1. ' SAJJAD ALI SHAH, J.---The appellant has called in question judgment dated 16-8-2010 passed by 1st Additional Sessions Judge Hyderabad, in Sessions Case No,103 of 2009 convicting the appellant for a term of 10 years and fine of Rs,10,000 in Crime No,20 of 2009 of Police Station Baldia under section 412, P.P.C.
2. ' Briefly on 1-2-2009 at 1505 hours complainant SIP Muhammad Pariyal Solangi Incharge ACLC along with his subordinate staff viz. H.C. Muhammad Irfan, H.C. Ghulam Akbar. P.C. Muhammad Zeeshan, P.C. Muhammad Yaseen, P.C. Abdul Majeed left the office of ACLC in vehicle No,SP-6066 after making Entry No,12 to investigate and recover stolen vehicles, when they reached near Al- Rehman Cottage Bypass they saw a white Cultus without number plate coming from Karachi, they signaled the vehicle to stop but the driver did not stop and consequently it was encircled. The Chassis No,998659 Model-2006 was feeded in the computer to see if it is a stolen car it transpired that the car had Registration No,AKJ-868. Engine No,381859, and was a stolen vehicle subject- matter of F.I.R. No, 258 of 2008 under section 392, P.P.C. Of Police Station Gulshan-e-Iqbal Karachi.
3. The driver disclosed his name as Syed Rizwan Ali who was arrested and the vehicle was taken into custody in presence of Mashirs.
4. ' Formal charge was framed and the accused pleaded not guilty and consequently claimed trial.
5. ' The prosecution examined complainant Muhammad Pariyal who produced Mashirnama of arrest and recovery; daily diary entries, F.I.R. In the Crime No,20 of 2009 in which he was arrested, Thereafter the prosecution examined Muhammad Irfan and SIP Sajjad All Khan and closed its side.
6. ' The statement of accused was recorded under section 342, Cr.P.C. Who denied the charge.
7. ' The trial Court after hearing the parties convicted the appellant under section 412 and sentenced him to undergo R.I, for ten years and to pay a fine of Rs,10,000.
8. ' Learned counsel for the appellant contends that there is nothing on record to show that vehicle Registration No,AKJ-868 was case property in Crime No,258 of 2008 or was a robbed, vehicle.
9. Learned counsel contends that though the Investigating Officer as well as witnesses have stated that the vehicle was involved in Crime No,258 of 2008 under section 392 but have not produced the copy of F.I.R. Or have not got recorded the statement of complainant in the said crime therefore, the sentence cannot sustain. Counsel has placed reliance on the judgments of this Court in the cases of Muhammad Ali v. The State 1968 PCr.LJ 596 and Naseem Rafiq alias Goldi v. The State 1986 PCr.LJ 402 to contend that the prosecution is bound to establish case in respect .Of a charge by substantial and independent evidence and beyond reasonable doubt and in case where nothing is produced to establish stolen property then on mere word of investigating officer conviction cannot sustain, ' Learned Deputy Prosecutor-General frankly concede to the extent that it was incumbent upon the Investigating Officer to have produced anything to show that the vehicle in question was stolen and by not producing the F.I.R. Of Crime No,258 of 2008 which reported the theft of subject vehicle has badly damaged the case of the prosecution. He therefore states that he is not in a position to legally support the sentence under section 412, P.P.C. It is next contended that even otherwise the accused should have been charged in Crime No,258 of 2008. He further by referring to section 403(4), Cr,P.C. Contends that even after acquittal, the accused can be charged in that crime.
10. ' I have heard the learned counsel for the respective parties and have perused the record and the case law cited at bar.
11. ' Perusal of the record reflects that the prosecution in order to prove its case has examined three witnesses i.e, Muhammad Pariyal Incharge ACLC, Hyderabad who produced mashirnama of arrest and recovery, roznamcha entry for patrolling; arrival entry and F.I.R. Of Crime No,20 of 2009, Muhammad Irfan and Sajjad Ali Khan the other two witnesses far the prosecution though supported the case of prosecution but did not produce any document. The prosecution has miserably failed to produce any documentary evidence in support of their case that vehicle No, AKJ-868, was involved in Crime No,258 of 2008, under section 392, P.P.C. Of Police Station Gulshan- e-Iqbal, Karachi, nor examined the complainant of said case consequently there is nothing on record except the mere statement of the prosecution witnesses that the said vehicle was required in Crime No,258 of 2008.
12. ' In the circumstances the contention of the counsel for the appellant that there is nothing on record to demonstrate that the vehicle was stolen by commission of a dacoity or received from such person as stolen property appears to be correct and the concession given by the A.P.-G.
13. Sindh appears to be just and legal.
14. ' In the case of Muhammad Ali supra relied upon by Mr. Bukhari, it was held that the burden to establish case in respect of a charge by substantial and independent evidence and beyond reasonable doubt lies upon the prosecution and in the instant case the prosecution has failed to discharge such burden.
15. ' The appeal, consequently, is allowed, the conviction and sentence awarded to the appellant by the learned trial Court, is set aside and the appellant is acquitted. He shall be released forthwith, if not required in any other case.
16. ' However, it will be open for the Investigating Officer in Crime No,258 of 2008 to investigate the matter and in case, anything appears positive to charge the appellant in accordance with law.