' SYED MUHAMMAD FAROOQ SHAH, J.---This appeal is directed against the judgment dated 29-9- 2010 passed by learned Sessions Judge, Umerkot in Sessions Case No,63 of 2008 registered upon 'F.I.R. No,52 of 2008, at Police Station Kunri District Umerkot, for an offence punishable under section 17(3), P.E.H.O, 1979, through which the appellants have been sentenced under section 392, P.P.C. To undergo rigorous imprisonment for 10 years and to pay fine of Rs,50,000 each and in case, of default in payment of fine further imprisonment of three years. Hence this appeal filed under section 410, Cr.P.C. On the facts and grounds set forth in the memo of appeal.
2. Prosecution story of the case as given out in the F.I.R. No,52 of 2008 registered at Police Station Kunri on 30-6-2008 at 1415 hours, lodged by one Sulleman, wherein it is stated that on 2a-6-2008, he came to Kunri town along with his cousin Muhammad Ali Chandio and after completing their work, they were returning to their village, at. About 10-30 p.m. When they reached near Sanwri Shakh at Kunri Nabisar road, five persons on two motorcycles signaled the complainant party to stop and suddenly one person took out his pistol and other caused hatchet blow to the motorcycle of complainant, during resistance three muffled persons were identified as Muhammad Khan, Khuda Bux and Ismail as their muffled cloths were removed, while remaining two were unidentified.
It is alleged that accused Muhammad Khan on gun point snatched the motorcycle and the other accused robbed the complainant party of Rs,2,000, mobile from complainant and Rs,1,570 and one Nokia mobile from pocket of P.W. Muhammad Ali and then all the accused persons went away. The complainant party apprised facts of incident to the Nekmard Ali Muhammad Chandio and he tried reconciliation with the accused but they were not found willing to return the robbed property hence the complainant lodged the F.I.R. Under section 17(3), P:E.H.O, 1979. On completion of usual investigation, accused were charge sheeted and after framing of charge, the prosecution examined two P.Ws. And the statements of accused under section 342, Cr.P.C. Were recorded. The learned trial Court has given the findings mainly on the point that as to whether the accused Muhammad Khan, Khuda Bux, Ismail, Ghulam Rasool and Shahnawaz on 28-8-2008 at about 2230 hours on Sanwari Shakh situated at `Kunri Nabisar Thar link road', committed Ilarrabah' and on gun point snatched motorcycle and valuables from the complainant and P.W. Muhammad Ali Chandio.
It depicts that learned trial Court has given findings in affirmative to the mentioned point and convicted the accused Muhammad Khan, Khuda Bux and Ismail while giving the benefit of doubt, acquitted accused Ghulam Rasool and Shahnawaz.
3. I have considered the arguments advanced by Syed Javed I. Bukhari, representing the appellants, Syed Meeral Shah, D.P.-G. For the State and have also gone through the file and depositions of witnesses and the law relied upon by learned counsel for the appellants.
4. At the very outset, Mr. Bukhari, learned counsel for the appellants argued that alleged incident took place in dark hours of night and according to the complainant, the accused persons caused hatchet blow to his motorcycle which caused break of lights of motorcycle and in such situation, how it is possible that complainant and prosecution witness Muhammad Ali can identify the appellants. It is next contended that delay in lodging the F.I.R. Is without sufficient cause, as it is not attracting to prudent mind that the complainant first sought permission from his Nekmard and then on the next day lodged the. F.I.R. It is argued that explanation of delay in lodging the F.I.R. i.e, after two days of the incident is not convincing. The evidence of alleged eye-witnesses i.e, complainant and P.W. Muhammad Ali is not convincing without any independent corroboration as the robbed motorcycle found by the police from a link road jungle of the area, where offence was committed, hence it is very much clear that nothing has been recovered from the possession of the appellants. No identification parade was held before the Magistrate as the complainant stated in the F.I.R. That there were five accused persons on two motorcycles but in his examination-in- chief he has stated that 3/4 persons were standing there and further stated that incident took place at about 10-30 p.m. But, in his examination in chief he has stated that they left Kunri town at 1030 p.m. It is argued that robbed motorcycle was recovered from Jungle on the pointation of accused Shahnawaz and remaining robbed articles are still mystery of the case and accused Shahnawaz on whose pointation the robbed motorcycle was recovered has been acquitted by the trial Court. The learned counsel contended that mashirnama of arrest shows that appellants were arrested on 20-7-2008 at 1830 hours by Kunri police from the Otaq of Hoti Khan Chandio and on 30-6-2008 the F.I.R. Of such incident has been lodged and the statements under section 161, Cr.P.C.
Were recorded by police after lapse of 20 days, after arrest of the appellants. Admittedly, all the P.
Ws. And mashirs are close relatives inter se as P.W. Ali Muhammad and mashir Ghulam Mustafa are real brothers and both are real sons of Muhammad Yousif and despite that learned trial Court has given undue weight and passed the judgment on making the exemptions and presumptions which is against the administration of natural justice. It is contended that learned Judge has neglected the principle of criminal justice to extend the benefit of doubt to the appellants. In support of his contentions, learned counsel has placed reliance on the cases reported as Saeed alias Guldang and 2 others v. The State and others (2009 PCr.LJ 449), Rana Shabbir. Hussain v. The State (2005 PCr.LJ 1599), Waseemuddin v. The State (2006 PCr.LJ 1821) and Muhammad Shahid and another v. The State (2008 YLR 288).
5. On the point of Harrabah' and charged allegations, the learned trial Court held that ingredients of Article 7 for committing of Offences Against Property are not available and the property so snatched is also doubtful, whether it extends to the amount of Nisab' or not. On point No,2, the learned trial Court Observed that during scuffle, muffled faces of accused were opened and had been seen by complainant party but the learned trial Judge has failed to appreciate that during scuffle not a single fire has been shot though it is alleged that accused Muhammad Khan was holding revolver at the time of occurrence. The learned trial Court further observed that evidence of complainant and P.W. Ali Muhammad is trustworthy in particular circumstances of the case. While discussing the delay in lodging the F.I.R., the learned trial Court opined that it is not fatal to the prosecution. It has further been elaborated in the impugned judgment that after the incident, the complainant went to Nektmard' and in failure of reconciliation F.I.R. Was registered, therefore, delay in the F.I.R. Has been sufficitntly explained. While discussing the evidence of interested witnesses, the learned trial Court observed that statement of worst enemy of accused may be accepted and reliance in this respect is being placed on 1995 SCMR 1687. By this way, the learned trial Court accepted the evidence of prosecution witnesses to be true and correct.
6. Cursory examination of ocular testimony transpires that complainant Sulleman supported the contents of F.I.R. But admitted in cross-examination that present accused had lodged F.I.R, against Lal Muhammad Chandio on account of dispute over water course, in that case both the parties had received injuries and that Lal Muhammad is his caste fellow. He has stated that he cannot give sim number of P.W. Muhammad Ali, his cousin and robbed Nokia mobile. He further stated in cross that accused persons snatched two currency notes from him, the denomination of Rs,1,000 each He has stated that hatchet blow was caused on both sides glasses of the motorcycle by accused.
He has further stated that after the incident, he along with P.W. Muhammad Ali proceeded to PS for lodging report of the incident on the motorcycle. He has also stated that he cannot give the registration number of his snatched motorcycle. The complainant did not produce any document of registration number of the alleged robbed motorcycle. Now there remains evidence of P.W.
Muhammad Ali who was allegedly found present at the place of occurrence along with complainant, stated in his examination in chief that accused persons robbed one Nokia mobile set, cash of Rs,1,570 and Rs,2,000 and mobile set from the complainant, thereafter, he along with complainant went to their Nekmard, who could not settle the dispute amongst the complainant and accused persons, so the matter was reported to police. He identified all the five accused persons in Court. In cross-examination, he has admitted that present accused had lodged report against Lal Muhammad on account of injuries and that Lal Muhammad is of their Brothery and complainant is his cousin. He has also stated that he cannot give the sim number of his mobile phone and stated that denomination of currency notes were each Rs,500 while remaining currency notes were each of Rs,100. He has stated that he has been examined on the very same day by police. P.W. Ali Muhammad stated that accused refused to return the robbed articles tence he asked the complainant party to do whatever they like. In cross-examination, he has admitted his relationship with the complainant and stated that mashir Ghulam Mustafa is his son, Lal Muhammad is also related to him and the accused persons lodged report against Lal Muhammad and others. P.W. Ghulam Mustafa stated that accused Shahnawaz was arrested in his presence, who acted as mashir of recovery of motorcycle and stated that motorcycle was recovered from accused Shahnawaz (who has been acquitted by the trial Court).
7. Learned D.P.-G. Very frankly admitted that no identification of accused and robbed motorcycle has been held but stated that evidence of complainant is trustworthy.
8. Provision of section 392 of Pakistan Penal Code provides punishment and the ingredients of robbery have been mentioned in section 390 of P.P.C., which reveals that accused should have intention not only to relieve the person of his property but also for that purpose put the victim under wrongful restraint or cause hurt or death. There is no such finding of the learned trial Court as neither the fire arm weapon nor the hatchet in the hands of accused persons have been used to cause hurt or injury on the person of complainant and his companions by five culprits and they have only damaged the glasses of motorcycle. It is also an admitted fact that the recovered motorcycle was not identified by complainant and his companion witness and they have also failed to produce any documentary proof regarding their ownership of. Robbed, motorcycle and the complainant has also failed to give the registration number of the robbed property. He did not produce registration book of motorcycle nor recovered by the police. The prosecution evidence and A the judgment of the trial Court is silent in respect of ownership of the motorcycle. The complainant has not substantiated his claim of ownership of the motorcycle, which element of robbery itself being doubtful in absence of element of force, restraint or 'fear of injury. The alleged snatched motorcycle had been recovered on pointation of accused Shahnawaz who has been acquitted. If at all, there was some evidence of recovery of robbed Motorcycle on pointation of acquitted accused Shah Nawaz. Such contradictions are certainly distructive for the prosecution story because it is motivated improvement by the prosecution witnesses, particularly animosity in between both the parties is admitted.
9. In the case of Muhammad Shahid v. The State, reported as 2008 YLR 288, this Court held that "eye witness including the complainant on whose evidence the entire prosecution case was based had failed to corroborate each other on material points like date, time and place of occurrence, the arrival and departure of police and 'production at police station which creates reasonable, doubts and the accused were acquitted." In the mentioned citation, it was also held that "every doubt is required to be resolved in favour of accused under the law."
10. Undoubtedly, the prosecution case is crystal clear as observed by the learned trial Court but the entire case depends upon the evidence of complainant and P.W. Ali Muhammad and they have not supported each other with regard to denomination of currency notes and delay in lodging the F.I.R. The identification of robbed property admittedly has not been held though the snatched motorcycle was having no registration number and the complainant was also not possessing the registration book or other documents of the vehicle. The recovery of robbed. Articles were not made by following the procedure prescribed under section 103, Cr.P.C, as no independent inhabitant of the locality acted as a marginal witness of memo of recovery.
11. In the case of Waseemuddin v. The State (2006 PCr.LJ 1821) and Rana Shabeer Hussain v. The State (2005 PCr.LJ 1599), it was held that "recovery of incriminating articles at the instance of accused violative of provisions of section 103, Cr.P.C. And no identification test was held in respect of recovered robbed property, is fatal to the prosecution and accused were acquitted in the circumstances."
12. Unfortunately, in the present case, the trial Court is not aware of the relevant law and has convicted and sentenced the appellants without applying its mind. The reasoning of the learned trial Court by which the appellants have been convicted and sentenced are not convincing and inspiring confidence, therefore, not legally sustainable. In this view of the matter, as discussed supra, the prosecution story does not appear to be constant and convincing. In order to bring home the guilt of accused, the prosecution must establish the case against the appellants beyond any shadow of reasonable doubt. It need not to reemphasize that the function of the trial Court is not to push people behind the bars which also means deprivation of their constitutional fundamental right of freedom and to earn livelihood for their family. The right of movement, right to earn and matrimonial relations can be suspended due to confinement of a person due to which his whole family suffers. The prosecution case is doubtful and keeping in view the legal defects and lacuna, while extending the benefit of doubt to the appellants, captioned criminal appeal is hereby allowed, in result of which the judgment dated 29-9-2010 passed by learned Additional Sessions Judge, at Umerkot is set aside. The appellants are in custody. They are hereby acquitted from the charge. The concerned Superintendent Jail is required to release them forthwith, if they are not required in any other case. Office to issue release writ.