' The appellant has assailed his conviction and sentence for an offence under section 17(3) of the Offence Against Property (Enforcement of Hudood) Ordinance, 1979 awarded by the Court of learned Additional Sessions Judge, Kambar sentencing the appellant to R.I. For two years and a fine of Rs,500. In default whereof to undergo further R.I. For 15 days vide his judgment dated 6-10-1998.
2. Facts of the prosecution case briefly stated are that on 18-5-1993 complainant Sobhomal after closing his shop was going back home alongwith his servant P.W. Liaquat Ali with an amount of Rs,2,000 in a plastic cover at about 8.00 p.m. When he was waylaid by four culprits, at Surahia Mosque in the Town of Kambar. It is alleged that the three culprits made their escape good, while fourth one (the present appellant) was caught on the spot. It is also averred that at the relevant moment a police party consisting on P.Ws. Murad Ali, a Head Constable, P.W. Arbab Ali a Police Constable and Police Constable Munawar Abbas also reached there and witnessed the occurrence, finding the appellant in the grip of the complainant. The appellant was thereafter brought at the police station, where the complainant Sobhomal lodged the F.I.R.
3. The Police after conducting usual investigation challaned four accused persons namely Ghazanfar Ali, Khair-Bux, Muhammad Chuttal and Zamir (present appellant). During the pendency of the trial accused Ghazanfar Ali and Muhammad Chuttal were murdered. The cases against them were, therefore, ordered to have abated, while the case proceeded against the remaining two accused including the appellant.
4. The prosecution examined in all six witnesses in support of its case. At the conclusion of the trial accused namely Khair Bux was acquitted while present appellant was convicted as aforesaid.
5. I have heard Mr. Muhammad Afzal Soomro learned Advocate for the appellant and Mr.Ali Azhar Tunio, learned Assistant Advocate-General for the State and have perused the record of evidence and the impugned judgment.
6. It has been contended on behalf of the appellant that the complainant has not supported the prosecution case as he was not examined. Besides, P.Ws. Liaquat Ali, Himath Ali were declared hostile as they too did not support the prosecution. It was further argued that the Mashir Abdul Baqi has also not supported by saying that he knew nothing about the case. It was then contended that the P.Ws. Ali Murad, Arbab Ali and SIP Irshad Ali, who have supported the prosecution are all police officials and their testimony was unreliable. It was urged that the case against the appellant is doubtful and the same merits acquittal.
7. On the other hand learned Assistant Advocate-General appearing for the State has opposed the appeal stating that the complainant is a Hindu shopkeeper and he has not come forward due to fear of further attack: It was further argued that Liaqat Ali and Himath Ali are not the important witnesses and they did not support for the same reasons. Learned Assistant Advocate-General stressed that P.Ws. Ali Murad and Arbab Ali both police officials have supported the prosecution story and they while seeing the appellant grappled by the complainant and having been caught on the spot, succeeded in apprehending the appellant and bringing him at the police station.
Learned A.A.-G further urged that these two prosecution witnesses had no enmity whatsoever with the appellant and there is nothing on the record to show that the appellant was falsely implicated by them. Learned A.A.-G. Lastly urged that the S.I.P. Irshad Ali the Investigating Officer has fully supported the prosecution and in spite of chance to cross-examine these prosecution witnesses, neither the acquitted accused nor the appellant put any question to the Investigating Officer.
Learned A.A.-G has placed reliance upon the case of Allah Bakhsh v. Shammi and others PLD 1980 SC 225.
8. No doubt the complainant, his servant Liaquat Ali, Himath Ali and Mashir Abdul Baqi have not supported the prosecution yet remaining almost equal number of witnesses namely Ali Murad (P.W.3), Arbab Ali (P.W.4) and S.I.P. Irshad Ali (P.W. 6) have supported the case of prosecution. It would be seen that the P.Ws. Ali Murad and Arbab Ali including police Constable Munawar Abbas were forming a patrolling party and happened to reach the place of occurrence and secure the custody of the appellant as aforesaid. These two P.Ws. Like S.I.P. Irshad Ali (P.W.6) have not been cross examined at all, though opportunities to cross-examine the witnesses were fully afforded to the accused. The evidence of a police officer would not be less important than any other prosecution witness in a criminal case unless it is shown that police official witness was not a disinterested witness. Nothing on record has come to label these witnesses as interested, unreliable or untrustworthy. Being fortified in my view by the case-law cited above by the learned A.A.G. In support of his submissions and other dicta of the Hon'ble Supreme Court in the cases reported as (1) Ali Ahmed alias Ali Ahmed Mia v. State PLD 1962 Supreme Court 102), (2) Mali v. State (1969 SCM R 76) and (3) Abdul Majid v. State (PLD 1959 Supreme Court (Pak,) 486) I would refrain from interfering with the impugned judgment.
9. The appellant has suffered, as an under trial prisoner and during the pendency of the appeal, imprisonment of two years which is short by one week only. I further find that the benefit of section 382-B, Cr.P.C. Was not given to the appellant.
10. In view of the above, I would grant benefit of the above Provision of Law to the appellant and reduce his sentence to one already undergone by him.
11. Resultantly, Criminal Appeal No,S-32 of 1998 is dismissed with the above said modification in sentence.
' The appellant is on bail, his bail bond stands discharged.