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 PPC and Criminal Revision No.622 of 1988 filed by the complainant against the acquittal of the aforesaid appellants of the charges under sections 395/397 PPC, arise from the judgment of learned Judge, Special Court for Speedy Trials, Faisalabad, whereby he on 26-9- 1988,while acquitting the appellants of the charges under sections 395/397 PPC, convicting them under section 411 PPC 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 14/15lh September, 1987, at about 1-0 a.m. In Mohalla Pughlanwala, Katnalia City, committed robbery in the house of Muhammad Nazir, caused injuries to Mst.Falima 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 PW. The stolen property (ornaments and Fire Arms) were recovered from their possession on 31-12-1987 at Bus Adda in Chak No.717/GB 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 PW-2 and Mst.Falima PW-4 are the eye-witnesses of the occurrence.They stated that on 15-9-1987, the appellants entered their house duly armed, beat A/j/.Fatima and forcibly took away cash and ornaments, which were subsequently recovered from them. Khalid Mahmood PW-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 PW. Dr.Khalid Mahmood PW-1, Medically examined Mst.Fatima and Fateh Muhammad PWs. He found four simple injuries caused with blunt weapon on the person of Fateh Muhammad PW and five simple injuries caused with blunt weapon on the person of Mst.Falima PW.
It may be noted that Fateh Muhammad, eye-witness of the occurrence has not been produced.
Bashir Ahmad PW-3 and Muhammad Hanif Inspector (PW-7) are the witnesses of the recovery of the stolen ornaments and Fire Arms from the appellants. Muhammad Nazir PW-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 PW-3 had arrested the appellants from Chak No.717/GB and recovered hand Purse P.23, Gold Tikkas P.24 and P.25,gold earrings P.26/l-2.And P.27/l-2,gold Locket P.28 and gold ring P.29 from Binyamin, which were taken into possession vide memo Ex.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 Ex.P.F. On the same day, he recovered ten video cassettes P.I 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 ExJP.D. On the same day,he recovered video cassettes P.M to P.18, wrist watch P.19 and gold ring P.20 from Muhammad Iqbal appellant and prepared recovery memo Ex.P.E, On the same day, he recovered, gold Locket P.44, ear 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 Ex.P.L.On the same day, he recovered tape recorder P.40, leather bag P.41, gold ring P.42, ear rings P.43/1-2' and parker pen P.53 from the possession of Meraj Din and prepared recovery memo Ex.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 Ex.P.M. On the same day, he recovered gold Locket P.32, gold ear rings P.33/1-2, gold ring P.34, and Parker pens P.35 and P.36 from Maqbool Ahmad appe- llant, vide memo Ex.P.I, He also recovered stolen licensed revolver P.30 of Muhammad Nazir and bullets P.31/1-5 from Maqbool Ahmad and prepared recovery memo. Ex.P.H. On the same day, he recovered gold ear rings Ex.P.37/1-2, P38/1-2 and Camera P.39 from the possession of Bashir Ahmad appellantfv/zfe recovery memo Ex.PJ.
All the Memoranda except memo Ex.P.D were attested by Bashir Ahmad PW-3 and Muhammad Aslam (not produced). The recovery memo Ex.P,.D. Was attested by Muhammad Nazir PW-2, Bashir Ahmad PW-3 and Muhammad Aslam (not produced).
Muhammad Tufail A8l (PW-5) had drawn up formal F.I.R. Ex.P.C/1 on 15- 9-1987 at 5/6-0 a.m. At Police Station Kamalia on the basis of the written report Ex.P.C. Of Muhammad Nazir PW-2. The distance between the Police Station Kamalia City and the place of occurrence is two kilometers.
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 PW, against the appellants, so it acquitted the appellants of the charge under sections 395/397 PPC 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 PW is the brother of Muhammad Nazir complainant; that although Bashir Muhammad PW 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, yei the stolen properly 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 PW or to Mrt.Fatima PW.Yct no identification parade was held; and that the prosecution has not been able to prove its case under section 411 PPC beyond reasdrihble doubt.
7. Conversely, the learned counsel for the State submitted that Muhammad Nazir and Mst.Fatima PWs had no enmity to involve the appellants falsely in this case; that at the time of occurrence, there was sufficient electHc light, so there was no difficulty in the identification of the culprits; that Bashir Muhammad PW and Muhammad Hanif, Inspector, had1 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 has 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 PW, we feel that no exception can be taken to the acquittal of the appellants of the charge under sections 395/397 PPC for the reasons 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 PW. 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 PPC, 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 thejact remains tjiat want of interest or absence of enmity docs 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 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 inconsonance with the probabililies.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 occurrence. So, it is not probable that all the appellants would be keeping the ornaments of their share with them and wailing 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 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 hypothesis:- (' ) "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 properly from the complainant or someone else and used it for the p arpose 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 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 hypothesis and the possibility that the complainant might have been induced by the police at the time of recording the FIR to state, that fire-arm, of 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 appi hunts beyond reasonable doubts.
Pursuan: to the above discussion, there being no satisfactory basis to uphold the conviction and senlciv '* of the appellants under section 411 P.P.C, The appeal tiled by them is accepted aid they are acquitted of the charge. They shall be released forthwith, if no. Required to be detained in some other case. Consequently, the State appeal and revision filed by the complainant are dismissed.