1. WAHID BUX BROHI, J.--Appellants Munir Ahmed and Khuda Dino have been convicted on 5-7-2003 by learned Anti-Terrorism Court!, Sukkur and Larkana Division at Sukkur for an offence punishable under section 7(iii) of Anti-Terrorism Act, 1997 and sentenced to R.I. For seven years and fine of Rs:2,000 each or in default of payment to undergo R.I. For one month more. The incident in this case took place on 2-7-2001 at 7-00 p.m., a F.I.R. Was lodged by complainant Muhammad Murad on the following day at 1-30 p.m. At Police Station, Warah. According to F.I.R., the complainant has a shop at Warah and at 6 p.m. He was returning from Warah alongwith his brother Shah Murad and cousin Abdul Rehman on motorcycle. At 7-00 p.m.. They reached near grave yard of Taj Muhammad Shah, where .They saw Munir Ahmed armed with gun and Khuda Dino with klashnikov, who on the point of firearms stopped the complainant party and snatched the motorcycle from them. They threatened the complainant party with dire-consequences in case they were followed. The complainant party went to their own village and informed the relatives. In the morning they tracked the foot, prints, which lead them to Gaibidero Kambar Road where they learnt that the Drigh Police has apprehended two culprits with a motorcycle during the night time. They proceeded to police station, Drigh where they identified both the culprits to be the same and their motorcycle was also there. The complainant party returned to Police Station, Warah where they lodged the F.I.R. After usual investigation, the case was challaned. At the trial, a formal charge was framed, to which the appellants pleaded not guilty. The prosecution examined seven witnesses; namely P.W.1 Muhammad Murad the complainant, P.W.2 Abdul Rehman eyewitnesses, P.W .3 Shah Murad the other eye-witness, P.W.4 Akhtar Abbas, who had recorded the F.I.R. And inspected the place of occurrence; P.W .5 S.I.P. Zultiqar Ali the Investigating Officer, P.W.6 Muhammad Rafique, the then SIP of Police Station Drigh, who had arrested the appellants and recovered the motorcycle from them; and P.W.7 H.C. Mushtaq Ahmed of Police Station Drigh. A Court witness A.S.-I. Muhammad Siddique was examined on the point that P.W. Gada Hussain had gone to Saudi Arabia and was not available, while the other Court witness A.S.-I. Muhammad Saddiq testified that P.W. Sultan Ahmed had expired. Statements of accused persons were recorded under section 342, Cr.P.C. Wherein they denied the alleged recovery and stated that they were arrested from the land of one Qaimuddin Shaikh in presence of one Muhammad Nawaz Chandio and were taken to Police Station, Drigh and then involved in this case falsely. However, they gave up their witness and did not lead defence. On appraisal of the evidence, they were found guilty of offence under section 6(d) ATA and awarded punishment under section 7(iiiy, Anti Terrorism Act, 1997. We have heard Mr. Sarfraz Khan Jatoi, learned counsel for appellants and Mr. Muhammad Ismalil Bhutto, learned counsel for the State. Mr. Sarfraz Khan Jatoi, learned counsel for appellants submitted that the evidence on record was not sufficient to warrant conviction on the grounds that there was delay in lodging the F.I.R., there was enmity with accused by the complainant, the motorcycle was secured by Drigh Police Station under section 550, Cr.P.C. And only then the F.I.R. Was lodged nominating the appellants; both the eye-witnesses art. Close relatives i,e, brother and cousin of complainant; the witnesses have admitted that one of the' culprit was muffled faces yet they had given his name in F.I.R.; appellant Munir Ahmed has been implicated in place of one Amir Ali; there were major contradictions between the evidence of material eye-witnesses; and lastly the Anti-Terrorism Court had no jurisdiction to try the offence. He relied on Sheral v. State 1999 SCM R 697, Muhammad Irshad v. The State'1999 SCM R 1030, Inayaullah v. State 2002 PCr.LJ 34, State v. Ismail 1992 M LD 182. Mr. Muhammad Ismail Bhutto, learned State Counsel opposed the appeal and supported the finding of conviction. According to him, the trial Court possessed jurisdiction for trial of the offence of vehicle snatching and that the ocular testimonies are believable and also corroborated by recovery of motorcycle. We have .Considered all these contentions in the light of evidence on record. On the point of jurisdiction of the Anti-Terrorism Court, learned counsel for appellants ventured to refer to case law and laboured under the impression that the offence would turn to be a scheduled offence only when death took place during commission of robbery. He seems to have gathered this view from the schedule of offences in the Act as it is stood at the time of inception of the Anti- Terrorism Act, 1997. The statutory position stood in modified when the Anti-Terrorism Act was amended by Anti-Terrorism (Amendment) Ordinance 2000 (XXIX of 2000) and clause (d) to section 6 of the Anti-Terrorism Act, 1997 was substituted by the following clauses: "(d) Commits an act of vehicle snatching or lifting, damage to, or destruction of, State or private property, random firing to create panic, charging, Bhatha or criminal trespass (illegal Qabza)." Consequential amendment was also made thereby in section 7 of the Anti-Terrorism Act and clause (iii) was added to section 7, which runs as under:-- "(iii) referred to in paragraph (d) of section 6 shall be punished with imprisonment for a term which may extend to seven years and with fine." The above amendments remained in force until the Anti-Terrorism Act, 1997 was amended by 'Anti-Terrorism (Amendment) Ordinance, 2000 (XXIX of 2000), which was promulgated with effect from 14-8-2001, where after inter alia, the afore- cited two clauses viz. 6(d) and 7(iii) seized to stay on the Statute Book (in the said Act). Since this offence had taken place few days earlier, that is say on 2-7-2001 it was triable by the Anti-Terrorism Court being an offence defined under section 6(d) and punishable under section 7(iii) of Anti-Terrorism Act as stood on the day of occurrence. Indeed the objection as to the jurisdiction of trial Court in the circumstances is without force. The law cited by learned counsel proceeds on different point that is to say the offence of death committed during robbery and is not applicable in this case. Mehram Ali's case 1998 SCM R 1156 absolutely, covers the whole subject and not the present offence and so also Abdul Karim's case 1999 M LD 3236 does not pertain to an offence defined under section 6(d) and made punishable under section 7(iii) of the Anti-Terrorism Act, whereas the instant case directly falls within the mischief of aforesaid provisions, which were introduced at a later stage by way of amendment and were enforced as aforesaid. As far the delay in lodging of the F.I.R. Is concerned, the admitted position obtaining from the evidence on record is that the offence took place at 7-00 p.m. On 2-7-2001 that is to sarat about sunset time, whereafter as explained in the F.I.R. Itself the complainant party due to darkness could not persue or chase the culprits and in the morning they started tracking the wheel marks of motorcycle which as deposed to complainant Muhammad Murad led to link road Gaibidero to Kambar where he came to know that the Drigh Police recovered a motorcycle. P.W.2 and 3 Abdul Rahman and Shah Murad have also stated that they commenced with the tracking of the wheel marks of motorcycle in the morning, which led them to Thori Bijar where people informed them about the recovery of motorcycle. It was only then that the complainant party rushed to Police Station, Drigh to find out the position. When they reached there, they found the appellants and the motorcycle in the Police Station, Drigh. In this way, attempt has been made to explain the delay in lodging the F.I.R. Why had they taken up the exercise of tracking the wheel marks is a question to be answered by the prosecution. In the villages there is, of course, a usual custom and normal procedure that on the first day they make hot pursuit to track the foot prints etc., but only in the cases of unidentified culprits. Learned counsel for appellants relied on 1992 M LD 182 State v. Ismail wherein delay in lodging the F.I.R. Was not explained, and the other factors such a weakness of motive and the tainted prosecution evidence containing improvements and substitution of evidence were also simultaneously considered. The delay in lodging of the F.I.R. In the instant case is, therefore, to be examined with the ambient circumstances of the case and not in isolation of attending circumstances. On scanning the evidence on record, it is conceived that the defence succeeded in obtaining admissions from complainant and the other two eye-witnesses about previous acquaintance with the accused. The complainant has admitted in cross-examination that at the time of robbery both the accused were with open faces. He denied the suggestion that accused Khuda Dino did not visit his village occasionally, which means that the complainant maintained that Khuda Dino used to visit their village oftenly. Although he has stated that he did not know the father's name of accused Khuda Dino, but he has further deposed in cross-examination that the brother of Khuda Dino used to visit their village and stay in his Otaq. Regarding accused Munir he has stated that he had old dispute with elders of Munir, but it was resolved prior to this occurrence. The above point receives further elucidation from the remaining witnesses. P.W.2 Abdul Rahman cousin of complainant was cross-examined by the accused persons themselves and he admitted in cross-examination that accused Munir was known to him for last 3/4 years and he is son of Habibullah by caste Chandio. Similarly, to a question put by Khuda Dino, he replied that the said accused was also known to him and he was Sangsani Chandio by caste. He has further stated that accused Khuda Dino is Kamdar of one Shaikh. It is relevant to mention that this witness stated in examinationin-chief that at the time of occurrence he identified both the armed men to be Munir armed with gun and Khuda Dino armed with Klashnikov, but when he was cross-examined by the accused he came out with a different version saying that one accused was with muffled face and the face of other one was open and that the accused having muffled face was identified at Police Station, Drigh to be Munir. Shah Murad P.W.3 who happens to be brother of complainant Muhammad Murad also gave same version in examination-in-chief that he identified the culprits to be accused Khuda Dino armed with Klashnikov and Munir armed with DBBL gun and that from the place of incident they returned to their village. To a question. Put by accused Khuda Dino, this witness admitted that Khuda Dino was known to him previously as he used to come across with him and he also visited the village of Khuda Dino and his Otaq. He has further admitted that he had stayed for about 5 minutes at the Otaq of accused and had taken water. He has further clarified that the accused Khuda Dino and his brother Zulfiqar had met him at the Otaq and it was noon time. He had stated that he identified both the accused at Police Station, Drigh. He has added in cross-examination that one of the accused Munir, had muffled his face and the other was without muffle yet the accused having muffled was identified. It is, thus, established that at least accused Khuda Dino who was known to the complainant party was with open face and was clearly identified at the time of occurrence. As regards accused Munir he was identified on the spot by two witnesses but according to third witness he had muffled his face but he was also identified. Evidence has however, come on record through A.S.I Muhammad Rafiq of Police Station Drigh that on 2-7-2001 he alongwith his staff was on patrol when they found the motorcycle coming from Thori Bijar and they apprehended the present appellants with the motorcycle and out of them Khuda Dino disclosed his name correctly while other one disclosed his name Ameer Ali. The Klashnikov was secured from Khuda Dino and DBBL gun from co-accused Munir and the motorcycle bearing registration No,DU-6899 was also secured from their possession under section 550, Cr.P.C. They were taken to Police Station, Drigh. HC Mushtaque Ahmed PW-7 who was in company of the above mentioned police party has also given the same evidence about capture of the accused and recovery of the motorcycle. He had also acted as Mashir to seizure memo as Exh.15/A. Although it is alleged that the main culprits were substituted by the present appellant, but nothing has been otherwise proved or brought on record to give some support to the above plea, even the defence witness has been given up. Plainly speaking the evidence of police officials of Police Station Drigh can be believed to the extent that they recovered the motorcycle from the appellants for it has not been established that they had any enmity or oblique motive to implicate the appellants falsely. Nevertheless, this recovery would support the case of prosecution only when it is believed that the incident of robbery had taken place in the manner narrated by the complainant party. In that event a presumption could have been drawn on the basis of illustration (a) to Article 129 of Qanun-e-Shahadat inferring that soon after the robbery the appellants were found in possession of motorcycle, therefore, they may be presumed to be robbers, but in view of facts discussed earlier the appellants were well known to the complainant party yet they started tracking the wheel-marks exactly on the pattern of an occurrence where the culprits are absolutely unknown to the complainant party. This is a grave inconsistency. Commonly in villages when such an incident occurs and the culprits are known, the immediate reaction displayed by the complainant party is to approach the culprits and call upon them not only come to terms, but in cases where both parties wield equal social status they call upon the culprits even to account for the mischief. Here both parties are Chandio by caste and there must be same level as far the social influence is concerned. It is not conceivable that they would track wheel marks instead of Straight away going to the Village of the culprits where admittedly they had earlier been and even taken water in their Otaq and met brother of the appellant Khuda Dino. This unusual behaviour would indicate that if at all robbery had taken place the culprits were unknown to the complainant party.
2. Secondly, in cases of known culprits if the social status and power of the parties is uneven and the complainant side stands on lower pedestal the right course adopted by complainant party is to rush to the Police Station and lodge F.I.R. For seeking their help. This has not been done in the instant affair. We are, therefore, constrained to presume that the delay in lodging F.I.R. Is a damaging factor in this case, which cannot be ignored and the circumstances enumerated above lead to a conclusion that the offence has not taken place in the manner, in which the story has been modeled. We are, therefore, of considered opinion that in such a situation, which creates a doubt in a prudent mind shall be resolved in favour of the accused. It, thus, follows that the allegation of snatching the motorcycle is not free from doubt. Consequently, we extend benefit of doubt to the appellants and D hold that the charge could not be proved against them beyond shadow of doubt. The appeal is, therefore, allowed and the conviction, and sentence are set aside and appellants are acquitted of the charge. They may be set at liberty, if not required in any other custody case.