' Appellant Muhkumuddin was tried for offence punishable under section 21(2) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 by the Court of Additional Sessions Judge, Gambat and the trial Court convicted and sentenced him to undergo R.I. For five years, five stripes and fine of Rs,50,000. Even forfeiture of immovable property of the appellant was ordered by the trial Court in its judgment. In case of nonpayment of fine, further imprisonment of one year was ordered against the appellant.
2. The above judgment of the trial Court has been challenged by this appeal.
3. The facts giving rise to the present appeal in nutshell are that on 21-10-1998, S.H.O. Of Police Station Gambat by name Saifullah Phulpoto alongwith four police constables namely Muhammad Riaz, Badaruddin, Azizullah and Ghuhram Khan while during the investigation of another crime visited village Mullan Narejo. The S.H.O./complainant claimed that he received spy information at that place that a notorious dacoit Nazroo Narejo was present in the Autaq of appellant/accused Muhkumuddin Narejo who used to provide food and shelter to him. The S.H.O. Also claimed that appellant/accused helped the dacoit in disposing of the robbed property of Nazroo Narejo for which he received share of the proceeds from him. The complainant levelled the allegation of Rassagiri on Muhkumuddin Narejo and registered such F.I.R. Being Crime No,13 of 1998 of Police Station Gambat on that day. The S.H.O. On receiving such information left for the place where the accused/appellant was said to be living and visited the Autaq. He saw five persons sitting on cots in the Autaq belonging to the accused/appellant. It was a Kaccha hut. The five persons said to be present in the said but ran away on seeing the police party but the S.H.O. Arrested appellant Muhkumuddin in presence of police constables Muhammad Riaz and Badaruddin. He claimed that a .32 bore revolver without licence with two live cartridges in it was also recovered from the person of the appellant and after investigation the appellant was challaned to face trial-for an offence punishable under section 21(2) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979.
4. The trial took place in the Court of Additional Sessions Judge, Gambat where the charge under section 21(2) was framed against the appellant but he denied the same.
5. During the trial, prosecution examined P.W. Saifullah Phulpoto the Sub-Inspector of Police who was the S.H.O. Of Police Station, Gambat on the relevant date and he narrated the story as given above. He was cross-examined in which he denied the suggestion that he had arrested the appellant when he was returning to his village after attending the Court in arms case under section 13-D of Police Station, Guloo Sial. He admitted in his cross-examination that the appellant had been challaned earlier in a case under section 13-D and also a case under section 110, Cr.P.C. The S.H.O.
Admitted that he did not follow any of the five persons said to be sitting on cots in the Autaq of the appellant. He admitted that the spy information was received by him when he was present in the village Mulian Narejo at a distance of about 2 k.m. From the alleged Autaq which was Kaccha but of the appellant. He admitted that he did not make any effort to call private Mushirs to come with him to act as witness of the arrest of the appellant.
6. The second witness of the prosecution was Muhammad Riaz, Police Constable. Thereafter, the prosecution closed their side of evidence. Muhammad Riaz in his evidence gave a little varied story when he stated that he had left Police Station Gambat on 21-10-1998 alongwith S.H.O. Saifullah Phulpoto and other police constables for the purpose of patrolling of the area. He stated that they patrolled different places. Thus, he contradicted the contention of S.H.O. Saifullah that they were investigating another crime at the relevant time.
7. In order to appreciate the relevancy of section 21(2) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, it will be beneficial to reproduce the above provision of law:-- "21 Punishment for 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."
8. It is significant that the person who shall be liable under section 21(2) shall be harbourer of person or group of persons engaged in the theft of cattle. (Force applied by me).
9. From the evidence of the two witnesses examined by the prosecution no one has stated a word of theft of cattle against the appellant. The allegation that the appellant was previously challaned in two cases i,e, a case under section 13-D, Arms Ordinance and a case under section 110, Cr.P.C.
Does not appear to be proof of engagement of the appellant in the theft of cattle. Therefore, per se the prosecution evidence does not attract the provisions of section 21(2) of the abovesaid Ordinance. The charge, therefore, appears to be misplaced and the evidence on which the conviction has been based by the trial Court is irrelevant.
10. The learned counsel for the State did not support the judgment for the above reasons and very candidly admitted that in fact no offence appears to have been committed by the accused/appellant and that the learned trial Court had committed gross error in convicting and sentencing the appellant on the basis of the above described evidence. If a person is said to be "engaged in the theft of cattle" (the words used in section 21), such fact could be proved by producing record of theft of cattle by examining witnesses whose cattle were stolen. No such proof was collected by the police during the investigation against the appellant. The words "Rassagiri" or "Patharidari" used in this section necessarily relate to the theft of cattle which is common in our rural areas and the provision of section 21 of the Ordinance appears to have been promulgated for the suppression of such menace. The police is supposed to know the Rassagirs or Patharidars in the area if they come across the persons whose cattle is stolen and is disposed of or shared by such Rassagirs or Patharidars. The police should have made efforts in getting their statements recorded as witnesses and produced as witnesses in appropriate cases.
11. My attention was also invited to the certified copy of judgment passed by Civil Judge and F.C.M.
1st, Gambat in the case under section 13-D, the case filed by the same police against the appellant on the allegation of his being found in possession of an unlicensed weapon at the time of visit of police to his Autaq. By this judgment the appellant was acquitted and it was held that the prosecution evidence on the point of recovery of unlicensed weapon was untrustworthy and unreliable. This being the result of connected case, no different view will be justified in the present case, looking to its circumstances.
12. In the present case, the appellant who was previously challaned in two cases has been implicated by the police apparently for the only reason of his being implicated in previous two cases without any effort on the part of the police to have collected fresh evidence of Rassagiri or Patharidari against the appellant.
13. Consequently, having given my thoughtful consideration to all the facts of the case and the record, I do not find any reason to sustain the judgment passed by the trial Court. The result is that the impugned judgment is set aside and the appellant is acquitted of the charge. He shall be set free by jail authorities if not wanted in any other case.
' These are the detailed reasons for the short order announced on 10-5-2000.