Appellants in this case are Punhal and Ghazi, both sons of Pehlwan, and Juma son of Maula Bakhsh. By judgment dated 20-11-1994 of the learned Sessions Judge Nasirabad at Dera Murad Jamali passed in Hudood Case No.40 of 1994, all the three appellants have been convicted under section 392, P.P.C. And sentenced to three years imprisonment each and also fined Rs.5,000 each and in default in the payment of fine to undergo further six months S.I. Benefit of section 382-B, Cr.P.C. Has been extended to the appellants. Being aggrieved, the three appellants have filed this appeal against the impugned judgment: I have heard Mr. Azizullah Memon, learned counsel for the appellants and Mr. Yakub Khan Eusufzai, learned Advocate-General Baluchistan, who has represented the State. With the assistance of the learned counsel, the entire record has been perused including the impugned judgment.
2. F.I.R. No.32 of 1994 of levies Thana Dera Murad Jamali was registered at 9-15 a.m. On 26-6-1994 by complainant P.W.3 Muhammad Siddique, the place of occurrence being specified to be at distance of about 15 kilometres towards the north of the levies Thana. The F.I.R. Was recorded by P.W.4 Liaqat A.I, Naib Tehsildar Dera Murad Jamali. In his report, complainant Muhammad Siddique stated that a day earlier i.e. 25-6-1994 at about 5 p.m. He and Khair Muhammad (not examined as having won over by the defence) started from Quetta for Jacobabad on two tractors bearing registration No.KJ-3018 and KJ-3019. It was stated that the tractors belonged to Muhammad Ayub Punjabi of Nawabshah and the complainant and Khair Muhammad were his drivers. According to the report, at about 8-30 a.m. On the day of lodging of the report i.e. 26-6-1994 when they reached near a place between Notol and Shori, they saw a tractor standing near the road and three persons near the tractor. According to the complainant, as soon as they reached near them, one of the accused stopped their way and he had a rifle 303 bore and while aiming the rifle at them he asked the drivers to get off the tractors 6therwise they would be killed and because of fear the two drivers left their tractors. According to the complainant, the accused asked them to walk in front and out of the accused one accused started driving the tractor of the complainant and the other accused started their own tractor and Khair Muhammad drove his tractor with the complainant sitting with Khair Muhammad. According to the report, the intention of the accused was that they should proceed towards the east but driver Khair Muhammad acting intelligently drove his tractor speedily towards Notol when from behind the accused with the rifle fired three times which burst the tyre of the tractor being driven by Khair Muhammad but Khair Muhammad and complainant drove the tractor with the burst tyre towards Notol and the accused ran away with the other tractor bearing registration No.KJ-3019. According to the prosecution, a levies party sent towards the place of the incident and following the impressions of the tyres of the tractors reached Mouza Chawon where the party saw tractors standing alongwith three accused. The party saw that the one tractor was not in working condition. Out of the two tractors, one belonged to the accused and the other was the tractor which had been robbed from the complainant party. The levies party apprehended the accused and brought them and the two tractors to the place where the other tractor whose tyre had been burst was packed and P.W.4 Naib Tehsildar Liaqat A.I Incharge Dera Murad Jamali Levies station prepared the recovery memos at the spot. After completion of investigation, the three appellants were challaned. During the trial, 4 witnesses were examined by the prosecution, namely, P.W.1 Tehsildar Tamboo Hazrat A.I who had recorded the statements of P.Ws. Muhammad Siddique (complainant) and Khair Muhammad (not examined) under section 164, Cr.P.C. On 26-6- 1994, which is the date on which the F.I.R. Was recorded and the witness had also recorded the confessions of accused Ghazi (Exh.PA), Punhal (Exh.PB) and Juma (Exh.PC) on 5-7-1994. P.W.2 is Muhammad Yaqoob, levies Jamadar Dera Murad Jamali, who was a member of the party which had gone after the accused and apprehended them and he is also witness of the recovery and arrest of the accused. P.W.3 is complainant Muhammad Siddique, who had lodged the report on 26-6-1994 at levies Thana Dera Murad Jamali. He stated in his evidence that he could not recognize the accused present in Court as culprits or whether the culprits were some other persons, but he admitted that the tractors which were recovered by the levies were their tractors.
P.W.4 is Naib Tehsildar Liaqat A.I, Incharge of the levies Thana Dera Murad Jamali, who is also the Investigating Officer. He had taken the accused to the Tehsildar Tamboo for recording of the confessions of the accused. He had also recorded the F.I.R. On the report of complainant Muhammad Siddique. In his cross-examination, however, he had stated that he had not recorded the F.I.R. Immediately on the report being made by Muhammad Siddique but the F.I.R. Was recorded later. He had headed the levies party which had gone after the accused and the tractors.
Statement of the 3 accused were recorded under section 342, Cr.P.C. In which they denied the prosecution case and also denied that they had made any confessions. The trial Court by judgment dated 20-11-1994 convicted all the appellants and sentenced them as aforesaid.
3. The entire evidence including the exhibits has been perused with great care with the assistance of the learned counsel for the appellants and the learned Advocate-General: From the scrutiny of the evidence and the Exhibits I have reached the conclusion that there are contradictions and infirmities in the evidence adduced by the prosecution. There are certain significant deficiencies also in the prosecution case. Benefit of all these goes to the appellants.
3. The charge framed in this case against the appellants is defective in--asmuch as the date and time of the incident is wrongly mentioned. The charge was framed on 5-9-1994 against the three appellants and it gives the time and date of the incident as 5/6 p.m. On 25-6-1994. It has been noted that the F.I.R. Was lodged at 9-15 p.m. On 26-6-1994. If the incident had taken place on 25-6- 1994 at 5 or 6 p.m., the entire, prosecution case falls to the ground as admittedly the levies party had gone after the accused and the tractors in the morning on 26-6-1994 any time between 7-30 and 9-30 a.m. Which would be more than 12 hours after the time of the incident given in the charge i.e. 5/6 p.m. On 25-6-1994 and by that time it would not be expected that the accused would still be there to be apprehended.
4. According to the evidence of both P.W.2 Muhammad Yaqoob Jamadar levies and P.W.4 Hazrat A.I Naib Tehsildar, they were posted and present at levies Thana Dera Murad Jamali on morning of 26- 6-1994. These two witnesses "contradict each' other on several major points. According to P.W.2 Muhammad Yaqoob, he was sitting in levies Thana in Dera Murad Jamali at about 7 or 7-30 a.m.
When one Abdul Majeed came to the Thana and informed that his tractor had been snatched between Shori and Notol and on this information the levies party alongwith driver as well as Naib Tehsildar went towards the place of the incident. He talks about the presence of the Naib Tehsildar throughout, who had prepared the memos on the spot. He stated in his cross-examination that, after completion of the formalities on the spot, they returned at about 12 noon. He further stated in very clear terms that in the party except driver Abdul Majeed no other private person was present.
When the evidence of P.W.2 Jamadar levies Muhammad Yaqoob is compared with the evidence of Naib Tehsildar Liaqat A.I, Incharge of levies Thana Dera Murad Jamali, several contradictions come to light. According to P.W.2, Abdul Majeed driver had come to the Thana and informed about the snatching of his tractor and the information was given at about 7 to 7-30 a.m. In the morning of 26- 6-1994 but, according to Naib Tehsildar Liaqat A.I, it was 8-30 a.m. Of 26-6-1994 when Muhammad Siddique driver (complainant) came to him at the Thana and informed about the incident and he had gone with the levies alongwith complainant Muhammad Siddique after the culprits. He denied that the report was made by Abdul Majeed. He reiterated in his cross---examination that it was complainant Muhammad Siddique who had made the report and that all along complainant Muhammad Siddique had remained with the levies party headed by Naib Tehsildar Liaqat A.I. In his cross-examination, he also stated that he had not recorded the F.I.R. Immediately but he had recorded the F.I.R. Later. From his evidence it follows that immediately the report was made by complainant Muhammad Siddique, the Naib Tehsildar rushed with the levies party without recording the F.I.R. And when he came after completing the procedures he recorded the F.I.R. And this must have been after 12 noon, as according to P.W. 2 Muhammad Yaqoob, levies party had returned to the Thana after 12 noon. This casts a doubt about the lodging of the F.I.R. At 9-15 a.m. On 26-6-1994. A doubt is created as to who was the complainant. Was it driver Abdul Majeed, as stated by P.W.2, or it was Muhammad Siddique shown as complainant by P.W. Naib Tehsildar Liaquat A.I as also V Muhammad Siddique himself. Doubt has been created as to who had accompanied the levies party, who had gone after the culprits. Was it Abdul Majeed as stated by P.W.2 according to whom apart from Abdul Majeed no other private person was with the levies party. Or it was Muhammad Siddique as stated by P.W.4 Naib Tehsildar Liaqat A.I. No mention is made either by P.W.2 or P.W.4 about the presence of Khair Muhammad (the other driver) in their evidence. According to P.W.2, the tractor of Abdul Majeed driver had been snatched but Abdul Majeed does not find any mention in the F.I.R. Which talks about Muhammad Siddique and Khair Muhammad as drivers of the two tractors. All these material contradictions cast a doubt as to the prosecution version of the report of the incident at the Thana and the search of the appellants, their apprehension and taking into custody of the tractors.
4. The incident has taken place in the morning of 26-6-1994, according to the prosecution version.
According to P.W.2, the levies party goes after the culprits, apprehends them, takes custody of the tractors and comes back to the Thana after 12 noon and, during all this period, Naib Tehsildar Liaqat A.I was present being incharge of the levies party, but evidence of P.W.1 Tehsildar Hazrat A.I shows that on the same day, i.e. 26-6-1994, Naib Tehsildar Liaqat A.I had produced complainant Muhammad Siddique and Khair Muhammad (the other driver who had not been examined during the trial) before Tehsildar Tamboo for recording their statements under section 164, Cr.P.C. No mention is made either in the evidence of P.W.1 Hazrat A.I, Tehsildar or P.W.4 Naib Tehsildar Liaqat A.I about the time when the two witnesses were produced before the Tehsildar for recording their statements under section 164, Cr.P.C. The statement under section 164, Cr.P.C. Of Khair Muhammad is Exh.PD and that of complainant Muhammad Siddiqve is Exh.PE. These statements also do not give the time. These statements perhaps were recorded on 26-6-1994, even if the same had been recorded, the time would be after-noon or evening on 26-6-1994 as the levies party returns to the Thana around noon and till that time the statements of the witnesses had not been recorded under section 164, Cr.P.C. Then- by that time the names of the accused were known and it is admitted by Tehsildar Hazrat A.I that the two witnesses Muhammad Siddique as well as Khair Muhammad in their statements under section 164, Cr.P.C. Had not mentioned the names of the culprits. A doubt is created as to whether these two statements under section 164, Cr.P.C. Had at all been recorded as is the case of the prosecution.
5. The prosecution has relied upon the confessions of the three appellants (Exhs.PA, PB and PC) recorded by P.W.1 Tehsildar Hazrat A.I, who was posted at Tamboo. The Tehsildar. In this cross- examination admitted that it is not mentioned in the confessions that he had got hand-cuffs of the accused removed and had turned out the levies personnel from the Court room before the confessions were recorded; then he recorded the confessions of three accused on the same day i.e. 5-7-1994 and gave time of half-an-hour to all the three accused at the same time and not separately. He also admitted that in the confessions it is not mentioned that he had informed the accused that in case they did not give any confessions they would be still to send judicial custody.
It has also been admitted by the Tehsildar that the case related to Dera Murad Jamali and that in Dera Murad Jamali there was a District Magistrate and an Additional Magistrate and S.D.M. And that his office is situated about 15 miles from Dera Murad Jamali but still the prosecution considered it appropriate to get the confessions recorded before Tehsildar Tamboo, 15 miles away from Dera Murad Jamali rather than before a Magistrate in Dera Murad Jamali. In my view, the aforesaid infirmities make the confessions inadmissible.
The confessions by themselves also do not support the prosecution case. In their confessional statements, no mention is made of the use of any fire-arms by any of the accused. The confessions talk about a civil dispute between Haji Mir Dil and accused Punhal. According to Punhal's confession, one tractor had been sold by Punhal to Haji Mir Dil for Rs.1,80,000 out of which only Rs.80,000 had been given to Punhal by Haji Mir Dil and the balance of Rs.1,00,000 was due. As the said tractor, subject-matter of this case, belonged to Haji Mir Dil, Punhal had detained on the tractors and had informed drivers that the said tractor could be taken by Haji Mir Dil after payment of balance amount of Rs.1,00,000. P.W.1 Tehsildar Hazrat A.I also states in his cross-examination that from the confessions of the accused it appears that the tractors had been taken away in connection with a civil dispute. The confessions, even otherwise, do not support the prosecution version.
6. On account of the aforesaid contradictions, infirmities and deficiencies in the prosecution case, a doubt had been created about the prosecution case against the appellants Am were, therefore, entitled to acquittal.
7. As a result, Criminal Appeal No.74/Q of 1994 is allowed, the impugned judgment dated 20-11-1994 of the learned Sessions Judge, Nasirabad at Dera Murad Jamali, is set aside and the three appellants acquitted of the charge. The appellants are on bail from this Court. Their bail bonds are discharged.