' Ayub Khan son of Amin, resident of Kot Daim, Bannu appellant and Hamidullah son of Bakht Ali, resident of Babukhel Khattak, Bannu were tried jointly by Mr. Jan Muhammad Khan, Additional Sessions Judge, Bannu in Hadd Case No,1 of 2002 registered vide F.I.R. No,449, dated 26-8-2001 under section 20, Offences Against Property (Enforcement of Hudood) Ordinance, 1979 at Police Station Saddar, Bannu. At the conclusion of trial, by virtue of judgment, dated 19-4-2004 appellant was convicted under section 386, P.P.C. And sentenced to suffer seven years' R.I. And fine of Rs,5,000, or in default thereof, to undergo six months further S.I. Benefit of section 382-B, Cr.P.C. Was also extended to him. However, co-accused Hamidullah was extended benefit of doubt and acquitted of the charge. Feeling aggrieved, appellant has filed instant Criminal Jail Appeal No,49 of 2004 challenging his conviction and sentence.
2. Facts of the case briefly stated are that a Tableeghi Jamat from South Africa had come to village Kot Daim, Bannu. Male members of the Jamat stayed in the village mosque whereas female members of the Jamat were provided accommodation in the house of Haji Tawas Khan Son of Shah Mir Khan. On the night of occurrence i,e, 26-8-2001, Hafiz Kalimullah complainant along with Moulvi Ibrar P.W. And other members of the Jamat, were asleep in the village mosque. Gate of the mosque was closed. At about 00-45 a.m., complainant felt entry of someone in the mosque and woke up. He noticed Ayub Khan, his co-villager, armed with kalashnikov. He asked the complainant to keep mum and started searching bags of the members of the Tableeghi Jamat. The accused took away cash amount of Rs,800 from complainant and also relieved other members of the Jamat of their wrist .Watches and other belongings. After accomplishing the mission, the accused bolted away from the spot. On reaching gate of the mosque, four other persons duly armed with kalashnikovs were also found present.
3. S.-I. Muhammad Khan (P.W.5) recorded the report (Exh.P.A./1) of complainant and dispatched the same to Police Station Saddar, Bannu where its contents were correctly incorporated into F.I.R.
Exh.P.A. By Inspector Hakim Khan (P.W.4), S.-I. Muhammad Khan prepared site plan Exh.P.B. At the instance of complainant and initiated proceedings under sections 204/87, Cr.P.C. Against the accused as they were absconding. Accused Ayub Khan was arrested on 23-3-2002 by S.H.O.
Sanaullah Khan (P.W.1). Thereafter, case file was handed over to Jehan Daraz Incharge Investigation (P.W.6). After finalization of investigation, supplementary challan was submitted in Court.
4. The prosecution in order to prove its case against the accused, produced seven witnesses in all.
The accused in their statements recorded under section 342, Cr.P.C. Repudiated the allegations levelled against them and claimed to have been charged falsely. They neither appeared as their own witnesses on oath as required under section 340(2), Cr.P.C. Nor produced any evidence in their defence.
5. Mr. Muhammad Kamran Niazi, Advocate of the appellant strenuously contended that case against the appellant is totally of no evidence; that best kind of evidence available with prosecution has been withheld and that judgment passed by the trial Court is based on misreading of evidence which cannot sustain in the eye of law. He also maintained that on a detailed analysis of the evidence on record, the prosecution has not been able to produce any confidence inspiring evidence to connect the appellant with the crime beyond any shadow of reasonable doubt.
6. Meeting the arguments of learned counsel for the appellant, Malik Hamesh Gul, Advocate appearing on behalf of the State contended that the prosecution has succeeded in proving the charge against the appellant through the evidence available on record beyond any shadow of doubt and the impugned conviction and sentence awarded by the trial Court does not call for interference by this Court.
7. I have heard the arguments and submissions of learned counsel for the parties in the light of the material available on the record.
8. Perusal of the record reveals that appellant stands directly nominated in the promptly lodged report of commission of the offence. Statements of Haji Kalimullah complainant and Moulvi Ibrar P.Ws. Fully substantiate the charge. Both the witnesses were subjected to fairly lengthy and searching cross-examination but nothing advantageous could be elicited to shatter their testimony. Both the witnesses have demonstrated complete unanimity on all important features of the case and there appears no reason to discard their testimony particularly when they have no ulterior motive to falsely charge the appellant. There is overwhelming evidence to establish the guilt of the appellant.
9. The question regarding discrepancies in the statements of prosecution witnesses has although been raised by the learned counsel for the appellant but he went through the statements of the witnesses, no discrepancy worth the name could be picked up or pointed out. All the witnesses made consistent statements. They supported and corroborated each other on all material points.
None of the witness has any motive or malice to implicate the appellant falsely.
10. As far as non-production of other members of the Jamat is concerned, nothing turns upon it, because the prosecution is not bound to produce all the witnesses in the case. It is the quality and not the quantity which matters.
11. The prosecution case is further corroborated by absconsion of the appellant. The occurrence having taken place on 26-8-2001, appellant was arrested on 23-3-2002. The appellant remained absconder for more than seven months and proceedings under sections 204/87, Cr.P.C. Were duly complied against him but, the explanation offered by the appellant in D his statement under section 342, Cr.P.C. Is that he did not abscond and at the relevant time, he was in Karachi to earn livelihood. Neither any defence witness was examined nor any record, was produced to show that he was in Karachi and as such his explanation goes unsubstantiated. Thus, it could be justifiably believed that he absconded himself after the occurrence. The absconsion on the part of the appellant is a corroborative piece of evidence in circumstances of the case. Needless to emphasise that the conduct of an accused soon after the occurrence plays an important part in determining the guilt of the accused and is a E corroborative piece of evidence. I am conscious of the fact that the abscondence is a weak type of evidence and by itself cannot be made basis of conviction. However, to determine whether abscondence speaks about the innocence of the accused or his guilt, would be determined keeping in view the other circumstances of the case. In the instant case, abscondence when read with the ocular account and other circumstantial evidence leaves no doubt for me to consider it a circumstance incompatible with the innocence of the appellant and it provides the necessary corroboration.
12. Learned counsel for the appellant also submitted that same set of witnesses was disbelieved by the same Court while recording acquittal of Hamidullah co-accused whereas same set of witnesses was relied upon for inflicting conviction impugned through instant appeal. The submission of the learned counsel is not tenable. The role attributed to the appellant is quite distinguishable qua the role assigned to co-accused Hamidullah.
13. I am, in view of the discussion of the evidence made in foregoing paras convinced that the finding of conviction for the said offence has rightly been recorded as nothing could come on record to doubt the veracity of the witnesses. Resultantly, the appeal stands dismissed. However, I feel that sentence awarded to the appellant is on higher side. The same is accordingly reduced form seven years' R.I. To five years' R.I. The sentence of fine and in default thereof, shall remain intact. With this modification in sentence, the appeal is hereby dismissed.