The appellants, above-named, being aggrieved by common judgment dated 30th May, 1981 of the learned Assistant Sessions Judge, Moro, passed in Sessions Case No 76 of 1979, by which each of the appellants has been convicted under sections 395, 397, P.P. C. And sentenced to suffer R. I. For 7 years arid R. I. For 5- years .For the said offences respectively, have preferred the above four jail appeals, on the following facts and grounds:
2. The prosecution case as stated in the F. I. R. Is that complainant is Zamindar and is living in village Kabli Mangurio Taluka Kandiaro. He has got 13-14 acres of land in Deh Ghulam Shah which is self-cultivated by him. He has also got one Suzuki Van which is driven by Imam Ahu Bugti from Garnbat to Agra District Khairpur. Yousif Mungrio is the cleaner of the Suzuki. On 24th April, 1979 he proceeded from his village to Gambat, where he received Rs. 2,500 as earning of Suzuki from cleaner Yousif. This amount was 10 notes of Rs. 100 each and 30 notes of Rs. 50 each. He was having one Tape Recorder of National Company with 6 cassettes. One of those cassettes was recorded in voice of Attaullah Niazi and rest 5 cassettes were of Urdu songs. The complainant alongwith above articles came to Ranipur by Suzuki, where from he came to Kandiaro by Bus and got down at Bus Stop Beri and thereafter he proceeded for his village, where about 12-00 noon he was still on road, there came a black jeep from south which stopped near him. There were six persons in the jeep.
Three of them were in Police uniform, one of them appeared to be Head Constable and 2 seemed to be Police Constables. One person was armed with rifle; other three persons were in private clothes, one person was in Khaki dress and 2 were in white clothes. They called complainant to come near them. He went three on which man with uniform of Head Constable snatched the Tape- Recorder from. Him and enquired about licence. He showed the licence on which he said, that Tape-Recorder is stolen property, hence he should accompany them to Kandiaro, where identification test will be held. He got in the jeep and sat in the rear seat. When Jeep reached near Kandiaro Road they said to follow the car in order to catch it. Then Jeep went towards Ranipur and they reached on one hotel, where they saw a car of black colour which was a little Taxi, two culprits got down, one was in Head Constable Uniform and other was in Khaki dress. There were male and female persons sitting in a car. They all took tea. After conversating with the persons of car they got in the jeep, wherefrom they came to Ranipur. Complainant told them to go to Ranipur Police Station, where he would furnish his surety on which culprits told him to go to Kandiaro. They filled petrol in jeep at Rasoolabad and proceeded ahead. Com--plainant asked them to go to police station on which appellants said to keep quiet. He raised voice on which appellants issued threats of dire consequences. Appellants put some water in jeep near Naushahro Feroze and they proceeded further. They again put some water near Kazi Ahmed in the Jeep. Complainant raised voice 2-3 times on which appellants slapped him and again issued threats of dire consequences.
About 2-3 miles towards north from Hala, the appellants in Head Constable uni--form snatched Rs.
2,500 from complainant, one watch of Nino Company with white dial and white chain, one Golden Ring with red stone. They got him down at about 8-30 p. m. And asked the complainant to keep quiet, otherwise he would be killed with Rifle. Appellants then went away towards Hyderabad. After appellants left, complainant came on the road and gave signal to one wagon to stop, but wagon did not stop. He also give signals to Trucks, they also did not stop. After some time one Bus came from Hala side in which he boarded. He narrated the incident to conductor and asked him to fast so that they may reach the jeep. But they showed their inability to reach at Saikhat Police Station.
They also showed him the police station, where he went and lodged report.
3. Saikhat Police took the complaint in Roznamcha under entry No. 24, sent it to Kandiaro Police Station for incorporating the same in 154, Cr. P. C. Book, as this offence was committed in the jurisdiction of Kandiaro Police Station. S. H. p, on 6th April, 1979 sent for the complainant and proceeded to wardat, which was shown to him by com--plainant. He prepared mashirnama of wardat in presence of mashirs Abdul Kabir and Saindad. On 8th April, 1979 he recorded the state-- ments of P. W. Muhammad Usif and Imam Ali. On 10 April, 1979 he came to know, that Naushahro Feroze Police had held. Up some persons in Police uniform. He went there and saw appellants. He asked Naushahro Feroze. Police to hand over the appellants to him for investigation. Appellants were handed over to him under mashirnama in presence of mashirs Abdul Kabir and Rakhial Shah.
Those appellants were Rasool Bux, Amanullah, Abdul Aziz, Ghulam Kassim and Manzoor Hussain Shah. Those were Police personnel at Sanghar and appellant Ghulam Kassim was dismissed from Police service. He then went to Kandiaro Police Station; where he called the complainant and made request to Mukhtiarkar for identification test. It was held and com--plainant picked up appellants Rasool Bux, Amanullah and Ghulam Kassim in said test in presence of mashirs Haji Mir Muhammad aid Moula Bux. He then interrogated the appellants. Appellants admitted their guilt and prepared to produce the property. He also pointed out the jeep driver and cleaner at Sanghar. Appellants volunteered to their village in presence of mashirs Abdul Kabir and Muhammad Iqbal. Com-- plainant was also with them. Complainant showed them the place from where the complainant was got down from jeep by appellants. He prepared such mashirnama. He then went to Police Headquarter Sanghar from where he obtained notes of absence of appellants from their duty. He also came to know, that Rifles were not issued to appellant from 1st April, 1979 to 10th April, 1979. He got the entry made in two Police Station Sanghar, on loth April, 1979. On 11th April, 1979 in the morning appellants Amanullah, Rasool Bux and Ghulam Kassim pointed out the house of driver in Nizamani Mohallah. They- went there and secured jeep No. 450-378 S. R. It was of green colour.
Complainant identified the jeep and cleaner to be same. Cleaner then called driver Mushtaque.
Complainant also identified the driver and watch which complainant identified to be the stolenth property. He then arrested cleaner, driver and secured jeep and watch under mashirnama in presence of mashirs. Appellant Mushtaque admitted, that appellants and he were involved in three other robberies. Property of share of which he is prepared to produce. He led him and mashirs to the upper storey of the house and produced Its. 1,550 out of which Rs. 100 was from the present offence. Such mashirnama was prepared in presence of mashirs. Appellants Amanullah and Rasool Bux led him and Police to the shop of Goldsmith where they had disposed of the Golden Ring, the robbed property. Goldsmith Shabir produced the Golden Ring under mashirnama. He recorded the statement of Goldsmith Shabir. Appellant Amanullah and Rasool Bux led him and Police to Kabir of Mushtaque, where they had kept Tape-Recorder. He secured the same from Mushtaque under mashirnama and also recorded his statement. Appellants then produced cassettes. He then returned to Kandiaro Police Station. Appellants then took the name of P. C.
Muhammad Hussain. On 12th April, 1979 they went to the house of I'.. C. Muhammad Hussain where P. C. Was arrested and during interrogation he led him and mashirs to his house and produced Rs.
1,400 out of which Rs. 400 were secured in this offence, under mashirnama in presence of same mashirs. Appellant was to put in the identification test before Mukhti4rkar and he was rightly picked up by complainant. He then got the statement of P. W. Mushtaq recorded under section 164, Cr. P. C.
On 16th April, 1979 appellant Ghulam Kassim volunteered to his village at Sohoo Konasra, District Khairpur and produced amount of Rs. 1,950 out of which Rs. 600 was of this offence. On 12th April, 1979 appellant Amanullah led him and mashirs to his house and produced amount of Rs. 1,850 relating to that case. Amount of Rs. 300 were the amount of this crime. On 20th April, 1979 appellant Rasool Bux produced Rs. 1,200 from his house out of which Rs. 300 were property of the instant case.
On 21st April, 1979 father of appellant Mushtaque produced papers of Jeep. After completing the inquiry, he submitted the charge-sheet against the appellants in Court.
4. Charge was framed against the appellants under section 395/397, P. P. C. Plea was taken to which appellants pleaded not guilty and they claimed to be tried.
5. Prosecution in support of its case had examined complainant Muharram at Exh.
15. He produced Roznamcha of Saikhat Police Station as Exh. 16, P. W. Muhammad Usif is examined at Exh.
17. Mashir Mir Muhammad is examined at Exh. 18, he has produced the Mashirnama of identification at Exh: 19 and Exh.
20. P. W. Mushtaque has been examined at Exh.
22. P. W. Shabir Hussain is examined at Exh.
23. Mashir Abdul Kabir is also examined at Exh. 24, he produced Mashirnama of wardat at Exh. 25.
Mashirnama of arrest at Exh. 26, Mashirnama of place where complainant was got down from jeep at Exh. 26, Mashirnama of recovery of jeep at Exh. 28, Mashirnama of recovery of money at Exh. 29, Mashirnama of recovery of Golden Ring at Exh. 30, Mashirnama of recovery of Tape-Recorder at Exb. 31, Mashir--nama of recovery of cassettes at Exh. 32, Mashirnama of recovery of money from appellant Muhammad Hussain at Exh. 33, Mashirnama of watch and money at Exh. 34, Mashirnama of recovery of Tape-Recorder from appellant Amanullah at Exh. 35, Mashirnama of recovery of money from appellant Rasool Bux at Exh. 36, Mashirnama of recovery of papers of jeep at Exh.
37. P.
W. Awal Zar the Line Officer Police Line Sanghar has also been examined at Exh. 38, he has produced notes of Police Line Singhar at Exhs. 39, 40, 41, 42, 43 and 44. Investigation Officer P. W.
Muhammad Unis and P. W. Muhammad Hayat are examined at Exh. 46 and Exh.
49. He has produced F. I. R. At Exh. 50., Then prosecution closed its side vide statement at Exh. 51.
6. Appellant Rasool Bux in his statement had denied the allegation and had stated that he i-- innocent, case against him is false. From 31st March, 1979 to 2nd April, 1979 he was present on his duty, he has been involved by Abdul Haq, who is opposing his relation Haji Ali Nawaz Dehraj. He is man of Dehraj and has been therefore, implicated falsely in so many cases at Hyderabad.
7. Appellant Amanullah in his statement had denied the allegation and has stated that in 1977 there was emergency and during firing brother A S. H. O. Sarfraz was shot dead and he held him responsible for his death therefore, S. H. O. Has implicated him falsely.
8. Appellant Ghulam Kassim in his statement has' denied the allega--tion and has stated, that his relations are against S. H. O. Sarfraz, who belongs to Kunda Khahi. He has come to visit them, S. H. O.
Came and arrested him because of that grudge. Said S. H. O. Gave his hand to S. H. O. Kandiaro, where complainant party came and saw him and they were asked to pick up in the identification test, case against him is false.
9. Appellant Muhammad Hussain in his statement had -denied the allegation. He has stated that he is innocent, he has been implicated falsely at the instance of Shah Nawaz Khushik, with whom he has got enmity at matrimonial affairs.
10. The learned trial Court taking into consideration the evidence adduced., convicted and sentenced the appellants above-named as herein--before mentioned, while acquitting co- accused Mushtaque and Gul and consequently the appellants above-named filed the above jail appeals, on the grounds mentioned in their respective memo. Of appeals.
11. The appellants, who were present in Court in custody, in respect of their respective appeals submitted, that they were innocent and have been implicated in this false case due to enmity. The appellants also denied that any recoveries were made from them and/or at their pointation of the alleged robbed property.
12. The learned Advocate appearing for the State took me through the R. & P. Of the learned trial Court as well as the impugned judgment and at outset submitted, that there was no case against appellant Ghulam Qasim and appellant Muhammad Hussain at all. As far as appellant Amanullah and appellant Rasul Bux were concerned, the learned Advocate for the State submitted, that in spite of alleged recoveries from these appel--lants and/or at their pointations, the case against these appellants also is doubtful due to following reasons: -
(a) That in the identification test, ratio of dummies with the appel--lants were below the one laid down by various authorities of this Court as well as hon'ble Supreme Court.
(b) That the statement of P. W. Moharram as far as the incident is concerned seems to be improbable, specially as the complainant alleges, that right from Rani Pur up to Sekhat, he was being taken by the appellants for the alleged robbery. The complainant in his statement has admitted, that twice in the course of this journey the jeep was stopped for taking tea but in spite of this the complainant did not ask for public help at these places, which seems rather unusual.
(c) That except for the word of the complainant, the ownership of the Tape-Recorder and the golden ring has not been proved beyond reasonable doubt, as the description of these articles given in the F. I. R. Is general. Neither the approximately weight of the ring nor the condition of the Tape-Recorder has been given. P. W. Mushtque in his statement before the learned trial Court, when he was shown the Tape-Recorder said, that this is not the Tape-Recorder, which he had produced beforethe police.
(d) That the learned trial Court has disbelieved the complainant in respect of acquitted two accused, on the ground that complainant was under the influence of S. H. O. Abdul Khaliq, who had enmity with acquitted accused Mushtaque Hussain and has falsely involved the said accused Gul.
The learned trial Court has also not believed, that the jeep identified by the complainant before the learned trial court, was, involved in the alleged robbery.
13. I have carefully considered the above submissions made by the learned Advocate for the State and have gone through the statements of the prosecution witnesses recorded by the learned trial Court. The story of the incident as given in the F. I. R. By the complainant P. W. 1 Moharram per se seems to be improbable, as according to the complainant right from Ranipur he was taken up to Sakhat and dropped there after the alleged robbery. The complainant in his statement as well as in F. I. R. Has stated, that during all this period the jeep in which he was taken had stop--ped at few places, either for taking tea and/or water, but still the com--plainant did not seek any help from the public at these places. Besides this the complainant neither gave the approximate weight of the gold-ring nor the number of the Tape-Recorder, either in the F. I. R. Or in his statement before the learned trial Court, nor complainant was put to identification test in respect of these properties, which are commonly avail--able. It may further be noted, that except for the complainant P. W. 1 Moharram there is no other eye-witness of the incident in question. It may also be noted, that the appellants were not known to the complainant and consequently he did not mention their names in the F. I. R. In view of this, the connection of the present appellants with the crime in question, depended upon .The identification of the present appellants by the com--plainant: In this connection the identification test in respect of the Appel--lants Rasul Bux, Amanullah, Ghulam Qasim and one Manzoor Hussain was held on 10th April, 1979, vide Exh. 19, which shows that the number of dummies mixed with the four suspected accused persons were only 9 to 10, in which test complainant is said to have picked up appellant Rasul Bux, Amanullah and Ghulam Qasim. In my opinion no reliance can be placed on such identification, where the ratio of dummies mixed with the suspected persons was far below the ratio laid down by various authorities of this Court as well as hon'ble Supreme Court. In addition to this I find, that P. W. 1 Moharram in his cross-examination admitted, that he was shown 7 persons in police lock-up, which included appellant Rasul Bux, Ghulam Qasim and- others, one hour before identification test in question. The second identification test in respect of appellant Muhammad Hussain was held on 12th April, 1979, vide Exh.
20 in which it is alleged, that appellant Muhammad Hussain was picked up by the complainant.
14. It may further be noted that complainant P. W. 1 Moharram in F. I. R. Had mentioned, that the jeep in which he was picked up was black and repeated this colour in his statement before the learned trial Court, but at the time of the identification of the said jeep as case property, the complainant stated, that the green jeep which was the case property, was the same jeep involved in the incident. It may further be noted, that the learned trial court disbelieved the complainant in respect of two acquitted accused on the ground, that the complainant under the influence of S. H. O. Khaliq, who had enmity with the said two acquitted accused persons has falsely involved them and also came to the conclusion, that the jeep identified by the complainant was not involved in the incident in question.
15. Keeping in view all the above facts, in my opinion no reliance can be placed on the solitary evidence of P. W. 1 Moharram (complainant), who is held by the learned trial Court to be the under influence of S. H. O. Abdul Khaliq. It may further be noted, that P.W. 4 Mystique from whom the Tape- Recorder was actually recovered, stated before the learned trial Court, that the Tape-Recorder produced in Court was not the one handed over by him to the police. There are no identification marks in respect of Tape-Recorder and the gold-ring claimed by the complainant as his own and the complainant did not produce any evidence to prove his ownership of the said two articles nor complainant was put to identification test in respect of these two articles. Alleged recovery of currency notes from the appellants by itself does not prove, that the same belonged to the com-- plainant. I have carefully gone through the statement of P. W. I Moharram (complainant) and to me it does not seem to be straightfor--ward and convincing.
16. In view of my above conclusions and appraisal of the evidence of the only eye-witness of the incident namely P. W. 1 Moharram (complainant), I am of the opinion, that the prosecution has failed to prove it case against the present appellants beyond reasonable doubt, specially when Mashirnama of the initial arrest of the appellants by Naushero Feroze Police was not produced before the learned trial Court, to establish that the appellants were actually arrested by the said police station in police uniform, as it is alleged by the prosecution.
17. Therefore I allow all the above four appeals and set aside con--victions and sentences awarded to the appellants by the learned trial Court and acquit them, by giving them benefit of doubt and direct that all the four appellants be released forthwith, if they are not required in any other case.