' By present appeal the three accused/appellants have challenged their conviction and sentences awarded to them by Additional Sessions Judge, Sehwan. Each of the appellants was found guilty of offence under section 392, P.P.C. Read with section 34, P.P.C. And they were sentenced to undergo R.I. For five years each in addition to payment of fine of Rs,5,000 each. In case of non-payment of fine each of the appellants had to undergo R.I. For one year more. Benefit of section 382-B, Cr.P.C.
Was extended to the appellants by the trial Court.
2. Prosecution story of the incident in nutshell is to the effect that on 19-3-1996 complainant Mir Muhammad who claimed that he was a Hari and also dealt in sale and purchase of the cattle was going to cattle market alongwith his relatives Usman and Soof at 7-00 a.m. They were riding a motorcycle belonging to Mir Muhammad. On reaching the junction of the road wherefrom a link road was starting for village Mehdi Shah at a place known as "Chak Purano", they were motioned by one person for stopping their motorcycle from a distance. Mir Muhammad stopped the motorcycle near that person. The said person was identified to be accused Nawaz Birhmani. There were two other persons namely Ghulam Mustafa and Ghulam Hussain. Nawaz and Ghulam Mustafa were armed with pistols while Ghulam Hussain was carrying a mouzer. On the pointation of the above arms, the three accused snatched the motorcycle from Mir Muhammad, Usman and Soof. The accused also tied down the P.Ws. From their arms. Mir Muhammad and the P.Ws.
Managed to get free, after the accused had left on the robbed motorcycle. From Mir Muhammad, cash of Rs,1,250, a citizen watch and a silver ring were also robbed while nothing was robbed from the remaining two P.Ws. Namely Usma n and Soof as they were not carrying anything with them.
The P.Ws. Thereafter searched for the accused but finding no clue, finally approached Police Post, Phakka where the complaint of Mir Muhammad was recorded in Roznamcha which was subsequently incorporated as F.I.R. At Police Station, Bhan. The entry in Roznamcha was made at 2- 00 p.m. On 19-3-1996 while the incorporation of the same at Police Station Bhan took place at 4-10 p.m. Of the same day. The police arrested the three accused immediately, and allegedly recovered the motorcycle from their possession, after about 10 days, when all the three accused were found at a bridge, known as "Kamal Khan Ji Mori" at 1-30 p.m. It was on 30-3-1996. The weapons viz. a mauzer (automatic pistol) was also recovered from the possession of accused Nawaz. The motorcycle recovered from possession of the accused was having the same registration number viz. DU-8422.
3. Subsequently, accused Ghulam Mustafa produced a country made pistol on 2-4-1996 and accused Passand produced another country made pistol. All the recoveries 'described above were attested by only policemen and not a single public witness was made the Mashir of the recovery.
4. During the trial, evidence of P.W. Mir Muhammad was recorded who owned the entry in the Roznamcha which bore his thumb-marks and accepted the contents of the F.I.R. And identified the three accused in Court to be the same persons who had committed robbery of the motorcycle, cash, watch and a ring from him. The other P.Ws. Examined were P.W. Muhammad Usman, P.W. Haji Soof, both of whom claimed to be in company of Mir Muhammad on the same motorcycle at the time of incident. They also identified the accused to be the same robbers. All the three victims knew the accused prior to the incident and had, therefore, given their names to the police.
5. The learned counsel for the appellants took pains and pointed out in Court by reading the contents of the Roznamcha (Exh.8/A) and the F.I.R. (Exh.8/B) that names of the accused mentioned in these two documents, were of (i) accused Nawaz (ii) accused Ghulam Mustafa and (iii) one Ghulam Hussain. Conspicuously the name of accused Pasand was absent from the two important documents Exh.8/A and Exh.8/B i.e, the Roznamcha and F.I.R:, and instead name of Ghulam Hussain was included. There is no explanation available on the record as to how and why name of Ghulam Hussain was given to the police at the initial stage which was recorded in the two documents and as to how and why accused Ghulam Hussain was exonerated and as to what is the explanation for implicating accused Pasand in place of Ghulam Hussain. Therefore, it has become difficult to believe the evidence of Mir Muhammad and the two other witnesses when they said that the three persons who robbed the motorcycle from him were the present appellants and they did not include Ghulam Hussain.
6. As regards recovery of pistol from possession of accused Nawaz in this case at the time of his arrest by the police, the learned Court of 2nd Civil Judge and F.C.M., Sehwan'who had tried accused Muhammad Nawaz on the charge that at the time of his arrest he was in possession of the pistol (the alleged weapon of offence in the present case), the story was found doubtful and accused Muhammad Nawaz was acquitted. I find from the judgment of the learned 2nd Civil Judge/F.C.M., Sehwan (Exh.9.B) that the Court had based the finding of acquittal on the ground that private Mashir was not associated by the police.
7. Similarly, argument is advanced by the learned counsel for the appellants that the recovery in case of ether accused was found doubtful when the Court of the Magistrate trying the connected cases under section 13-D, Arms Ordinance had acquitted the co-accused. (Judgments of acquittal by the Magistrate were produced by accused in their statement under section 342, Cr.P.C. Reliance is being placed on the case reported in 1996 PCr.LJ 426.
8. The above argument is advanced in support of all the alleged recoveries i.e, the recovery of the motorcycle, the recovery of country made pistols from possession of accused Ghulam Mustafa and Pasand.
9. In their statements under section 342, Cr.P.C. One of the accused i.e, Muhammad Nawaz while examining himself on oath under section 340(2), Cr.P.C. Claimed that maternal-uncle of complainant Mir Muhammad had filed a murder case under section 302, P.P.C. Against Nawaz cousin Haji Gulab. That case was disposed of by a compromise. A certified true copy of the order of the Special Judge, Dadu disposing of the said case was produced as Exh.9/K. No question challenging accused Nawaz statement about his relationship with Haji Gulab and the relationship of Mir Muhammad with Abdul Razzaq (maternal-uncle of Mir Muhammad) was put in cross- examination. Similarly accused Ghulam Mustafa and Pasand examined themselves on oath and also produced the copies of the judgments by which they were acquitted in the cases of recovery of crime weapons from their possession. These documents are Exhs.20/A and 21/A respectively.
Both Ghulam Mustafa and Pasand had examined themselves on oath under section 340(2), Cr.P.C.
They also claimed the same enmity which was relied on by accused Muhammad Nawaz. Copy of the case diary showing that such case had ended in the Court by a compromise was produced. In cross-examination, the State Counsel had failed to rebut the contention that these accused had relationship and consequently enmity with the complainant party, as a result of the murder case.
No doubt the case had been disposed of, by compromise but the enmity on account of murder is difficult to be forgotten in this part of the country. Therefore, the oral evidence of such inimical P.Ws.
Required independent corroboration which is lacking in this case.
10. Apart from the lack of private Mashirs and the existence of enmity between the complainant and the accused persons, a glaring circumstance is the fact that accused Pasand has been implicated by the prosecution witnesses who are all related inter se although name of accused Pasand was not given to the police in the F.I.R. As one of the accused who had committed the robbery of the motorcycle from Mir Muhammad. I also have gone through the original challan submitted by the police against the present accused to find out the bona fides of the police as to whether the name of Ghulam Hussain who was named as the third accused in the F.I.R. Was kept in column No,2 or not. I am surprised to see that name of Ghulam Hussain is missing from the challan and the police as well as the prosecution witnesses have failed to show as to how name of Ghulam Hussain was given in the F.I.R. And whether he was arrested, whether any evidence was available against him. I also tried to find out as to what had the prosecution witnesses stated in their statements under section 161, Cr.P.C. Before the police at the time of investigation. Neither the statements were available with the State Counsel nor the same have been made available for the Court to peruse them. Therefore, I feel that benefit of doubt arises in favour of the accused that the complainant party might have falsely involved the accused in this case on account of their personal grudge. The lacunas as pointed out above and the lack on part of the learned trial Judge to give due consideration and seek explanation as to how and why, accused Pasand who was not named in the F.I.R. Was substituted and whether there was reasonable explanation available?
Consequently, I find myself constrained to extend benefit of doubt in this case to all the accused/appellants as the cardinal principle of safe dispensation of justice requires and that the Courts should be cautious to see that innocent persons are not convicted even if certain number of guilty persons get away with the acquittals. Resultantly, this appeal is allowed and the impugned judgment and sentence is set aside. The appellants are acquitted. They may be released forthwith if not wanted in any other case.
' These are the reasons for the short order.