MRS. ASHRAF JAHAN, J.---The present criminal appeal is directed against the judgment dated 23.08.2011 passed by the learned Sessions Judge, Zhob in Hudood Case No,01/2011, arising out of FIR No,144/2Q10 of Police Station Zhob, under section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 whereby the present appellant Muhammad Essa was convicted under section 392/34, P.P.C. And sentenced to undergo rigorous imprisonment for seven years and to pay fine of Rs,20,000/-, or in default to further suffer simple imprisonment for three months. However, benefit of section 382-B, Cr.P.C. Was extended to the appellant.
2. The relevant facts as stated in the FIR giving rise to the present appeal are that on 07.12.2010 at about 09.30 a.m., the complainant Gul Zaman lodged a report at Police Station, Zhob stating therein that he deals in the business of flour. On 06.12.2010, he got loaded 32 tons of flour in truck No,TKG-680 from Shuaib Qasim Flour Mills, Kot Addo on telephone through Zhob Goods Company.
The names of truck drivers were Muhammad Shafiq and Fakher-ru-Din and cleaner was Abdul Hameed. On 07.12.2010 in the morning, the driver Muhammad Shafiq informed him on phone that when at about 08.00 p.m., they reached near Gul Hassan petrol pump at Dera Road, Zhob, one black colour 2.D vehicle came, which obstructed their truck and the culprits on gun point took away the loaded truck at some unidentified place. After unloading the flour, the truck was left at Mandozai Cross Dera Road and both the drivers and cleaner were also released. Hence, FIR No,144/2010 was lodged at Police Station, Zhob.
3. After completion of investigation, challan was submitted against the appellant Muhammad Essa, whereas four other accused Pakar Khan, Azim Khan, Lal Muhammad and Malang Khan were shown absconders. Learned Sessions Judge, Zhob on 24.02.2011 framed the charge against the appellant under section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 to which he pleaded not guilty and claimed trial.
4. The prosecution in order to prove its case examined seven witnesses. For the sake of appreciation, a gist of their evidence is reproduced as under:-
(i) PW.1 Constable Noor-ul-Haq supported the case of prosecution on the point that the accused during investigation disclosed that he along with co-accused committed the present crime.
Further, that at the pointation of accused 402 big bags and 48 small bags of flour were recovered from the house of Malang Khan situated at Shankai. He produced fard-e-inkeshaf as Ex.P/1-A and recovery memo. Of flour Ex. P/ 1 -B .
(ii) PW.2 Muhammad Shafiq the driver of the truck, in his evidence deposed that their truck was loaded with 31 tons of flour valuing 8 lacs. He along with co-driver and conductor were on their way when one 2.D car intercepted their truck. Five armed dacoits at gun point, after tieing their hands took away the truck. They also took away Rs,3,000/- and two mobile phones from him. They were shifted in car and were kept on roaming and finally at about 03.30 a.m. Were left far from road.
They reached at petrol pump on foot, where they were informed about their truck. He also deposed that the dacoits also took away Rs,30,000/- lying in truck. But, at the same time he did not implicate the accused present in Court (appellant) with the commission of crime, on the pretext that the faces of culprits were muffled.
(iii) PW.3 Fakher-ru-Din co-driver adduced same version and stated that as the faces of culprits were muffled, therefore he cannot say as to whether accused present in Court was among the culprits or not.
(iv) PW.4 is the complainant Gul Zaman, he supported the case of prosecution as per contents of FIR. He produced written report as Ex.P/4-A and FIR as Ex.P/4-B.
(v) PW.5 Head Constable Muhammad Sarfraz had taken into custody the truck and produced memo of recovery as Ex.P/5-A.
(vi) PW.6 S.I. Jaweed Iqbal partially conducted the investigation of this crime, prepared the sketch of the place of occurrence, recorded the statements of PWs under section 161, Cr.P.C. And on 30.12.2010 handed over further investigation to SHO.
(vii) PW.7 S.I. Muhammad Latif conducted the remaining investigation and deposed that on 31.12.2010 accused. Muhammad Essa in presence of DSP and SHO confessed about the crime and at his pointation flour bags were recovered from the house of Malang Khan. He produced the sketch of recovery as Ex. P17-A. According to him, the recovered flour was brought at Police Station in mazda truck and under the orders of Court was handed over to the complainant. He further deposed that the accused also confessed about the dacoity in Loralai, he produced photocopy of conviction slip in above crime as Ex.P/7-B and challan in present crime as Ex.P/7-C. He indentified the accused present in Court to be the same.
5. After completing the evidence of prosecution witnesses statement of accused under section 342, Cr.P.C. Was recorded, wherein he denied to the case of prosecution. He opted not to give his statement on oath but examined two witnesses Rahim and Khan Mir in his defence.
(i) D'W.1, Rahim deposed that at about 6, 7 months back he had loaded flour from the house of Jumma Khan and taken it to the Lev4s Police Station.
(ii) DW.2 Khan Mir deposed that on 06.12.2010, he along with accused Essa had gone to Loralai, he came back next day but accused Essa stayed there.
6. At the conclusion of trial, the learned Sessions Judge, Zhob vide judgment dated 23.08.2011, which is impugned before this Court, convicted and sentenced the present appellant as mentioned earlier.
7. I have heard learned counsel for the appellant and the learned counsel for the State at length and minutely perused the case record with their assistance.
8. It is contended by the learned counsel for the appellant that the present appellant is innocent and the judgment passed by the learned Sessions Judge, Zhob is contrary to the facts of the case and the law. That the learned trial Court has quoted previous conviction of the appellant awarded in some other crime by the learned Sessions Judge, Loralai but the above said conviction had already been set aside by the Hon'ble High Court of Balochistan and the appellant was acquitted of the charge. As such, the observation of the learned trial Court to this effect has no legal value. He further contended that the driver and the conductor/cleaner did not implicate the appellant with the commission of crime. Per learned counsel there is clear violation of section 103, Cr.P.C. As the prosecution has not taken any independent mashir to witness the alleged recovery. The appellant has examined two witnesses in his defence to prove his innocence, therefore, the judgment of the learned trial Court is liable to be set aside. In support of his contentions, learned counsel has relied upon the cases of Shabbir Ahmed v. The State 2011 SCM R 1142 and Muhammad Azeem v. The State 2014 M LD 1712 (Federal Shariat Court).
9. On the other hand, it is contended by the learned Deputy Prosecutor General Balochistan for the State that robbed flour was recovered at the pointation of present accused, which is sufficient to connect him with the commission of crime. Though the appellant had examined two witnesses in his defence, but their evidence is not supportive to his case, therefore, the present appeal is liable to be dismissed.
10. Admittedly, the eye-witnesses of the incident i.e, the drivers of the truck Muhammad Shafiq and Fakher-ud-Din did not implicate the present accused with the commission of crime, on the pretext that the faces of the dacoits were muffled. As such, they were unable to identify the present appellant as one of the culprits. Therefore, under these circumstances, it is to be seen that what other evidence prosecution has brought on record to connect the appellant with the commission of crime. As per the case of prosecution, the evidence against the present appellant firstly is the fard-e-inkeshaf, which allegedly he had made before the police on 31.12.2010 and secondly that at his pointation huge quantity of robbed flour was recovered. So far as the legal sanctity of the fard- einkeshaf is concerned, there is sufficient law on the point that such type of fard-e-inkeshaf before the police is a weak type of evidence and without any supporting evidence cannot be made basis of conviction. There is nothing on record that when the appellant was willing to confess his guilt before police then why he was not produced before any Magistrate to record his confessional statement under section 164, Cr.P.C. As far as the facts of the present case are concerned, it is the case of prosecution that 402 big bags of flour and 48 small bags were recovered from the house of Malang Khan situated in Shankai at the pointation of present appellant. It is not understandable, when the present appellant made such fard-e-inkeshaf and police party proceeded for the purpose of recovery, why they had not taken any independent mashir to witness the recovery of robbed articles. It is also the case of prosecution that the house in which robbed flour was kept was without any lock and only the room where the robbed flour was kept was locked and the recovery process consumed 3 to 4 hours. The case of prosecution is silent as to whether at the time of alleged recovery police party made any efforts to call any respectable of the vicinity to witness this recovery. Even the driver of mazda truck in which the alleged recovered flour was brought at Police Station was not examined. Not only this but there is nothing on record that the recovered flour bags had any specific marks of identification or the complainant and other eye-witnesses of the incident identified such bags to be the same, which were robbed during the dacoity.
11. It is also important to note that there is nothing on record that when appellant was arrested in this case. In this regard specific query was made by the Court from the State counsel but he conceded to the position that there is no mashirnama of arrest of the present accused in this crime. Further, he also conceded to the position that there is nothing on record to specify that there were any specific marks of identification on recovered flour when it was handed over to the complainant under the orders of the court. In the instant case, the learned trial Court in its judgment has mainly relied upon the alleged fard-e-inkeshaf before police, recovery of robbed flour and photocopy of conviction slip passed by the learned Sessions Judge, Loralai against the appellant. Learned counsel appearing for the appellant argued that above conviction has been set aside and produced one copy of the judgment passed by the Hon'ble High Court of Balochistan, in which the present appellant was acquitted in Crime No,42 of 2007 under section 17(3) of the Offenees Against Property (Enforcement of Hudood) Ordinance, 1979 of Police Station, Muslim Bagh.
In this regard, it will be relevant to mention here that the trial Judge has relied upon the photocopy of conviction slip in Crime No,10 of 2007 by the Court of learned Sessions Judge, Loralai and the copy of judgment produced by the learned counsel for the appellant bears different crime number, therefore, it is of no help to the case of appellant. Be that as it may, the requirement of law is that prosecution has to prove its case beyond the shadow of reasonable doubt and conviction in one case cannot be made basis for conviction in some other case. It may be clarified that the conviction in some earlier case can only be made basis of severe conviction in subsequent crime by observing the convict as habitual offender. But for awarding conviction in any crime the prosecution first has to prove the charge against the culprit.
12. As discussed earlier, in the present case neither the eyewitnesses identified the present appellant to be one of the culprits nor the recovery of robbed flour has been made from the exclusive possession of the present accused in presence of independent witnesses.
13. For the foregoing reasons, I am of the view that prosecution has failed to prove the charge against the appellant beyond the shadow of reasonable doubt. Therefore, he is entitled to the benefit of doubt which is accordingly extended to him. Consequently, present appeal is allowed and the judgment of the learned trial Court is set aside. The appellant Muhammad Essa is on bail, his bail bonds are cancelled and sureties are discharged.