MUHAMMAD MUNIR KHAN, J: -- Criminal Appeal No.1020 of 1988 filed by Muhammad Binyamin and seven others, appellants, Criminal Appeal No.1102 of 1988 filed by the State against the acquittal of Muhammad Binyamin and others, appellants, of the charges under section 395/397, P.P.C. And Criminal Revision No.622 of 1988 filed by the complainant against the acquittal of the aforesaid appellants of the charges under section 395/397, P.P.C. Arise from the judgment of learned Judge, Special Court for Speedy Trials, Faisalabad, whereby he on 2h-9-1988, while acquitting the appellants of the charges under section 395/397, P.P.C., convicting them under section 411, P.P.C.
And sentenced them to three years' R.I. Each and a fine of Rs.15,000 each, in default thereof nine months' R.I. Each. We propose to dispose of the appeals and criminal revision through this single judgment.
2. The allegations against the appellants were that they on the night between 14/15th September, 1987, at about 1-00 a.m. In Mohalla Pughlanwala, Kamalia City, committed robbery in the house of Muhammad Nazir, caused injuries to Mst. Fatima and Fateh Muhammad and forcibly took away cash of Rs.10,000, gold ornaments worth Rs.2,00,000, one .12 bore gun, one .32 bore revolver (licensed) of Muhammad Nazir P.W. The stolen property (ornaments and fire-arms) were recovered from their possession on 31-12-1987 at Bus Adda in Chok No.717/G.B. Of Police Station Pir Mahal, District Toba Tek Singh. They denied the charges and claimed to be tried.
3. To prove its case, the prosecution produced seven witnesses. Muhammad Nazir P.W.2 and Mst.
Fatima P.W.4 are the eye-witnesses of the occurrence. They stated that on 15-9-1987, the appellants entered their house duly armed, beat Mst. Fatima and forcibly took away cash and ornaments, which were subsequently recovered from them. Khalid Mahmood P.W.6 is a Goldsmith.
He had prepared the ornaments of Muhammad Nazir. He stated that the ornaments recovered from the appellants were prepared by him for Muhammad Nazir P.W. Dr. Khalid Mahmood P.W.1, medically examined Mst. Fatima and Fateh Muhammad P.Ws. He found four simple injuries caused with blunt weapon on the person of Fateh Muhammad P.W. And five simple injuries caused with blunt weapon on the person of Mst. Fatima P.W It may be noted that Fateh Muhammad, eye-witness of the occurrence has not been produced.
Bashir Ahmad P.W.3 and Muhammad Hanif Inspector (P.W.7) are the witnesses of the recovery of the stolen ornaments and fire-arms from the appellants. Muhammad Nazir P.W.2 is also a witness of the recovery of the stolen ornaments from Ali Muhammad appellant. P.W.7 stated that on 31-12- 1987, he in the presence of Bashir Ahmad P.W.3 had arrested the appellants from Chak No.717/GB and recovered hand Purse P.23, gold Tikkas P.24 and P.25, gold ear--rings P.26/1-2 and P.27/1-2, gold Locket P.28 and gold ring P.29 from Binyamin which were taken into possession vide memo.
Exh. P.G. On the same day, he recovered .12 bore stolen gun of Muhammad Nazir P.21 and five live cartridges P.22/1-5 from the possession of Muhammad Binyamin appellant, vide memo. Exh. P.F. On the same day, he recovered ten video cassettes P.1 to P.10, wrist watches P.11 and P.12 and gold ring P.13 from the possession of Ali Muhammad appellant and prepared recovery memo Exh. P.D. On the same day, he recovered video cassettes P.14 to P.18, wrist watch P.19 and gold ring P.20 from Muhammad Iqbal appellant and prepared recovery memo. Exh.P.E. On the same day, he recovered, gold Locket P.4-+, car-rings P.45/1-2, gold ring P.46, time piece P.47 and five video cassettes P.48/1- 5 from Muhammad Arshad appellant and prepared recovery memo. Exh. P.L. On the sane day, he recovered tape-recorder P.40, leather bag P.41, gold ring P.42. Car-rings P.43/1-2 and Parker pen P.53 from the possession of Meraj Din and prepared recovery memo. Exh. P.K. On the same day, he recovered Camera P.49, wrist watch P.50, ring P.51 and gold ear--rings P.52/1-2 from Nazir Ahmad appellant and prepared recovery memo. Exh. P.M. On the same day, he recovered gold Locket P.32, gold car-rings P.33/1-2, gold ring P.34, and Parker pens P.35 and P.36 from Maqbool Ahmad appellant, vide memo. Exh P.I. He also recovered stolen licensed revolver P.30 of Muhammad Nazir and Bullets P31/1-5 from Maqbool Ahmad and prepared recovery memo. Exh. P.H. On the same day, he recovered gold ear-rings Exhs.P.37/1-2, P.38/1-2 and Camera P.39 from the possession of Bashir Ahmad appellant, vide recovery memo. Exh. P.J.
All the Memoranda except memo. Exh. P.D. Were attested by Bashir Ahmad P.W.3 and Muhammad Aslam (not produced). The recovery memo. Exh. P.D. Was attested by Muhammad Nazir P.W.2, Bashir Ahmad P.W.3 and Muhammad Aslam (not produced).
Muhammad Tufail A.S.I. (P.W.5) had drawn up formal F.I.R. Exh.P.C./1 on 15-9-1987 at 5/6-00 a.m. At Police Station Kamalia on the basis of the written report Exh. P.C. Of Muhammad Nazir P.W.2. The distance between the Police Station Kamalia City and the place of occurrence is two kilometres.
4. When examined under section 342, Cr.P.C. The appellants denied all the incriminating circumstances. They did not produce any evidence in defence.
5. The learned trial Court was of the view that the prosecution had failed to prove the charge of dacoity against the appellants, but had successfully proved the charge of retaining the stolen property of Muhammad Nazir P.W., against the appellants, so it acquitted the appellants of the charge under section 395/391. P.P.C. And convicted and sentenced them, as stated above.
6. The Learned counsel for the appellants submitted that the detail of the stolen property was not mentioned in the F.I.R.; that Bashir Muhammad P.W. Is the brother of Muhammad Nazir complainant; that although Bashir Muhammad P.W. Was present at the time of recovery and some of the stolen property was recovered from Ali Muhammad, in the presence of Muhammad Nazir complainant, yet the stolen property was taken into possession by Muhammad Hanif Inspector as a suspected stolen property under section 550, Cr.P.C. That the appellants were not previously known to Muhammad Nazir P.W. Or to Mst. Fatima P.W., yet no identification parade was held; and that the prosecution has not been able to prove its case under section 411, P.P.C. Beyond reasonable doubt.
7. Conversely, the learned counsel for the State submitted that Muhammad Nazir and Mst. Fatima P.Ws. Had no enmity to involve the appellants falsely in this case, that at the time of occurrence, there was sufficient electric light, so there was no difficulty in the identification of the culprits; that Bashir Muhammad P.W. And Muhammad Hand" Inspector, had no motive to plant the recovery of the valuable ornaments on the appellants.
8. We have carefully considered the arguments addressed by the learned counsel for the parties and have reviewed the entire evidence that hats been produced by the prosecution, the statements of the accused/appellants recorded under section 342. Cr.P.C. And the attending circumstances. As far the main crime of dacoity in the house of Muhammad Nazir P.W., we feel that no exception can be taken to the acquittal of the appellants of the charge under section 395/397, P.P.C. For the reason that although the appellants were not previously known to the complainant and the eye-witnesses and their names were not mentioned in the F.I.R., yet no parade for their identification was held in this case. So it cannot be said with judicial guarantee that the appellants and none---else had committed the dacoity in the house of Muhammad Nazir P.W. In order to give benefit of doubt to an accused person, it is not necessary that there should be more than one reasons/circumstances. If there is one circumstance, which creates a reasonable doubt in a reasonable and prudent mind about the identity of the accused that may be sufficient for his acquittal.
9. Adverting to the conviction of the appellants under section 411, P.P.C. We feel that the same is not sustainable inasmuch as the F.I.R. Does not show which ornaments were taken away by the offenders at the time of dacoity. No doubt, Muhammad Nazir, Bashir Muhammad and Muhammad Hanif Inspector, had no animus against the appellants to involve them falsely in the case or to plant recovery of valuable ornaments on them, but the fact remains that want of interest or absence of enmity does not stamp the statement of a witness with truth and it has to be seen by the Court as to whether or not the statement of a witness is inconsonance with the probabilities, materially fits in the circumstances of the I case and inspires confidence of truth in a reasonable mind. In the instant case we find that the story of the recovery of ornaments of Muhammad Nazir complainant at the time of the arrest of eight appellants from their person is not in consonance with the probabilities. The ornaments were allegedly taken away on 15-9-1987 whereas the recovery was effected on 31-12-1983 i.e. After three and a half months of the occurrence. So, it is not probable that all the appellants would be keeping the ornaments of their share with them and waiting at Bus Adda for their arrest by Muhammad Hanif, Inspector (P.W.7) to effect the recoveries from them. The culprits, whoever they were, would have distributed the looted property immediately after the occurrence and they would not have kept the same p' with them for three months in the ordinary course of events. The manner in which the alleged stolen ornaments and fire-arm have been recovered from the eight offenders simultaneously and from one and the same place runs counter to the natural probabilities and on the face of it appears to be concocted version. It is well-settled that when the evidence of the recovery of stolen property is under scrutiny, the Court has to examine the evidence in the light of the following alternative hypotheses:-- "(1)The complainant might have been persuaded by the police to state in the first information report that property which in fact was not stolen had been stolen and to hand over such property to the police to be used in fabricating recoveries from the accused persons.
(2)The police might have obtained property similar to the stolen property from the complainant or someone else and used it for the purpose of fabricating the recoveries.
(3)The police might have suppressed some of the stolen property recovered from an accused person and utilized it in inventing a recovery from another person.
(4)The property might have been recovered from a third party and used by the police in one of the impugned recoveries."
The ridiculous manner of the recoveries of stolen articles of one robbery from eight persons simultaneously does not exclude the aforesaid hypotheses and the possibility that the complainant might have been induced by the police at the time of recording the F.I.R. To state that fire-arms were also taken away by the culprits, the possibility that the police might have obtained the alleged recovered ornaments from the complainant and used it for the purpose of fabricating recoveries against the appellants; the possibility that the police might have recovered the ornaments from one accused and utilized it in inventing recoveries from all the eight appellants, are very much there. For all these reasons we are of the view that prosecution has failed to prove the recovery of stolen property from the appellants beyond reasonable doubts.
Pursuant to the above discussion, there being no satisfactory basis to uphold the conviction and sentence of the appellants under section 411, P.P.C., the appeal filed by them is accepted and they are acquitted of the charge. They shall be released forthwith, if not required to be detained in some other case. Consequently, the State appeal and revision filed by the complainant are dismissed.