1. ' By this appeal the appellant has challenged the judgment passed by the Sessions Judge, Dadu on 1-12-1992 in S.C. No,257 of 1991 whereby he has convicted the appellants under section 392/34, P.P.C.
2. And sentenced him to suffer R.I. For three years and to pay a fine of Rs,5,000 or in case of default to undergo further R.I. For one year. The appellant is allowed benefit under section 382-B, Cr. P.0 C.
3. ' Briefly the facts are that on 6-8-1991 an F.I.R. Was registered with the Railway Police Station, Dadu on the application of the complainant Syed Masood Ahmed. The complainant has asserted that he had boarded Bolan Mail from Kotri Railway Station for going towards Quetta and was occupying a seat in Sleeper Class. The train had reached Dadu Railway Station at about 7-30 p.m.. When a number of passengers had disembarked and the complainant had relaxed by keeping his bag under his head when the present accused and his companion entered the compartment and asked him to stand up and deliver his bag and cash. The accused had threatened to get him arrested by foisting some case against him as he claimed to be a member of police personnel. The complainant kept quiet due to fear and the accused snatched the bag from him and also took his wrist watch and cash Rs,350 and tried to escape. The complainant raised alarm whereon the constables on duty at the station and some private persons followed the accused and ultimately the present appellant was caught hold of and the stolen items recovered from him. He was brought to the office of the S.H.O., Railway Police where the complainant was brought who was shown his articles and he identified the same. The police after usual investigation sent up the case for trial. Charge was framed against the appellant under section 392/34, P.P.C. To which he pleaded not guilty and claimed trial. Consequently the prosecution examined complainant Syed Masood Ahmed, P.Ws. Dost Ali, Muhammad Yaqoob who are both Police Constables and so also the S.H.O. Syed Mahmood Shah who is investigating Officer. The statement of accused was recorded under section 342, Cr.P.C. Wherein he denied the allegations and claimed to have-been falsely implicated in the case on account of his enmity with P.W. Abdul Karim, Constable, and claimed matrimonial dispute with the said constables and a blood feud and further submitted that on the given date he was performing his duty at Kotri and it was on his return by Bolan Mail that he was apprehended and falsely implicated in this case. The learned trial Court after hearing the Advocates for the parties framed the following points for determination...--
(I) Whether complainant Syed Masood Ahmed was robbed off cash and valuable articles on that day?
(2) Whether the present accused and one other unidentified person in furtherance of their common intention had robbed the said complainant of his cash and valuable articles by putting him in fear of instant hurt or of instant wrongful restraint?
(3) Whether the robbed articles were recovered from the present accused?
(4) What offence, if any, has been committed by him?
4. ' The trial Court then passed the above said judgment and convicted and sentenced the appellant as stated above.
5. ' I have heard Mr. Shoaib Shibli learned counsel for the appellant and Mr. Allah Bachayo Soomro learned counsel appearing for the State.
6. At the very outset the learned counsel for the appellant has pointed out that there is no iota of evidence to connect the appellant with the commission of the alleged offence. He has referred to the evidence of the complainant himself. I have gone through the deposition of the complainant who in his examination-in chief has stated that he had not been able to identify the present appellant as he had taken off his spectacles when he relaxed on the berth in the railway A.
7. Compartment and had closed his eyes putting his arms over his face. He states that he has weak eyesight and uses spectacle and was not able to see the culprit without his glasses to be able to identify him. It is not in the evidence that the culprit was shown to the complainant at the police station for the purpose of identification. The complainant also states that he was taken by some private persons to the Railway Police Station where he found his bag and cash lying on the table of the S.H.O., he did not see his articles in the hand of the accused. He further states that his wrist- watch was not recovered. Now if the prosecution story as given by the witnesses is to be accepted then the appellant was caught after he was trying to run away having snatched the said articles from the complainant and therefore, he must also be having the said wrist-watch and the absence of the said wrist-watch would raise a doubt. This complainant further states in his evidence that there were some private persons also who had followed the appellant but not a single private witness has been examined by the prosecution in this case. ##ES## ' The learned counsel for the appellant has further argued that in this case although it has come in evidence that the private persons also chased the accused and caught him but yet neither any private person is made Mashir nor a witness in the case. The learned counsel has pointed out that thus the provisions of section 103, Cr.P.C. Have not been complied with. Only two police constables P.Ws. Dost Ali and Muhammad Yagoob have been shown to be the Mashirs in the case. It has not been shown by the prosecution as to why any of the private persons has not been incorporated as a witness or Mashir in the case. No doubt, a police official is also as good a witness as any private person but in order to rely on such evidence it is incumbent on the prosecution to show that an effort was made to join private person as such Mashir or witness and it is only in case no such private person is available that the evidence of the police official can be relied upon.
8. ' In view of the above discussion, the learned counsel appearing for the State who has opposed this appeal is not able to controvert the submissions of the counsel of the appellant. Accordingly, I accept this appeal, set aside the judgment, conviction and sentence awarded by the trial Court.
9. The appellant stands acquitted. He is on bail. His bail bond stands cancelled.