1. ' ARSHAD NOOR KHAN, J.---By this Criminal Acquittal Appeal, the appellant has challenged the judgment dated 4-5-2007 passed by the learned II-Additional Sessions Judge, Ghotki in Sessions Case No,76 of 2006. The State v. Muhammad Moosa and others in Crime No,5 of 2006 of Police Station Kacho Bindi under sections 395 and 337/H-2/34, P.P.C. Whereby respondents Nos.2 to 8 have been acquitted from the charge.
2. ' The case of the prosecution as per F.I.R . Is that the appellant owned agricultural land and for the purpose of irrigation of the said land, he installed a pumping machine thereon with electric motor and some other article like a drum of diesel and iron were available at his agricultural land. On 9- 2-2006 at 1000 hours , the appellant along with his son Abdul Wajid was irrigation his land and the respondents namely: Muhammad Moosa son of Ghulam Hassan Chachar, Abdul Salam son of Abdul Fatah Chachar both duly armed with Kalashnikovs; Abdul Rahman son of Muhammad Usman Chachar, Abdul Fatah son of Abdul Jabbar Chachar, both armed with rifles and guns and Muhammad Ibrahim son of Abdul Jabbar Chachar, Asadullah son of Muhammad Usman Chachar and Muhammad son of Gut Hassan Chachar, resident of village Raman Chachar, along with 4-5 unidentified person duly armed with guns came there on donkey cart and threatened the appellant that he is helping to their rivals, therefore, they will teach him lesson. After such instigation, they all overpowered him and started aerial firing. Due to the fear of weapons, the appellant and other P. Ws. Remained silent. The respondents, thereafter took his electric machine of Deco Co., one drum full of diesel and other raw-materials after loaded it on the donkey cart and escaped from there. He fur'her stated that on the report of fire, P.W. Abdul Khalique attracted to the place of incident, who had also been the respondents. The appellant informed the said incident to their notables and on their advice he filed application before the Sessions Judge, Ghotki and under orders of the Sessions Judge, Ghotki, he lodged the F.I.R.
3. ' After registration of F.I.R., the respondents were arrested and Beco machine, was also secured by the police and after usual investigation challan against them have been sent in Court to stand trial.
4. ' After receipt of the challan, the learned Sessions Judge, Ghotki transferred it to the learned II- Additional Sessions Judge, Ghotki, who after compliance of section 265-C, Cr.P.C. Framed the charge against all the respondents, who pleaded not guilty and claimed trial.
5. ' After framing the charge, the prosecution examined P.W.1 Muhammad Dawood, A.S.-I.P, who produced the copy of the order dated 25-2-2006 passed by the Sessions Judge, Ghotki and copy of F.I.R. No,5 of 2006 vide Exhs.10/A and 10/B respectively; P.W.2, appellant Muhammad Punhal vide Exh.13; P.W.3 Abdul Wajid son of Muhammad Punhal vide Exh.14; P.W.4 Hazaro son of Qadir Bux vide Exh.17, who produced mashirnama of arrest of respondents and recovery of Beco machine vide mashirnama from Exhs.17/A to 17/C respectively; P.W.5 Allah Ditto Kolachi, A.S.-I./Investigating Officer vide Exh.19 and the side of the prosecution was closed on 6-4-2007 vide statement Exh.20.
6. ' The statement of respondents were recorded under section 342, Cr.P.C. -from Exhs.21 to 27 wherein they denied to have committed the alleged offence and have further stated that the respondent Abdul Fatah had lodged F.I.R. No,21 of 2005 under sections 302/324/147/148/149/ 114, P.P.C. At Police Station Katcho Bindi against the close relative of the appellant and due to said enmity they have dragged them in the present case. The copy of F.I.R. No,21 of 2005 and its challan have also been produced by him vide Exhs.21/A and 21/B. The respondents did not examine themselves on oath under section 340(1), Cr.P.C. Nor have led the evidence of their witnesses in their defence. Learned trial Court after hearing of the learned counsel for the parties have acquitted the respondents Nos.2 to 8 from the charge. Being highly aggrieved and dissatisfied with the judgment dated 4-5- 2007 the appellant has preferred the present appeal.
7. ' I have heard Mr. Ashique Illahi N. Sundhrani, Advocate for the appellant and Mr. Muhammad Iqbal Mehar, A.A.-G. For the State.
8. ' Learned counsel for the appellant vehemently contended that respondents Nos.2 to 8 duly armed with fire-arm weapons came at the land of appellant and assailed on him and his son while they were watering their lands. On their arrival, they over-powered the appellant and made aerial firing and on their departure they took away the water machine of Beco Co. He further contended that Beco machine has been recovered at the instance of respondent Abdul Fatah which is conclusive proof of involvement of the respondents in the present crime and the learned trial Court was not justified in acquitting them from the charge. He further pointed out that P.W. Abdul Wajid is the eye- witness of the present case and his evidence fully supports and corroborates the , case of the prosecution. According to him the recovery has been made at the instance of respondent Abdul Fatah, which is sufficient to connect the respondents in the present crime and the learned lower Court was not justified in acquitting them from the charge.
9. ' Mr. Muhammad Iqbal Mehar, learned A.A.-G. For the State vehemently opposed the submissions advanced by the learned counsel for the appellant and has contended that the evidence of Investigating Officer in the present case, is of much significance which fully negates the recovery of Beco machine from the respondents. He further contended that since there is previous enmity in between the parties, as such, the false involvement of the respondents could not be ruled out, as such, he will not oppose the impugned judgment.
10. ' I have considered the arguments advanced on behalf of the parties and have gone through the material available before me.
11. ' The case of the prosecution as per F.I.R. Is that on the fateful day of incident, the appellant along with his son P.W. Abdul Wajid was ploughing his fields where the respondents duly armed with fire- arm weapons reached and after overpowering him, made aerial firing and escaped from there on donkey cart and took away his Beco machine, a full drum of diesel and other articles. The appellant has fully substantiated the said averment contained in the F.I.R. But in cross-examination he admitted that the distance in between Police Station Katcho Bindi and place of incident would be 10 kilometers and he is residing at a distance of 7-8 kilometers from his agricultural land. He further admitted in his cross-examination that Abdul Fatah is his brother-in-law who lodged F.I.R. No,21 of 2005 against his brother-in-law Abdul Sattar at Police Station Katcho Bindi in respect of murder of deceased Muhammad Khan. He further admitted that daughter of deceased Muhammad Khan is wife of his son Abdul Samad. A perusal of the evidence of appellant Muhammad Punhal shows that the respondent party came on his lands on the donkey cart duly armed with lethal weapons and after their instigation that he is helping to their enemies, therefore, he will be taught lesson, started aerial firing. The said piece of evidence shows that the respondents allegedly reached there to teach lesson to him but surprisingly neither he was beaten by them nor they inflicted any A fire injury to him or his son P.W. Abdul Wajid and instead of teaching lesson to him, they took away his water machine of Beco company and a drum full of diesel and escaped from there on donkey cart.
12. The escape of the respondents after the incident on donkey cart does not inspire any confidence as after the incident, human conduct and anxiety is that to leave the place of incident and go away at sufficient distance as early as possible, so that no one may witness him. But in the present case, instead of escaping on any other conveyance or even on foot, they chose to escape on donkey cart and admittedly the place of incident is agricultural land and donkey cart could not run fast, as was the need of the moment, therefore, the assertion of appellant regarding escape of the respondents on donkey cart does not inspire confidence. The admission of the appellant that the respondent Abdul Fatah lodged the F.I.R. No,21 of 2005 against his brother-in-law Abdul Sattar, is of great force and admittedly the said F.I.R. Is the F.I.R. Of murder of deceased Muhammad Khan, who was the close relative of respondent Abdul Fatah. The said enmity in between the parties over the murder of deceased Muhammad Khan has been established on the basis of evidence of the appellant as well as the evidence of his son B Abdul Wahid. His admission in his cross-examination that the police have not secured any empty cartridge/bullet from the place of incident is also of much significance, which adversely reflects on his testimony about aerial firing of the respondents. P.W. Abdul Wajid, who is B son of the appellant has also deposed on the same pattern as deposed by his father Muhammad Punhal. In his cross- examination, he has also admitted that his village is situated at a distance of 10 kilometers from the place of incident. He has further admitted in his cross-examination that the case property viz. Beco machine was not recovered from the house of respondent Abdul Fatah. The testimony of P.W.
13. Muhammad Punhal is also tainted with mala fide because of enmity in between the parties and his admission in his cross-examination that the case property viz. Beco machine was not recovered from the house of the respondent Abdul Fatah, adversely reflects on the case of prosecution and negates the evidence of his father P.W. Muhammad Punhal about theft of the machine. He has also not deposed that he or his father were beaten by the respondents at the alleged time of incident.
14. His evidence is also quite far away from the truth.
15. ' The evidence of P.W. Hazaro, who is mashir of the arrest of respondents and recovery, has deposed about the arrest of the respondents and recovery of Beco machine in his presence from the house of respondent Abdul Fatah and he acted as mashir vide mashirnama Exhs. 17-A to 17/C but his admission in cross-examination that Beco machine was not recovered from the house of respondent Abdul Fatah inflicts a material dent in the case of the prosecution. P.W.5 Allah Dito Kolachi, A.S.-I.P./ Investigating Officer also deposed about the recovery of Beco machine from a place situated at one furlong away from the house of respondent Abdul Fatah and that too from abandon place. The evidence of mashir and Investigating Officer about recovery of the said machine is not supporting the case of prosecution.
16. ' The evidence led by the prosecution, as discussed above, very promptly shows that there is an enmity between the parties as Abdul Fatah is the complainant of Crime No,21 of 2005 under sections 302/324/147/148/149/114, P.P.C. At Police Station Katcho Bindi for murder of Muhammad Khan, and the present respondents are eye-witnesses of that murder of Muhammad Khan and the learned counsel for the appellant on a query of the Court, candidly admitted that the present respondents are the eye-witnesses of murder of Muhammad Khan, which shows that involvement of the present respondent in the present crime is mala ride and not free from doubt.
17. ' The case of the prosecution, as discussed above, rests upon the recovery of water machine of Beco company, but the recovery of the said machine has not been effected at the instance of respondent Abdul Fatah or from any other respondents. The appellant has also not produced any evidence to show that Beco machine allegedly recovered by the police belongs to him as no evidence has been brought on record to prove the ownership of the said Beco machine, as admittedly the said Beco machine is commonly and freely available in the open market and is frequently used by the agriculturists and in absence of any evidence to prove the ownership of the machine in question, it could not be said that the appellant is the owner of the said Beco machine, which was snatched by the respondent Abdul Fatah, as such the recovery has also not been substantiated on the basis of confidence-inspiring evidence by the prosecution. The case of the prosecution is, therefore, not free from doubt and the learned trial Court after keeping in view all the aspects of the matter rightly came to the conclusion that the prosecution completely failed to establish its case against the respondents beyond any reasonable doubt and I also do not find any material discrepancy or non-reading of the evidence by the learned trial Court or any illegality apparent on the face of the judgment passed by the learned lower Court so as to interfere in the judgment passed by the learned trial Court. Even after the acquittal of the respondents, their innocence become double and their acquittal could not be brushed aside leniently or lightly in absence of any strong evidence, which is miserably lacking. The present appeal has, therefore, no merit, which was dismissed on 26-5-2008 vide short order, for the reasons to be recorded later on.
18. ' The above are the reasons for the short order.