1. ' AZIZULLAH M. MEMON, J.--- Appellani Muhammad son of Shafi Muhammad tiled this criminal appeal from jail against the judgment of conviction and sentences passed by learned Judge, Anti- Terrorism Court No,III, Karachi, dated 8th September, 2002, in two separate cases, viz. (1) Special A.T.A. Case No,128 of 2000, pertaining to F.I.R. No,161 of 2000 of SITE Police Station and (2) in Special A:.T.A. Case No,129 of 2000 pertaining to F.I.R. No,162 of 2000 of the same police station, whereby he stands convicted and sentenced in the following terms:-- "(1) Convicted under section 302/396, P.P.C. Read with section 7 of A.T.A. 1997 and sentenced to death; he shall be hanged by neck till his death. Death sentence not to be executed unless confirmed by the High Court; Rs,1,75,000 being Diyat directed to be paid by him, which in case if recovered shall be paid to the heirs of the deceased.
(2) Also convicted under section 392, P.P.C. And sentenced to suffer 10 years' R.I. And to pay fine of Rs,50,000, or case of default he shall suffer further R.I. For one year:
(3) Also convicted under section 13-D of Arms Ordinance, 1965 and sentenced to suffer 7 years' R.I.
2. And to pay fine of Rs,50,000 or in case of default he shall suffer further R.I. For one year.
(4) He shall be entitled to the benefit of section 382-B, Cr.P.C."
2. Co-accused Roshan Ali alias Roshoo son of Shakar Khan Stands acquitted under section 265-H, Cr.P.C. By the trial Court through the very same judgment.
3. Prosecution story, briefly, is to the effect that complainant Nadeem Baig, Cashier of the Metropolitan Traders (Pvt.) Limited, Karachi, (situated on Plot No,A/24, SITE), along with Labour Officer Sirajuddin and Security Officer Muhammad Hanif were disbursing the cash amounts of the salaries amongst the labour staff of the factory, on 10-6-2000 when at about 3-45 p.m., suddenly, three culprits looking young and "Sindhi Baloch" clad in `Shalwar Kamiz' duly armed with pistols, respectively, entered into the cash room, and by show of such force snatched cash amount of Rs,1,02,900 from the complainant; Chowkidar of the factory, namely, Fatehur Rehman (since deceased), rushed to the cash room and bolted its door from outside, but the culprits pushed the said door and broke open it and came out of the cash room and then Chowkidar Fatehur Rehman inflicted "Club" blow on the skull of the appellant who fired the pistol on the person of the Chowkidar who thereby sustained bullet injury and the bullet crossed through his chest; other bullet hit on the right arm of Chowkidar Fatehur Rehman and crossed through his right arm. Security Officer Hanif also tried to apprehend the culprits and in such a struggle, pistol of the appellant fell down on the ground; faced with such a situation, the other culprit fired his own pistol on the person of the Security Officer Hanif to save his companion culprit but the bullet hit on the person of the appellant (whose name was subsequently disclosed to be Muhammad son of Shafi Muhammad) and who thereby sustained fire-arm injury on his face and was apprehended while the remaining culprits managed to make their escape good.
3. ' The complainant informed the police officials about the incident through telephone who reached the place of incident; appellant (with his .30 bore pistol and its two magazines and seven bullets) was handed over to the police officials who referred him as well as the injured Chowkidar Fatehur Rehman to Abbasi Shaheed Hospital but Chowkidar Fatehur Rehman succumbed to the injuries while admitted in the hospital and died; after the F.I.R. Was registered pertaining to the said incident, investigation got completed and the appellant was sent up to the learned Special Court constituted under the provisions of Anti-Terrorism Act, 1997; co-accused Roshan Ali was first shown as an absconder but was subsequently arrested on 15-7-2000, whose "confessional statement" was recorded by a Magistrate; he was referred to the learned trial Court with a supplementary challan to stand trial.
4. ' Learned trial Court issued non-bailable warrants of arrest against absconding co-accused Ghulam Qadir and Akbar Buledi, who remained unserved with the same and, in due course, were declared as absconders; learned trial Court issued proclamations against them, respectively under sections 87 and 88, Cr.P.C., which were got duly published according to the relevant provisions of law, but even then the said two accused continued to remain absconders.
5. ' Learned trial Court framed the charge against the appellant and the acquitted co-accused on 28-8-2000 to which they pleaded not guilty and claimed to be tried; in support of its case the prosecution examined Medical Officer Muhammad Ismail Rajpar, who had conducted autopsy on the dead body of Chowkidar Fatehur Rehman and who also examined (injured) appellant)
6. Muhammad; Medical Officer produced the postmortem report and the certificate of injuries accordingly; P.W.2 Nadeem. Baig, while examined by the trial Court, produced the copy of the F.I.R.
7. And Mashirnama regarding the inspection of the place of incident, P.W.3 Muhammad Farooq produced the memo. Of inspection of the dead body and inquest report; next witness was P.W.4 Mubashir Ali. P.W.5 Sirajuddin produced the memo. Of pointation of the place of incident by the complainant, P.W.6 Muhammad Naseer produced the Mashirnama of arrest of co-accused Roshan Ali, P.W.7 Muhammad Safdar S.I.P., P.W.8 Muhammad Ayoub S.I.P. Were also examined. P.W.9 Mr. Muhammad Javed Salman, Judicial Magistrate, Karachi West, produced the "confessional statement" of the acquitted accused and 164, Cr.P.C. Statements of the witnesses; P.W.10 Arshad Zaib S.I.P. Produced the copy of the F.I.R. Under section 13-D of the Arms Ordinance as well as Chemical and Ballistic Experts' reports. Medico-legal certificate of injured accused and of the deceased were submitted by the Special Public Prosecutor before the learned trial Court vide his statement Exh.44.
8. ' Appellant and the acquitted co-accused, (in their respective statements under section 342, Cr.P.C.) denied the allegations of the prosecution; appellant stated that he had gone outside the premises of the Metropolitan Factory in search of a job and was waiting outside, when suddenly firing ensued inside the factory premises, whereby he sustained fire-arm injury on his left cheek, went unconscious and did not know any further as to the incident of this case; further that when he regained his senses he found himself having been admitted in the hospital and further that the witnesses of the prosecution, being the employees of the factory, were interested persons and falsely deposed against him in connivance with the police officials; he also stated that firing ensued in between the private guards employed by the factory administration, which resulted in the injury on his person; he also stated that the administration of the said factory was so tight that nobody was to be allowed to enter into its premises without first issuance of gate pass for such a purpose.
9. ' Appellant did not examine himself on oath under section 340(2), Cr.P.C. Nor produced any witness in his defence; acquitted co-accused Roshan denied to have made any "confessional statement" and stated that S.H.O. Abdullah of Police Station Hub had illegally arrested him on 8th July, 2000 and then handed over to S.H.O. Akram Abro of this case, who involved him in this case falsely.
10. Learned trial Court, after hearing learned counsel for both the parties, framed the following points for decision of this case.
11. "(1) Whether on 10-6-2000 at about 4-00 p.m. Deceased Fatehur Rehman sustained fire-arm injury in his factory which proved fatal to his life and he expired as a result of it
(2) Whether on 10-6-2000 at about 1545 hours the accused duly armed with fire-arm weapon along with absconding accused entered in Metropolitan Traders (Pvt.) Limited, where salaries were being distributed and on the force of weapon they snatched cash of Rs,1,02,900 from the complainant?
(3) Whether at the same time of incident, the accused Muhammad grappled with the deceased Fatehur Rehman and inflicted fatal blow by fire-arm injuries to him and committed his murder and his companion while decamping fired on the P.Ws., he sustained fire-arm injuries on his cheek?
(4) Whether .30 bore pistol loaded with magazine along with another magazine loaded with 4 bullets was secured from accused Muhammad and he failed to produce the licence of the same?
(5) What should the order be?"
12. ' Learned trial Court found the appellant guilty and convicted and sentenced him for the offences as stated above.
13. ' Mr. Mehmood A. Qureshi, Advocate for the appellant and Mr. Habib Ahmed, Assistant Advocate- General, were heard by us in this appeal; short order, dated 11-3-2005 was passed to decide this appeal, which reads as under:-- "11-3-2005 Mr. Mehmood A. Qureshi, Advocate for the appellant. Mr. Habib Ahmed, Assistant Advocate-General.
14. ' After having heard both the learned counsel as well as A.A.-G. We would dispose of this appeal through the following short order for reasons to be recorded later:--
(1) Conviction of the appellant under section 302 read with section 396, P.P.C. And section 7 of A.T.A., 1997 is set aside.
(2) Conviction awarded to the appellant under section 13-D of Arms Ordinance, 1965, is also set aside.
(3) Conviction awarded to the appellant under section 392, P.P.C. Is reduced to seven years' R.I.
15. Along with fine of Rs,50,000.
16. ' Appeal stands disposed of."
17. ' Following are the reasons for the said short order:-- ' It is necessary to state here that learned trial Court recorded the verdict of acquittal of co- accused Roshan, with observations that no material evidence was produced by the prosecution against him to connect him with the incident of this case, nor any specific role towards the commission of the incident of the case was attributed to him and the only allegation against him was that he was seen sitting on the foot-path outside the factory premises during the incident; further that perusal of the "confessional statement" made by him before the Magistrate disclosed the same to be exculpatory one which implicates the accused named therein, and which is of no avail to the prosecution for the purpose of connecting acquitted accused Roshan with the incident of this case, and further that he could, at the best, be a witness of the case of the prosecution to say that the co-accused persons named by him in the said statement fully prepared themselves to commit the offence of this case without his approval thereof having no intention to participate therein in any manner.
18. ' In his statement under section 342, Cr.P.C., as stated above, present appellant stated that he had gone to the Metropolitan factory in search of a job and was waiting outside the factory premises, when suddenly firing ensued inside the premises, whereby he sustained firearm injury on his cheek and thereby went unconscious and when regained his senses, found himself having been admitted in the hospital; he further stated that security guards of the factory indulged in the cross- firing upon one another inside the factory, which resulted into the injury to him; learned trial Court appropriately dealt with such a stand taken by the appellant by recording observations that he raised different stands at different stages of the trial proceedings of the case inasmuch as defence counsel suggested to P.W.2 Nadeem in the cross-examination that the appellant was taken inside the factory premises by the members of the administration "for awarding petty contracts" to him, while at- another stage of the trial, P.W.5 Sirajuddin was suggested by the Defence Counsel that the said witness" had not seen accused Muhammad at the spot while directly firing on deceased Fatehur Rehman".
19. ' It will be seen that the appellant specifically replied to question No,10 of his statement under section 342, Cr.P.C. (as to whether the private witnesses had any personal grudge or enmity against him so as to have falsely implicated him in this case) in the terms "they have no enmity or grudge against me".
20. ' It is a settled principle of law that where an accused/appellant does not allege any animus or ulterior motives against the witnesses of the prosecution (for which he could have been falsely implicated in the case) and if the evidence of such P.Ws. Inspires the confidence, the same is to be acted upon for the purpose of the conviction of such an accused, even though such witnesses may either be related to the complainant or may be employees in the establishment/concern of the place of incident thereof; and the only condition for believing their depositions would be that evidence furnished by them should be confidence inspiring.
21. ' P.W.2 Nadeem Baig was serving as a Cashier in the Metropolitan Factory wherein the incident of this case took place and he has deposed that he along with Security Officer Hanif and Labour Officer Sirajuddin were disbursing the salary amounts to the members of the labour of the factory at about 3-45 p.m. When three culprits duly armed with pistols went to them in the cash room of the factory premises and by show of such force they made them hostage in the said room by directing them to keep themselves adjacent to the wall of the said room and then the culprits opened drawers and took all the cash amount lying therein, placed the same in the pockets of their clothes respectively; the said witnesses are proved to be natural as there is nothing on the record to doubt their presence at the time incident took place; Chowkidar Fatehur Rehman (deceased of this case) went running to the said room and bolted the door thereof from outside but even then the culprits managed to break open the said door and went out of it, which made deceased Chowkidar Fatehur Rehman (having a "club" with himself) to give a blow of the "club" on the person of one of the culprits (the present appellant) who thereby sustained such injury, but even then grappled with the said Chowkidar which made the remaining two culprits to fire upon the said Chowkidar and some of the cash fell on the ground from the possession of one of the culprits, in such state of affairs; further that on the fire-arm reports, Security Officer, Hanif and Labour Officer Sirajuddin tried to apprehend the culprit (the present appellant) who had grappled Chowkidar Fatehur Rehman; one of the culprits fired the pistol on the person of Fatehur Rehman Chowkidar, who thereby sustained injuries on his person and fell down on the ground; then, other culprits made their escape good excepting appellant Muhammad, who sustained injury on his face at the hands of fleeing culprits (who intended to save the appellant from the clutches of deceased Chowkidar Fatehur Rehman by firing upon the Chowkidar but the bullet fired by them hit on the face of the appellant).
22. ' So also P.W.; Sirajuddin, Labour Officer of the factory deposed that on 10-6-2000 at about 3-20 or 3-45 p.m., he along with Cashier P.W. Nadeem Baig and Security Officer Hanif were disbursing salary amounts amongst labourers of the factory when all of a sudden three culprits duly armed with fire-arms went to them, made them hostage by show of such force and by making them to remain by the side of the wall of the said room, they took the cash amount from the drawer and further that Chowkidar Fatehur Rehman reached there, bolted the door of the room from outside but the culprits managed to break open the said door and went out of the room whereupon Chowkidar Fatehur Rehman gave blow of "Club" on the person of one of the culprits (the present appellant) who grappled the said Chowkidar; according to this witness also, it was appellant Muhammad who had grappled Chowkidar Fatehur Rehman; one of the culprits then fired his pistol upon Fatehur Rehman who thereby sustained injuries and fell down on the ground; further that Security Officer Hanif tried to apprehend the culprits but the remaining two culprits, while running away fired upon P.W. Hanif in an attempt to get appellant Muhammad released but the bullet hit on the person of appellant Muhammad; remaining two culprits made good their escape. P.W.
23. Nadeem Baig then informed the incident to police officials by telephone, who reached the place of incident within 10/15 minutes' time.
24. ' Thus, P.Ws. Nadeem Baig and Sirajuddin have clearly implicated the appellant for having criminally trespassed into the premises of the factory duly armed with the pistol (together with other culprits) and entered into cash room of the factory where the salary of the labourers was being disbursed by them and the appellant with other culprits by show of force made them hostage and making them to remain by the side of the wall of the room, they all robbed the salary amount lying in the drawer in the said room; further that Chowkidar Fatehur Rehman went running, bolted the door of the said room from the outside in order that the culprits should not make their escape good, but the appellant with other culprits managed to break open the said door and came out of the room with the robbed cash, whereupon Chowkida Fatehur Rehman inflicted a blow of "club" on the person of the appellant who grappled with him to deter him from putting in further efforts towards the apprehension of the appellant (and the other culprits) and which further made the other culprits to fire upon Chowkidar Fatehur Rehman who thereby sustained injuries on his person and fell down on the ground; it has further come in the evidence that the other culprits fired upon Security Officer Hanif but the bullet hit on the face of appellant who thereby sustained injury and fell down on the ground.
25. ' Police officials on receipt of such information arrived at the scene of incident and took injured appellant Muhammad and injured Chowkidar Fatehur Rehman to the Abbasi Shaheed Hospital where Chowkidar Fateh Rehman succumbed to the injuries and died. Medical Officer Dr. Muhammad Ismail Rajpar examined himself as P.W.1 in the trial Court, who deposed that he first examined Chowkidar Fatehur Rehman (then in the injured position) and found following four injuries on his person:-- "(1) Punctured wound 0.5 c.m. In diameter over lateral aspect of right arm margins inverted blackening positive.
(2) Lacerated pipe punctured wound 1.5 c.m. x 0.5 c.m. Over medial aspect of right arm exit wound.
(3) Punctured wound 0.5 c.m. In diameter over right side of chest margins inverted blackening negative. Wound of entry.
(4) Punctured wound 1 c.m. In diamter over right side of chest anteriorly near mediasturnmn margins inverted wound of exit."
26. ' He further deposed that Chowkidar Fatehur Rehman expired in the hospital while admitted therein for his medical treatment.
27. ' The said Medical Officer further deposed that appellant Muhammad was also referred to him for examination of his injuries and medical treatment and he found following two injuries on his person:-- "(1) Punctured wound 0.5 c.m. In diameter over right side face margins inverted blackening negative. Wound of entry.
28. ' The projectile part of bullet palpable right side back of chest, bullet recovered from right side of chest.
(2) Lacerated wound 4.5 c.m. x 1 c.m. Bone not exposed over mid occipital region."
29. ' He opined that injury No,1 on the person of appellant was caused by projectile fire-arm while injury No,2 was caused by a hard and 4 blunt substance. The appellant was referred to J.P.M.C. Hospital for further treatment.
30. ' As stated above, it is an admitted fact that the witnesses of the prosecution have admittedly, no animus against the appellant and, therefore, the possibility of his false implication in this case stands ruled out. The only question involved in this case is as to whether defence theory put forward by the appellant (to the effect that while he was standing outside the premises of the factory, firing ensued inside the factory premises and a stray bullet hit on his face, thereby he sustained injury on his person) could possibly be correct. The learned trial Court has validly recorded the observations (to the effect that though the appellant stated in his 342, Cr.P.C.
31. Statement that he had gone towards the factory in question in search of a job and was waiting outside thereof when suddenly firing took place, yet at different stages of trial proceedings) his learned counsel went on suggesting different theories to the witnesses of the prosecution in their cross-examination; indeed it is a settled principle of law that the weakness in the defence theory cannot be taken to strengthen the case of the prosecution, and that prosecution has to prove its case beyond reasonable and probable doubt against the accused on the basis of its own evidence and not on the basis of any weakness/defect in the defence theory, or evidence which may have been produced in support thereof; but the question involved in this case is that it is an admitted fact that the appellant sustained injuries during the incident of this case; and the depositions of the witnesses of the prosecution are found to be confidence inspiring on the other hand; and under such circumstances the divergent stand taken by the appellant on different stages of trial proceedings is proved to be derogatory.
32. ' The settled principles of law with regard to the two versions pertaining to the incident of the case, viz. One put forward by the prosecution and the other by the accused pertaining to one and the same incident have been dealt with in the case reported in Mukhtar Ahmed v. The State 2003 SCM R 1374, wherein Honourable Supreme Court of Pakistan was pleased to hold that an onerous duty is cast upon the Court to decide as to which of the two versions is correct and plausible, supported by the evidence and circumstances on record; and to ascertain the truth or otherwise of the two versions put before the Court, numerous circumstances, available on the record of the case, are to be referred to. It is also a settled principle of law that where two such versions are found available on the record a version which is more plausible and nearer to the truth is to be accepted; if the version put forward by the accused/appellant is plausible, then the same is to be accepted and case decided accordingly.
33. ' Where the prosecution is able to successively prove the presence of the accused/appellant at the scene of incident with injury having been sustained by him during the course of such incident and its witnesses are not found inimical or hostile against such an accused/appellant, and their depositions inspire confidence, then the defence theory is to be minutely examined to see as to whether the same contains any reasonableness therein; and if the plausibility and reasonableness is found attached to such a defence theory then the benefit of doubt is to be given to the accused/appellant; on the other hand if the accused/appellant is not found having put in reasonable/satisfactory defence theory against the evidence of the prosecution, then conviction can safely be recorded against him on the basis of such confidence inspiring evidence.
34. ' The above named eye-witnesses of the incident of the case in hand have fully implicated the appellant for having criminally trespassed in to the premises of the factory with other culprits duly armed with pistols, went to the cash room inside the factory premises where the salary amounts were being disbursed to the labourers by P.W.2 Nadeem Baig, Security Officer Muhammad Hanif and Labour Officer Sirajuddin when the appellant and the other culprits by show of force made them hostage and robbed them of the cash amount and in the meanwhile Chowkidar Fatehur Rehman went running, bolted the door of the said room from outside, in an attempt not to allow the appellant and other culprits to escape away, but they managed to break open the said door, whereupon Chowkidar Fatehur Rehman inflicted blow of "club" on the person of the appellant who grappled with the Chowkidar.
35. ' In an attempt to rescue the appellant and to get him freed from the clutches of Chowkidar Fatehur Rehman, the other culprits fired upon Fatehur Rehman Chowkidar who sustained injuries on his person but one of the bullets hit on the face of the appellant who also thereby sustained injury and fell down on the ground, and then the other culprits made good their escape. The prosecution successively proved its case to that extent.
36. ' P.W. Sirajuddin and P.W. Nadeem Baig deposed that appellant Muhammad fired on Chowkidar Fatehur Rehman; but, it is not clear as to how and in what manner the appellant fired upon the Chowkidar when he and Chowkidar were said to be grappling each other; the description of the injuries noted down by Medical Officer Dr. Muhammad Ismail Rajpar (reproduced above) show to have been inflicted by means of firing the bullets; whereas the evidence indicates that "empty cartridges" were recovered from the place of Wardat lying near the appellant; so also Mashirnama (Exh.30) clearly mentions that one mouser of .30 bore pistol with magazine containing three live cartridges were secured allegedly from the possession of present appellant; such aspect of the case reasonably indicates that had the present appellant fired upon Chowkidar Fatehur Rehman, then the injuries would have been caused by means of firing of the cartridges whereas the description of the injuries on the person of the deceased Chowkidar show the same to have been caused by means of firing of the bullets; thus, it is not free from doubt to say that the death of Chowkidar Fatehur Rehman occurred at the hands of the present appellant.
37. ' For the very same reasons, the recovery of the unlicensed firearm from his possession is not free from doubt; appellant is entitled to the benefit accordingly. On the basis of such discussion of the evidence, present appellant is not proved to have committed the murder of deceased Chowkidar Fatehur Rehman; accordingly, the ingredients of section 396, P.P.C. As well as of section 7 of Anti- Terrorism Act, 1997 are not shown to have been fulfilled by the prosecution; learned Assistant Advocate-General Mr. Habib Ahmed also did not partly support the conviction awarded against the accused appellant by the trial Court viz. For offences under section 302, P.P.C. Read with section 396, P.P.C. And section 7 of A.T.A., 1997, as well as conviction under section 13-D of Arms Ordinance, 1965; accordingly the sentences awarded against the appellant by the trial Court are set aside and this appeal allowed, to that extent only.
38. ' So far the sentence awarded by the trial Court against the appellant under section 392, P.P.C. Is concerned, the prosecution case is very clear; it has come in the evidence that the appellant with other culprits first trespassed into the factory premises in question and robbed the above named witnesses of the cash amount and that deceased Chowkidar Fatehur Rehman of this case went running, bolted the door of the cash room from outside, wherein robbery was committed by the appellant with others, but they managed to break open the said door and went out of the said room, whereupon deceased Chowkidar Fatehur Rehman inflicted a blow of "club" on the head of the present appellant who thereby sustained injury on his person and grappled the said Chowkidar; Chowkidar also grappled the appellant and both continued with such a struggle, whereafter a bullet hit on the person of the present appellant, as well as the bullet injuries were suffered by deceased Chowkidar Fatehur Rehman. Medical Officer Dr. Muhammad Ismail Rajpar has certified that a lacerated wound 4.5 c.m. x 1 c.m. Bone deep over mid occipital region was noted down by him when the appellant was referred to him by the police officials for his medical examination and report and he issued such medical certificate which was duly produced as Exh.27 in the trial Court; thus, the said injury on his head proves the allegation against him that he had actually trespassed into the factory premises with some other culprits duly prepared to commit robbery of salary amount which was being disbursed by P.W.2 Nadeem Baig and P.W.5 Sirajuddin with Muhammad Hanif to the labourers of the factory and actually committed such a robbery, and that in discharge of his duties deceased Chowkidar Fatehur Rehman reached there and first tried to lock the appellant with other culprits inside the cash room by bolting its door from outside, but they managed to break open the same and came out of the said cash room whereupon the said Chowkidar inflicted a blow of "club" on the head of the present appellant, who then grappled the Chowkidar and the Chowkidar responded in the very same manner towards discharge of his own duties, as such.
39. ' The appellant has not explained the said head injury on his person; this by itself clearly indicates that the defence theory put forward by him is false and that the version pertaining to the incident of the case as put forward by the prosecution is correct (excepting the fact that the benefit of doubt pertaining to the other allegations against the appellant stands awarded to him); the evidence produced by the prosecution clearly indicates that the incident actually took place inside the factory premises (as shown by its witnesses) and that the appellant suffered the injuries on his person inside the factory premises and not outside.
40. ' Learned counsel for the appellant cited 1995 SCM R 127 and argued that prosecution failed to satisfactorily explain the delay in lodging of the F.I.R. Regarding the incident of this case; it is also a settled principle of law that where the evidence produced by the prosecution inspires the confidence, the delay per se, in lodging of the F.I.R. Would not be fatal to the case of prosecution.
41. ' Learned counsel further cited 1996 SCM R 167, (2) PLD 2004 Kar. 201, (3) PLD 2004 Kar. 644 to argue that prosecution "withheld the .Best evidence and did not produce during the trial" and therefore, a presumption is to be drawn that had some other witnesses been produced by the prosecution during the trial, they would not have supported its case. In this regard, suffice it to say that the prosecution has proved that witnesses produced by it were natural and that the defence having not H called any such person to examine him in support of the appellant, no such plea can be said to have been validly raised by the appellant.
42. ' So also, the facts and circumstances of the cases cited as 2005 M LD 246 and 2005 M LD 323, 1995 SCM R 1345; 2000 PCr.LJ 1360; 2003 SD 875 and 2003 SD 884 by the learned counsel are not identical to those of the case in hand.
43. ' Accordingly, the prosecution has proved that the appellant committed an offence punishable under section 392, P.P.C. And the trial Court rightly convicted him for the said offence. The conviction awarded against him under section 392, P.P.C. Is hereby maintained, but with modification to the effect that the sentence of 10 years' rigorous imprisonment is reduced to 7 years' rigorous imprisonment; imposition of fine amount of Rs,50,000 stands maintained to be paid by the appellant; benefit of section 382-B, Cr.P.C. Stands extended to him.
44. ' With such modification of the judgment passed by learned trial Court, this appeal stands dismissed.