' This appeal has been filed by appellants Nusratullah son of Wali Muhammad and Ahmad son of Muddi Khan against the judgment dated 19-12-1995 of the learned Sessions Judge Mekran at Turbat, whereby the two appellants have been convicted under section 392, P.P.C. Read with section 20 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, and each of them sentenced to three years R.I., and to pay a fine of Rs,2,000 each and in default to suffer S.I. For six months more. Benefit of section 382-B, Cr.P.C. Has been extended to the appellants. I have heard the arguments of Mr. M. Zafar, learned counsel for the appellants and Mr. Yakub Khan Eusufzai learned Advocate-General Balochistan, who has represented the State. With the assistance of the learned counsel, I have gone through the record including the impugned judgment.
2. F.I.R. No,47 of 1992 was lodged on 1-6-1992 at 12-30 p.m. At Police Station Turbat by complainant Dad Muhammad (P.W.2) According to the complainant, who was a Superintendent in the Education Department (women) , on the same day he had withdrawn Rs,2,01,148.06 from the National Bank Turbat and at about 11-45 a.m. He reached his office situated at local Government colony for disbursipg salary to the staff for the month of May, 1992 and at that time P.W.1 Muhammad Umar, P.W.4 Liaqat , P.W. 6 Zahid Ali, P.W.7 Mst. Saira and Muhammad Yusuf (not examined) all employees of the office were present along with Mubarik Ali (not examined), whose wife was a teacher. According to the complainant, at 12-20 p.m., 3 persons entered the premises of his office with one of them holding Klashnikove and the other two armed with pistols and, after threatening the P.Ws., they decamped with the money laying in the drawer of the table. After the culprits ran away, the complainant immediately informed the S.P. And Deputy Commissioner on telephone and thereafter he counted the money and found that he had disbursed an amount of Rs,35,940 while the balance of Rs,1,65,198 was taken away by the culprits. The two appellants and acquitted accused Khurshid were later on arrested as the accused and one Jalil Ahmad son of Haji Mehrab was also found to be involved during the investigation but he absconded. After completion of investigation, the appellants were challaned. During the trial, 10 witnesses were examined by the prosecution. Statements of the accused were recorded under section 342, Cr.P.C. They also gave evidence on oath under section 340(2), Cr.P.C. The appellants also examined three witnesses namely, D.W. 1 Nawab, D.W.2 Fateh Muhammad and D.W.3 Noor Jahan. As observed earlier, according to the original report, 7 prosecution witnesses were present when the robbery took place but, in their evidence none of the said 7 prosecution witnesses identified any of the appellants as the culprits. The amount robbed was not recovered from the appellants.
' The trial Court, realizing that the eye-witnesses had not supported the prosecution case and had not identified any of the accused, sought support from the statements under section 161, Cr.P.C. Of the witnesses. The trial Court also was of the view that the white pick-up in which the culprits had decamped with the robbed money had been identified as the vehicle in which the appellants had gone and for this purpose also the trial Court relied upon the 161, Cr.P.C. Statements of the witnesses.
3. In my view the trial Court erred in law by relying upon the statements of the witnesses under section 161, Cr.P.C. And making the same the basis for the conviction of the appellants. Statements of the witnesses recorded under section 161, Cr.P.C. During the investigation can be used by the accused for the purposes of contradicting the witnesses when they gave evidence during the trial, but the prosecution cannot rely upon such statements as the same are not legal evidence against the accused. The learned Advocate-General very frankly conceded that, on the basis of the evidence on record, the prosecution had not established its case against the appellants.
4. There being no legal evidence on record connecting the two appellants with the crime in question, Criminal Appeal No,3-Q of 1994 is allowed, the impugned judgment dated 19-12-1993 of the learned Sessions Judge, Mekran at Turbat passed in Hudood Case No, 123 of 1992 is set aside and the two appellants, Nusratullah one of Wall Muhammad and Ahmad son of Muddi Khan acquitted of the charge. The appellants are on bail from this Court. Their bail bonds are discharged.