' MUHAMMAD NAWAZ ABBASI, J.--- Abdul Rashid aged 28 years, Muhammad Akram aged 22 years sons of Abdul Aziz, appellants in Criminal Appeal No,827 of 1988, Muhammad Aslam son of Din Muhammad, appellant in Criminal Appeal No,717 of 1988, and Muhammad Afzal alias Bobi son of Muhammad Aslam, not appellant before this Court, were tried for the charge under sections 452/34, 392/34/397, P.P.C. By the learned Special Court for Speedy Trials, Faisalabad constituted under subsection (3) of section 4 of the Special Courts for Speedy Trials Act, 1988. The learned trial Court convicted and sentenced all the three appellants and Muhammad Afzal alias Bobi convict seven years' R.I. Each under section 452/34, P.P.C. With a fine of Rs,5,000 each, in default of payment of fine to undergo further R.I. For 1-1/2 years each. They were also sentenced under section 392/34/397, P.P.C. To undergo ten years' R.I. Each with a fine of Rs,5,000 each and in default of payment of fine to undergo further R.I. For 2-1/2 years each. Both the sentences were to run concurrently. The convicts were given benefit of section 382-B, Cr.P.C. Vide judgment, dated 21-6- 1988.
2. This judgment will dispose of Criminal Appeal No,827 of 1988 filed by Abdur Rashid and Muhammad Akram and Criminal Appeal No,717 of 1988 filed by Muhammad Aslam arising out of the same judgment.
3. The brief facts of the prosecution case as unfolded in the complaint (Exh.PA.) are that on 5-12- 1987 at about 1 p.m. Yaqoob Ahmad complainant (P.W.5) was present in the house of Dr. Guizar Muhammad Afzal (P.W.4) in Kahkashan Colony, Faisalabad with Muhammad Ishaq his relative.
Four persons entered into the Kothi of Dr. Gulzar Muhammad Afzal, two of them were armed with pistols, one with carbine and one with dagger. They threatened the complainant and Muhammad Ishaq on pistol point not to make noise and removed wrist-watch of the value of Rs,1,500 of the complainant. Those who were armed with pistols guarded the complainant and Muhammad Ishaq when the remaining two accused went inside the Kothi and picked T.V. Of the value of Rs,4,000 and three ladies wrist-watches with golden chains and a cash of Rs3,000. The accused were still in the lawn of the Kothi when on the hue and cry of the complainant and Muhammad Ishaq, Muhammad Hanif A.S.I., Javed Iqbal Traffic Constable and Muhammad Arshad shopkeeper reached at the spot.
The complainant grappled with the accused and with the help of P.Ws. Apprehended all the four accused at the spot who disclosed their names to them. During the scuffle and grappling Muhammad Afzal convict and Muhammad Akram appellant received injuries. The stolen articles and firearm 'weapons were recovered from the accused and taken into possession at the spot. A case under sections 452/34 and 392/397/34, P.P.C. Was registered against the appellants and Muhammad Afzal convict through F.I.R. (Exh.P.A.) drafted by Muratab All Muharrir Head Constable (P.W.1) on the basis of the complaint (Exh.PA.) recorded by Muhammad Ashraf Inspector (P.W.7) on the statement of Yaqoob Ahmad (P.W.5) at the place of occurrence at 3-55 p.m. On 5-12-1987.
' The accused were apprehended by the P.Ws. At the spot and Muhammad Hanif A.S.I. (P.W.6) searched their person. He recovered lady wrist-watches (P.1 to P.3) and currency notes of Rs,5,000 from Abdur Rashid accused vide memo. Exh.P.F. The wrist-watch (P.5) belonging to Yaqoob Ahmad (P.W.5) was recovered from Muhammad Akram appellant and was taken into possession vide memo. Exh.P.K. Pistol (P.7) with 20 bullets (P.11/1-20) was also recovered from Muhammad Akram and taken into possess ion vide memo. Exh.P.J.
' T.V. (P.4) and dagger (P.9) were recovered from Muhammad Aslam appellant and were taken into possession vide memos. Exh.P.H. And Exh.P.L. Respectilvely.
' Pistol (P.6) with 25 cartridges (P.10/1-25) were recovered from Muhammad Afzal alias Bobi convict and were taken into possession vide memo. ;Exh.P.I. All the recovery memos. Exh.P.F., Exh.P.K., Exh.P.G., Exh.P.J., Exh.P.H., Exh.P.L. Were attested by Yaqoob Ahmad (P.W.5), Muhammad Ashraf Inspector (P.W.7), Muhammad Hanif A.S.I. (P.W.6), Muhammad Ishaq and Irshad (given up P.Ws.).
' Dr. Muhammad Yasin, Medical Officer, Civil Hospital, Faisalabad (P.W.2) medically examined Muhammad Akram accused on 6-12-1987 and found seven simple injuries on his person. He also medically examined Muhammad Afzal convict and found five blunt weapor simple injuries on his person.
' Mst. Zeb-un-Nisa (P.W3) wife of Dr. Gulzar Muhammad Afzal and Dr. Gulzar Muhammad Afzal (P.W.4) identified the stolen articles.
' Yaqoob Ahmad (P.W.5) is the complainant of the case who repeated the story given in the complaint (Exh.PA.).
' Muhammad Hanif A.S.I. (P.W.6) is another eye-witness of the occurrence who corroborated the contents of the F.I.R. And statement of Yaqoob Ahmad (P.W.5).
4. Abdur Rashid appellant in his statement under section 342, Cr.P.C. Took the following plea which reads as under:-- "I am relative of Yaqoob Ahmad P.W. He used to deal in the business of visas/work permits. My brother/co-accused Muhammad Akram and Muhammad Afzal accused paid Rs,20,000 each to Yaqoob Ahmad P.W. For the visas/work permits, who neither arranged for the visas etc. Nor returned the amount to them. Both the aforesaid accused were sent by me to Dr. Gulzar Muhammad Afzal P.W. Who in turn told them to wait at his residence in Kahkashan Colony, till he comes from the clinic. In the meanwhile, Yaqoob Ahmad P.W. Came at the residence of Dr. Gulzar Muhammad Afzal P.W. In Kahkashan Colony, who is Doctor's real brother. On demand by the aforesaid accused for the return of their amount a quarrel had taken place between Yaqoob Ahmad P.W. And aforesaid my co-accused. After that Yaqoob Ahmad P.W. With the connivance of the police and on account of the influence of his brother Dr. Gulzar Muhammad Afzal P.W. Got them as well as myself and our servant Muhammad Aslam involved in the cases and in the cases under section 13/20/65 A.O."
' Muhammad Aslam appellant in his statements under sectiion 342, Cr.P.C. Stated that he being an employee of Abdur Rashid appellant has been falsely involved in the case and that Muhammad Akram appellant and Muhammad Afzal convict paid Rs,20,000 each to Yaqoob Ahmad (PW.5) in his presence for obtaining visas/work permits.
' Muhammad Afzal alias Bobi convict and Muhammad Akram appellant admitted receiving of injuries at the hands of Yaqoob Ahmad (P.W.5) in the occurrence and further made statement similar to that of Abdur Rashid and Muhammad Aslam his co-accused. All the three appellants and Muhammad Anal alias Bobi convict also made statements under section 340, Cr.P.C.
5. Learned counsel for the appellant has contended that according to the prosecution story all the three appellants and Muhammad Afzal their co-convict were armed with fire-arms which were recovered from them at the spot with live cartridges and bullets but it is strange that none of the accused had used weapon in spite of the fact that they were apprehended at the spot by the P.Ws.
And were given beating. He next contended that the injuries on the person of Muhammad Akram and Muhammad Aslam although are simple in nature but are on upper part of the body which circumstance suggests the natural conduct and reaction on the part of accused to use the fire- arm for their protection and safety but non-using of fire-arm by the appellants and Muhammad Afzal convict indicates that they had no weapon with them and the story put by the prosecution is not probable and befitting in the circumstances of the case. He pointed out that Muhammad Hanif A.S.I. (P.W.6) after reaching the place of occurrence immediately conveyed information about the occurrence to the police station on telephone but no report was recorded by the concerned police which fact makes the whole case doubtful and the statement of Yaqoob Ahmad (P.W.5) recorded at the spot seems to be based on concocted facts.
6. Learned counsel for the State in support of the conviction and sentence awarded to the appellants argued that the presence of Yaqoob Ahmad (P.W.5) at the spot at the relevant time is neither unnatural nor can be doubted for the reason that he being the real brother of Dr. Gulzar Muhammad Afzal can come to his brother's house at any time. He further submitted that the facts of the case do not suggest any reason for false implication of the accused.
7. We have heard learned counsel for the parties and also gone through the record with their assistance. The occurrence with most of the facts is not disputed. The presence of Yaqoob Ahmad (P.W.5), the time, place of occurrence and presence of Muhammad Akram appellant and Muhammad Afzal co-convict at the spot is admitted. The only controversy is with regard to the actual occurrence and manner of its happening. Prosecution case is that all the four accused armed with lethal weapons trespassed into the house and committed dacoity whereas as per defence, Muhammad Akram appellant with Muhammad Afzal convict in order to get back their money paid to Yaqoob Ahmad (P.W.5) for providing them job visas in the abroad approached Dr. Gulzar Muhammad Afzal on whose instructions they had gone to his house and were waiting for him, when Yaqoob Ahmad (P.W.5) reached there and a quarrel took place between them on the question of return of money as a result of which, they received injuries at the hand of Yaqoob Ahmad (P.W.5).
' The correctness or otherwise of both the versions is to be examined by putting the same in juxtaposition. Yaqoob Ahmad (P.W.5) was present at the spot when appellants trespassed into the house which situation is suggestive of the fact that the inmates of the house Mst. Zeb-un-Nisa (P.W.3) wife of Dr. Gulzar Muhammad Afzal (P.W.4) and her daughter Mst. Munaza were also present in the house at the relevant time, but we find that there is no mention of these two ladies anywhere in the case. Mst. Zeb-un-Nisa, wife of P.W.4 appeared in the witness-box as (P.W.3) but kept silent about the occurrence and only made statement to the extent of identification of stolen articles. It appears that the two ladies were kept away from the matter purposely which makes the whole case cloudy and of suspicious character. It is not the case of the prosecution that no inmate of the house was available at the relevant time. If the ladies were not present at home at the time of occurrence the entry of Yaqoob Ahmad (P.W.5) and Muhammad Ishaq in the house was not possible. These ladies who were most natural witnesses were not even named in the complaint, and the whole prosecution case revolves around Yaqoob Ahmad (P.W.5). The occurrence took place at about lunch time in the month of December when Yaqoob Ahmad (P.W.5) had gone to see the family members of his brother. No family member came forward to support the prosecution case. It is strange that Dr. Gulzar Muhammad Afzal (P.W.4) was even not informed about the occurrence. The non-production of Muhammad Ishaq and Irshad, the remaining two witnesses is not without purpose in the circumstances of the case.
' The presence of Muhammad Hanif A.S.I. In the area on patrol duty at the relevant time is not supported by any evidence. The entries in the Roznamcha showing his movements were not placed on record. Moreover, he being an official of another police station was not supposed to be on patrol duty in this area. It does not appeal to mind in the facts of the case that the appellants/accused after receiving injuries at the hand of Yaqoob Ahmad (P.W.5) surrendered before him and did not use the weapons carried by them. Thus, the natural conduct of the accused in such circumstances would have to protect themselves otherwise there was no fun for carrying the weapons with them but strange enough that the appellants being dacoits behaved like law- abiding citizens and bowed before P.W.5, with no resistance at all. It is not the case of prosecution that Muhammad Hanif A.S.I. (P.W.6) had an official weapon with him and he made all efforts of the accused to escape and did not allow them to use the weapons.
' Taking the case of defence Muhammad Akram appellant and Muhammad Afzal convict received injuries at the hand of Yaqoob Ahmad (P.W.5) in the quarrel which took place between them and P.W.5 in the house of Dr. Gulzar Muhammad Afzal (P.W.4) which fact lends to show that if the remaining accused would have gone to the place of occurrence, there was every possibility of their receiving the injuries or causing the injuries to P.Ws. Therefore, the presence and participation of Abdur Rashid and Muhammad Aslam appellants in the occurrence is not free from doubt. The injuries on the person of Akram and Afzal accused support the defence version of going there to the spot empty-handed.
' Abdur Rashid appellant and Muhammad Akram are real brothers. Abdur Rashid is a tractor mechanic, Muhammad Aslam appellant is Oil Filter Mechanic. Muhammad Afzal convict is a driver and Muhammad Akram appellant is a student of 4th Year. Abdur Rashid appellant claimed relationship with Yaqoob Ahmad (P.W.5) through his wife but the complainant showed himself stranger to the accused till the time they did not disclose their names etc. To him at the spot. The possibility of engaging the services of Yagoob Ahmad (P.W.5) by Abdur Rashid for the purpose of getting job in the abroad and ultimately on his failure either to provide them visas or return of their money, their taking the matter to Dr. Gulzar Muhammad Afzal (P.W.4), bis real brother cannot be ruled out.
From the facts of the case, it transpires that the prosecution story has no nexus to the guilt of the appellants and is not free from doubt whereas the defence version seems to be more plausible, acceptable and befitting in the circumstances of the case.
8. For the foregoing reasons we accept this appeal, set aside the conviction and sentence of the appellants giving them the benefit of doubt and acquit them from the charge.
9. Muhammad Afzal convict has not filed appeal against the conviction and sentence. Since his case is not distinguished to that of Muhammad Akram and Abdur Rashid appellants before us who have been acquitted therefore, the same benefit is allowed to him. He is also acquitted of the charge. The appellants are on bail. Their surety bonds shall stand discharged.