Mst. Makhdaroon wife of Samandar Khan resident of Matwanai was asleep in her house alongwith her children on the night of 5-10-1990 while her husband had gone to Kuwait to earn his livelihood.
At about midnight she was awakened by some noise. Some people with muffled faces and armed with weapons had entered her room and, asked her to keep quite. Two accused came near her cot and the other 3/4 started search of the house. The accused took away various clothes valued at Rs.4,000 a pair of golden Mekhaki valued at Rs.1,500, two ear-rings valued at Rs.3,000, one National Colour T.V. 20" valued at Rs.12,000, one National Tape Recorder valued at Rs.1,400, one National Radio valued at Rs.600 and cash of Rs.20,000. The complainant first informed her brother and then she went to Police Station Daggar, District Swat where she recorded F.I.R. No.352 at 15-15 hours:
2. Dawa Khan a co-accused of the appellant was arrested on 12-10-1990 and 4 pieces of cloth were recovered from his possession. The said accused made a confession on 16-10-1990 wherein he besides himself named appellant Rozal, acquitted accused Sher Umar, Momin and Amir Sultan and two other persons for committing dacoity in the house of one Qayyum. The complainant recorded another statement under section 164, Cr.P.C. On 31-10-1990 wherein she charged co-accused Dawa Khan by name and six other persons for committing dacoity in her house.
3. After his arrest appellant Rozal led the police party on 13-11-1991. To his house in village Nartopa District Attock where, in the presence of Gohar Rehman and Khan Dawran, who were his landlords, he pointed out one tape recorder, Exh.P.9 and one Radio Exh.P.11 which were secured by the Investigating Officer as the alleged case property. Similarly on the pointation of was recovered from Ghulam Raziq in village Hund, District Swabi.
4. Subsequently besides appellant Rozal other accused Sher Umar, Momin and Amir Sultan were also arrested while accused Amir Muhammad and Raizakay were declared absconders. Appellant Rozal and the aforesaid co-- accused Dawa Khan, Sher Umar, Momin and Amir Sultan were sent up for trial before Sessions Judge, Buner who charged them under section 148/149, P.P.C. And section 20 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979. All the 5 accused pleaded not guilt charges and claimed trial.
5. After the conclusion of the trial the learned' Sessions Judge acquitted accused Sher Umar, Momin and Amir Sultan and convicted appellant Rozal and co-accused Dawa Khan under section 20 of the Hudood Ordinance read with, section 395, P.P.C. And sentenced each of them to undergo rigorous imprisonment for 5 years and to pay a fine of Rs.7,000 each or in default to undergo simple imprisonment for one year. The learned Sessions Judge also directed that out of the fine, if recovered, a sum of Rs.13,000 shall be paid to the complainant as compensation. Appellant Rozal has challenged his conviction and sentence by the appeal in hand sent from jail.
6. The facts and circumstances which came to lighter the conclusion of the trial are that all the culprits had muffled their faces when they committed dacoity in the house of the complainant and not one of them was known to her, that no identification parade of appellant Rozal was held after his arrest and he was not identified by the complainant, the at he had been convicted and sentenced on the strength of the confession made by co-accused Dawa Khan on 16-10-1990 from which he had resiled afterwards, and which was exculpatory and according to which he and other culprits had committed dacoity, in the house of one Qayyum. And not in the house of the complainant, that although acquitted accused Sher Umar. Momin and Amir Sultan were also charged for the offences of the same dacoity but they were acquitted on the basis of the same evidence whereas the appellant has been convicted and sentenced, that one tape recorder and one radio were recovered from the house of the appellant at his pointation and one T.V. Set was recovered from Abdul Raziq also at the instance of the appellant but all the three articles were of Phillips make, whereas these articles were of National make according to the F.I.R.
7. All the aforesaid circumstances would clearly state that no cogent and convincing evidence had been produced to bring home the guilt of the appellant beyond any reasonable doubt. For the aforesaid reasons I accept this appeal, set aside the conviction and sentence of the appellant recorded on 10-7-1994 by the learned Sessions Judge, Buner. The appellant is acquitted of the offence for which he was convicted and sentenced. He shall be set at liberty forthwith if not wanted in any other case.