IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Criminal Appeal No.S-19 of 2016
Appellant: Qasim son of Abdul Rasool Khoso
Through Mr.Muhammad Aslam H. Jatoi Advocate
Complainant: Allah Dino Khoso
Through Mr. Sajid Hussain Mahesar, Advocate.
The State: Through Mr.Ali Anwar Kandhro, Addl.P.G.
Criminal Acquittal Appeal No.S-21 of 2016
Appellant: Allah Dino son of Haji Abdullah Khoso
Through Mr. Sajid Hussain Mahesar, Advocate
Respondents: Niaz Hussain and Noor Ahmed Khoso
Through Mr. Muhammad Aslam H. Jatoi, Advocate.
The State: Through Mr.Ali Anwar Kandhro, Addl.P.G.
Criminal Revision No.S-17 of 2016
Applicant: Allah Dino son of Haji Abdullah Khoso
Through Mr. Sajid Hussain Mahesar, Advocate
Respondent: Qasim Khoso
Through Mr. Muhammad Aslam H. Jatoi, Advocate.
The State: Through Mr.Ali Anwar Kandhro, Addl.P.G.
Date of hearing: 09-03-2023
Date of decision: 09-03-2023
Date of reasons: 24.03.2023
JUDGMENT
ZULFIQAR ALI SANGI, J.-Through this common Judgment, I intend to dispose of instant Criminal Appeal, Criminal Acquittal Appeal and Criminal Revision Application filed against the impugned Judgment dated 16.03.2016, delivered by learned 1st Additional Sessions Judge, Mehar, in Sessions Case No.142 of 2013, emanating from F.I.R bearing Crime No.35/2013, for offence punishable U/S.336, 337-F(ii), 504, 147, 148, 149 P.P.C., registered with Police Station Mehar, whereby appellant Qasim has been convicted and sentenced to suffer R.I for five years and to pay the Arsh amount of Rs.168027/- i.e. equal to 1/10th of Diyat amount fixed under section 337-T Sub-section (i) of Pakistan Penal Code to injured; in case of nonpayment of Arsh amount the accused shall suffer S.I six months more; whereas appellant/accused Niaz Hussain has been acquitted on the basis of benefit of doubt; the complainant being aggrieved and dissatisfied with the said acquittal filed Criminal Acquittal Appeal and for enhancement of sentence he also filed Criminal Revision Application.
2. The facts in a nutshell are that on 08.03.2013 at 1800 hours complainant Allah Dino Khoso lodged the F.I.R. at P.S Mehar wherein he stated that there was exchange of harsh words between the parties over the matter of standing in the street. On 04.03.2013, the complainant alongwith his uncle Muhammad Ayoub and cousin Buxial had visited Qazi Arif for the purpose of taking drugs/medicine. When they were returning back towards their village when at about 02:00 p.m. time, they reached near village Noor Muhammad Jiskani accused namely Qasim armed with hatchet, Niaz Hussain, Noor Ahmed and two unknown accused persons armed with dandas were standing there. The accused Qasim abused the complainant and inflicted hatchet blow on his head, the complainant in order to save him gave his hand for protection, hence hatchet hit him on his right hand fingers, the complainant fell down on the ground while raising cries. The complainant found his fore-finger was cut down and he also received injuries on his right hand thumb and middle finger. The complainant took his eliminated finger and rushed to the police station, obtained letter and after getting treatment lodged instant F.I.R.
3. The, formal charge was framed against the present appellant and co-accused by learned trial Court, to which they pleaded not guilty and claimed trial.
4. To establish the accusation against the appellant and co-accused, the prosecution examined complainant Allah Dino who produced copy of F.I.R, P.W/Eye witness Buxial, mashir Ramzan who produced mashirnama of injury of complainant, mashirnama of place of incident, Dr. Rasool Bux was examined who produced police letter, Provisional Medical Certificate and Final Medical Certificate and WHC Mukhtiar Ali (well acquainted with the signature of I.O/ASI Mujeeb Rehnam Leghari. After that learned ADPP closed the side or prosecution.
5. Appellant and co-accused in their statements recorded U/S: 342 Cr.P.C, denied the allegations leveled against them, by pleading their innocence stating therein that they have been implicated falsely due to previous hostility and stated that all the witnesses are related to each other, they are interested and hostile, hence they have deposed falsely.They, however, did not examine themselves on oath in disproof of the charge nor led any evidence in their defence.
6. The learned trial Court on appraisal of the material brought on record and hearing counsel for the parties passed impugned judgment.
7. Per learned counsel for the appellant in Criminal Appeal, the instant case is false and fabricated against present appellant/accused; that the evidence of all the prosecution witnesses being contradictory have no credibility and thus cannot be relied upon without independent corroboration; that there is delay of four days in lodgment of report and no plausible explanation has been furnished, which creates doubt that the F.I.R. has been registered after due deliberation; that all the P.Ws are related interse as such their testimony is unsafe to award conviction to the appellant; that the case of prosecution is doubtful and has no foundation against the appellant/accused, therefore, theydeserves to be acquitted in the circumstances of case.In support of his contentions, learned counsel has relied upon the case of Ghulam Abbas and others v. The State(2001 P.Cr.L.J.1672).
8. Learned counsel for the complainant and the learned Additional Prosecutor General supported the impugned judgment and state that the ocular version finds support from the medical evidence as the complainant produced his eliminated finger before the medico-legal officer and all the P.Ws have supported the case of the complainant. Learned counsel for the complainant further contended that accused Niaz Hussain and Noor Ahmed have also actively participated in the commission of offence, hence their acquittal is unjustified, they would have been convicted and for the appellant Qasim Khoso he contended that his conviction is not sufficient, he would have been convicted more than five years, therefore, the appeal filed by the appellant being devoid of merits is liable to be dismissed.
9. I have heard arguments of learned counsel for the parties and have minutely gone through the material made available on record with their able assistance.
10. The meticulous perusal of the evidence brought on record is entailing that all the witnesses have tried to support the case of prosecution but their evidence on deeper analysis was found unreliable coupled with material improbabilities. The incident took place on 04-03-2013 at 2.00 pm whereas the FIR was registered on 08-03-2013 at 1800 hours and the distance in between the place of incident and the police station is 6/7 kilo meters. No explanation is furnished in respect of lodging of the FIR with suchdelay which creates very serious doubt in the case of prosecution. The Honourable Supreme Court of Pakistan in the case of Pervaiz Khan and another v. The State (2022 SCMR 393) has held as“There is another circumstance that according to prosecution the occurrence took place at 7 p.m. whereas the FIR was chalked out at 11:35 p.m. Although complainant claimed that he arrived in the hospital within one or one and a half hour but even then the report was lodged in the hospital at 11:15 p.m. There is no explanation as to why after reaching the hospital when both the deceased had succumbed to the injuries why they had not reported to the police and where this time was consumed, obviously this time was consumed for deliberation and consultation. This delay could not be explained by learned counsel for the complainant. There is another circumstance that although the dead body was available in the hospital and according to prosecution police also arrived at 11:15 p.m. and the documents of the dead bodies were prepared but postmortem were conducted on the following day i.e. 02.05.2008 at 5 and 6 a.m. So this delayed postmortem also indicates that till time the documents were not prepared and during this time the matter remained under consultation creating serious doubt regarding the prosecution case.”
11. The complainant and the PWs in their evidence have deposed that the incident took place at 2.00pm even otherwise such fact is visible from the contents of FIR itself, however, the PW-04 Dr. Rasool Bux who issued MLC in respect of the injuries sustained by the Allah Dino Khoso was examined who exhibited the MLC and from the MLC it reflects that injured arrived at hospital at 2.00 pm and at that time was examined but the duration of injuries as per MLC was about one hour which too reflects that the incident not took place at the time disclosed by the complainant and his witnesses. Further from the perusal of the mashirnama of the inspection of the injuries it reflects that injured Allah Dino received only one injury whereas as per the MLC and the deposition of Dr. Rasool Bux injured received three different injuries which too creates very doubt in the case of prosecution. The complainant in the FIR stated that he received only one hatchet injury which was caused by accused Qasim, however, at the time of recording his evidence before the trial court he stated during the cross-examination that he received all three injuries one was caused by hatchet and the two were caused by lathi. The PW-2 Buxial also not supports the case of complainant in respect of the three injuries received by the complainant all these facts also creates very doubt in the case of prosecution. From the perusal of evidence of the complainant it also come on the record that accused persons also lodged FIR against the complainant party and the complainant was himself an accused in that F.I.R, all these facts were concealed by the complainant at the time of registration of FIR and even at the time of recording of his examination-in-chief but were surfaced during the cross-examination conducted by the counsel for the accused which reflects that the complainant did not come with clean hands and is telling lie.
12. It is a settled principle of law that no one should be convicted of a crime on the basis of presumption in the absence of strong evidence of unimpeachable character and legally admissible. Similarly, the mere heinous or gruesome nature of crime shall not detract the Court of law in any manner from the due course to judge and make the appraisal of evidence in a laid down manner and to extend the benefit of reasonable doubt to an accused person being indefeasible and inalienable right of an accused. It is also an established principle of law that an accused person is presumed to be innocent until and unless he is proved guilty beyond a reasonable doubt and this presumption of his innocence continues until the prosecution succeeds in proving the charge against him beyond a reasonable doubt on the basis of legally admissible, confidence-inspiring, trustworthy and reliable evidence. The rule of giving the benefit of doubt to an accused person is essentially a rule of caution and prudence and is deep-rooted in our jurisprudence for the safe administration of criminal justice. In common law, it is based on the maxim, "It is better that ten guilty persons be acquitted rather than one innocent person be convicted". While in Islamic criminal law it is based on the high authority of sayings of the Holy Prophet of Islam (Peace Be Upon Him): “Avert punishments (Hudood) when there are doubts” and “Drive off the ordained crimes from the Muslims as far as you can. If there is any place of refuge for him [accused], let him have his way, because the leader's mistake in pardon is better than his mistake in punishment.” The Honourable Supreme Court has quoted probably the latter part of the last-mentioned saying of the Holy Prophet (PBUH) in case of AyubMasih v. State (PLD 2002 SC-1048)"Mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent." The same principle has also been followed by the Honourable Supreme Court of Pakistan in recent Judgment in case of Naveed Asghar and 2 others v. The State (PLD 2021 SC-600). It is also settled principle of law that if a single circumstance creates reasonable doubt in a prudent mind about guilt of the accused, then the accused will be entitled to such benefit not as a matter of grace and concession, but as a matter of right, as has been held in case of Tariq Pervez v. The State reported as (1995 SCMR-1345), wherein the Honourable Supreme Court of Pakistan has held as under:-
"The concept of benefit of doubt to an accused person is deep-rooted in our country for giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubt. If there is any circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right".
13. The sequel of above discussion is that the prosecution has miserably failed to establish the guilt against the present appellant beyond shadow of reasonable doubt. Consequently, the conviction and sentence awarded to the appellant Qasim by learned trial Court vide impugned judgment were set aside and the instant criminal appeal was allowed resulting to acquittal of the appellant Qasim.
14. Since the appeal preferred by the appellant Qasim is allowed and he is acquitted by extending benefit of the doubt, therefore, the Acquittal Appeal preferred by the complainant and the Cr.RevisionApplication for enhancement of the sentence awarded to the accused Qasim, become infructuous and are dismissed accordingly.
15. The above are the reasons of my short order dated 09.03.2023.
JUDGE