' On receipt of a reference made by Mr. Justice Mukhtar Ahmed Junejo, Judge, High Court of Sindh, through Member, Inspection Team, High Court of Sindh, Karachi, dated 23-2-1992 alongwith the R & P of Sessions Case No,73 of 1985, for examination of judgment dated 28-8-1991, the provisions of Article 203-DD of the Constitution of the Islamic Republic of Pakistan, 1973, were invoked by me, and Criminal Suo Motu Revision No,25/I of 1992 was registered.
' Since some of the documents, such as, complaint, challan and Mashirnama etc. Were in Sindhi language, they were translated in the Branch Registry at Karachi and the matter came up for hearing today with notice to the Advocate-General, Sindh as well as convicted persons as respondents, undergoing sentence in Central Jail, Sukkur.
3. It appears that the complainant, Mumtaz, who was conductor on Bus No,9825/DNA of Malak Bus Service and Ibrahim Khalil, driver of the said bus were going from Karachi to Peshawar. On the night of incident at about 1-30 a.m. When the bus reached Jari Wah near Ghulam Shah on National Highway they saw the road blocked with branches of tree. The driver Ibrahim Khalil stopped the bus. The complainant and 2/3 persons got down from it for clearing the road. Meanwhile, ten persons armed with rifle, guns, revolver, Lathis and hatchets surrounded the bus from both sides of the road. The person who was armed with rifle dragged the driver out of the bus and deprived him of Rs,400 and one Westend watch. The person armed with gun deprived the complainant from his Seiko-5 watch and Rs,6,000 and the remaining culprits were searching the passengeRs, Meanwhile, 2/3 trucks stopped from both sides of the road and at the same time Police of Ghotki also came there. On seeing the police the culprits ran away towards southern side in the jungle.
4. The police registered a case under section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance 1979. The police started the investigation and was able to arrest the accused and put up challan in the Sessions Court, Sukkur.
5. The learned trial Judge, framed the following charges:--"CHARGE ' I, Allah Rakhio Legari, Vth Additional Sessions Judge, Sukkur do hereby charge you:--
(1) Rahib son of Art Bakhsh by caste Shaikh, resident of Village Malik Dino Shah, Taluqa Ghotki.
(2) Jatoi son of Dost Muhammad by cast Shaikh.
(3) Badlo son of Gullo by caste Shaikh.
(4) Gullo son of Tajoo by caste Shaikh. As follows:-- ' That you alongwith co-accused Shafi Muhammad, Sher Muhammad, Amin Allah Dewayo and Ali Nawaz (convicted by Military Court) and absconding accused All Hassan on 17-2-1985 at about 2- 15 a.m. On National Highway leading from Sukkur to Ghotki at Bus Stand of village Ghulam Shah armed with deadly weapons viz. Rifles, Guns, Revolvers, Hatchets and Lathis stopped Bus No,DNA- 9825 and robbed off complainant Pathan and other passengers of the Bus of their belongings such as watches and cash worth Rs,13,800 and thereby committed an offence punishable under section 17(3), Offences Against Property (Enforcement of Hudood) Ordinance, 1979 within the cognizance of this Court.
' And I hereby direct that you be tried by this Court on above-said charge.
' This 24th day of November, 1988.
' (Sd.)
' Vth Additional Sessions Judge, Sukkur."
' The convicts-respondents, having pleaded innocence claimed trial.
6. The prosecution appears to have produced five witnesses and closed its side but the evidence on record available is of four witnesses, namely, Muhammad Rafique, Mahfooz Ali, Ali Sher and Rana Saleemullah only.
7. The learned trial Judge, who recorded the prosecution evidence seems to have been transferred and another learned Judge, after recording the statements of the said accused (convicts- respondents) under section 342, Cr.P.C. (the accused having declined to examine themselves on oath as required under section 340(2), Cr.P.C. And also producing no evidence in defence), by his judgment, dated 28-8-1991, convicted all the four accused for offence of dacoity and sentenced them to R.I. For four years each, with benefit of section 382-B, Cr.P.C.
8. I have perused the entire record and the judgment with the assistance of the learned counsel for the State.
9. As regards the evidence, P.W.1 Muhammad Rafique, was a passenger in the said bus, who was robbed of his watch and one woollen Chadar. In identification parade he picked up the Chadar but not the accused. In fact, he stated that "the accused persons present in Court are not the same who had robbed me and other passengers in the bus". The other witness Mahfooz Ali, a private person - Zamindar, deposed that he was Mashir of the Wardat. The police prepared Mashirnama (Exh.19) and obtained his signature which was testified by him as correct and bearing his signature.
He also acted as Mashir of identification of woollen Chadar in presence of Assistant Mukhtiarkar Ghotki and deposed that the said woollen Chadar was identified by P.W. Muhammad Rafique to be his own. The Shal (Chadar) was produced by the police to the witness Muhammad Rafique with other Shals (Chadars) and Muhammad Rafique identified his Chadar in his presence. Another P.W.3 Ali Sher, Constable, is a formal witness who went to execute summons to complainant and Ibrahim Khalil, the driver. He returned the summons unserved as both of them had left the service of the bus and their whereabouts were not known. The last P.W. Rana Saleemullah, Inspector, Special Branch, Karachi, who was the S.H.O. At Police Station Ghotki on the day of incident has made a detailed statement. He deposed about the investigation, preparation of Mashirnama, arrest of the accused alongwith other accused who were convicted by the Summary Military Court.
He produced the Mashirnama of arrest (Exhs.28, 29 and 30). He is, however, not an eye-wintess.
10. Initially a challan was presented before a Military Court against the co-accused as the above accused were then shown as abscondeRs, After the above four accused were arrested, supplementary challan was presented before the Summary Military Court. It further appears that the trial of the co-accused was perhaps, over resulting in conviction and the Military Court ordered the trial of the above four accused by ordinary Court, one accused, however, and remaining absconder.
11. On considering the evidence available on record it appears that the conviction of the four accused (respondents) is not based on proper evidence. The only eye-witness P.W.1 Muhammad Rafique deposed that the accused facing trial were not the same who robbed him and other passengers of the bus. Out of the remaining three witnesses examined, whose evidence is available on record, one was the Mashir of Wardat, another was the S.H.O. Who recorded F.I.R., visited the place of Wardat and arrested the accused and the last one was the process-server.
12. On the basis of the above evidence the trial cannot result in conviction. I, therefore, set aside the conviction and sentences and order that the four convicts respondents be released from District Jail, Sukkur, forthwith unless required in any other case.
Accused acquitted.