' This is 'a Criminal Appeal under section 24 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 (Ordinance No,I of 1979) preferred by appellant against the order of his conviction and sentence dated 10-6-1996 passed by Additional Sessions Judge, Panjgur, Balochistan whereby he has been convicted under section 380, P.P.C. And is sentenced to suffer rigorous imprisonment for seven years and fine of Rs,3,000 in default of payment he would further undergo for two months' simple imprisonment. Benefit of section 382-B, Cr.P.C. Is also given to the convict. The appeal was admitted by this Court vide order, dated 2-9-1996 whereby the sentence of fine was suspended till its decision.
2. The facts of the case in brief are that on 18-3-1996 Allah Bux (respondent No,1) and Muhammad Tahir (respondent No,2) filed a complaint in the Court of Sub-Divisional Magistrate, Panjgur under section 9/14 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 read with section 457, P.P.C. The allegations were that the complainants owned and possessed three motorcycles one was 125 super coloured green, second was 100 coloured red and third was also 100 but coloured green. They made all the three motorcycles stand in their Haveli. 100 coloured red was locked, other two were not locked. When they came in the morning of 16-1-1996 for proceeding towards business, they found Super-125 green and 100 colour green missing. (In other words the unlocked two motorcycles were missing). It was alleged further that some unknown house- breakers had stolen the motorcycles and the reason for inordinate delay of two months and two days in reporting the incident to the authorities was shown to be ignorance of procedure of reporting. It was alleged further that on their own the complainants had searched and had almost lost their hopes. Further allegations in the complaint were that sometime after the incident one relative of the complainant went to the shop of Muhammad Sharif for some transaction and there then he came to know that the appellant/convict was selling a Super-125 motorcycle for Rupees six thousand. When asked about the receipt of the payment and verification by some authority of the Government the appellant became angry and refused to do so. Later on another person Akhtar mechanic informed that during Ramazan, at Sehri time, one person left a motorcycle devoid of head and cylinder before his shop. His companions informed him about that. When he came he found the appellant standing near the motorcycle. He wanted to dismantle it. Since it was not the working hour, so he refused. However, the appellant himself took the tool and after dismantling, he put it in a gunny bag. It was alleged further that after having received this information, the complainants contacted police station and reported in writing and although the appellant was called there, but no F.I.R. Was lodged and he was set free.
' The complaint was transferred by Sub-Divisional Magistrate, Panjgur to the Court of Additional Sessions Judge, Panjgur for want of jurisdiction.
3. The appellant was charged under section 9/14, Offences Against Property (Enforcement of Hudood) Ordinance, 1979 by the Court of Additional Sessions Judge, Panjgur for which he pleaded not guilty.
4. The prosecution examined four witnesses. The appellant gave his statement under section 342, Cr.P.C., was also examined on oath under section 340(2), Cr.P.C. And also examined four witnesses in his defence.
5. 1 have heard the arguments of the counsel for appellant as well as State.
' The counsel for appellant has vehemently contended that the complaint suffers from inordinate delay for which no plausible explanation is coming forthwith, that no recovery of the stolen articles has been made: that neither ownership nor possession of the stolen articles has been proved by the complainant; that the ingredients of the theft as defined in section 378 of the Pakistan Penal Code, 1860 are not constituted; that the conviction is based wholly on the circumstantial evidence for which enough corroborating material is not available, on the record: that the impugned judgment is based on conjectures and surmises; that the enmity between the complainants and the appellant is proved from the depositions on the record; and finally that it is a case not proved beyond all reasonable doubts. The learned counsel has relied upon 1996 PCr.LJ 109, 1996 PCr.LJ 136, PLD 1986 Sh.C. (AJ&K) 125, 1991 PCr.LJ 1185, 1991 PCr.LJ 1898; NLR 1996 SD 122 and 1996 PCr.LJ 1061. The learned counsel for State has contended that the appellant has admitted during his statements under section 342, Cr.P.C. And deposition under section 340(2), Cr.P.C. That he had dismantled one motorcycle for some person who had paid him Rs,200 as labour charges and someone else had informed him that he wanted to sell his motorcycle for Rs,6,000 and this is what he had related to Sharif, mechanic (P.W.6). Hence his guilt is proved. When asked about the case-law on the point that the statements of accused can be used against him and that the burden of proof can be shifted in such-like cases from prosecution to the defence, he was unable to do so. On the other hand he admitted that there are infirmities in the impugned judgment and that the prosecution has not acted strictly according to the law of the land at the investigation level, but for that he tried to explain that the people and prosecution of far-off locations in the country are ignorant of the provisions of law and that the prosecution can be condoned for not having followed the provisions of the Code of Criminal Procedure, 1898 and the Qanun-e-Shahadat, 1984. When asked by this Court to cite any law in this connection, he showed his inability.
6. In this case there is neither confession of the appellant, nor any ocular evidence is available. The evidence of prosecution wholly depends on circumstantial evidence. In the absence of direct evidence, the conviction can be upheld only when all the hypothesis of the innocence of accused are ruled out. Such a case must be free from all doubt and no other explanation should be possible except the guilt of the accused. I have gone through the entire record of this case with care. First of all I find that the complaint moved before Sub-Divisional Magistrate, Panjgur on 18-3-1996 is referring to three motorcycles for which neither registration numbers are given nor the name of the manufacturing company is disclosed. During his examination under the provisions of section 202, Cr.P.C. Allah Bux complainant No,1 is making a reference to M/c Yamaha 100 Irani, but again no registration number is given. He has produced a receipt Exh.P.W./1-A. This receipt is in Persian language and is about the sale of motor 125 water-cultured. Neither Yamaha is mentioned in it nor the name of the vendee Allah Bux is appearing whereas Allah Bux is claiming to have purchased it from some shopkeeper of Iran. On the complaint two green cultured motorcycles have been shown as stolen property. One is 125 Super. In the receipt Exh.P.W./1-A, motor 125 is not disclosed to be green. But rather water-cultured (Rang: Aabi). Second complainant Muhammad Ta during examination under section 202 read with 200, Cr.P.C. Is not taking the name "Yamaha" and is producing receipt of purchase of an unidentified motorcycle as Exh.P.W./2-A. This exhibit is not available in the records. Third witness who was examined on oath before charge was framed is Akhtar mechanic. He is disclosing that a motorcycle 100 Yamaha red cultured was standing on his shop at a time when he was going for Fajr prayers during the month of Ramazan. But it is not the case of the complainants. They are alleging that two green coloured motorcycles were stolen. Here Akhtar mechanic is referring to one Red cultured motorcycle which was dismantled by the accused/appellant. This very witness has repeated the same facts in his deposition which he made after the charge was framed and the appellant had not pleaded guilty. Consequently it is not safe to identify the 100 cc green cultured c motorcycle, unregistered and unnumbered, with a red coloured Yamaha of 100 cc which was admittedly dismantled by the appellant. Appellant himself has admitted during his statement that he had dismantled one motorcycle for a consideration of Rs,200 as labour charges. This statement inspires confidence and it cannot be used against him as admission of the guilt as has been done at page No,4 of the impugned judgment.
' So far as green coloured motorcycle 125 cc Super is concerned the receipt in Persian Exh.P.W./A disclosed its colour to be watery.
About this motorcycle Muhammad Sharif, while being examined under section 202 read with 200, Cr.P.C. Disclosed that it was the event of last Ramazan that the appellant was working in his garrage and he wanted to sale a Super motorcycle for Rs,6,000. The same witness during deposition has said that this event was that of five or six days before the last Ramazan. This contradiction is enough to discard his evidence. In this situation the evidence which is not direct, is not free from doubt. On holding this view I am fortified by the rulings of the Full Bench of this Court cited as 1996 PCr.LJ 136 and also ruling appearing as PLD 1986 Sh.C. (AJ&K) 125, 1996 PCr.LJ 109.
' So far as point of animus between the complainant and accused/ appellant is concerned, although denied by the prosecution, yet it is evident from a reply of Muhammad Tahir (P.W.8) during cross. He deposes "It is correct that since the time of your brother Muhammad Alam's marriage, there are no terms of mutual family gatherings". Now the parties are admittedly close relatives, and admittedly the apple of discard commenced from the relationship of a family in which appellant's brother Muhammad Alam married. D.W.1 who is father of the appellant has further clarified the existing animus during his examination-in chief. He says "complainants Tahir and Allah Bux are my relatives. It is an event of about three years ago that I had agreed to arrange the marriage of my son Muhammad Alam with the daughter of Haji Karim Bux. On this Imam Bux and Sumaiya came to my house early in the morning and they are Khala Zads of the complainants. They brought me out of my home and Imam Bux said that I shall kill your son Muhammad Alam and Sumaiya said that whatever you have given to Karim Bux, you take it back and I shall give equivalent to Karim Bux. You finish the expected betrothal of your son with the daughter of Karim Bux. Then I gave an application before S.D.M.. Panjgur against 10/12 persons for keeping peace and then the S.D.M. Took the surety for keeping peace from both the parties". Other D.Ws. Have stated on oath that such an enmity is simmering between the parties. The ongoing simmering enmity is further proved by Exhs.D.W./A and Exh.D.W./B which are F.I.Rs, of offences of varying degrees under sections 337-A, 147, 148, 149 and 336/34 lodged by the parties and/or their close relatives against each other. All these F.I.Rs, are of 1994. It simply means that the parties have been involving each other after the origins of enmity from the point of differences regarding' the betrothal of the brother of appellant with the daughter of Karim Bux. Now it is a common knowledge that in a social framework which is based upon tribal values, the marriage with particular ladies are given highest importance and family honours are felt at stake.
' There is also an inordinate delay in reporting for which no plausible explanation is coming forward.
The incident is that of 16-1-1996. Two months and two days afterwards a direct complaint has been filed for which delay the only explanation is that complainants were unaware about the procedure.
This explanation is falsified by the record itself. According to the deposition of D.W.1 about 2 years prior to this incident proceedings for peacekeeping were taken up by the S.D.M., Panjgur and parties were bound down to give sureties. This has not been denied by the complainants as no such question was posed during the cross. On the contrary, another question regarding reconciliation by M.P.A. Kachokol Ali has been asked which is nothing but an implied admission of such proceedings before S.D.M., Panjgur. Again Exhs.D.W./A and D.W./B, i,e, two F.I.Rs, of 1994 and lodged against each other falsify the stand of ignorance of procedure. Complainant Allah Bux has admitted during cross upon him that he has lived in Masket for 20 years. Both the complainants have admitted that they had purchased the motorcycles from Iran and in this context a receipt of purchase in Persian language has been exhibited as P.W./1-A. All these admissions prove that the complainants are travellers of wide-ranging distances and of countries other than Pakistan. The contention of ignorance of the procedure as to how to report an offence is repelled on this account.
Under such circumstances, the explanation regarding delay of two months and two days is not plausible and it fires back upon the complainant party and creates strong doubts regarding long deliberations before reporting to the authorities concerned.
' For the reasons noted above, the conviction and sentence, dated 10-6-1996 passed by the Additional Sessions Judge, Panjgur against the appellant is set aside and he is acquitted of the charge. He may be released and set at liberty if not wanted in any other case.