1. ' MUHAMMAD AFZAL SOOMRO, CJ.---By this common judgment, I intend to dispose of the above appeals filed under section 410, Cr.P.C. By appellants Waseem Shahzad and Muhammad Ali against their conviction awarded by learned Vth Additional Sessions Judge, Karachi (South), by judgment, dated 10-8-2006, thereby the appellants were convicted under section 265-H(ii), Cr.P.C.
2. For the offence of dacoity punishable under section 395/34, P.P.C., b sentencing them to undergo for 7 years' R.I. And to pay a fine of Rs,50,000 and in case of default they shall also undergo R.I. For a period of one year more. The learned trial Court, however, extended the benefit of section 382-B, Cr.P.C. To the appellants.
3. ' The brief facts as reflected in the impugned judgment are that on 18-12-2003 complainant Adnan lodged F.I.R. No,282 of 2003 under sections 395/ 109/ 412, P.P.C. With Police Station Gizri narrating that on 17-12-2003 at 1000 hours, his family members and children went to house of his relatives and he was in his office. At 12-00 hours, his parents and two working ladies were present in the house.
4. ' Suddenly five persons entered into the house through window and they sat down inmates on gun point and in meanwhile his wife also came in the house to whom they also made to sit on gun point and they took away four Bangles, two Karas weighing 16 tolas, two sets of gold weighing 20 tolas, one set golden bearing pearls, five mobile phone Nokia, two Jhumkay one set along with two Bunday, VCR and a car bearing Registration No,B-8015.
5. ' After usual investigation charge sheet was submitted for trial of the accused by showing accused Safdar Ali as absconder and the charge was framed against the appellants and other accused to which they pleaded not guilty and claimed trial.
6. ' In order to prove the charge against the accused the prosecution examined P.W.1 complainant at Exh.5 who produced the F.I.R. As Exh.5/A, memo. Of identification of recovered articles as Exh.5/B, P.W.2 Mst. Fauzia Hajji Dastgir, at Exh.6, P.W.3 Mst. Naseema Saghir at Exh.7, P.W.4 Mst. Nadia Adnan at Exh.8, P.W.5 Muhammad Saleh Umer at Exh.9 who produced memo. Of recovery of car as Exh.9/A.
7. P.W.6 A.S.-I. Zahid Shah at Exh.10 who produced memo. Of arrest and personal search at Exh.10/A, memo. Of pointation of place of Wardat at Exh.10/B, memo. Of recovery of ornaments at Exh.10/C, another memo. Recovery of ornament at Exh.10/D, another memo. Of recovery of Exh.10/E, further statement of complainant at Exh.11 for non-availability of three P.Ws. P.W. SIP Hameed Khan at Exh.12 who produced memo. Of arrest at Exh.12-A, memo. Of arrest, search and recovery at Exh.12-B, along with sketch of pistol, P.W.9, P.I. Faryad Hussain Bhatti at Exh.13 who produced memo. Of site inspection at Exh.13-A, map at Exh.13-B, memo. Of arrest and personal' search at Exh.13-C, F.I.R. No,2 of 2004 under section 13-D, Arms Ordinance, at Exh.13-D, another F.I.R. No,3 of 2004 at Exh.13-E, all relevant entries from Exhs.13-F to 13-0. Photostat copy of registration book of car at Exh.13-P and thereafter, D.D.A. For State gave up P.W. Khalid Hussain Shah at Exh14, P.W.10 Erum Jehangir the then VII Judicial Magistrate Karachi South was examined at Exh.15 who produced letter at Exh.15-A, notice at Exh.15-B, memo. Of identification parade at. Exhs.15-C and 15-D, list of dummies/ witnesses at Exh.15-E, and thereafter, learned D.D.A. For the State closed the side of prosecution evidence at Exh.16.
8. ' The statements of the appellants were recorded under section 342, Cr.P.C. -in which they denied allegations levelled against them by the prosecution and stated that they have been implicated falsely. Learned counsel also pleaded their innocence and that all the P.Ws. Belong to one family.
9. ' The learned trial Court framed the following two points for consideration:--
(i) Whether accused persons namely Muhammad Amir alias Raja Muhammad Farman, Muhammad Ramzan, Muhammad Ali and Waseem Shahzad armed with deadly weapons/fire- arms on or about 17th day of December, 2003 at about 12-00 hours with the help of lady co- accused Mst. Asia, entered into the bungalow No,48/Il, Lane No,2, Phase-VII, DHA, Karachi and on the pointation of absconding co-accused Safdar Ali son of Sadiq Ali committed dacoity, while made inmates of the bungalow sitting on gunpoint, robbed away golden ornaments cash of Rs,50,000, watches, camera, VCR and other articles along with car bearing Registration No,8015?
(ii) What should the judgment be?
10. ' The learned trial Court in answer to Point No,1 awarded the conviction to the appellants as above.
11. ' The learned counsel for the appellants at the very outset contended that appellants are innocent and have been falsely implicated in the matter in hand as prosecution before the trial Court failed to prove arrest of appellants in the above case, as such the impugned judgment resulted into miscarriage of justice and is not sustainable in the eyes of law. It was also contended that the ocular evidence is not worthy of reliance and it could not form base of conviction and learned trial Court has wrongly placed reliance upon such evidence. It is also contended that the trial Court has seriously erred in convicting appellants while relying on evidence which is manifestly unsatisfactory, false and contradictory by other circumstances of the case as there are material contradictions and improvements in the depositions of eyewitnesses, consequently case of the prosecution becomes very doubtful. He submitted that the learned trial Court did not appreciate evidence in accordance with law and evidence was not given due consideration due to which evidence on record is not sufficient to base conviction and that no incriminating article or robbed article was recovered from possession of appellants which proves their innocence and their false implication in the above matter. The statement of appellant under section 342, Cr.P.C. Have been recorded in formal way which do not fulfil legal requirements on the contrary proves innocence of appellants. He also contended that impugned judgment is based upon presumption and assumption and no cogent reason has been advanced by learned trial Court and that prosecution witnesses who have deposed against appellants belong to one family as such they are related to each other and have deposed malafidely against the appellants while police witnesses did not depose against appellants even Investigating Officer of the case has not deposed a single word against them which shows that they are involved in the crime in which trial Court has convicted them. There are material contradictions in the evidence of P.Ws. As such those contradictions cannot be made the base of conviction of the appellants. The prosecution has totally failed to bring guilt of appellants at home beyond any shadow of doubt and appellants are absolutely innocent and have been falsely implicated in the above case, therefore, the impugned judgment is not sustainable in law as well as on facts and it is a fit case to be reversed.
12. ' Mr. Agha Zafir, learned A.A.-G. While opposing the appeal has been unable to controvert the contentions of the learned counsel for the appellants.
13. ' I have heard learned counsel for the parties and the State and scanned the material available on record.
14. ' On Court query regarding confinement of the appellants in jail the learned counsel for the appellants submitted that the appellant in Appeal No,314 of 2006 was arrested on 30-1-2004 and was produced before the learned trial Court in this case on 12-2-2004 and since then he is confined in Jail. Learned State counsel has also confirmed this fact as per diary sheet of the learned trial Court dated 12-2-2004. The other appellant is also inside jail for more or less same period, meaning thereby the appellants have already undergone four years imprisonment as such by considering the evidence produced by the prosecution, it would be in the interest of justice, if these appeals are disposed of by modifying the conviction/sentence awarded by learned trial Court to the appellants. Therefore, the sentence of imprisonment of 7 years awarded by the learned trial Court is reduced to 3 years and 6 months and fine of Rs,25,000 and in case of default in payment of fine, they shall suffer R.I. For 6 months only.
15. ' With the above observations and modification in sentence these appeals stand disposed of.