' This judgment shall also decide Cr.A. 311-P of 2016 and Cr. M.Q. P. 77 of 2016 as all these matters arise out of FIR No, 770 dated 12.10.2013 u/Ss. 457/380/406, PPC Police Station Khan Raziq Shaheed, Peshawar.
2. In the present appeal as well as Cr. A. 311-P of 2016, the appellant/complainant has questioned the acquittal of accused/ respondent Ibrar Ali and Intizar Hussain whereas in Cr. M.Q.P. 77-P of 2016 enhancement of sentence and awarding compensation/return of stolen amount of Rs, 20,00,000/- is impugned.
3. As per prosecution version, the complainant/appellant Saleem submitted a written application to the SHO PS KRS, wherein, it was alleged that on 11.10.2013 at 8.00 PM he kept Rs, 20,00,000/- in the lockers of his shop and locked the shop situated at Afghan Building. On the next morning, i,e, 12.10.2013, on his coming to the shop, he found the shutter pen of the shop. Broken. On thorough checking, the locker was also found broken and the said Rs, 20,00,000/-were found missing. It is stated that Afghan Building, where his shop is situated has only one main gate, which is closed at evening time by Chowkidars, namely, Ibrar and Amir (accused). After closing of the market, the said Building does not have any other entrance except the main gate, thus, excluding the possibility of entry of any body except Chowkidi.Rs Ibrar and Amir cannot be ruled out, hence the case was registered.
4. Later on during investigation accused Amir made confession before the learned Magistrate and also named Intizar .Hussain alias Shahzad as co-accused/respondent, whereafter complainant recorded his statement u/Ss. 161 and 164, Cr.P.C. Charging Intizar Hussain alias Shahzad as accused.
5. After completion of investigation, accused/respondent was charge sheeted to which he did not plead guilty and claimed trial.
6. At the trial, in order to substantiate its case, the prosecution examined as many as eight witnesses in all whereafter statement of accused was recorded, wherein, he denied the allegations and claimed innocence and false charge. However, he neither wished to be examined on oath nor desired to produce evidence in defence. The trial ended in acquittal of the accused/respondent Ibrar Hussain, which is under challenge in the present appeal.
7. Heard. In the instant case, the accused/respondent has been acquitted by the learned Judicial Magistrate-WI, Peshawar mainly on the ground that neither he has made confession nor any recovery has been effected from, his possession.
8. It is settled law that for involvement of an accused, the prosecution has to produce cogent, overwhelming, reliable and consisting evidence connecting the neck of the accused with the alleged crime. There must be one chain right from the start till the end and when one chain is found missing benefit whereof is always given to the accused resulting into his acquittal.
9. In the present case, the accused/respondent was involved in the crime as he was Chowkidar alongwith co-accused Amir Ali of the building where the shop of the appellant/complainant was situated. However, while going through the whole record, no connection of the accused/respondent with the alleged crime is made out. Thus, on mere nomination of accused/respondent to be the Chowkidar of the Building where the shop of complainant was situated is not enough unless there is strong corroboratory evidence connecting the neck of the accused/respondent with the alleged crime, which is missing in the case. The learned trial Court after thoroughly discussing the evidence came to the conclusion that prosecution has failed to establish its case through convincing evidence, therefore, while extending the benefit of doubt, has acquitted the accused/respondent.
10. In the connected Cr. A. 311-P of 2016, the accused/ respondent was convicted by the learned trial Court on the ground that he has been shown connected with the alleged crime through data of his calls to the co-accused on particular time of occurrence and also nominated by co-accused in their confession. However, on appeal he was acquitted on the ground that the alleged call data was neither exhibited from concerned official nor the prosecution could have cited and produced the said official as a witness who could have explained each and every call. No doubt, calls were made and received by the accused/respondent from co-accused but at that particular time accused/respondent was shown present at District Lahore whereas on the day of his arrest, he was shown present at District Peshawar. Besides, co-accused has charged Shahzad as their third partner but prosecution has failed to produce any material evidence that the said Shahzad is Intizar Hussain, the present accused/respondent. As stated earlier, the accused/respondent was nominated as an accused by co-accused in his confessional statement, however, it is settled by now that a person cannot be convicted on such statement. Besides, the I.O. Has failed to obtain finger prints from the side of occurrence to ascertain the participation of accused/respondent in the matter of breaking the locks and locker of the shop.
11. Similar are the reasoning rendered by learned Additional Sessions Judge-XII, Peshawar vide judgment dated 31.3.2016 acquitting the accused/respondents, which is impugned in Cr. M.Q.P. 77-P of 2016.
12. Apart from the above, the present and connected Cr. A. 311-P of 2016 have been preferred against the acquittal orders of learned lower Court while Cr. M.Q.P. 77-P of 2016 has been filed seeking setting aside of the judgment declining to award compensation/return of solen amount of Rs, 20,00,000/- to the petitioner/complainant. However, during the course of arguments, the learned counsel is unable to refer to any illegality or irregularity or point out any misreading or non-reading of evidence, hence no case warranting interference in the impugned judgments is made out.
' In view of the foregoing discussion, this and the connected matters, noted above, are not fit for admission to regular hearing. The same are, therefore, dismissed.