' Zulfiqar Ali son of Allah Bakhsh and Fida Hussain son of Sultan appellants were tried by Ch: Muhammad Hussain Maiken, Judge, Special Court for Suppression of Terrorist Activities (Special Courts) Act, 1975 Dera Ghazi Khan Division, Dera Ghazi Khan, for an offence under section 392, P.P.C.
In case F.I.R. No,512 of 2000 registered at Police Station Saddar, Dera Ghazi Khan on 18-8-2000. The learned Judge having found both the appellants guilty under section 392, P.P.C. Convicted and sentenced them to undergo rigorous imprisonment for three years each, a fine of Rs,10,000 each was also imposed _and in default of payment of fine both the appellants were to undergo further imprisonment for three months S.I., vide judgment dated 11-6-2001. Benefit of section 382.B, Cr.P.0 was also extended to the appellants. As both the appellants were also convicted and sentenced in another case registered through F.I.R. No,304 relating to Police Station Kot Mubarak, therefore, it was ordered that the sentence of the instant case would run concurrently with the sentence passed in case F.I.R. No,304, Police Station Kot Mubarak afore-referred. It was further stated in the judgment that appellant Fida Hussain was also convicted in another case F.I.R. No,179 registered at Police Station Kala and, therefore, the sentence passed in that F.I.R. Would also run concurrently with the sentence passed in the instant case.
2. The complainant Ali Bakhsh (P. W.1) narrated the incident to Liaqat Ali, Inspector (P.W.3) on 18-8- 2000 at 7-30 a.m. When he was present near Bridge Kot Habit in lieu of his patrol duty who drafted complaint Exh.P.A on the basis of which formal F.I.R. No,512/2000 Exh.P.A was registered with Police Station Saddar, Dera Ghazi Khan on 18-8-2000 by Abdul Karim, H. C/Moharrir, P.W.4. According to F.I.R. The Complainant was going back to his house on his motorcycle at about 9-30 p.m. On 17-8- 2000 after purchasing medicine for his father. When he was at a distance of two acres from railway crossing near minor Chhabriwala, two persons who were previously known to the complainant came on a motor-cycle and stopped the same in front of the motor-cycle of the complainant, thereafter, Zulfiqar appellant who was driving the motor-cycle and armed with pistol and Fida Hussain appellant who was armed with Klashnikov alighted from motor-cycle and after pointing their fire-arms at the complainant asked him to hand over the motor-cycle to them. Fida Hussain appellant also searched the pocket of the complainant and took away his purse, cash Rs,25,000, watch and motorcycle belonging to the complainant. On the hue and cry of the complainant, Shah Doast, Doast Ali and Sher Muhammad P.W.3 reached the scene of occurrence and they also identified the accused. The complainant party tried to locate the accused and failing in their search, they reported the matter to police at 7-30 a.m. On 18-8-2000.
3. Fida Hussain, appellant was arrested on 29-8-2000 because he could not produce the ownership papers of motor-cycle being driven by him. The motor-cycle was taken into possession vide memo. Exh.P.0 on the same date i,e, 29-8-2000 and a perusal of engine number and chassis number made it clear that the recovered motor-cycle was the same which was taken away from the complainant. Klashnikov P.1 alongwith 20 live bullets P.2/1 to 20 were also recovered from Fida Hussain, appellant which were taken into possession vide memo. Exh.P.D.
4. After completion of the investigation, the case was sent up for trial and as the appellants denied the charge and claimed trial, the same commenced. During trial, the prosecution examined six witnesses in support of its case. P. Ws. I and 2 appeared as eye-witnesses. P.W.3 stated about the initial investigation and registration of Exh.P.A. Ijaz Hussain Bokhari, S.I./S.H.O appeared as P.W.5 and stated that about arrest and recoveries effected from Fida Hussain appellant. Khalil Ahmad, Constable P.W.6 stated about recoveries effected from Fida Hussain appellant. P.W.4 Abdul Karim, H. C., stated about formal registration of the F.I.R.
5. After conclusion of the trial statements of both the appellants were recorded under section 342, Cr.P.C. They stated that they were innocent but refused to appear as witness in their own defence as contemplated by section 342 (2), Cr.P.C. They also did not, produce any defence evidence.
6. At the very outset the learned counsel for the appellants stated that he would not press the instant appeal to the extent of Fida Hussain appellant and has argued to the extent of Zulfiqar Ali appellant only. The learned counsel appearing on behalf of State while defending the impugned judgment has argued. That sufficient incriminating material was available against both the appellants.
7. I have heard the learned counsel for the parties and have also gone through the record of the case. The learned counsel for the appellant has rightly not pressed the appeal to the extent of Fida Hussain appellant as P.W.1 has given a straightforward account against him. He is neither inimical towards the appellant nor he has any grudge against Fide Hussain appellant so as to involve him falsely. The stolen motor- ycle was also recovered from him and according to F.I.R. And statement of P.W.1 it was Fida Hussain appellant who took away motor-cycle belonging to the complainant and left with it. It is also in evidence that it was Fida Hussain appellant who removed the cash, watch and purse containing I.D. Card of the complainant. Therefore, this appeal is dismissed qua Fide Hussain son of Sultan. The benefits already extended to him by the trial Court would remain intact.
8. A minute perusal of the record and the evidence available shows that nothing has been recovered from Zulfiqar Ali appellant. The record is also silent as to when Zulfiqar Ali appellant was arrested in this case. While appearing before the trial Court P.W.1 stated that it was Fida Hussain appellant who was armed with Klashnikov and pointed the same at the chest of the complainant.
This P.W. Further stated that Fida Hussain appellant had taken away the motor-cycle belonging to the complainant According to F.I.R. It was Fida Hussain appellant who had searched the complainant and had removed his purse, I.D. Card and cash Rs,25,000 belonging to the complainant. P.W.2 also stated on oath that it was Fida Hussain appellant who put Klashnikov on the head of the complainant and took away his purse alongwith wrist watch. As already stated above, there is nothing on the judicial record stating the arrest of Zulfiqar Ali appellant in the instant case. A perusal of the statement of Ijaz Hussain Bokhari, S.H.O, P.W.5 discloses that on 29-8- 2000 when Fida Hussain appellant was arrested he was all alone. In these circumstances I hold that the prosecution has failed to establish its case against Zulfiqar Ali appellant beyond doubt.
Therefore; I set aside the conviction and sentence passed by the trial Court vide judgment 11-6- 2001 to the extent of Zulfiqar Ali son of Allah Bakhsh and allow this appeal to his extent. He is acquitted of all the charges. He shall be released from Jail forthwith if he is not required in any other case.