DR. GHOUS MUHAMMAD, J.--- This appeal is directed against the judgment, dated 24-9-1995 passed by the Special Judge (S.T.A.) Court, Dadu (Haji Ghulam Muhammad Khan H. Durrani) whereby the appellants were convicted and sentenced for the offence under section 392, P.P.C. To undergo R.I. For 8 years and to pay fine of Rs.15,000 each or in default of payment of fine to undergo R.I. For 2 years more.
2. The prosecution story in brief is that on 17-11-1993 at about 10-00 a.m. When complainant Haji Pir Bux entered his house he saw four persons duly armed with deadly weapons and they committed theft in his house by depriving him of gold ornaments, household articles, revolver, motor-cycle and one licensed gun. The incident was witnessed by Muhammad Urs, A.I Akbar and Zaheeruddin.
After the departure of the culprits the complainant lodged F.I.R. No.79 of 1993 on the same day for the offence under section 392, P.P.C. Read with section 14 of the Offences Against Property (Enforcement of Hudood) Ordinance which was recorded by A.S.-I. Ghulam Nabi and then he investigated the matter. After completion of the investigation the S.H.O. Submitted the challan for further proceedings.
3. The charge was framed by the trial Court on 10-1-1994 and it was read out to the appellants but they pleaded not guilty. During the trial prosecution examined the following witnesses:--
(1) P.W.1 Haji Pir Bux is complainant, he produced F.I.R. (Exh.6/A).
(2) P.W.2 Muhammad Urs is Mashir of Wardat and identification test. He produced the relevant Mashirnamas (Exhs.7/A and 7/B).
(3) P.W.3 A.S.-I. Ghulam Nabi is Investigation Officer. He had also arrested the appellants (vide Mashirnama Exh.8/A).
(4) P.W.4 S.I.P Ahmed Khan had arranged identification test before the Assistant Mukhtiar kar and T.C.M. Kotri.
(5) P.Ws.5 and 6 A.I Akbar and Zaheer Ahmed also visited the place of incident on the same day after the commission of the alleged offence.
4. The appellants in their statements recorded under section 342, Cr.P.C. Denied all the allegations and further stated that they were not arrested from Loni Kot. They did not examine themselves on oath and also led no evidence in their defence. The learned trial Court formulated the following points: "(1) Whether the present accused after preparation made for causing death, hurt or restrained in order to commit theft?
(2) Whether the present accused have committed theft from the house of the complainant and apprehended by police?
(3) What offence accused have committed?"
5. All the above points were answered in affirmative and the appellants were sentenced and convicted as mentioned above. After considering the evidence and submissions of the learned counsel for the parties the learned trial Court concluded as follows:-- "I am fully satisfied that the above named accused have committed the above offence and the defence counsel have failed to prove any contradiction for the P.Ws. At the time of evidence or at the time of arguments, therefore, in my humble view the present accused have rendered themselves liable for punishment under the above section of P.P.C., as the prosecution have proved its case against accused beyond any shadow of reasonable doubt, so in my view that all the three points are in affirmative.
As discussed above, the circumstances of this case, compelled me in awarding sentence to the present accused as nowadays the Government is very anxious to protect the life and property of innocent citizens from the hands of lawlessness activities, the present accused on the pointation of deadly weapons entered in the house of the complainant and committed the robbery of household articles of the complainant, as the present accused are implicated in the above crime and the prosecution have fully established the case against them, so such type of persons would not entitle any concession, that they should committed the offence from law abiding persons."
6. We have heard Mr. S. Madad A.I Shah learned counsel for the appellants and Mr. A. Sattar Kazi learned A.A.-G. And have also perused the record.
7. The learned counsel for appellants mainly contended that there is not an iota of evidence to connect the appellants with the commission of the alleged offences and the prosecution has miserably failed to prove the charge against them. Learned Additional Advocate-General also frankly conceded to this position. After going through the evidence we find considerable force in the submissions of the learned counsel for the appellants. The most important prosecution witness is P.W.1 Haji Pir Bux who is the complainant. In his statement he gave the details of the incident which took place in his house but he also deposed as follows:--- "I identified accused but I do not remember their names. But I see the present accused and according to my opinion they might be the same persons who had committed the offence. But I am not sure whether they are same or not. I have also mentioned in the F.I.R. That firstly they have spoken Sindhi and after that they used to speak Urdu. "
Afterward he was declared hostile, the learned ST.P. Cross-examined him and he reiterated as follows:-- "At this stage I cannot say whether the present accused are same according to their features or their faces etc. As mentioned in the F. I. R. "
8. P.W. Muhammad Urs has supported the Mashirnama of Wardat but he also deposed only to the extent that the appellants were the same persons who were available at the time of identification test.
9. The testimony of P.W.5 A.I Akber and P.W.6 Zaheer Ahmed is not material as they reached the Wardat when they came to know later on about the incident and by that time, the culprits had already fled from the house of the complainant. The remaining two witnesses are the Investigation Officers.
10. It would also be relevant to observe that the appellants were arrested on 14-12-1993, but their identification test was held on 23-12-1993 and there is no explanation of such delay in holding the identification parade. Furthermore, the Magistrate who had supervised the identification parade, was not examined by the prosecution, while the Mashir of identification test in his testimony admitted that the appellants were shown to him at the police station and then he went alongwith the police for the identification test. From this discussion, it is evident that there is absolutely no evidence against the appellants to indicate their involvement in the commission of the alleged offence, but surprisingly, the trial Court has chosen to observe, without application of independent mind that, "the prosecution has proved the case against the accused beyond any shadow of doubt". We are, therefore, constrained to observe that this kind of judgment is a sheer mockery of justice. It is quite apparent that with a pre-determined mind, in his zeal to award conviction at any cost, the Special Judge lost sight of the fact that the Courts are guardians of the liberty and honour of the citizens. It was therefore, all the more important for the Special Judge to have exercised his powers with greater caution and after consideration of the entire evidence. A Full Bench, in the judgment reported as Muhammad Din v. Zabardast Khan PLD 1972 Azad J&K 7, which was authored by Muhammad Yousuf Saraf, J. (as he then was) has observed:-- "It goes without emphasis that the ability of the Courts to administer justice is the foundation of the modern State. It is the duty of a Judge to ensure not only that he dispenses justice but what is equally of vital importance, that justice also seems to have been done. The characteristic of a good judgment is that it must be self-evident and self---explanatory; in other words, it must contain the reasons that justify the conclusions arrived at and these reasons should be such that a disinterested reader can find convincing or at least reasonable. The reasoning should not be left to the imagination of the reader for such an order is apt to be termed as arbitrary. " (at page 13).
11. In view of the above, we have come to the conclusion that the conviction and sentence awarded to the appellants is not sustainable in law. By a short order today this appeal was allowed by us and it was ordered that the appellants should be released forthwith if not required in any other case. The above are the reasons for the same.