' FAZAL ELAHI KHAN, C.J.--- This appeal by Amir Bakhsh son of Moula Bakhsh is directed against the judgment and order of the learned Sessions Judge, Khuzdar, dated 23-6-2001, whereby the accused was convicted under section 392, Pakistan Penal Code and sentenced to suffer fourteen rigorous imprisonment and to pay a fine of Rs,50,000 in default of payment of fine to suffer further one year simple imprisonment.
2. The facts of the case briefly stated are that Muhammad Ismail, Naib-Tehsildar lodged a report on 14-2-2001. He was informed by levy personnel that some unknown culprits had in the area of Samban Baghban on National Highway blocked the road and were busy in looting the vehicles. On such information he alongwith levy personnel reached the place of occurrence, where the firing was on between the dacoits and the levy personnel. Haji Ghulam Muhammad, Tehsildar (P.W.6), registered the case on the report of Muhammad Ismail, Naib-Tehsildar (P.W.1) which is Exh.P.1-A.
Haji Ghulam Muhammad, Tehsildar then took up the investigation and visited the spot. He prepared the site plan Exh.P./6-A. He searched for the footprints of the dacoits and at some distance found a suit case lying on the ground, which was taken into possession vide recovery memo. Exh.P/2-A. He also recovered eight empties and two keys alongwith thirteen empties of Kalashnikov bore fired by the levy personnel, and took the same into possession vide recovery memo. Exh.P/2-B. Thereafter, he handed over the investigation to Haqnawaz, Naib-Tehsildar (P.W.7), who with the help of trackers searched for the accused. The tracker led the footprints traced upto the house of Amir Bakhsh etc., and thereafter it was missing. He recorded the statements of the P.Ws. And that of Amir Bakhsh and Araz Muhammad. Araz Muhammad was discharged on 20-2-2001 as he was found innocent while Amir Bakhsh was sent to judicial lock-up.
He completed the investigation and submitted complete challan against the accused Amir Bakhsh and Araz Muhammad, and also Nabi Bakhsh, Imam Bakhsh and Muhammad Bakhsh absconding accused.
3. The accused were formally charged under section 17(3) of the Offences Against Property (Enforcement of Hadd) Order, 1979 read with section 337(H-2), Pakistan Penal Code, which they denied. The prosecution in support of its case examined Muhammad Ismail, NaibTehsildar (P.W.1), Muhammad Hassan, Risaldar (P.W.2), Khan Muhammad, Levy Constable (P.W.3), Muhammad Yousaf, Levy Constable (P.W.4), Abdul Wahid, Levy Constable (P.W.5), Haji Ghulam Muhammad; Tehsildar (P.W.6) and Haq Nawaz, Naib-Tehsildar (P.W.7). The learned trial Judge framed the following two issues for determination of the guilty of the accused:--
(1) Whether accused Amir Bakhsh and Arz Muhammad alongwith absconders committed robbery at Samban at R.C.D. Highway and looted vehicles?
(2) What offence was committed by accused? The learned trial Judge held as under:-- "In this case there is evidence that only accused's footprints went to the house of accused Amir Bakhsh, P.W.4 Muhammad Yousaf's statement that footprints went to the house of accused Amir Bakhsh and Elahi' Bakhsh, P.W.5, Abdul Wahid deposed that he was on Gasht duty received information that dacoits are looting vehicles. On the next day morning they took footprints of the accused which went to the house of Karim Bakhsh and Amir Bakhsh."
' On such evidence, the learned trial Judge comes to the conclusion as under:-- "From the evidence of P.W.1 to P.W.7 it is proved that accused Amir Bakhsh looted vehicles."
' The learned trial Judge on such findings convicted and sentenced the accused/appellant to the term of imprisonment and fine stated above.
4. It is contended by the learned counsel for the appellant that the case against the accused is of no evidence. That there is neither ocular nor circumstantial evidence to connect the accused with the commission of offence. There was also no evidence of dacoity as not a single person has appeared to depose about the occurrence excepting the levy personnel. It was further contended that though a suit case was recovered at some distance from the spot which was opened and there were found sufficient material to identify its owner but no effort was made whatsoever to trace its owner and to cite him as a witness in support of the commission of the offence. The learned counsel further contended that the judgment given by the learned trial Judge is no judgment at all as neither the evidence has been discussed nor properly appraised and its evidentiary value determined in the light of the plea of innocence raised by the accused/appellant.
5. After hearing the learned counsel for the appellant and perusal of record, we find that this is a typical case of no evidence and that the conviction has been recorded on surmises and conjectures. ##TEs## The Investigating Officer has shown utter disregard for the law and shown his lack of knowledge or has deliberately taken no interest in investigation of the crime. Admittedly it was a night occurrence but when Muhammad Ismail, Naib-Tehsildar (P.W.1) got the information he lodged the report before Haji Ghulam Muhammad, Tehsildar (P.W.6). Muhammad Hassan, Risaldar had stated that he was posted as Risaldar Levy Khuzdar had accompanied Ghulam Muhammad, Tehsildar, (P.W.6) to the spot wherefrom a suit-case was recovered lying on the ground at some distance from the place of occurrence, which the dacoits had thrown and had left behind while decamping from the spot. The suit-case was taken into possession as the case property, and when it was opened it contained 32 articles including some documents in the name of Haji Abdul Wahid, a Cheque Book of P.L.S. A/No,533225, a P.I.A. Ticket, a photo-copy of N.I.C.
Bearing No,602-67-464120 and a cash amount of Rs,7,000 another photocopy of N.I.C. No,602-58- 151163 in the name of Abdul Qayyum and some other documents and articles. He further stated that in his presence the Investigating Officer recovered 8 empties of Kalashnikov, two keys which were taken into possession vide recovery memo. Exh.P/2-A and Exh.P/2-B. Khan Muhammad, constable, (P.W.3) stated to have accompanied Muhammad Ismail, Tehsildar to the place of occurrence where had taken place. That in his presence 13 empties of Kalashnikov were taken into possession vide memo. Exh.P/1-A. Muhammad Yousaf Tracker, (P.W.4) stated that he has visited the spot and had traced the footprints into the house of Nabi Bakhsh and further than that it was missing. In cross-examination he stated that Karim Bakhsh had visited the spot and had traced the footprints a day earlier. He admitted that throughout the area is hilly and stony right from the place of occurrence to Male Sher where the house of Nabi Bakhsh is situated. He admitted that he had received no training of tracking. Abdul Wahid, Levy Constable Khuzdar, (P.W.5) stated to have accompanied the Tehsildar, Karim Bakhsh, Abdul Wahid and 8/10 levy personnel and that the footprints were noticed upto a rainy drain and from there upto the mountain, where again the footprints were missing. Thereafter, they traced the footprints from Gorhi Sang upto a Male Sher, where Nabi Bakhsh, Imam Bakhsh and Maula Bakhsh have their houses. He admitted that these footprints did not reach the house of the accused but they found the same missing at some distance from the house in an open site. Haji Ghulam Muhammad, Tehsildar Khuzdar (P.W.6) stated having recorded the report lodged by Muhammad Ismail, Naib-Tehsildar which is Exh.P/1-A, and that it bears his signature. He stated that after registration of the case he went to the spot, prepared the site plan Exh.P/6-A. He took into possession a suit-case vide memo. Exh.P/2-A and 8 empties and 2 keys vide recovery memo. Exh.P/2-B. He also took into possession 13 empties of Kalashnikovs fired by the levy personnel vide recovery memo. Exh.P/2-B and then handed over the investigation to Haq Nawaz, Tehsildar. Haq Nawaz, Naib-Tehsildar, (P.W.7) stated that on 16-2-2001 he was Naib-Tehsildar Baghbana. He took up the investigation and with the help of the tracker traced the footprints upto the house of Amir Bakhsh and others and in spite of best efforts the footprints were not traced beyond that. He recorded statements of the P.Ws. And that of the tracker and levy personnel. He arrested Amir Bakhsh and Arz Muhammad, But Arz Muhammad was discharged on 24-2-2001 for lack of evidence against him and submitted complete challan against the accused. In cross-examination he admitted that the place where he traced the footprints through the tracker was a path on hilly and stony area. That the footprints of the culprits were traced upto the house of Amir Bakhsh and beyond that to several other houses situated in that area. He stated voluntarily that the house of Amir Bakhsh is at a side from the other houses. He admitted that the area of Baghbana is agricultural one and tractors and other vehicles generally passing through the same path. He admitted that no moulds of the footprints were taken. He further admitted that he did not record the statement of any of the passengers of the vehicles. He further admitted that Ghulam Muhammad, Tehsildar and some levy personnel were suspended in connection with the present occurrence.
6. From the prosecution evidence stated above, the only evidence against the accused is the statement of the alleged tracker (P.W.4). He, apart from being not an expert in tracking did not take the mouls for connecting it with the footprints of the accused/appellant. He has also categorically stated that the area was stony and the footprints were missing at some place and that upto the place where the traced footprints were found, there were several houses.
7. Such being the case, there is great force in the contention of the learned counsel for the appellant that the case against the accused is totally of no evidence and the learned trial Judge failed to apply his judicial mind to the facts of the case. The manner in which the trial Court has proceeded in the case is violative of the principle governing administration of criminal justice.
Conviction can be based on the evidence which connect the accused with the offence beyond any reasonable doubt and in reaching such conclusion the evidence has to be D properly appraised, i,e, the statement of the witness given in examination-in-chief and that in his cross-examination and evaluate its evidentiary value qua the innocence of the accused.
8. It is unfortunate that a suit-case was recovered from the spot and there was several documents including photocopies of two N.I.Cs. And other papers and these were more than sufficient to trace its owner and associated him in the investigation but no efforts were made in this regard.
9. For the reasons stated above the appeal is accepted, the judgment of the trial Court is set aide and the appellant is acquitted. A copy of the I judgment be sent to the D.I.-G. Baghbana for perusal and for necessary orders to trace the owner of the suit-case to deliver the same to him.