' SYED ZAWWAR HUSSAIN JAFFERY, J,---The appellant M. Tahir son of late Mohabat Khan has preferred this appeal against the impugned judgment dated 12-9-2006 passed by the learned IInd Additional Sessions Judge South-West, Judicial Court Complex Karachi in Sessions Case No,95/2005 whereby the trial Court has convicted the appellant and sentenced him R.I. For 6 years and fine of Rs,25,000 and in default of payment of fine he shall further suffer S.I. For 6 months. The trial Court also extended the benefit. Of section 382-B, Cr.P.C.
3(sic). Brief facts of the prosecution case are that an F.I.R. No,31/2005 was registered at P.S. Chakiwara, Karachi on 21-1-2005 by complainant Muhammad Yaseen. It is alleged therein that he along with his brother and cousin were busy in purchasing animal skins. At about 11.15 p.m. Three persons camp there, one was holding dagger and two were empty handed and they robbed mobile X-100 Samsung from the brother of complainant namely Fida Muhammad and also robed Rs,1000 from the complainant on the point of dagger and in the meanwhile the rest two accused escaped away. It is further disclosed in the F.I.R. That in the meanwhile police came there, they apprehended the accused who disclosed his name to be Muhammad Tahir (appellant). The .Police party secured one dagger and robbed amount of Rs,1,000 and prepared memo. Of arrest. The accused and property were brought at the police station where the F.I.R was lodged. After due investigation the charge sheet was filed against the appellant whereas the accused Abdul Wahid alias Edhi son of Muhammad Younus and Asif alias Bona son of Muhammad Younus were shown as absconding accused and initiated proceedings under sections 87 and 88, Cr.P.C. And bifurcated the case of the appellant under section 512, .Cr.P.C. By declaring above accused as proclaimed offender. The trial Court framed the formal charge against the appellant. The appellant denied the allegations as alleged in the prosecution case as well as charge framed against him and claimed the trial.
4. The prosecution in order to prove the charge against the present appellant examined the following witnesses:
(i) P.W.l Muhammad Yaseen at Exh.5. He is complainant and produced memo, of arrest and recovery at Exh.5/A, F.I.R. At Exh.5/B and memo of Site Inspection at Exh.5/C.
(ii) P.W.2 Fida Muhammad at Exh.6. He is co-mashir of arrest and recovery as well as Site Inspection. He is also eye-witness of the incident.
(iii) P.W.3 Nauroz Khan at Exh,.7. He is co-mashir of Site Inspection.
(iv) P.W.4 S.I.P. Syed Zahid Hussain Shah at Exh.4. He has arrested the appellant as per memo, of arrest.
(v) P.W.5 'S.I.P. Saeed Alam at Exh.9. He is Investigating Officer of the case.
5. The side of prosecution was closed by learned D.D.A. As per statement at Exh.10. The trial Court recorded 342, Cr.P.C. Statement in which the appellant denied the allegations levelled against him.
By the prosecution. He claimed that he has been involved on the basis of enmity with the complainant party with connivance of Investigating Officer and claimed himself to be the innocent.
Although, the appellant has not examined himself on Oath under section 340(2), Cr.P.C. Nor produced any defence witness. The trial Court after recording the above mentioned prosecution evidence observed that the prosecution has proved the charge against the appellant beyond the reasonable doubt, therefore, the appellant Muhammad Tahir under section 265-H(2), Cr.P.C. For committing Offence under section 392, P.P.C. Was convicted and sentenced R.I. For 6 years and also fine of Rs,25,000 and in default in payment of fine he shall suffer S.I. For 6 month's more.
6. The judgment dated 12-9-2006 passed by the learned Ilnd Additional Sessions Judge South- West Karachi has been assailed in this appeal with the prayer that the same may be set aside and conviction and sentence awarded by the frial Court is in violation of the order dated 6-3-2006 passed by this Court in Cr. Rev. Application No, 12/2006, hence this appeal.
7. Mr. Fiaz H. Shah learned counsel for appellant has contended that prosecution witness namely Muhammad Yaseen, Fida Muhammad, Nauroz Khan had appeared in the trial Court. The evidence in support of examination-in-chief of Muhammad Yaseen was recorded whereas the cross- examination was reserved at the request of learned counsel for appellant. The learned trial Judge reserved cross-examination of the witnesses Fida Muhammad and Nauroz Khan whereas cross- examination of the appellant was also reserved but in deposition some questions have been shown to be put by the appellant in person. Learned counsel for appellant has drawn attention of this Court at diary dated 10-6-2005 which reflects that accused was produced by the authorities, D.D.A. Was present, DC of the appellant filed power and at his request xx reserved regarding the P.W. Yaseen, Fida Muhammad and Nauroz Khan at Exhs.5/A, 5/D, 6 and 7 and the case was ordered to be put off to 4-7-2005 for evidence. On 4-7-2005 the accused was produced by jail authority and above mentioned three witnesses were present, D.D.A. Was also present, defence counsel filed adjournment application which was allowed as a last chance and case adjourned to 3-8-2005 for evidence.
8. Mr. Shah submits that when the cross-examination was of the above mentioned witnesses was reserved by the trial Court by filing power on behalf of accused the matter was adjourned by the trial Court, However, as per witness No,i Muhammad Yaseen the same cross-examination has been shown on the part of appellant Muhammad Tahir whereas the cross- examination was reserved as per diary dated 10-6-2005. He further submits that this fact is supported from the evidence of P.W.2 Fida Muhammad and P.W.3 Nauroz Khan. Their cross-examination was reserved as the Vakalatnama was filed on behalf of accused in the said Court. He further submits that Cr. Rev.
Application No,12/2006 was preferred by the appellant in this Court against the order 'dated 21-1- 2006 passed by the learned trial Court for closing the side of prosecution witnesses with the prayer to direct the trial Court to examine all rest of the witnesses. The trial Court has considered the evidence of above mentioned three witnesses without any lawful authorities as the impugned order dated 21-1-2006 was set aside as per statement of complainant party, particularly the respondent No,2 placed a statement that he has no objection if the Revision Application is allowed as prayed. He further stated that his two witnesses are brother and cousin and they intend to close the matter. It is further submitted that above mentioned witnesses were not summoned m the light of the order passed by this Court dated 6-3-2006 but their evidence has been considered by the learned trial Judge in the impugned judgment by presuming that the prosecution has proved the charge against the present appellant beyond the reasonable doubt. It is further urged that the trial Judge Mr. Ghulam Rasool Sammo and his predecessor Mr. Shahid Shafiq have exceeded their authority and misinterpreted the order dated 6-3-2006 passed by this Court. The side of complainant Muhammad Yaseen and other witnesses was never closed by the trial Court at any time nor they were summoned for the purpose of cross-examination in the light of statement made by them in this Court in Cr. Rev. Application No,12/2006. It is further argued that the complainant and two witnesses namely Fida Muhammad and Nauroz Khan had presumed that' the appellant has not committed the offence on the day of incident. As per prosecution case P.W.4 Zahid Hussain Shah on the day of incident was posted as S.I. At police station Chakiwara and was on the mobile duty from 8.00 p.m. To 8.00 a.m. And some police constables were with him. They were patrolling in the area when they reached at Bihar Colony and after covering the some distance they saw certain people , were available along with one already apprehended accused Tahir. It was disclosed to the police officer by Yaseen and Fida Muhammad two other accused had escaped away snatching mobile phone C-100 Samsung and cash of Rs,1000 from Yaseen. Tahir was shown dagger in his hand. The police party took the search and recovered cash of Rs,1000 and it was informed that mobile phone has been taken away by the absconding accused. The police personnel also recovered one'dagger from the appellant and prepared memo of arrest and recovery in the presence of P.W. Yaseen, Fida Muhammad and Nauroz' Khan. It is further .Urged that P.Ws. Yaseen, Fida Muhammad and Nauroz Khan have deliberately kept themselves away for the purpose of cross-examination in the trial Court on the ground that there was some quarrels on the day of incident between the parties and some injuries were sustained by the appellant. There was enmity of the appellant!? Brother aiid also 1.6. Was in league with the complainant party to involve the appellant in the false case. It is further urged that the said witnesses did not turn up for cross- examination on the contrary the complainant on his behalf and on behalf of other witnesses made statement in this Court in Cr. Rev. Application No, 12/2006 that complainant and other witnesses namely brother and cousin had intended to close the matter, therefore, the impugned order dated 21-1-2006 has been set aside by tins' Court. It is further argued that trial Court has neither discussed nor taken into consideration that the I.O. Has not recorded the statement of appellant, his brother or any independent witness. Mr. Shah learned counsel has drawn the attention of this Court regarding statement of accused under section 342, Cr.P.C.,that he has emnity with complainant party and P.W.5 S.I.P. Saeed Alam who have involved him falsely. Learned D.D.A. Vide statement dated 16-8-2006 at Exh.10 has closed the prosecution side but the fact remains that the prosecution's independent witnesses were not cross-examined at all but the cross-examination was recorded by the learned Ilnd Additional Sessions Judge on 10-6-2006 but his own Court diary reflects that cross-examination was reserved.
9. Suhail Jabbar learned State counsel has conceded that as per diary dated 10-6-2006 the cross- examination of. P.Ws. Namely; Yaseen, Fida Muhammad and Nauroz Khan was reserved and the case was adjourned to 4-7-2005. On 4-7-2005 the above named witnesses were present in Court but on the application moved by the defence counsel the matter was adjourned to 3-4-2005 and thereafter the cross- examinations of all the above named three witnesses were not recorded then Cr. Rev. Application No, 12/2006 was filed in this Court and it was accepted by the complainant and other witnesses that the Cr. Rev. Application No, 12/2006 filed by the appellant may be allowed and impugned order dated 21-1-2006 may be set aside. He admitted that there was no corroboration of the independent witness as they admitted in Cr. Rev. Application that they do not indulge in recording of their evidence as they intended to close the matter. Learned State counsel has submitted that P.W. Zahid arid Saeed Alam have admitted about the identity of the appellant who resides in the same Moliallah and they are known to each other since so many years as the brother of appellant is also in police department. The complainant Muhammad Yaseen also resides in the same Mohallah. He had admitted to the extent that he has not mentioned in the charge sheet that P. Zahid has recovered dagger from the right hand of accused. P.W. Nauroz Khan also lives near the house of P.W. Saeed Alam. This witness had admitted that complainant Yaseen, P.W. Nauruz Khan and Fida Khan belong to his community. He had admitted that there was no ban upon the collection of animal skins by' the Sindh Government but the P.W. Zahid Hussain 2007 Shah has stated that there was ban under 144, Cr.P.C. Upon collection of animal skins on the occasion of Eid- ul-Azha. It was suggested to the witness that there was two groups for collection of animal skins and appellant sustained injuries and no incident of robbery had taken place.
10. I have heard the arguments of the learned counsel for parties and examined material on record.
11. It is manifest from the record that prosecution recorded examination-in-chief of P.W.1 Muhammad Yaseen at Exh.5, P.W.2 Fida Muhammad at Exh.6 and P.W.3 Nauroz Khan at Exh.7, but their cross-examination was, reserved at the request of learned counsel for accused by filing his Vakalatnama as per diary dated 10-6-2005 but learned trial Judge recorded certain cross- examination on behalf of accused appellant in person. The case diaries dated 10-6-2005 and '4-7- 2005 falsify regarding the cross-examination on behalf of appellant/accused. P.Ws. Yaseen, Fida Muhammad and Nauroz Khan's evidence have been considered by the trial Court by awarding the conviction against appellant. In fact their cross-examination was reserved and they did not appear before the trial Court for the purpose of cross-examination, summonses were issued to the prosecution witnesses but after examining three above named witnesses, their cross-examination was reserved. The evidence of complainant Yaseen, Fida Muhammad and Nauroz Khan has no relevancy with the evidence of police officer as the complainant made a candid statement that they do not want to pursue their case and statement was made in Cr. Rev. Appl. No,12/2006 that they have no objection if the revision application is allowed as prayed. It was further expressed by the complainant that he and his two witnesses are brother and cousin and they have no intention to come forward for the purpose of cross-examination, therefore, they made a specific statement that such revision application may be allowed. The evidence of these three witnesses cannot be taken into consideration by the trial Court while awarding the conviction as prosecution has failed to corroborate the direct evidence. There is no corroborating evidence against the appellant for awarding sentence in the prosecution case, therefore, the appellant cannot be connected as an accused in the crime.
12. In view of the foregoing reasons, the conviction and sentence awarded to appellant is set aside as the prosecution has failed to bring any tangible evidence against the appellant. In view of this position he is acquitted from the charge as framed against him. The appellant shall be released forthwith, if not required in other case.
13. Therefore, this Cr. Appeal No,328/2006 is allowed. The listed application is dismissed as infructuous.