' SHAHID ANWAR BAJWA, J.--- F.I.R. No,32/2008 was registered at Police Station Saddar Jacobabad, on 26-3-2008, for an offence alleged to have taken place on the same date. After F.I.R. Was registered, the case was challaned and charge was framed on 8-7-2008. However, thereafter on an application under section 227, Cr.P.C. The charge was amended. The amended charge reads asunder:-- "That you on or about 26-3-2008, at about 10-00 a.m. One the cabin of complainant near Bollan Patrol Pump Jacobabad, duly armed with T.T. Pistols committed Harrabah by robbing the Motorcycle bearing No, SKL-1413 of red colour, Model 2005, Engine No,0109075, Chassis No,0157211, in working condition, valuing Rs,22000, from the complainant Shafi Muhammad Brohi on the show of force of weapons and the value of robbed property exceeds than the value of Nisab and thereby committed an offence punishable under section 17/3 offences Against Property (Enforcement of Hudood) Ordinance 1979 and within the cognizance of this Court; ' I further charge you that on the aforesaid date, time and place duly armed with TT Pistols in furtherance of your common intention attempted to commit murder of complainant by making fire upon him which he missed, with such intention and under such circumstances that if by that act you had caused his death, you would have been guilty of murder and thereby committed an offence punishable under section 324, read with section 34, P.P.C. And within the cognizance of this Court; ' I further charge that you on 26-3-2008, at 11-00 a.m. Near village Manjho, situated in Deh Rind Wali, Taluka Jacobabad, dishonestly retained one motorcycle No, SKL-1413, belonging to complainant Shafi Muhammad, which you knew that it was robbed property and S.-I.P. Riaz Ahmed Khoso secured the same from your possession in presence of mashirs S.-I.P. Ihsan Ahmed Bharchond and PC Jam Khan and thereby you have committed an offence punishable under section 412/34, P.P.C.
And within the cognizance of this Court."
2. Thereafter, evidence was recorded and vide judgment, dated 1-9-2009 while the present appellants were acquitted of charge under section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 as well as under section 324, P.P.C, they were convicted for offence under section 411, P.P.C. (instead of 412, P.P.C.) and were ordered to suffer imprisonment for one, year, five months and four days, the period which they had already undergone. This appeal was filed to challenge the judgment, dated 1-9-2009.
3. Facts of the incident were that complainant complained that on 26-3-2008 he and his cousin Hafiz Nazir Ahmed and relative Muhammad Alim were sitting at his cabin and his motorcycle bearing registration No, SKL-1413 was parked nearby. At about 10-00 a.m., two persons duly armed with T.T. Pistols came there. They aimed their pistols upon the complainant and took away the motorcycle on force of show of arms. The complainant chased the accused. One of the accused made straight fire with his pistol upon the complainant, but the complainant evaded the fire.
Thereafter, F.I.R. Was lodged at the police station.
4. The complainant appeared as P.W.1. He stated what has been reproduced above. He , however, added that he could not identify the accused persons in Court because at the time of incident both the accused persons had muffled faces. He further stated that the motorcycle produced as case property is his motorcycle. He produced copy of F.I.R. And stated that it bore his LTI. He added that contents thereof were not read because he had not given the names of the accused persons to police. Deputy District Public Prosecutor applied for and witness was declared hostile and was duly cross-examined by the prosecution. In cross-examination the witness denied that he had stated names of the present appellants in the F.I.R. He stated that on the day of incident later in the day police called him at Police Station Saddar, Jacobabad and showed him the motorcycle which police claimed to have recovered. He stated that the accused were not shown to him by the police.
On cross by the Advocate for the present appellants the witness stated that he did not know as to how the motorcycle was recovered by the police.
5. P.W.2 was Nazir Ahmed and he repeated verbatim what had been stated by the complainant.
6. P.W.3 was Abdul Majeed. He stated that from the place near the cabin of the complainant an empty shell of .30-bore was recovered and Mashirnama was prepared. He stated that Mashirnama bore his signature.
7. Station House Officer Riaz Ahmed was the 4th witness. He stated that on 26-3-2008 he was posted as S.H.O. Police Station Saddar, Jacobabad. He stated that at 9-40 he left police station with three police constables and Roznamcha entry was made in this regard. During patrol, he received a phone call from A.S-I of the police station that a motorcycle has been snatched from one Shafi Muhammad Brohi. Registration number of the motorcycle was communicated to the witness by the A.S-I. The witness stated that he communicated this information on wireless to the Control Room and also called S.H.O. Abad for his assistance. Witness stated that they proceeded to South and on the way they received information that accused persons were going towards western side Noor Wah. When at 1100 hours, the witness stated, they reached near Village Manjho Deh Rind Wahi, they saw a motorcycle coming, on which two persons were riding. As soon as motorcycle reached near the police party both the persons got down from the motorcycle, took out T.T. Pistols from their folds and started firing at police. Police fired in self-defence. Meanwhile, S.H.O. Police Station Abad reached there and he also participated in the encounter. After 5/7 minutes police party narrowed the circle and apprehended both the persons with T.T. Pistols. One T.T. Pistol was allegedly recovered from one person having three live bullets and other T.T. Pistols was allegedly recovered from other person having two live bullets. It was stated by the witness that the two captured persons disclosed that they had robbed the said motorcycle. During cross-examination the witness admitted that it was correct that he had not produced original Roznamcha. He stated voluntarily that it was lying at the police station and can be produced if required by the Court. The witness stated that he did not remember the time when call was made by A.S-I Zulfiqar. He stated that during encounter the accused were at distance of about 200/300 paces away from them and no one was injured during the encounter. He admitted that he could not identify the pistols lying in the Court and as to which one was recovered from one accused and which one from the other. He admitted that the pistols were not sealed at the spot. He also stated that persons gathered at the place of Wardat, but all of them refused to become witness. He also stated that he did not issue notice under section 187, P.P.C. To any one of the persons, who had refused to as act as Mashirs. He admitted that the recovered arms and ammunition were not sent for opinion of Ballistic Expert.
8. Last witness was S.H.O. Ahsan Ahmed, who stated that he was posted at Police Station Abad. He stated that at about 10-00 a.m., he received a wireless message from S.H.O. Riaz Ahmed regarding snatching of the motorcycle. When he reached near Village Noor Wah, he met S.H.O. Riaz Ahmed.
Witness stated that then they saw two persons coming on a motorcycle. On seeing police party and thereafter the narration of the incident is the same. During cross-examination, the S.H.O.
Admitted that he could not identify the pistols lying in the Court that as to which one was recovered from accused Ali Raza and accused Abid Ali. He stated that he fired 5/6 rounds in the encounter. He admitted that he had not stated about firing by him in his statement under section 161, Cr.P.C. He stated that 15/20 persons were attracted on the Wardat and they were standing at some distance.
9. After recording the evidence, the trial Court recorded the following conclusions:~ "However, as far as the second point is concerned there is no ill-will alleged against the police party, after the incident the F.I.R. Of robbery was lodged promptly at 1040 hours and subsequently the robbed property was recovered from the possession of both the present accused on the same day at 1100 hours. The police officials are as good witnesses as from the general public and in the present situation it was not likely for the police to have engaged the private witness rather to proceed to the pointed place for the arrest and recovery from the accused. The incident was a daytime incident and both the accused were caught red-handed with the robbed motorcycle.
There was no reason for the police party to have left the real culprits and booked the present accused falsely. It was not suggested even to any of the witness by the defence counsel that Motorcycle was not recovered from the possession of both the accused and it is well settled that if a fact ascertained is not controverted in cross-examination would be deemed to have been proved. Though the complainant has not supported his case on the issue of robbery, probably due to private settlement but he has specifically deposed that his motorcycle was robbed by the two culprits. Therefore, it has been proved by the prosecution beyond any reasonable doubt, that Motorcycle which was robbed from the Section 412, P.P.C. Provides as under:-- "Dishonestly receiving property stolen in the commission of a dacoity. Whoever dishonestly receives or retains any stolen property, the possession whereof he knows or has reason to believe to have been transferred by the commission of dacoity, or dishonestly receives from a person, whom he knows or has reason to believe to belong or to have belonged to a gang of dacoits, property which he knows or has reason to believe to have been stolen, shall be punished with imprisonment for life, or with rigorous imprisonment for a terms which may extend to ten years, and shall also be liable to find."
' Section 412 deals with the property involved in the commission of dacoity and dacoity can only be constituted when offence was committed by five or more persons, therefore, the present accused are convicted and to undergo R.I. For one year, five months and four days, the period which has already undergone by them for the offence punishable under section 411, P.P.C. The benefit of section 382-B, Cr.P.C. Is extended to them from the date of their arrest. However, the accused are acquitted from the charges under Article 17(3) Offences Against Property (Enf. H.0.) Ordinance and section 324, P.P.C, by extending benefit of doubt to them. Both the accused have already undergone their sentence. They are produced in custody and be remanded back with directions that they be released forthwith, if they are not required in other custody case."
2. Learned counsel for the appellants made the following submissions :~
(i) The appellants are innocent and police has foisted a false case on them;
(ii) Nor private witness has been associated with the recovery of the alleged police encounter;
(iii) The pistols have not been identified.
3. Mr. Azizul Haque Solangi, learned Asst. A.G., submitted that the motorcycle has been recovered and accused persons have been nabbed at the spot.
4. I have considered the submissions made by the learned counsel and have also gone through the record.
5. Initially, the charge consisted of three elements; one under section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979; second under section 324, P.P.C, for attempting to commit murder of the complainant; and third for retaining with them the stolen motorcycle. The third charge was originally framed under section 142, P.P.C, but since elements of dacoity were not proved, conviction was recorded under section 411, P.P.C. As far as the conclusion by the trial Court on charge under section 17(3) of the Offences Against Property (Enforcement of Hudood)
Ordinance, 1979 and under section 324, P.P.C, are concerned, since the State has not come in appeal on these counts, nothing further needs to be said.
6. Coming to the charge of dishonestly retaining the stolen property, the only piece of evidence is that in police encounter the motorcycle was found in possession of the present appellants. The two witnesses in this regard are S.H.O. Riaz Ahmed and S.H.O. Ahsan Ahmed. There are many contradictions and holes in evidence of these two S.H.Os.
7. Firstly, the S.H.O. Riaz- Ahmed stated that the present appellants took out pistols from their folds and started firing. He stated that police returned the fire and he called S.P.O., Saddar on wireless for the assistance. It is thereafter, it is stated, that S.H.O, of Police Station Abad also arrived there and he participated in the alleged encounter. On the other hand, S.H.O. Police Station Abad in his evidence stated that he was already there when they saw two persons coming on a motorcycle.
The question is whether S.H.O. Abad arrived after the two persons alighted from the motorcycle and started firing or he arrived before the two persons arrived on motorcycle. The two witnesses are apparently at variance with each other.
8. Secondly, S.H.O. Abad stated that he also participated in firing. In his cross- examination he admitted that he had not mentioned his participation in the firing in his statement under section 161, Cr.P.C.
9. Thirdly, S.H.O. Riaz Ahmed stated that firing continued for about 5/7 minutes. No empties recovered had been shown anywhere.
' Fourthly, although, the accused persons are alleged to have firstly fired when they snatched the motorcycle and then fired at police for 5/7 minutes, but the pistols allegedly recovered from them had three live bullets in one and two live bullets in the other. No empties have been recovered.
' Fifthly, the T.T. Pistols recovered have not been sent for forensic examination to determine whether bullets, at least the one, which was recovered nearby the cabin, was fired from that particular pistol.
19. Sixthly, though firing took place for some time and a number of persons were available there, there was no independent person available and there has not been any notice under section 187, P.P.C. To any of the persons who refused to act as a witness; and
20. Lastly, while Riaz Ahmed stated that he asked the persons who had gathered there to act as witness and they had refused, but no such fact was stated by S.H.O. Ahsan Ahmed.
21. For the above reasons, lots of doubts are created around the story presented by the prosecution and benefit of these doubts must go the accused.
22. For the above reasons, I accept this appeal, set aside the impugned judgment, dated 1-9-2009 and acquit the present appellants of charge under section 411/34, P.P.C. Also, as they have already been acquitted by the trial Court of charges under sections 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979.