' SADIQ HUSSAIN BHATTI, J.--Appellants/Accused Akbar Noohani, Qasim Kapri, Bashir Jatt, Abdullah alias Sikandar Banglani and Shafique Memon were tried by learned Additional District and Sessions Judge, Umerkot in Sessions Case No.107 of .2010, F.I.R. No.116/2010, Police Station Kunri for offences under section 395, P.P.C., whereby the trial Court convicted the accused and sentenced them to R.I for ten years and imposed them fine of Rs.50,000 each and in default whereof to suffer S.I for three years vide his judgment dated 15-11-2011.
2. The above named appellants/ accused being aggrieved and dissatisfied by the above order, filed this Criminal Appeal impugning the above judgment.
3. Facts in brief as enunciated in F.I.R. No.116 of 2010 lodged by. Complainant/Victim Purkho Malhi on 19-10-2010 at 3-00 p.m. At Police Station Kunri, stating therein that:-- "On 19-10-2010 at 1500 hours, complainant Purkho Malhi lodged F.I.R. At Police Station Kunri, stating therein that he has Sweet Shop at Tobhan Shakh Bus Stop and the shop of his brother Meva Ram is at Liaquat Rasti Bus Stop, who used to dose his shop and returned to him and they returned back to home together. On 10-10-2010 his cousin Maloo came to him and they closed the shop, in the meantime Meva Ram also came. Then complainant along with Maloo boarded on his motorcycle and Meva Ram on his own motorcycle proceeded when at about 8-00 p.m., they reached at Jaffar Watercourse, saw six persons were standing on the road and a red colour motorcycle was also parked, out of them two were with pistols and four with hatchets. The persons having pistols signaled them to stop, due to fear they stopped the motorcycles. They saw them and identified, they were (1) Akbar son of Kandero with Pistol, (2) Bashir son of Soomar Jat with pistol, (3) Qasim 'son of Achoo Kapri, (4) Shafique son of Majno, (5) Javed Mallah and (6)
Abdullah son of Aziz Banglani, they were with hatchets. They on force of weapons robbed both motorcycles below detailed and cash Rs.7000 and Nokia Mobile from complainant and Nokia Mobile and Sale Letter of Unique Motorcycle from Meva Ram. Thereafter, all accused persons went away on robbed motorcycles and their motorcycle. Then complainant went to Police Station and lodged report of the incident."
4. Police after registering the above F.I.R., launched investigating into the matter. Police arrested accused Akbar Noohani on 20-10-2010 and after usual investigation submitted charge sheet against Akbar Noohani showing the rest four accused as absconders. Trial Court framed the charge against accused/appellant Akbar Noohani after separating the case of rest absconders accused, thereafter, second accused Qasim was arrested and supplementary charge sheet was submitted, accordingly fresh charge was framed against the two accused persons named above.
During the trial proceedings third accused Bashir was arrested and produced in Court as such once again fresh charge was framed by trial Court against three accused and examined Purkho Malhi, Naveed, Ali Ahmed, Meva Rama During the trial proceedings absconder/accused persons Abdullah and Shafique were arrested by Police and submitted their case to the trial Court by submitting supplementary challan against them.
5. Trial Court after performing the legal formalities as required under section 265-C, Cr.P.C. Framed fresh charge as Exh.14 against all the five accused persons, and summoned the witnesses afresh, as all the five accused persons pleaded not guilty vide pleas Exh.14-A and 14-E.
6. Prosecution in order to prove its case examined the following witnesses:-- ' P.W.1. Purkho Malhi examined at Exh.9, Complainant/Victim. He produced F.I.R. As Exh.9/A.
' P.W .
2. Maloo, examined at Exh.16, Victim.
' P.W.3. Meva Ram, examined at Exh.17, Victim.
' P.W. 4 . A. S. -I. Arshad Ali, examined at Exh.18, mashir. He produced Memo of Arrest of accused Qasim as Exh.18-A.
' P.W.5. PC.. Ali Hyder, examined at Exh.19. He produced Memo of Arrest of accused Shafique as Exh.
19-A.
' P.W.6. HC. Khalid Pervaiz, examined at Exh.21. He produced Memo of Arrest of accused Bashir at Exh.21-A.
' P.W.7. SIP. Ali Bux, examined at Exh.22. He arrested accused Shafique.
' P.W.8. SIP. Aliji, examined at Exh.23, Incharge Officer.
' Prosecution closed its side vide Exh. 24 .
7. Statement of accused Akbar, Bashir, Shafique, Abdullah and Qasim were recorded vide Exhs. 25 to 29 respectively. All the accused persons pleaded their innocence and further pleaded that they have been involved falsely in this case at the behest of Punjabi Landlords.
8. All the accused persons neither examined themselves on Oath nor examined any defence witness.
9. Heard learned counsel for the Appellants/Accused Persons. They raised following contentions in support of their case:-
(1) That the learned trial Court has not fully considered the case of the appellants/accused persons.
(2) There are major contradictions in the evidence of complainant.
(3) Complainant has not mentioned in the F.I.R. That the matter was placed before Nekmards, and he was kept on false hopes.
(4) P.Ws. Have not supported the prosecution case, hence, case is not proved.
(5) The trial Court has not discussed the case points properly, to reach the ultimate conclusion.
(6) That Station Diaries of Police Station with regard to the patrolling by Police Parties and subsequently arrested and recoveries are not roduced.
(7) Gross violation of section 103, Cr.P.C.
10. On the other hand, learned State Counsel did not controvert the above contentions and half heartedly supported the above submissions.
11. Having given due considerations to the arguments advanced at bar by the Counsel for the respective Parties and scrutinized the evidence led by Prosecution against the appellants/accused persons.
12. I am of the humble opinion that whole case hinges around the evidence of the P.Ws., who are alleged victims of the incident. The rest evidence is formal in nature and can be. Termed as corroborative evidence.
13. The Complainant/victim Purkho Malhi has actually been examined twicely. In the first round, he was examined as Exh.9 and on the second round when all the accused were arrested. Charged Exh.14 was framed against Accused Akbar, Qasim, Bashir, Abdullah and Shafique. The Complainant Purkho Malhi was examined as Exh.15. He has deposed that on 10-10-2010 at 8-00 p.m., he along with his brother Maloo and Meva Ram riding on two motorcycles were returning back to their house situated at Village Kunri, when they reached at Zafar. Water Course found six persons standing they were duly armed one of them was armed with Pistol, the rest five were armed with hatchets. They were identified by complainant as Akbar, Qasim, Bashir, Abdullah, Javed and Shafique. Accused Perkins snatched both the Motorcycles, two cell phones and Cash of Rs.7000 from them and fled away. Complainant further deposed that he did not lodge the F.I.R., but placed the matter before elders, then accused kept him on false hopes. Failing in his efforts, on 19-10-2010 he lodged the F.I.R.
At Police Station Kunri.
14. In the earlier cross-examination, he deposed that he saw accused persons from a distance of 1/2 Kilometer. He admitted that night of incident was dark. He also admitted that due to darkness, the persons cannot be identified from a distance of 1/2 Kilometer. He also admitted that there are more houses of several persons near place of vardat. He also admitted that they did not raise any alarm/cries to attract persons from locality at the time of incident. They did not. Follow the accused and did not disclose the facts of the incident to any co-village. He also admitted that Police disclosed the name of accused Bashir Jatt.
15. P.W. Meva Ram deposed that on 10-10-2010 at about 8-00 p.m., he along with complainant Purkho Malhi and his brother Maloo were returning back to their house at Kunri on motorcycles and when reached Jaffar Water Course, he found six persons standing on the way. It was night time, hence, he could not identify anyone and also could not say what type of weapon they were carrying at the time of incident. He could not identify any accused person in the Court.
16. He was declared hostile and was subjected to cross-examination.
17. He denied the suggestion of prosecution that he has patched up with accused persons, hence deposing falsely.
18. In the earlier statement Exh.12, he had deposed exactly the same facts, but was not declared hostile by prosecution.
19. Another star witness Maloo, who was also victim of the incident was examined at Exh.16. He deposed that on 10-10-2010 he along with complainant Purkho and Meva Ram were returning back to their house at Kunri at 8-00 when they reached Jaffar Water Course, they found six persons duly armed. Two accused persons were armed with Pistols whereas remaining four accused persons were armed with hatchets. They snatched away their : Motorcycles, two Mobile Cell Phones and Cash of Rs.7000. He further states that they raised cries but no one came to help them from the locality. All the accused persons fled away. He also deposed that due to darkness they did not identify any accused. He admitted in his 161 Cr.P.C. Statement that he also did not disclose the name of any accused person. He says that the complainant Meva Ram, lodged the report.
20. So far the examination of above evidence, the last two P.Ws. Have absolutely not supported the identity of any accused and have categorically deposed that it was night incident, hence they could not identify any accused. All the three P.Ws. Named above have also disclosed that the place of incident is surrounded by a number of houses and people of different castes reside there.
21. No doubt complainant Purkho has named the accused persons in the F.I.R. And his subsequent two statements in the Court, but strangely he deposes that he identified the accused from a distance of 1/2 Kilometer but in the same breath he overturned his earlier statement by saying that, "It is correct that due to darkness the person cannot be identified from a distance of 1/2' Kilometer" . The complainant has also admitted that Police gave him the name of accused Bashir Jatt.
22. Taking into consideration, all the above facts and the two witnesses being kith and kin of complainant and victims flatly denied leaving no doubt that they did not identify any accused person as night of incident was dark. Complainant had deposed that they raised no cries to attract the persons from neighbourhood, but P.W. Maloo deposed that they raised cries for help but nobody came for their rescue.
23. From the above discussion, it is quite evident that incident is not denied but the identity of the doers is not established and creates doubt in the prudent mind. My above view is well, supported by the case law, published in 2009 PCr.LJ at page 1226 (Miandad Leghari;s case). It reads as under:- "Sections 302(b), 149, 364, 149 P.P.C.---Appreciation of evidence---Benefit of doubt, extension of-- - Principle---For giving benefit of doubt to accused many circumstances creating doubts are not necessarily required---Single circumstance creating doubt in a prudent mind about the guilt of accused makes him entitled to such benefit, not as matter of grace and concession, but as a matter of right."
24. It is also well settled law that whenever direct evidence fail, the corroborative evidence is of no legal value.
25. In the circumstances, the corroborative evidence does not carry any weight and is of no legal consequence.
26. Court after taking into consideration, all the facts and circumstances' of the case, has not only to be satisfied that the incident has been committed, but it must also be satisfied that it is the accused who has committed the incident.
27. In my earlier para, I have mentioned that incident is not denied but, who has committed the incident is a matter of doubt.
28. Accordingly, I am of the considered view that prosecution has failed to establish its case against the appellants/accused persons beyond reasonable doubt. Resultantly, I accept this Criminal Appeal and set aside the conviction and sentence. The appellants are acquitted from the charges levelled against them. The appellants. Are present on bail. Their bail bonds stand cancelled and sureties are hereby discharged.
29. The appellants/accused persons were acquitted by way of short order dated 9-5-2013 passed by this Court, these are the reasons for this acquittal.