' Manthar, Qaim and Siraj were tried by Additional Sessions Judge, Shikarpur, in case F.I.R. No,29 of 1993, registered at Police Station, Dakhan, on 3-5-1993, at 4-00 p.m., on the statement of Chutto Faqeer (P.W.1) under section 9 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979, about an occurrence alleged to have taken place at mid-night, 15 days prior to lodging the report.
' Learned Additional Sessions Judge, after recording statements of 4 P.Ws., held all the three accused, guilty of having committed offence under section 14 of Offences Against Property (Enforcement of Hudood) Ordinance, convicted them thereunder and sentenced each of them to undergo R.I. For 5 years, plus to pay a fine of Rs,2000 each, in default whereof to undergo R.I. For 4 months.
2. Qaim and Siraj, have challenged their conviction and sentences vide Criminal Appeal No,77/K of 2000, while Manthar has challenged his conviction and sentences vide Jail Criminal Appeal No,161/I of 2000. As both the appeals have arisen, from the same judgment, they are being disposed of by a single judgment.
3. According to F.I.R. Exh.23/A, complainant was sleeping in his house along with his relative Faqirdil Murad (P.W.3), who had come to him on visit. He woke up at mid-night on the barking of dogs.
Complainant saw five thieves taking away his buffalo. He raised alarm and flashed torch, in the light of which, they identified Rahib and Bakhshal (absconders), Manthar, Qaim and Siraj, as the culprits, who were taking away the buffalo. Rahib was armed with a gun, Bakhshal was armed with a pistol, Siraj, Qaim and Manthar were armed with hatchets. Complainant and the P.Ws. Chased them. However, due to darkness, accused escaped and took away the buffalo. In the morning, they went to Fazal Muhammad, father of Rahib and asked him to return the buffalo. He promised.
However, after 15 days, he expressed inability, saying that the boys were not in his control.
Thereafter they approached Syed Subhan Ali Shah, Naikmard of the village and told him about the occurrence. Naikmard advised them to approach the police for getting a case registered.
' In the end while giving the details about the identification of buffalo, he stated that same was of black colour and worth Rs,20,000.
4. Ranjan Noonari, S.-I., P.W.4, after registering the case, visited the spot and prepared site plan.
Torch produced before him by the complainant, was taken into possession by him. Thereafter, he took up investigation.
' On 6-5-1993, he left the police station,. Accompanied by police officials, Dur Muhammad and Ghulam Rasool P.Ws. They reached Rind Bridge at Saim Nulla at 3-00 p.m. Where they saw Rahib and Manthar, taking black coloured buffalo. They were surrounded and apprehended. Buffalo was also taken into possession. Hatchet found in possession of Manthar was taken into possession by the S.-I. On the same day, Qaim was seen by them at 3-50 p.m., near Saim Nulla. He was also arrested. Hatchet found in his possession was taken into possession by the S.-I. On completion of necessary investigation, he got the challan submitted to Court through the S.H.O.
5. Statements of 4 P.Ws., were recorded at the trial.
' Chhutto Faqeer, complainant in this case, appeared as P.W.1. By and large, he repeated the facts, narrated by him in the F.I.R. However, he made one improvement, by stating that Rahib (absconder) had fired a shot from his gun, as a result of which Kaptan, his neighbourer, got up and joined them in chasing the accused. During cross-examination, he stated that several villagers had come after the accused had gone away. He stated that they had gone to the house of Rahib, on the following day and met his father Fazal Muhammad. He denied the suggestion that no such occurrence had taken place and that he had lodged a false case on account of a dispute over the land. During cross-examination by Manthar, he denied the suggestion that his grandfather had committed the murder of Shafi Muhammad his relative. He also denied the suggestion that his land was adjacent to the land of the accused and the absconding accused were his Haries.
6. Dur Muhammad, P.W.2, stated that he had joined the police at the spot at the time of spot inspection. In his presence police had taken into possession torch, produced by the complainant and he attested the memo. He stated that three days thereafter, police had arrested Manthar and Rahib and a black coloured buffalo was recovered from them which the police took into possession vide Mashirnama Exh.24/B. He added that at the same time hatchet found in possession of Manthar, was taken into possession by the police vide the same memo. He stated that Qaim was arrested later and hatchet was recovered from him also, which was taken into possession vide Mashirnama Exh.24/C. During cross-examination, he denied the suggestion that neither police had visited the spot, buffalo neither hatchets were recovered from the accused.
7. Dil Murad, P.W.3, after making statement in line with the statement, made by the complainant, about the occurrence, which the accused allegedly had committed in the house of complainant.
During cross-examination, he denied the suggestion that neither he was present at the spot at the time of occurrence nor had seen the thieves. He denied the suggestion that he had made statement on account of relationship with the complainant.
8. Ranjan Noonari, S.-I. Appeared as P.W.4. He stated that he was holding the charge of S.H.O. On 3- 5-1993 due to the absence of the S.H.O. He had recorded F.I.R. Exh.23/A, on that day on the statement of Chhutto Faqeer and thereafter, had visited the spot, where during spot inspection, he had taken into possession torch, produced by the complainant before him. He stated that on 6-5- 1993 while being, on Rind Bridge at Saim Nulla at 3-00 p.m., along with P.Ws. And the police officials, he saw Rahib and Manthar going along with a black coloured buffalo. He surrounded them, took into possession the buffalo, which was pregnant and arrested them. He stated that hatchet found in possession of Manthar, was also taken into possession by him vide the same Mashirnama. He further stated that on the same day at 3-50 p.m., he had arrested Qaim at Sangi Bridge at Saim Nulla and taken into possession hatchet found in his possession. He declared that after completion of necessary investigation, he had got the challan submitted to Court. During cross-examination, he stated that while leaving the police station on 6-5-1993, he had seen a number of persons on the road. He stated that when Qaim was arrested, no person was present near about. He denied the suggestion that nothing was recovered from Qaim and he had planted the hatchet on him. He denied the suggestion that all the Mashirnamas, had been prepared at the police station. While answering questions by Manthar, he denied the suggestion that neither he was arrested on 6-5- 1993 nor buffalo was recovered from him. He also denied the suggestion that no hatchet had been recovered from him. The suggestion that he had made a false statement was denied by him.
9. All the appellants during their statements, under section 342, Cr.P.C., denied the prosecution case and pleaded innocence. They neither produced any evidence nor chose to make statements on oath under section 340(2), Cr.P.C.
10. Learned counsel appearing for Qaim and Siraj, contended that prosecution had failed to prove the case against Qaim and Siraj. In that, he contended that ocular account furnished by the P.Ws.
About the commission of occurrence is not believable and as such their conviction cannot be maintained under section 14 of Offences against Property (Enforcement of Hudood) Ordinance.
' Learned counsel stated that as stolen property had not been recovered from anyone of them, they cannot even be held guilty of having committed any other offence.
11. Learned counsel appearing for Manthar, appellant contended that prosecution had failed to prove the case under section 14 of the Offences against Property (Enforcement of Hudood)
Ordinance, against. Manthar, as statements of Chhutto Faqeer and Dil Murad do not inspire confidence. Learned counsel contended that at the best he can be held guilty of having committed offence under section 411, P.P.C.
12. Learned counsel for the State did not challenge the argument of learned counsel for the appellants that prosecution had failed to prove the case under section 14 of Offences Against Property (Enforcement of Hudood) Ordinance, however, he stated forcefully that case under section 411, P.P.C. Stands made out.
13. I have gone through the evidence, examined the record and considered the contentions of the learned counsel for the parties in the light of evidence on record.
' Statements made by Chhutto Faqeer and Dil Murad about the appellants and their absconding co-accused, having committed Haraba and of having taken away buffalo from the house of Chhutto Faqeer, does not inspire confidence, for the reason, that their statements, that in spite of chasing the accused, on seeing them taking away buffalo, which they had stolen, within their view, they failed to apprehend them or recover the same in spite of chasing them upto a mile.
' According to the complainant two of the accused were armed with fire-arms. No allegation was levelled by the complainant in the F.I.R. That anyone of them had fired at them. Although he stated at the trial that Rahib (absconder) had fired a shot at the spot but that was, not only, a glaring improvement but also finds no corroboration from the statement made by Dil Murad.
' Yet the other important aspect which attracted my attention and makes the statements of Chhutto Faqeer and Dil Murad, doubtful, is the fact that the buffalo which was recovered from Manthar and Rahib was pregnant. The occurrence had taken place 18 days before the recovery.
That being so the buffalo would be in the same stage of pregnancy as on the date of occurrence. A pregnant buffalo could not have been to run, although the accused being men could have escaped by running away. They could not have taken away the buffalo at the same speed. Stolen property was not a horse or any other cattle having speedy running capacity. As such statements of both the P.Ws. Do not inspire confidence and cannot be relied upon for maintaining conviction under section 14 of Offences Against Property (Enforcement of Hudood) Ordinance. Therefore, conviction of all the appellants under section 14 of the said Ordinance, along with the sentences, are set aside.
14. Nothing was recovered from Siraj. He was not shown to be with Rahib and Manthar, when buffalo was recovered from them, as such he cannot be held liable for having committed any offence.
Qaim was also not claimed to be present when the recovery of buffalo was effected. He was arrested although on the day of recovery but at a different time and at a different place. Recovery of hatchet from him does not connect him with the offence of stealing away the buffalo.
' So far as Manthar appellant is concerned, buffalo was taken into possession, while being taken away by him and his co-accused Rahib (absconder). Hatchet was also found in his possession at that time.
15. Dur Muhammad who made statement on oath about the recovery of buffalo from the possession of Manthar co-accused was neither! Inimical to the accused nor related to the complainant.
16. Ranjan Noornari, S.-I. Who had effected the recovery of buffalo from Manthar and Rahib, stated that fact on oath at the trial. No allegation of partisanship or enmity was alleged to against him at the trial. That being so statement, made by Dur Muhammad and Ranjan Noonari, S.-I., inspires confidence qua the statements made by them about the recovery of buffalo from Manthar and Rahib. He is, therefore, held guilty of having committed offence under section 411, P.P.C. And sentenced to undergo R.I. For one and half year. He is not being sentenced to pay fine as he does not appear to have capacity to pay that. It is obvious from the fact that he had neither engaged an Advocate at trial nor for filing the appeal.
' Benefit of section 382-B, Cr.P.C. Shall be extended.
' The period spent by him in jail, during trial, shall be deducted from the sentence awarded to him.
' Qaim and Siraj are acquitted for the detailed reasons noted above.
' Resultantly, this appeal is allowed partially.