' F.I.R. No,49 of 1992 was registered at Police Station Mastung under section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979. According to the prosecution case, on 2-9-1992, at about 10-30 a.m., Abdul Qayyum, Cashier in the Settlement Office, Kalat, lodged a report at Police Station Mastung to the effect that he alongwith his peon Abdul Baqi, was coming back to his office at 9-15 a.m. After collecting a sum of Rs,3,38,970 but, when they reached Baboo Mohalla graveyard, two persons came out from the corner of the club and threw chillies in their eyes, one of them took out a dagger and the other took out a pistol and all the amount which was with the peon, was taken away by the two assailants. According to the prosecution, the two victims, after getting their eyes cleared, followed the assailants and, with the help of other persons the two assailants were apprehended and the snatched amount recovered. After registration of the case, during investigation, the apprehended accused Ghulam Rasool and Muhammad Usmau nominated present appellant Abdul Rahim and one Muhammad Azim (Clerk in the Settlement Department) also to be involved in the offence. Muhammad Azim was arrested, but the present appellant Abdul Rahim absconded and was declared as absconder. The case proceeded against the other three accused, namely, Ghulam Rasool, Muhammad Usman and Muhammad Azim.
Ghulam Rasool and Muhammad Usman were convicted and sentenced by judgment dated 3-3- 1993 of the trial Court, but Muhammad Azim, the clerk in the Settlement Department, was acquitted and the case against the present appellant was kept on dormant file. Convicted accused Ghulam Rasool and Muhammad Usman filed appeal before this Court against their conviction, but their conviction was upheld although their sentence of imprisonment and fine was reduced.
2. Present appellant Abdul Rahim was arrested on 3-1-1994 and, after investigation, challan was submitted and he was tried in Hudood Case No,4 of 1994 by the learned Sessions Judge, Kalat Division at Mastung, under section 17(3) of the Offences Against Property (Enforcement of Hudood)
Ordinance, 1979. The prosecution produced six witnesses in the trial against the present appellant, who was examined under section 342, Cr.P.C., and he also gave statement on oath under section 340(2), Cr.P.C. One defence witness Muhammad Hanif was also produced. The appellant denied the prosecution case stating that it was false. D.W. Muhammad Hanif was examined to establish that appellant had not absconded. By judgment dated 11-8-1994, the appellant was convicted under section 20 of the 1979 Ordinance read with section 392, P.P.C. And sentenced to three years'
R.I. And fine Rs,5,000 and, in default of payment of fine, it was directed that the appellant shall undergo further S.I. For six months. He has been extended the benefit of section 382-B, Cr.P.C.
Against the impugned judgment, dated 11-8-1994, present appeal has been filed which was admitted to regular hearing by order, dated 7-12-1994. An application for suspension of sentence was fixed today, but, with the consent of the learned counsel for the appellant and the learned Advocate-General, regular hearing has been taken up. With the assistance of the two learned counsel, the record has been perused including the evidence adduced at the trial and the impugned judgment, dated 11-8-1994 of the trial Court.
3. The trial Court has found the appellant guilty of abetting the two convicts Ghulam Rasool and Muhammad Usman on the basis of the evidence given by P.W.4 Abdul Sattar, the confessions of the two convicts and the abscondance of the appellant.
4. Apart from P.W.4 Abdul Sattar, no other P.W. Has stated anything against the appellant. The evidence of P.W.4 Abdul Sattar has been examined with great care and caution and it is found that the learned trial Court misread his evidence to the effect that, before the dacoity, the appellant had gone with the two convicts and acquitted accused Azim. The evidence of P.W.4 Abdul Sattar, however, is not as read by the trial Court. According to Abdul Sattar, appellant had gone with acquitted accused Azim and the two convicts had gone separately in other direction. This evidence alone cannot form the basis of conviction of the appellant.
5. The trial Court, wrongly treating the above evidence of P.W.4 Abdul Sattar as the basis of the case against the appellant, found corroboration in the confessions of the two convicts and the abscondance of the appellant. If independent evidence is available to form the basis of conviction of an accused, confession of co-accused may be used for corroboration of such evidence, but the confession of co-accused cannot form the basis of conviction of another accused. In the circumstances, the confessions of the convicts could not be used as evidence against the appellant.
6. As there was no legal evidence available on record, mere abscondence of the appellant could not form the basis of conviction of the appellant.
7. The learned Advocate-General also does not support the conviction of the appellant.
8. As a result, this appeal is allowed, the judgment and sentence, dated 11-8-1994 of the learned Sessions Judge, Kalat Division at Mastung in Hudood Case No,4 of 1994 are set aside and it is directed that appellant Abdul Rahim be released forthwith unless required in some other case.