1. JUDGMENT MUHAMMAD TASNIM, J. Through this judgment, I shall dispose of this appeal, whereby the appellants/ accused have challenged the Judgment dated 29-10-2008 passed in Sessions Case No. 292 of 2006 by the Court of learned 3rd Additional Sessions Judge, Khairpur Mir's. The appellants/accused Allah Bando and Ubedullah were convicted and sentenced as under:-- "Accused Ubedullah and Allah Bando are convicted and sentenced to suffer one year Rigorous Imprisonment and to pay fine of Rs.5000 each under section 215, P.P.C. In case of failure to pay fine they have to undergo three months imprisonment. The fine if recovered be paid to the complainant as compensation for his robbed property. The accused are allowed benefit of section 382-B, Cr.P.C"
2. Precisely stated the facts of the case as set out in the F.I.R. By the complainant Rahim Bux are that on the night of incident i.e 1-1/2 months prior to registration of F.I.R. He along with his father Qaimuddin, brother Dildar and other family members were watching Television, when all of sudden four persons having Kalashnikovs intruded into his house and on the force of weapons the accused persons overpowered upon them. On the light of bulb glowing in the house, they identified the accused persons to be (1) Laloo son of Ali Dino Phulpoto, (2) Haleemullah alias Haloo son of Muhammad Bux Phulpoto, (3) Naboo son of Jurial Phulpoto, (4) Mukhtar, all armed with Kalashnikovs. Accused Laloo broken the lock of box and robbed cash of Rs.23,000, one pair of golden Jhumakas and accused Haleemullah alias Haloo Phulpoto took the licensed Repeater and bandolier containing 30 cartridges of SG. Accused Naboo Phulpoto and Mukhtar Phulpoto un- tethered the buffaloes from the pigs and thereafter all the accused persons along with the robbed property and Buffaloes went away. Thereafter the complainant and his brother Dildar and father Qaimuddin approached the accused persons for return of articles, cash, ornaments, Repeater and Buffalo, but the accused persons kept them on false hopes and thereafter accused Ubedullah and Allah Bando demanded. Ransom of Rs.30,000 for the return of robbed property, as such an amount of Rs.10,000 was paid to them with promise to pay the remaining amount after receiving the articles, but the accused persons did not return the robbed property, therefore, the complainant went to Police Station and lodged the report to the above effect.
3. After registration of the F.I.R., usual investigation was carried out by the police and finally the challan was submitted against the appellants/accused and co-accused. The charge against the accused persons was framed on 8-10-2007 as Exh.2, to which they pleaded not guilty and claimed trial.
4. The prosecution in order to prove it's case examined complainant Rahim Bakhsh as P.W.1 at Exh.8, who produced F.I.R. As Exh.8/A; Mir Hassan as P.W.2 as Exh.9, who produced mashirnama of arrest of accused Exh.9/A; Dilawar P.W.3 as Exh.10, who produced mashirnama of place of vardhat as Exh.10/A; Hussain Bakhsh as P.W.4 as Exh.11, who produced mashirnama of arrest of accused as Exh.11/A. Thereafter the side of the prosecution was closed.
5. The statements of the accused under section 342, Cr.P.C. Was recorded. The accused did not opt to lead any defence evidence nor examined themselves on oath. Thereafter learned trial Court after hearing the parties Advocates passed the impugned Judgment.
6. The learned counsel for the appellants/accused at the very outset stated that the appellant No.2 namely Allah Bando has served out his conviction and sentence and he has been released by the jail authorities and only he argued the appeal for the appellant No.1 Ubedullah.
7. The learned counsel for the appellant/accused while making the submissions has submitted that the case of the prosecution is not consistent and the statement of the complainant is not supported by the other P. Ws. Dilawar and there is inconsistency in the statements which creates doubt in the case of the prosecution. Learned counsel says that on this ground alone the benefit of doubt to be extended to the appellant/accused. He further says that there was delay in lodging of F.I.R. For about 1-1/2 months and such delay was not explained during trial by the prosecution, hence on this ground alone the sentence and conviction order passed by the trial court is not sustainable in law.
8. Learned counsel has further argued that there is no eye-witness in this case and the entire evidence is hearsay, and on the basis of such evidence the appellant No.1 should not have been convicted by the trial Court.
9. On the other hand, the learned A.P.G has fully supported the judgment of trial court and has submitted that the same is strictly in accordance with law and it does not call for any interference by this Court. Learned A.P.G has further submitted that there is ample material available on record which connects the present appellant with the commission of the offence and he was rightly convicted by the learned trial Court. In the end, he says that the judgment be maintained.
10. I have heard the learned counsel for the parties and have gone through the record.
11. From the perusal of the deposition of. The complainant Rahim Bakhsh, it appears that during the course of his examination-in-chief he has stated as under:- "Then the accused promised us to return the robbed property and then they also demanded Rs.30,000 out of them we paid Rs.10,000 to them and remaining amount we promised to pay some time late. Then we paid Rs.10,000 to Allah Bando and Ubedullah the accused were residing with them and we approached them for the return of stolen articles, hence we paid Rs10,000 to them and they directed us to move Holy Quran in the vicinity so that the matter be resolved."
12. He further stated in his examination-in-chief as under:- "Then I pressurized Allah Bando and Mukhtar then Mukhtar received Rs.50,000 then handed over Buffalo to me. But they did not return me the remaining stolen articles."
13. In the F.I.R., the complainant has stated that Ubedullah and Allah Bando asked us to pay Rs.30,000 as ransom amount only then they will get return of our all articles and buffaloes. On this assurance Rs.10,000 were given to them and we promised to pay them remaining amount after receiving the articles and the buffalo. But after getting appellants kept us on false hopes till today and they did not return our articles and buffalo."
14. Another P.W Dildar in his examination-in-chief has stated as under:- "We informed P.W. Allah Bando, Niaz Muhammad and Mir Hassan in the morning time at about 8- 00 or 8-30 a.m, accused Allah Bando and Ubedullah came us and requested us not to lodge the F.I.R. And demanded Rs.10,000 as ransom which we paid but in spite of that they did not return the articles."
15. From the perusal of the above depositions and contents of the F.I.R. It appears that delay in lodging of the F.I.R. Has not been explained. The date of incident has not been mentioned in the F.I.R. It is not clear from the depositions that at what place Rs.10,000 were paid to the appellants/accused. The date and time of payment is also missing. It is not clear from the reading of the deposition that whether the amount of Rs.10,000 was paid by the complainant to appellant No.1 or appellant No.2.
16. Due to aforesaid discrepancies, the case of the prosecution has become doubtful and in my view the conviction order was not passed in accordance with material available on record. The prosecution has failed to prove the case against the appellants without any shadow of doubt.
17. Accordingly, I allow this appeal and set-aside the conviction and sentence passed by the learned trial Court against the appellant No. 1. Since the appellant No.2 has already been released by the jail authorities after serving out his sentence, therefore, his appeal has become infructuous.