SHAIKH ABDUR RAZZAQ, J. - Instant appeal is directed against the judgment dated 8.5.1994 passed by Ch. Muhammad Ali Shad, Additional Sessions Judge. Mianwali whereby he acquitted Sibbat Ullah Khan and Sultan Faisal Khan and convicted Zubair Khan, Abdullah Khan and Amir Umar Khan appellants under Section 379. PPC and sentenced each of them to undergo R.I. For one year.
1. Facts leading to the institution of complaint are that on 1.11.1991 at about 4.00 p.m. While the complainant was on his way for the purchase of tractor plough machine, he was way laid by Zubair Khan, Abdullah Khan, Sibbat Ullah Khan, Sultan Faisal Khan and Amir Umar Khan. On his hue and cry Alam Khan, Mor Khan, Falak Dad Khan and Muhammad Amir Khan were attracted. They tried assailants given severe beating to the complainant and also deprived him of a sum of Rs.40,000/-.
Thereafter the assailants committed house trespass and broke open the lock of the box of the complainant lying in his house and removed Rs.500/-, one Thermos as well as 4 drums of diesel oil.
He brought all these facts into the notice of local police but having failed to get his grievance redressed, moved the instant complainant under Sections 452/355/506/148/149, PPC read with Section 17 Haraba in the Court of Illaqa Magistrate, Mianwali. As the case was triable by the Sessions Court, so the complaint was referred to the learned Sessions Judge Mianwali, who finally entrusted the same to the learned Additional Sessions Judge, Mianwali. The learned Additional Sessions Judge recorded the statement of the complainant and referred the matter to the A.C./Magistrate for holding inquiry under Section 202, Cr.P.C. On the receipt of report under Section 302, Cr.P.C., the learned Additional Sessions Judge summoned the accused to face trial.
3. A charge under Sections 452, 355, 506, 148, 149, PPC read with Section 17 Offence Against Property (Enforcement of Hudood) Ordinance (VI of 1979) was framed to which they pleaded not guilty and claimed trial.
4. In order to prove his case, the complainant recorded his own statement as PW-1 and also got recorded statement of his son Muhammad Amir Khan as PW-2. He thereafter closed his evidence.
The statements of accused were recorded under Section 342, Cr.P.C, wherein they denied the prosecution version and examined Malik Muhammad Amir, Moharrir/Head Constable as DW-1. They also brought on record documents Ex.D-A to Ex.D-H and then closed their defence evidence.
5. After going through the evidence produced by the parties, the learned trial Court while acquitting the co-accused of the appellants, convicted them vide judgment under appeal.
6. Arguments have been heard and record perused.
7. It is evident from record that regarding this very occurrence an application Ex.D-A dated 17.11.1991 was moved by the complainant/respondent No. 2 upon which his statement Ex.D-B was also recorded. A perusal of application Ex.D-A shows that he was given absolutely another version of this occurrence but denied the same while recording his statement Ex.D-B. Now the instant version also falsifies even his statement Ex.D-B. A perusal of application Ex.D-A reveals that occurrence was witnessed by Mor Khan and Alam Khan whereas in the instant complaint he has named Mor Khan, Alam Khan, Khaliq Dad Khan and Muhammad Amir Khan. It is also fact that neither Mor Khan nor Alam Khan were examined by police while conducting inquiry pertaining to application Ex.D-A.
During the trial neither Mor Khan nor Alam Khan were examined as they were said to have been won over by the accused/appellants. Out of for eye-witnesses only one Muhammad Amir Khan, real son of the complainant has been examined. The record evidence that during the enquiry of application Ex.D-A, dated 17.11.1991 the statement of Muhammad Mir Khan as well as Pir Altaf Hussain were recorded which are Ex.D-G and Ex.D-D respectively. The report of A.S.I, who conducted the said investigation coupled with the report of the SHO and D.S.P, have also been brought on record alongwith the statement of Malik Muhammad Amir (DW1) H.C. Which are Ex.D-F., Ex.D-G and Ex.D-H respectively. A perusal of these reports clearly falsify the stand taken by the complainant/respondent in his direct complaint instituted in the Court of Illaqa Magistrate.
8. Be that as it may, the complainant/respondent No. 2 has shown Alam Khan, Mor Khan, Khaliq Dad Khan and Muhammad Amir Khan as eye-witnesses of the alleged occurrence which took place on 1.11.1991. Admittedly Alam Khan and Mor Khan were not examined as they are stated to have been won over by the accused/appellants. Similarly Khaliq Dad Khan could not be examined as he is stated to have died. Thus out of 4 eye-witnesses only one Muhammad Amir Khan has been examined as PW-2 who admittedly is the real son of complainant' of the instant case. Again the contentions raised in the complaint are in direct conflict with his stand taken in the previous application Ex.D-A as well as his subsequent statement Ex.D-B. It is thus clear that complainant has been taking different stands at different times. This being the factual position, the complainant/respondent No. 2 fails to prove his case beyond doubt.
9. In view of the facts stated above, the appeal is accepted and the impugned judgment is set aside. The appellant Zubair Khan is present in Court. His bail bonds are discharged. Abdullah Khan appellant is stated to be in jail. He is ordered to be released forthwith if not required in any other case. Amir Umar Khan appellant is also stated to be on bail, his bail bonds stand discharged.