' Muhammad Hayat aged 35 years, Noor Muhammad aged 25 years, Allah Ditta aged 24 years (appellants in Criminal Appeal No,1227 of 1998), Nasir Abbas aged 10 years' (appellant in Criminal Appeal No,1229 of 1998), Anwar aged 25 years (appellant in Criminal Appeal No,13-J of 1999) and Kausar Ali aged 24 years (appellant in Criminal Appeal No,14-J of 1999) have been convicted by Ch. Muhammad Ikram, Special Judge Anti-Terrorism (Punjab), Faisalabad, vide judgment/order, dated the 18th of December, 1998, under section 395, P.P.C., and sentenced to 10 years' R.I., each alongwith a fine of Rs,50,000 each and in case of default in the payment of fine to further 2-1/2 years' imprisonment.
' They have also been convicted under section 397, P.P.C., and sentenced to 7 years, R.I.
' Their conviction has also been recorded under section 365, P.P.C., and they have all been sentenced to 7 years' R.I. Each on 3 counts totalling to 21 years alongwith fine of Rs,50,000 each on each count and in case of default to further 2-1/2 years' R.I. On each count, totalling 7-1/2 years.
They have all been convicted under section 412, P.P.C., and sentenced to 10 years' R.I. Each alongwith a fine of Rs,50,000 each and in case of default to further 2-1/2 years' R.I. Each.
' Finally, they have all been convicted under section 7 of the Anti-Terrorism Act of 1997 and sentenced to 10 years' R.I. Each alongwith a fine of Rs,50,000 each and in case of default to further 2-1/2 years' R.I. Each.
' The sentences have been ordered to run concurrently and the benefit of section 382-B, Cr.P.C., was given to the convicts/appellants.
2. The appellants have appealed against their conviction and sentences by way of these 4 appeals, which have been heard together and are being decided through this judgment.
3. The occurrence allegedly took place on the 27th of August, 1998 at 1-00 p.m. In the area of Naurang Shah, which is at a distance of 10 kilometres from Police Station Ahmadpur Sial of District bang where the first information report (Exh.P.B.) was lodged on the next day i,e,, the 28th of August, 1998 at 10-35 a.m. By Taj Ali, (P.W.2) who claimed himself to be a victim of dacoity and abduction and whose statement was recorded by Sub-Inspector Muhammad Ashraf (P.W.5) and the formal first information report (Exh.P.B.) was drawn under sections 365, 395 and 397, P.P.C.
4. According to the prosecution, complainant Taj Ali (P.W.2) alongwith his brother Muhammad Shabbir (P.W.3) owned a truck bearing Registration No,DN-6849, which they used for commercial purposes. On the date of occurrence they loaded 150 bags of yarn worth about Rs,10,00,000 on their truck from Rahim Bakhsh Textile Mills, Dera Ghazi Khan, for transporting the bags to Faisalabad. At noon time when they reached the area of Naurang Shah in District Jhang, a Suzuki Pick-up overtook them and stopped the truck. The appellants came out of the said Suzuki Pick-up. Out of the appellants Nasir Abbas was allegedly armed with kalashnikov while Noor Muhammad had a club (Sota) with which he inflicted an injury on the head of Muhammad Shabbir (P.W.3).
Muhammad Hayat appellant had a pistol with the butt of which he inflicted injuries on the forehead of Muhammad Shabbir. Nasir Abbas appellant also allegedly inflicted butt blows with his kalashnikov upon the head and legs of Muhammad Shabbir who fell down on the metalled road and lost his senses. Thereafter, the accused persons dragged down the complainant and Farzand Ali conductor on gun point. Allah Ditta accused deprived the complainant of his purse containing Rs,1,100 and his identity card. The complainant, his brother Muhammad Shabbir and Farzand Ali conductor were then allegedly bundled into the Suzuki Pick-up by the accused persons with their hands and feet tied with ropes and the truck alongwith bags was driven away while the complainant alongwith his brother and the conductor were subsequently left at a deserted place from where Muhammad Shabbir was taken to the Civil Hospital, Ahmadpur Sial, and the matter was reported next day i,e,, the 28th of August, 1998 at Police Station Ahmadpur Sial.
5. The occurrence was witnessed by Taj Ali (P.W.2), his brother Muhammad Shabbir (P.W.3) and Farzand. Ali, Conductor of the truck, who was not produced by the prosecution.
6. Dr. Ghulam Farid (P.W.1), S.M.O. Rural Health Centre, Ahmadpur Sial, District Jhang, examined Muhammad Shabbir (P.W.3) on the 27th of August, 1998 at 3-15 p.m. And found the following injuries on his person:
(1) A lacerated wound 3 c.m. To c.m. Bone deep, bone exposed with swelling 4 c.m. x c.m. On the right side of the scalp 13 c.m. Above the right ear.
(2) A lacerated wound 2 c.m. x 1/2 c.m. Bone deep, bone exposed on the top of the scalp 12 c.m.
Above the right eye-brow.
(3) A lacerated wound 2 c.m. x 1/2 c.m. Bone deep, bone exposed on the right side of the forehead with swelling 6 c.m. x 4 c.m. Around the wound 3 c.m. Above the right eyebrow.
(4) A lacerated wound 3 c.m. x 1/2 c.m. On the inner side of the right cheek.
(5) An abrasion 2 c.m. x 1/2 c.m. With swelling 4 c.m. x 3 c.m. On the right side of the lower leg.
(6) A superficial laceration 4 c.m. x 3 c.m. On the back of the right hand.
(7) Swelling 8 c.m. x 6 c.m. On the outer and the upper part of right thigh.
(8) A contusion 8 c.m. x 1-1/2 c.m. On the back and upper side of the left leg.
' Injuries Nos.1,
2. And 3 were declared as Shajjah-i-Mudihah while all other injuries were declared simple. All the injuries were caused by blunt weapon within a duration of 1 to 2 nours.
7. The appellants were arrested on the 7th of September, 1998 by Sub-Inspector Muhammad Ashraf (P.W.5).
8. The truck (P.1) bearing registration No,DN-6849 alongwith 150 bags of yarn (P.2) was recovered from an open place near Darbar Sultan Bahu, District Jhang on the 7th of September, 1998 vide recovery memorandum Exh.P.C., which was witnessed by Taj Ali (P.W.2), Sub-Inspector Muhammad Ashraf (P.W.4) and Farzand Ali, who was not produced by the prosecution.
' The identity card (P.4) of Taj Ali (P.W.2) was also recovered on the 7th of September, 1998 vide recovery memorandum Exh.P.E. And was witnessed by Taj Ali (P.W.2) and Farzand Ali, who was not produced and was given up as being unnecessary, ' Sota (P.3) was recovered from Noor Muhammad vide recovery memorandum Exh.P.D., on the same day and was witnessed by the same persons.
' Kalashnikov (P.12) alongwith 28 bullets (P.13/1-28) was recovered from Nasir Abbas on the same day vide recovery memorandum (Exh.P.J.) and was witnessed by Assistant Sub-Inspector Riaz Hussain (P.W.4) and Assistant Sub-Inspector Muhammad Rafique was given up by the prosecution.
' A .30 bore pistol (P.8) alongwith 5 cartridges (P.9/1-5) was recovered from Muhammad Anwar on the same day vide recovery memorandum Exh.P.G. Was witnessed by the same persons.
' Another .30 bore pistol (P.10) alongwith 4 cartridges (P.11/1-4) was recovered on the same day from Muhammad Hayat vide recovery memorandum Exh.P.H. And was witnessed by the same person.
' One 7 mm rifle (P.6) alongwith 5 bullets (P.7/1-5) recovered from Kausar Ali on the same day vide recovery memorandum Exh.P.F. And was witnessed by the same persons.
' Suzuki Pick-up (P.14) bearing Registration No, DN-9229 was recovered vide recovery memorandum Exh.P.J. On the same day and was witnessed by Taj Ali (P.W.2) and Sub-Inspector Muhammad Ashraf (P.W.5) and Farzand Ali, who was not examined.
9. The accused persons pleaded total denial and false implication due to enmity.
' Two persons were produced in defence. Sub-Inspector Muhammad Aslam appeared as D.W,1 and Manzoor Hussain as D.W.2.
10. Learned counsel for the appellants argued that the prosecution case is inherently improbable: that neither the owner of the yarn in question nor the person who was the consignee thereof appeared: that although the accused were not previously known to the prosecution witnesses yet their names caste and parentage have been given in the first information report, which is delayed by 2.2 hours: that no identification parade was held and, therefore, this was a case in which the benefit of doubt should be given to the appellants.
' As against that the learned Assistant Advocate-General argued that the recovery of the truck alongwith bags proved the case of the prosecution beyond all reasonable doubts and that there was no reason for false implication.
11. This seems to be a strange case of dacoity. According to the prosecution the appellants managed to hold up the truck in question carrying the bags of yarn worth about Rs,10,00,000 and were successful in taking it away. Yet, for some strange and unexplained reason the appellants did not try to sell or otherwise dispose of either the truck or the yarn and just abandoned the truck alongwith the bags outside of a shrine. It, thus, becomes difficult to understand this whole exercise which turned out to be an exercise in futility.
' The case of prosecution does seem to be highly improbable to say the very least.
12. It is surprising that when the truck alongwith the bags of yarn was eventually recovered from near a shrine after 12 days of the alleged occurrence nobody came forward to claim the yarn in question, neither the manufacturer from Dera Ghazi Khan nor the purchaser from Faisalabad. No explanation has been given by the prosecution for this phenomenon.
13. The first information report in this case was made 22 hours after the occurrence which tends to caste a doubt on the veracity of the entire prosecution case but that apart there is another surprising feature in the first information report which is that although the accused persons were not known to the complainant or his brother or the conductor, yet the names of all the accused persons with all details of caste and parentage have been given in the first information report.
' The defence evidene tends to show that the Suzuki Pick-up in which the appellants allegedly committed the crime was already in the custody of the Police on the tateful day, which casts a serious doubt on the entire prosecution case.
' It is indeed true that there are serious 'doubts in the case of the prosecution, the benefit of which must go to the appellants according to the established principles of the administration of criminal justice.
14. Resultantly, these appeals are accepted. The conviction and sentence of the appellants is set aside, the appellants are acquitted of all the charges. They shall be set at liberty forthwith unless required in any other case.