded by Shabir Khoso, but complainant refused therefore, Shabir Khoso annoyed. On the day of incident i.e 15.12.2009, he along with P.Ws Mohammad Ali and Aslam was available at near to the clinic of Dr. Niaz Hussain Solangi at 09-00 am, where applicants/accused being armed with pistol and lathies came and applicant Shabir Khoso gave hakal and said to the complainant that you had not given plot, saying so all accused caused him lathies and butt blows of pistol, which hit on his head from left side, other injury was hit on his thumb of right hand, finger and right side shoulder, PW’s Muhammad Ali and Aslam tried to rescued the complainant on which accused persons also caused them lathies blows and they raised crises on their crises persons were gathered. Then all accused went away. During quarrel five thousand rupees were missed from the pocket of complainant and one golden locket of one tolla was also missed of PW Muhammad Ali,hence the instant F.I.R was lodged.
4. The investigating officer after completing the investigation submitted challan. The learned trial Court after observing legal formalities framed the charge against the applicants to which they pleaded not guilty and claimed their trial.
5. In order to establish the case, prosecution examined (P.W.1) Dr: Roshan Ali Soomro at Ex No: 03, he has produced Provisional Medical Certificates of injured Saeed Ahmed, Muhammad Ali and Muhammad Aslam at Ex No: 3/A to 3/C, he also produced Final Medical Certificates of injured Complainant Saeed Ahmed, injured Muhammad Ali and injured Mohammad Aslam at Ex No: 3/D to 3/F respectively, (P.w.02) Complainant Saeed Ahmed was examined at Ex No: 04, he has produced FIR at EX No:4/A, (P.W.3); injured Mohammad Ali was examined at Ex No: 05, (P.W.4); injured Mohammad Aslam was examined at Ex No: 06, (P.W.5) 1/O ASI Ali Dost Laghari was examined at Ex No: 07, he has produced memo of injuries of injured Saeed Ahmed at Ex No: 7/A, memo of injuries of injured Mohammad Ali & Muhammad Aslam at Ex No: 7/B, memo of inspection of place of incident at Ex No: 7/C, (P.W.06) mashir Niaz Ahmed examined at Ex. No:08, Thereafter, learned ADPP for the state closed the prosecution side of prosecution evidence through his statement at Ex.9.
6. The statements of accused were recorded under section 342 Cr.P.C at Ex No: 10 to 19, in which they have denied all the prosecution allegations leveled against them and deposed that due to enmity with complainant over the matter of plot, the complainant has involved them in this case. The accused Shabir Ahmed examined himself on oath at Ex. No:20 and remaining all the accused have denied to examine themselves on oath nor they have led any evidence in their defence through such opportunity was given to them.Thereafter leaned Advocate for accused closed the side of accused at Ex No: 21.
7. After hearing the learned counsel for the applicants and learned A.D.P.P for the State, the learned Civil Judge & Judicial Magistrate-I passed the judgment dated 10.02.2011 and awarded sentence to the applicants as stated above,the said judgment was challenged by the applicants before the learned Sessions Judge, Kambar-Shahdadkot @ Kambar, which was ultimately decided by the learned Additional Sessions Judge, Shahdadkot, who also dismissed the said criminal appeal vide judgment dated 22.10.2011 and upheld the judgment passed by learned trial court.
8. Learned counsel for the applicants has contended that the applicants are innocent and have falsely been implicated in this case by the complainant due to dispute over an open plot and the enmity is admitted; that complainant and P.Ws are relatives; that nothing was recovered from the applicants; that P.Ws improved their case before the trial court; that there is inconsistency in between the number of injuries sustained by three injured P.Ws and that of the number of accused; that there were material contradictions in the case of prosecution; that eye witnesses of occurrence and mashirs are closely related to each other, hence their evidence does not inspire confidence; that no any independent person was cited as witness though the incident took place at thickly populated area of Shahdadkot city. He has prayed for acquittal of the applicants/accused.
9. On the other hand, learned counsel for the complainant has argued that both the courts below have rightly convicted the applicants; that all the prosecution witnesses have fully supported the prosecution case and implicated all the accused persons; that medical evidence is also corroborated with the evidence of witnesses and the medical evidence has not been challenged.In support of his case, he has relied upon the cases of RahimShah versus The State and another(2004 P.Cr.L.J 1129), Awais and another versus The State and another(2004 P.Cr.L.J 377)[Peshawar]and Muhammad Ramzan versus The State(2001 P.Cr.L.J 83)[Lahore]. He has prayed that instant criminal revision application may be dismissed.
10. Learned DPG has supported the impugned judgment and opposed the criminal revision application; He argued that accused were rightly convicted and sentenced by the learned trial court as there is no illegality in the trial or procedure adopted by both the courts below requiring the interference of this court in its revisional jurisdiction; that the prosecution case is supported by P.Ws;that medical evidence is also consistent with the ocular evidence in respect of the weapon, seats of injuries and their duration as well; that the incident is taken place in the day light and the parties are also related inter-se as such their identification at the time and place of incident had been proved. He has also prayed for dismissal of the criminal revision application.
11. I have heard learned counsel for the parties and have gone through the material available on the record with their able assistance.
12. On reassessment of the entire evidence produced by the prosecution I am of the view that the prosecution has failed to prove its case against the applicants/accused beyond a reasonable doubt by producing reliable, trustworthy and confidence inspiring evidence.
13. All the eye witness (injured) gave contradictory evidence and made improvements, Complainant Saeed Ahmed during his examination-in-chief deposed that “On the same day (day of incident) we are standing where Shabir Khoso called his sons and brothers and attacked upon us, their names are as accused Shabir Ahmed Khoso, Rafique, Manzoor sons of Ghulam Qadir Khoso, accused Sagheer and Tarique sons of Ghulam Shabir Khoso, accused Muhammad Bakar and Jahangeer sons of Muhammad Jaffar Khoso, accused Dildar son of Deedar Khoso, accused Deedar son of Bangul Khan accused Fatah son of Abdul Nabi Khoso, accused Jani was armed with pistol, while rest of accused were armed with lathies.” He had clearly stated that other all accused came after they were called by accused Shabir Khoso. PW injured Muhammad Ali deposed during his examination-in-chief that he along with complainant Saeed Ahmed and Niaz Hussain Solangi were available at the place of incident, where accused Shabir, Rafique, Manzoor all sons of Ghulam Qadir, Jahangeer and Bakar both sons of Muhammad Jaffar, Sagheer and Tarique both sons of Shabir, Dildar son of Deedar, Deedar son of Bangul Khan, Fatah son of Abdul Nabi attacked upon them. He did not disclose about the calling by accused Shabir.PW injured Muhammad Aslam also deposed during his examination-in-chief that all accused came at once at the place of incident and attacked upon them.
14. The complainant stated during his cross-examination that they all the injured were brought at police station by their relatives Niaz Ahmed and Abdul Qayoom on Chingchi riksha. PW injured Muhammad Ali stated during his cross-examination that they only three persons he, Saeed Ahmed and Muhammad Aslam went to police station Shahdadkot on Chingchi riksha. PW Muhammad Aslam also stated like PW Muhammad Ali in this respect. They are not supporting each other as to who took them towards police station on Chingchi riksha after they received the injuries.
15. The complainant during his cross-examination stated that they reached at police station Shahdadkot at 9-25 am and hospital at 10-10 am. PW injured Muhammad Ali stated during his cross-examination that they reached at police station at 9.00 am and at hospital at 9-20 am. PW injured Muhammad Aslam stated during his cross-examination they reached at police station at 09-00 am and at hospital at 09-45 am.
16. The complainant stated during his cross-examination that firstly police lodged his NC and then referred him to the hospital for medical examination. PW Muhammad Ali negated this fact by stating in his cross-examination that police did not registered NC but police only lodged FIR. None of the witness including the investigation officer produced the NC in respect of the incident. The complainant also deposed during hid examination-in-chief that all accused started beating to them whereas PW Muhammad Ali deposed that accused attacked upon complainant Saeed Ahmed the he and PW Aslam tried to rescue the complainant and all accused then caused them bellows.The complainant during his examination-in-chief deposed that accused who were armed with lathies caused them lathi bellows on the instigation of accused Shabir but this fact has not been mentioned by the complainant in his FIR.
17. The contradictions in the evidence of the eye witnesses as has discussed above and the improvements made by them during the trial in my view are major in nature which cut the roots of the prosecution case and make it doubtful. On the basis of material contradiction this court has allowed the appeals and set-aside the convictions awarded by the trial courts in cases of Taj Mohammad and 2 others V. The State (2020 P.Cr.L.J 1693) and Ghulam Hyder through superintendent, central prison V. The State (2020 YLR 2411).
18. Nothing was recovered from the applicants and the enmity is also admitted by the complainant. There is general allegation against all the ten accused for causing injuries to the complainant and the injured witnesses, no specific injury was attributed to any of them. There is conflict in the evidence of the injured witnesses and the doctor on the point of reaching of the injured witnesses at the hospital which makes the case of prosecution as doubtful.
19. It is settled by now that all the incriminating piece of evidence available on record in shape of examination-in-chief, cross-examination or re-examination of witnesses are required to be put to the accused, if the same are against him, while recording his statement under section 342 Cr.P.C in which the words used “For the purpose of enabling the accused to explain any circumstances appearing in the evidence against him.” which clearly demonstrate that not only the circumstances appearing in the examination-in-chief are put to the accused but circumstances appearing in cross-examination or re-examination are also required to be put to the accused, if they are against him, because the evidence means examination-in-chief, cross-examination and re-examination, as provided under Article 132 read with Articles 2(c) and 71 of Qanun-e-Shahadat Order, 1984. From the careful perusal of statements of the applicants recorded under section 342 Cr.P.C. it reveals that the medical evidence produced by the prosecution was not put to applicants at the time of recording their statements under section 342 Cr.P.C. enabling them to explain the circumstances appearing in the evidence against them, as has been held by Honourable Supreme Court of Pakistan in the case of Muhammad Shah v. The State (2010 SCMR 1009).It is also a well settled principle of law that the piece of evidence or a circumstance not put to an accused at the time of recording his statement under Section 342 Cr.P.C. could not be considered against him as has been held by Honourable Supreme Court in the cases of Imtiaz @ Taj v. The State 2018 SCMR 344, Qadan and others v. The State 2017 SCMR 148 and Mst: Anwar Begum v. Akhtar Hussain alias Kaka and 2 others 2017 SCMR 1710.
20. The prosecution has to prove its case beyond a reasonable doubt and where even a single circumstance which creates reasonable doubtin the mind of a prudent man comes in the evidence of the prosecution the benefit must go to accused not as a matter of grace or concession but as a matter of right. In this regard reliance is placed on the case of Tariq Pervez v. The State (1995 SCMR 1345).
21. Based on the above discussion and on reassessment of the entire evidence on record I am of the view that the prosecution has failed to prove its case against the applicants beyond any reasonable doubt, therefore, I allow the instant criminal revision application vide my short order dated: 18-03-2021, and the same is reproduced as under:-
Heard learned advocate for the parties. For the reasons to follow, this criminal revision application is allowed. Applicants are acquitted from the charge. They are present on bail, their bail bonds are cancelled and sureties discharged.
22. The above are the reason of my short order.
J U D G E.