RAJA AFRASIAB KHAN, J.--- The appellant Ghulam Abbas was convicted under sections 148 and 395, P.P.C. By the learned Judge Punjab Special Court for Speedy Trials No.VIII Sargodha, on 31-8- 1988, and was sentenced to 3 years' R.I. Plus a fine of Rs.10,000 or in default to suffer three months'
R.I. Under section 148, P.P.C. And was also sentenced to suffer 10 years' R.I. And a fine of Rs.10,000 or in default to suffer two years' R.I. Under section 395, P.P.C. It was ordered that the convict shall also pay a sum of Rs.50,000 as compensation to Mehboob Elahi P.W. Under section 544-A, Cr.P.C. The convict has ' challenged his conviction and sentence by filing Criminal Appeal N--'894 --f 1988 before this Court.
Cr.P.C. The convict has challenged his conviction and sentence by flicag Criminal Appeal No.884 of 1988 before this Court.
2. The prosecution case is that Mehboob Elahi son of Rehmat Elahi (complainant), is a Deputy Director in Development Authority, Faisalabad. On 14-4-1988, Mehboob Elahi, his wife Mst. Ishrat Mahboob, three children, namely, Waqas Mahboob (4-1/2 years), Sana Mahboob (3-1/2 years) and Humad Mahboob (1-1/2 years), were travelling in their Suzuki Car No.4500--SAB, Model 1986. The car was being driven by Muhammad Saleem son of Muhammad Shafi, their driver. At about 4-30 p.m., the complainant party commenced their journey from Bahawalpur to Faisalabad. At about 8- M, when they reached near the bridge 111, Sargodha-Faisalabad Road, a car with silver colour overtook them and started moving slowly in front of them. They, however, went ahead of the car aforesaid but it again overtook the car of the complainant. In the headlight of the car, the complainant noted the number of aforesaid car as 148-555/82 Karachi 83. The occupants of the said car compelled the complainant party to stop their vehicle. In consequence, the driver of the complainant stopped his car. Five unknown persons, whose complete description was given in the F.I.R., came out of the said car. They were armed with deadly weapons. These five accused were identified by Mahboob Elahi and his driver Muhammad Saleem. The accused issued threats to the complainant party that they would be done to death in case they raised an alarm. Mahboob Elahi and his driver Muhammad Saleem were compelled to alight from their car. Key of the car was snatched by the accused from the driver. On personal search of Mahboob Elahi, a sum of Rs.500, National Identity Card and a purse were taken away by the accused. Similarly, from the personal search of Muhammad Saleem, a sum of Rs.150, his purse and driving licence were taken by them forcibly. The accused compelled the complainant and his driver at pistol point to sit in their car while the wife and three children of the complainant were allowed to remain in their own car which was later on driven by one of the accused. Three accused sat with the complainant and his driver and started moving towards Sargodha. When they reached near Bridge--III within the area of Chak No.111/JB, Suzuki car of the complainant was driven towards Sargodha side while the complainant and his driver were taken by the accused in their car towards a different direction on a local canal road. An alarm was raised by the complainant at Adda Burj-III whereupon one of the accused held the complainant from his neck and in this. Struggle wrist watch of the complainant fell down. They were also given beating by the accused and were thrown out of the car near the bridge. They also were threatened that in case the accused were chased, they would be done to death. The story continued to disclose that the accused took away four golden bangles, two golden rings and a pair of ear-rings, one finger-ring and a golden ring alongwith the wife and three children of the complainant with them. An attache-case of the complainant party was also lying in his car in which some wearing clothes and some Prize Bonds were kept by them, was also taken away by the accused. The complainant Mahboob Elahi and his driver Muhammad Saleem returned to Pull-111 from where they gave an information to the police about the incident. The local police reached the spot.
3' Mansoor Ahmad, Inspector, S.H.O. P.W.8 investigated the case. On statement Exh.P.A. Of Mahboob Elahi, formal F.I.R. Exh.PA,/1 was registered by Muzaffar Ali, A.S.I. On 14-4-1988 at about 11-30 p.m.
Ghulam Abbas was arrested on 25-5-1988 and was sent to judicial lock-up on 26-5-1988. Under the supervision of Abdul Qadir Jasra M.I.C. Identification parade was held on 5-6-1988 wherein the appellant was identified as one of the accused. The appellant also led to the recovery of a pair of golden ear-rings on 22-6-1988. He got recovered a driving licence P.4 of Muhammad Saleem P.W, a purse P.5 containing Rs.150 P.1-6. The above articles were taken into possession vide memo. Exh.P.G.
It was disclosed by the witness that five culprits in the case could not be arrested by him despite hectic efforts. He stated that they were-being proceeded against under section 87/88 Cr.P.C. And that a separate challan shall be submitted against them. In cross-examination it was disclosed by the Police Officer that during investigation it came to light that other five co-accused of the appellant visited his house one night earlier to the occurrence. On the. Basis of this information the appellant was arrested. However, it wad, stated by the witness that the person who gave information to him admitted that he belonged to the opposite party of Ghulam Abbas appellant.
Mahboob Elahi P.W.6 and his wife Mst. Ishrat Mahboob P.W.6. Deposed in their evidence that it was Ghulam Abbas appellant who had committed the offence alongwith the other co-cused who were absconding. The allegation levelled against the appellant was specifically denied by him in his statement made by him under section 342, Cr.P.C. He pleaded his innocence and stated that he had falsely been implicated in the case at the instance of his enemies in the village. By believing the prosecution version the learned trial Judge convicted and sentenced the appellant as already observed above.
4. Learned counsel 'argues with vehemence that there is not an iota of evidence on record to connect the appellant with the commission of the crime. He maintains that co-accused of the appellant, namely. Muhammad Boota, Shahzad alias Kala were acquitted by the learned Additional Sessions Judge, Sargodha on 2-10-1990. Learned counsel states that the prosecution witnesses' did not support its case inasmuch as Mehboob Elahi P.W.5 categorically stated that he could not identify any of the accused who committed the crime. Similarly, Mst. Ishrat ' Mahboob P.W.6 also did not at all support the prosecution version. This being so, the witnesses did not support the version of the prosecution while appearing in the same case against the co-accused during their trial. The prosecution case is that there were five accused who committed the offence while during trial the witnesses shifted their stand and adopted the plea that the accused who committed the offence were six in number. Is these A circumstances, the prosecution witnesses do not inspire confidence inasmuch as they have given a different version during trial. It is in the evidence that it was darkness during the time of occurrence and as such it was not possible for the prosecution witnesses to identify the accused. In this view of the matter, we are of the view that the prosecution has failed to prove its case beyond reasonable doubt against the appellant. By giving him the benefit of doubt, the conviction and sentence of the appellant is set aside and he-is acquitted. He shall be released forthwith provided, of course, he is not needed in some other case. The appeal succeeds and is allowed.