RASHEED AHMED SOOMRO, J.---The captioned appeal is directed against judgment dated 28.11.2018, passed by the learned 'Ind Additional Sessions Judge, Mehar , in Sessions Case No.220 of 2018, re: State v. Abdul Jabbar and others , emanating from Crime No.123 of 2018 registered at Police Station, B-Section, Mehar , whereby the learned trial Court has convicted arid sentenced the appellants to undergo R.I. for four years and fine of Rs.10,000/- each for offence punishable under section 395, P.P.C. and in default of payment of fine, they shall further undergo S.I. for three months. Appellants Shaman and Hubdar were also convicted and sentenced for offence under section 337-H(2), P.P.C. to undergo R.I. for one month. Benefit of Section 382-B, Cr.P.C. was also extended to the appellants.
2. Briefly the facts of the case are that complainant Manzoor Ali lodged FIR on 30.04.2018 mentioning therein that he has his shop in village Umed Dero Taluka Mehar being run by him and his cousin Muhammad Uris. It is further alleged in the FIR that they used to open shop in early morning and then close it in night time. On 30.04.2018, he opened his shop in morning and his cousin Muhammad Uris also arrived there, they were busy in running their shop, where complainant's maternal uncle Ashraf also arrived to purchase some articles. Hence complainant was busy in sale of shop articles. It was 6:30 a.m. he noticed two motorcycles stopped near his shop, from which five armed men alighted and while giving challenges they came running towards shop, culprits were identified as Abdul Jabbar armed with pistol, Hubdar armed with repeater gun, Shaman armed with DBBL gun, Ghulam Nabi armed with pistol, and Saleh armed with rifle. The culprits just on arrival pointed weapons at complainant party and asked them that no one should stand and they should sit there. Accused Shaman pointed his gun at complainant party whereas accused Abdul Jabbar , Hubdar , Ghulam Nabi and Saleh came inside of shop and took out cash consisting on different currency notes amounting to Rs.3100/-, gold leaf cigarettes and other different articles of the shop amounting to Rs.13,000/-. They took all the articles in their Romal cloth and went outside of the shop while firing in the air and then they boarded on their motorcycles and went away . The complainant party under state of fear hidden themselves and did not follow the culprits and they remained in their village till the culprits had left the village, where-after complainant proceeded to Police Station and lodged the FIR to the above ef fect.
3. After usual investigation, police submitted the challan against the accused persons. After completing all the formalities, a formal charge was framed against the appellants, to which they pleaded not guilty and claimed to be tried. To substantiate the case, the prosecution examined PW-1 complainant Manzoor Ali at Ex-10, he produced FIR at Ex-10/A. Eye-witness PW Muhamm ad Uris at Ex-11, mashir of arrest and memo of wardat, PW-3 Arbab Ali Bhutto at Ex-12, he produced mashirnama of arrest of accused Abdul Jabbar at Ex-12/B, mashirnama of place of wardat at Ex-12/A. PW-4, I.O. ASI Ali Akbar Chandio at Ex-13 and, thereafter the prosecution closed its side vide statement at Ex-14.
4. The statements of the appellants were recorded under section 342, Cr.P.C. at Exs-15 to 19 respectively , wherein they, denying all the allegations, professed their innocence. They , however , neither examined themselves on oath under section 340(2), Cr.P.C. nor did they examine any person as their defence witness. After hearing the parties counsel, learned trial Court has convicte d and sentenced the present appellants, namely , Abdul Jabbar , Hubdar , Shaman, Ghulam Nabi and Saleh as mentioned in paragraph-1 (supra).
5. Having felt aggrieved by the aforesaid judgment dated 28.11.2018, the appellants have preferred the present appeal.
6. Learned counsel for the appellants contends that the learned trial Court has passed the judgment without appreciating the evidence and on the basis of insuf ficient evidence convicted the appellants. Learned counsel while arguing the appeal has drawn the attention of the Court by submitting that the complainant in his FIR has disclosed that the accused persons had taken away hard cash Rs,3100/- and five Danda/packets of Gold Leaf Cigarettes, whereas in examination-in-chief, the complainant has deposed that the accused persons had taken away Ghee, biscuits, tea, and toffees. Learned counsel for the appellants next submits that the complainant in his examination- in-chief has deposed that Soobedar had arrived on spot and had collected, 9 empties of 12 bore cartridges but he has not disclosed the source of calling the Soobedar that who called the Soobe dar and this aspect of the case creates doubt in the case of prosecution. Learned counsel further submits that PW Complainant has deposed in his examination-in-chief that on the day of incident at 6:20 a.m. his maternal uncle Muhammad Ashraf came at the shop and it was 06:30 a.m., the accused persons in two motorcycles came there and from the perusal of such deposition it revealed that Muhammad Ashraf was the eye-witness of the incident but the prosecution has not examined Muhammad Ashraf and in this eventuality inference can be drawn that had PW Muhammad Ashraf been examined, he would have not supporte d the case of prosecution. Learned counsel further submits that the complainant in his cross-examination has stated that prior to occurrence accused Shamin used to purchase Kiryana items from his shop and he used to pay the charges of the items instantly or sometime later, whereas, PW Muhammad Uris in his cross-examination has disclosed that accused Shaman had been purchasing the Kiryana items from shop. P.W Muhammad Uris further disclosed that accused Shaman had never paid the price of the items purchased by him. In this eventuality learned counsel submits that on the one hand complainant admits that the accused Shaman was paying the amount of purchased Kiryana and on the other hand PW Muhammad Uris disclosed that accused Shaman had never paid the price of items purchased by him. Learned counsel for the appellants also submits that though it has been admitted by all the P.Ws that at the place of incident there were as many as 40/50 houses but the prosecution did not cite any independent witness to strengthen the case of prosecution. Learned counsel for the appellants added that there is no evidence worth considerations against the appellants to connect them with the offence alleged against them. He, therefore, prays that the appeal may be allowed and convictions and sentences awarded to the appellants may be set aside.
7. Learned counsel for the complainant on the other hand submits that the appellants are habitual offenders.
Learned counsel for the complainant further 'argued that the prosecution has fully proved the case against the appellants and the learned trial Court has passed the judgment by appreciating evidence in accordance with the law and there is no need to interfere in its judgment. In the circumstances, he prays that instant appeal may be dismissed.
8. Learned D.P.G has supported the impugned judgment, and adopted the arguments as advanced by the learned counsel for the complainant and further argued that all the appellants are nominated in the FIR with specific role and they were armed with deadly weapons and robbed Kiryana material. He also prays for the rejection of the appeal.
9. I have considered the submissions of the learned counsel for the appellants, learned counsel for the complainant and learned D.P .G for the State and also gone through the evidence brought on record with their assistance.
10. It is an admitted fact that the complainant in his FIR has disclosed that the accused persons had taken away hard cash Rs.3100/- and five Danda/p ackets of Gold Leaf Cigarettes, where as in examination-in-chief, the complainant has deposed that the accused persons had taken away Ghee, biscuits, tea, and toffees. Furthermore, the complainant in his examination-in-chief has deposed that Soobedar had arrived on spot and had collected 9 empties of 12 bore cartridges but he has not disclosed the source of calling the Soobedar that who called the Soobedar and this aspect of the case creates doubt in the case of prosecution. PW Complainant also deposed in his examination-in-chief that on the day of incident at 6:20 a.m. his maternal uncle Muhammad Ashraf came at the shop and it was 06:30 a.m., the accused persons in two motorcycles came there and from the perusal of such deposition it revealed that Muhammad Ashraf was the eye-witness of the incident but the prosecution has not examined Muhammad Ashraf and in this eventuality inference can be drawn that had PW Muhammad Ashraf been examined, he would have not supported the case of prosecution. The complainant in his cross-examination has stated that prior to occurrence accused Shaman used to purchase Kiryana items from his shop and he used to pay the charges of the items purchased by him, whereas, PW Muhammad Uris in his cross-examination has disclosed that accused Shaman had been purchasing the Kiryana items from shop but he had never paid the price of the items purchased by him. In this eventuality on the one hand complainant admits that the accused Shaman was paying the amount of purchased Kiryana items and on the other hand PW Muhammad Uris disclosed that accused Shaman had never paid the price of items purchased by him. Furthermore, it has been admitted by all the P.Ws. that at the place of incident there were as many as 40/50 houses but the prosecution did not cite any independent witness to strengthen the case of prosecution. These all aspect of the case makes the case of prosecution doubtful.
11. In view of what has been stated above, I am of the considered view that the prosecution has failed to prove its case against the appellants beyond reasonable doubt and needless to reiterate that benefit of a reasonable doubt, if any, arising in the prosecution case about the guilt of the accused appealing to the prudent mind is to be extended to the accused as a matter of right. Reliance in this context may be placed on case of Muhammad Akram v. State (2009 SCMR 230). Accordingly , the appeal is allowed and the convictions and sentences awarded to the appellants, namely , Abdul Jabbar , Hubdar , Shaman, Ghulam Nabi and Saleh vide impugned judgment dated 28.11.2018, passed by learned IInd Additional Sessions Judge, Mehar , in Sessi ons Case No.220/2018 are set aside and the appellants are acquitted of the charges. The appellants are on bail, their bail bonds stand cancelled and sureties discharged.
12. For the forgoing detailed reasons instant appeal was allowed by me in Court through a short order dated 26.04.2019.