' On 15-5-2000, the learned counsel for the appellant and the State were heard and by a short order on that date, this appeal was allowed for the detailed reasons to be recorded later on.
2. Now I proceed to record the detailed reasons for the said short order.
3. By this appeal, appellant Habibullah alias Bhutto has challenged the judgment and the sentence passed against him by the Additional Sessions Judge, Kandiaro on 27-1-2000.
4. The facts of the case in brief are that on 18-11-1999 S.H.O. Fida Hussain Awan of Police Station, Kandiaro received a spy information that dacoits namely Barkat Ali Khoso and Latif Khoso were present in the Otaq of Habibullah accused in village Mangrio within the jurisdiction of Police Station Kandario. A police party was arranged for raiding the said place in order to arrest the said dacoits.
The S.H.O. At about 5-30 hours alongwith his party reached the Otaq of accused Habibullah. He saw a person standing there who tried to escape on seeing the police party. However, the police party apprehended him and took search of the Otaq (premises used as Mardankhana in the villages in Sindh. The police found as the result of their search that some beds were spread in the Otaq (meaning thereby that some persons were sleeping there who were not present at the time of raid), The police also found pieces of cigarettes, empty packets of biscuits, tea Pots and cups suggesting that some persons must have taken tea and smoked cigarettes there. Habibullah was arrested by the police and interrogated. The S.H.O. Claimed that from the interrogation of accused Habibullah, he formed the opinion that Barkat Ali Khoso and Latif Khoso, the dacoits were staying there during the past night and that they had left the place shortly before the police reached there.
5. The S.H.O. Arrested accused Habibullah, prepared Mushirnama of the arrest in presence of A.S.- I.P. Muhammad Yousaf Abro and Head Constable Syed Ghulam Qasim Shah. He also prepared the inspection memo. Of the site viz. The Otaq on torch light in presence of the same witnesses. He noticed footprints of four persons outside the said Otaq which were tracked by A.S.-I. Muhammad Yousaf Abro and P.C. Abdul Majeed and other police personnels leading nowhere. The S.H.O.
Brought accused Habibullah at the police station. On recording the statements of the members of the police party who had raided the Otaq, the S.H.O. Completed the investigation and produced the challan against the accused/appellant; Habibullah for an offence punishable under section 21(2) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance). The appellant denied the charge and faced the trial, but the Court convicted and sentenced him to suffer R.I. For ten years. The benefit of section 382-B, Cr.P.C. Was extended to him.
6. In the trial, prosecution examined only two witnesses i.e. Muhammad Yousaf Abro, A.S.-I. Of Police Station Kandiaro, and Fida Hussain Awan, the S.H.O. Of the same police station at the relevant time.
7. P.W. Fida Hussain (Exh.6) stated in the Court the facts as narrated above and produced the Mushimama of arrest Exh.6/B, F.I.R. Exh.6/C, the entry made by him in the Roznamcha showing his arrival at Police Station Kandiaro after arresting the accused Habibullah Exh.6/D. In his cross- examination, he stated that he had received the spy information at 4-45 a.m. On the night and disclosed further that since he knew the place i.e. The Otaq of the accused, he did not take the spy with him to the place of occurrence. He also stated in cross-examination that on his way to the Otaq there was a police picket where the police was present but he never cared to take any police constable from that picket. He admitted that it was dark when he reached the place of incident and had parked the police mobile near the Otaq of the accused and had seen the accused for the first time at a distance of 25 paces. He also admitted that he did not call any person from the village to act as Mushir. He further admitted that he had never, registered any other case, against accused Habibullah nor had appeared as witness against him in any case although in examination-in-chief he had stated that accused Habibullah was challaned in various criminal cases in other crimes.
8. Similarly the deposition of P.W. Muhammad Yousaf Abro (Exh.8) was generally to the same effect.
In cross-examination, he admitted that police party including the S.H.O. Did not join any person in the investigation and no person from town of Kandiaro was asked to act as Mushir in this case. He further stated before the trial Court that in all 15 minutes were the time taken by the police in completing the investigation of this case.
9. All the other prosecution witnesses were given up but they did not include any private person.
10. In his statement under section 342, Cr.P.C. The accused denied all the allegations of the prosecution and stated that police had demanded a sum of Rs,5;000 from him which he did not pay and further stated that he had moved a complaint to the Sessions Judge, Noshero. Feroz against Kandiaro police showing that a sum of Rs,5,000 was demanded by Kandiaro police which he had refused to pay. Such complaint against Kandiaro police was produced in Court as Exh.10/A.
11. Exh.10/A is the certified true copy of a written complaint purporting to have been made by one Suleman Mangrio of village Andal Mangrio addressed to the Sessions Judge and the Chairman of the Human Rights, Noshero Feroz. The contents of the complaint showed that Suleman had protested violation of human rights of accused Habibullah (son of Suleman Mangrio) as he was arrested and dragged to Police Station, Kandiaro and wrongly confined in police station as the police was demanding a sum of Rs,5,000 for his request which was refused by Suleman father of accused Habibullah. Such complaint was, dated 18-11-1999 and the learned Sessions Judge had ordered notice of such complaint to S.H.O., Police Station, Kandiaro on the same,
12. The F.I.R. Of this case was also registered on 18-11-1999 at about 6-30 a.m.
13. In the judgment, the learned trial Judge framed the points for consideration as under:-- "Whether on 18-11-1999 at 5-30 a.m. Accused extended protection to the dacoits Barkat Ali Khoso and Latif Khoso and their companions, served them with meals in his Otaq situated in village Andal Mangrio, Deh Bazeedpur, Taluka Kandiaro?"
' The second point for consideration was:- "What offence, if any, was committed by accused?"
' As the result of his summing up the evidence, he came to the conclusion that point No,1 was proved and with respect to point No,2 it was held that the accused had committed offence under section 21(2) of the Ordinance and was, therefore, convicted to undergo R.I. For ten years.
14. It is very strange that the learned trial Judge reached the above conclusion from the evidence discussed above. I have gone through the evidence and the record of the case minutely. The provisions of section 21(2) of the Ordinance have also been studied and considered its application.
It shall be beneficial to reproduce the contents of the above provisions:-- "21 Punishment of Rassagiri or Patharidari.--- (1) Whoever, extends patronage, protection or assistance in any form to, or harbours any person or group of persons engaged in the theft of cattle, on the understanding that he shall receive one or more of the cattle in respect of which the offence is committed, or a share in the proceeds thereof, is said to commit 'Rassagiri' or 'Patharidari'.
(2) Whoever commits 'Rassagiri' or Patharidari' shall be punished with rigorous imprisonment for a term which may extend to fourteen years, or with whipping not exceeding seventy stripes, and with confiscation of all his immovable property and with fine."
15. The definition of the words "Rassagiri" or Patharidari" which are specific for a case in which a person is tried under this offence, is very necessary. In the very words of subsection (1) of section 21, it is mentioned that a person or group of persons engaged in the theft of cattle, on the understanding that they shall receive one or more of the cattle in respect of which the offence is committed is said to commit Ressagiri or Patharidari. This suggests that only that person could be an accused who is "engaged" in theft of cattle (force applied).
16. In the entire evidence recorded in the trial Court, not a word by any witness was spoken as to when and where Barkat Khoso and Latif Khoso ever indulged in cattle theft. As the general knowledge goes, the dacoits do not indulge in cattle theft, and the thieves of cattle are not called dacoits. Dacoits are dangerous persons and for them the penal provisions in P.P.C. Are different than those for the thieves. Therefore, it is clear to me that neither the police nor the learned trial Court has given due consideration to the definition and the ingredients of the offence falling under section 21(2). The charge framed against the accused is also, therefore, misplaced and incorrect inasmuch as no ingredient of the offence under section 21(2) of the Ordinance was read out to the accused and, therefore, he was tried under a wrong and misplaced charge which I am afraid vitiates the whole trial. Apart from what is stated above, no person whose cattle was even stolen appeared as a witness.
17. The learned counsel appearing for the State candidly conceded that not only the charge against the accused was illegal but the conclusion arrived at by the learned trial Judge on the evidence on record was incorrect, and uncalled for and, therefore, the judgment and the sentence of the trial Court was not supported by him. In fact the case in hand could not be said to fall under section 21(1) or 21(2), as far the evidence produced in trial was concerned.
18. I had given deep consideration to the facts of the case and the record before pronouncing the acceptance of the appeal by the short order. For the above reasons, the appeal was accepted by the short order, dated 15-5-2000.