' By judgment, dated 23-5-1995 passed by the learned Sessions Judge, Tando Adam, in Session Case No.45 of 1993, appellant Sher Khan son of Amir Bakhsh Rind has been convicted under section 20 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 read with section 392, P.P.C. And he has been sentenced to R.I. For seven years and to pay a fine of Rs.5,000 and in case of default in payment of fine to suffer further R.I. For six months. Benefit of section 382-B, Cr.P.C.
Has been extended to him. Apart from the appellant, there were two other accused, namely, Mohabat and Khadim alias Wado, but they were declared absconders. Being aggrieved, appellant Sher Khan has filed this appeal. I have heard the arguments of Mr. Shahadat Awan, learned counsel for the appellant, and Mr. Agha Zafir Ali, learned counsel for the State. With the assistance of the learned counsel, I have gone through the record including the impugned judgment.
2. F.I.R. No.52/93 was registered at Police Station Tando Adam District Sanghar on 25-6-1993 at 6- 00 a.m. Complainant in this case is Darya Khan son of Moula Bakhsh Saand. In para. 2 of the judgment, the prosecution case according to the F.I.R. (Exh.11/A) has been. Described in detail and the same is reproduced here:- "The brief facts of the prosecution case as per the F.I.R. Exh.11/A lodged by P.W.1 complainant Darya Khan at Police Station, Tando Adam, on 25-6-1993 at 6-00 hours, are that he along with his relative P.W. 2 Muhammad Rahim was going to Tando' Adam from his village on 24-6-1993, with private work. At about 21-00 hours, when they were three kilometers away from Tando Adam, on Khan do Tando Adam, Road, three persons emerged from the sugarcane cultivation and blocked the road with a rope. As a result of said blockage complainant and P.W. Muhammad Rahim fell down along with motor-cycle. On the head light of motor-cycle one culprit was identified by them as Sher Khan son of Amir Bakhsh resident of village MA look June, having pistol in his hand. The rest of the accused were unidentified to them and were armed with pistol and hatchet. All the three culprits robbed from them the motor-cycle. Accused Sher Khan while riding on the robbed motor-cycle went away towards Khando. The complainant and P.W. Muhammad Rahim were made hostages by the remaining two unidentified culprits in the sugarcane cultivation, for half an hour. Thereafter, unidentified persons leaving complainant and P.W. Muhammad Rahim there, went away towards north. The complainant and P.W. Muhammad Rahim, thereafter came at their village where complainant narrated the incident to his brother Muhammad and relative Habib. The complainant thereafter, took the persons from his village, called the foot trackers and followed the foot-prints which led them via Pasa Road Bhit Shah towards Badaruddin graveyard, where they lost the same.
The complainant leaving the foot trackers and other persons at the place himself left for Police Station Tango Adam, and lodged his F.I.R. With Police Station Tando Adam, which was at a distance of. Three kilometers, that accused Sher Khan along with his two unidentified companions robbed from him motor-cycle with registration No.SR8756 Honda CS-70 of Black color valued for Rs.25,000 on 24-6-1993 at 21-00 hours. The F.I.R. Was recorded by Inspector, S.H.O. Hamir Khan of Police Station Tando Adam."
2. The occurrence is alleged to have taken place at 9-00 p.m. a day earlier on 24-6-1993. After completion of the investigation, the appellant was sent up for trial. During the trial, the prosecution examined five witnesses. P.W.1 is complainant Darya Khan Saand; P.W.2 is Muhammad Rahim Saand, the co-victim and first-cousin of the complainant; P.W.3 is Habib son of Khamiso, cousin of the complainant and to whom the incident was narrated by the complainant; P.W.4 is Almandine, cousin of the complainant, who was one of the Mashirs who has subscribed his signature on all the Mashirnamas in this case and the other Mashir Lakhadino was given up by the prosecution; and P.W.5 is Hamir Khan Bhangwar, the Investigating Officer in this case. Statement of the appellant was recorded under section 342, Cr.P.C. In which he denied the prosecution case as false stating that there was political enmity between the two parties on account of which this case has been foisted upon the appellant. Two witnesses were also examined by the appellant. D.W.1 is Bagoo and D.W.2 is Hassan, who have given evidence about party affiliations of the complainant party and the appellant. According to the defense, the complainant party belongs to the Jam Group whereas the appellant belongs to Shah Nawaz Junejo Group and this was put to the prosecution witnesses and it appears to be an admitted position that the two parties belong to different political parties.
' As noted, the occurrence took place at 9-00 p.m. On 24-6-1993; F.I.R. Was lodged next morning on 25-6-1993 at 6-00 a.m.; the appellant was arrested from his house at 7-00 a.m. On 25-6-1993 which house is situated in the nearby village and, after his arrest, motor-cycle was recovered from him. It has also been noticed that, according to the prosecution, there were three accused and, according to the prosecution, appellant-disclosed-the names of the other two accused as Mohabat and Khadim, but they could not be arrested and were declared as absconders.
3. In support of the present appeal, learned counsel for the appellant has raised the following contentions:--
(a) There is a delay of 9 hours in the lodging of the F.I.R. Inasmuch as the incident is alleged to have taken place at 9-00 p.m. Whereas the F.I.R. Was lodged by complainant Darya Khan on 25-6-1993 at 6-00 a.m. At Police Station Tando Adam which police station is only three kilometres away from the place of occurrence. According to learned counsel, F.I.R. Was lodged after consultation. It was pointed out by learned counsel that, according to P.W.4 Allandino the police had inspected the site at 5-45 a.m., whereas, according to the Investigating Officer he visited the site at 8-00 a.m. Mr. Shahadat Awan, learned counsel for the appellant, submitted that the F.I.R. Was lodged at 6-00 a.m., but according to P.W.4, the police had already visited and inspected site earlier at 5-45 a.m.
And this fact makes the delay of 9 hours in lodging the F.I.R. At 6-00 a.m. Very significant. According to learned counsel, these facts show that deliberations took place and a false case was foisted against the appellant.
(b) According to learned counsel for the appellant, within one hour of the lodging of the F.I.R., the appellant was arrested at 7-00 a.m. On 25-6-1993 from his own house which was located in the next village and the motor-cycle was also recovered immediately thereafter. It was contended that no independent person was associated as a Mashir inasmuch as P.W.4 Allandino Saand is a cousin and the other Mashir Lakhadino was given up by the prosecution. According to learned counsel, by not associating independent Mashers from the area in question, provisions of section 103, Cr.P.C.
Have been violated and the recovery of the motor-cycle from Sher Khan becomes doubtful.
(c) The other contention of learned counsel for the appellant was that there were major contradictions in the testimony of the prosecution witnesses which created a serious doubt about the prosecution case against the appellant;
(d) It was submitted that the prosecution story about the appellant being available in his house in the nearby village and having been arrested within one hour of the lodging of the F.I.R. Of the motor-cycle also being available with the appellant, makes prosecution story apparently unbelievable. According to learned counsel, the prosecution case would indicate that the appellant, after having robbed the motor-cycle from the victims went to his house nearby and waited there with the robbed motor-cycle to be arrested as according to the prosecution version appellant Sher Muhammad had been recognized by both the victims. According to learned counsel, the complainant had deposed that he knew the appellant for about ten years being a resident of the nearby village and that both the victims had seen and recognized the appellant at the time the motor-cycle was robbed. It was argued that the aforesaid conduct of the appellant after he had robbed the two victims according to the prosecution version, is not natural.
(e) It was argued that the case had been foisted upon the appellant on account of political enmity which has been admitted by the prosecution witnesses specially the complainant and the entire case depends upon the testimony of the prosecution witnesses who were closely related to each other. .
4. On the other hand, Mr. Agha Zafir Ali, learned counsel for the State, argued that the prosecution witnesses had established the case against the appellant beyond reasonable doubt and the robbed motor-cycle had been recovered from the custody of the appellant after his arrest, which also confirms the case against the appellant. It was argued on behalf of the State that the prosecution had established its case beyond reasonable doubt and no case for interference was made out. As regards delay in lodging of F.I.R., it was pointed out that this fact by itself does not knock out the prosecution case; non-examination of co-Mashir Lakhadino does not affect prosecution case and the recovery of motor-cycle is established by other evidence given by P.W.4 Allandino Saand. As regards contradictions learned counsel for the State submitted that the said contradictions pointed out on behalf of the appellant were minor in nature and did not weaken the prosecution case.
5. As regards the first contention raised on behalf of the appellant regarding delay of 9 hours in lodging the F.I.R. It may be observed that delay per se (by itself) is generally not sufficient to cast a doubt on the prosecution case. For creating a doubt, either the evidence on record should show or otherwise indicate that delay had taken place as the complainant party was involved in making out a false case against the accused. In the present case, as noted, there is a delay of 9 hours in the lodging of the F.I.R. Robbery of the motor-cycle took place at 9-00 p.m. On 24-6-1993 at a place about three kilometers away from Police Station Tando Adam whereas the complainant lodged the report at the police station next day i.e. 25-6-1993 at 6-00 a.m. This delay by itself could not prejudice the case of the prosecution, but, as pointed out by learned counsel for the appellant, there are other indications in the case which are relevant in this regard. P.W.4 Almandine Saand, a cousin of the complainant, appeared as a Mashir in this case. In his cross-examination he states that he, in the company of Tando Adam Police, reached the place of Wardat at about 5-45 a.m.
And at the place of Wardat the police took at the most ten minutes. The timing given by this witness does not tally with the time which the police was notified about the incident. As stated above, the complainant appeared at the police station at 6-00 a.m. When F.I.R. Was recorded. After this, the police must have gone to the place of Wardat, but Mashir Almandine states that the police had already gone to the place of Wardat along with this Mashir at about 5-45 a.m. The time of 5- 45 a.m. Has been given by this witness himself. If the aforesaid timings are correct, the police in the company of the Mashir went to the place of Wardat and started the investigation before the F.I.R.
Was lodged. Then, within an hour of the lodging of the F.I.R., the appellant is found in his house in the village nearby with the robbed motor-cycle and he is arrested at 7-00 a.m. On the one hand it might show the efficiency of the police, but on the other hand, it could also indicate that. The incident did not take place as averred by the prosecution witnesses but a decision had been taken to involve the appellant in this case and thereafter other things followed. In this background of facts and circumstances, the delay in the lodging of the F.I.R. Assumes importance and casts a doubt as to whether the incident had taken place as alleged by the prosecution and the time of the alleged report, arrest of the appellant and recovery of the motor-cycle are in fact as given by the prosecution witnesses.
6. The prosecution case is also weakened by the fact that, apart from the Investigating Officer, all the four witnesses are very closely related to each other and no effort was made by the prosecution to produce an independent witness. The two victims, after they were robbed, come back to their village and relate the incident to several people, but, apart from complainant's cousin P.W.3 Habib, no other witness was examined. Several foot-trackers, according to the prosecution version, had traced the footprints, but no one from amongst them was examined at the trial. P.W.4 Almandine Saand is closely related to the complainant. He was made one of the Mashirs and he signed all the Mashirnamas as a witness. The other Mashir Lakhadino was not examined by the prosecution for reasons not apparent on the record.
7. Learned counsel for the appellant, during his arguments, pointed out to several contradictions and infirmities in the evidence of the prosecution witnesses. The following contradictions pointed out by learned counsel cannot be described as minor:--
(a) In the F.I.R., the complainant says that he and P.W.2 Rahim were going for private work, but in his evidence during the trial the complainant stated that he was taking P.W. Rahim for his treatment, but surprisingly P.W.2 in his evidence stated that he did not know for what work the complainant was going. He further stated that he was well. This apparent contradiction creates a doubt as to whether P.R. Rahim had accompanied the complainant, as is the case of the prosecution.
(b) After the incident, they returned to the village; according to P.W.2 they related the incident to P.W.3 Habib and others in the Autaq of Suleman, but, according to P.W.3 Habib, he was sitting in the Autaq of Muhammad when the two victims came and narrated the incident.
(c) According to the prosecution case and also in the F.I.R. It is mentioned that the two victims could identify the accused i.e. Their faces were open and not muffled, but P.W.2 Rahim in his evidence stated that appellant's face was open, but the faces of two other accused (absconders) were muffled with towels and, therefore, there could be no question either of P.W.1 or P.W.2 recognizing them later on.
(d) As regards the time when the police reached at the scene of Wardat, there are different versions; as noted, F.I.R. Was lodged at 6-00 a.m., but according to P.W.5, the police along with P.W.4 reached the site at 5-45 a.m., but the Investigating Officer (P.W.5) says that he reached the site at 8-00 a.m.
The aforesaid contradictions cannot be brushed aside lightly and specially for the reason that there is admitted enmity between the parties, the complainant party belonging to the Jam Group and the appellant belonging to Shah Nawaz June Group. The contention of learned counsel that the version as given by the prosecution appears to be unnatural has also some force. If appellant was known to the complainant for over ten years and both parties were residing nearby and appellant had been seen by the two victims when the motorcycle was robbed from them, it would be an unnatural conduct on the part of the appellant to go back and stay in his house with the robbed motor-cycle waiting for the police to come and arrest him.
There is another fact which creates a doubt as to recovery of the motor- I cycle. Questions were asked from the prosecution witnesses that the motor-cycle did not belong to the complainant and was in fact a stolen motor-cycle. Neither the registration number of the motor-cycle was given nor its registration papers were produced to show that the motor-cycle belonged or was owned by the complainant, as was his case.
8. On scrutinizing the evidence I have reached the conclusion that the prosecution had failed to establish its case against the appellant beyond reasonable doubt, benefit whereof should have gone to the appellant.
9. As a result, Criminal Appeal No.40/K of 1995 is allowed, the impugned judgment, dated 23-5-1995 of the learned Sessions Judge, Tando Adam, is set aside and appellant Sher Khan is acquitted of the charge. On close of the arguments on 5-12-1995 this appeal was allowed by a short order.
Detailed reasons for allowing the appeal are given in the present judgment.