' Wazir Khan has filed this appeal against the judgment of the learned Anti-Terrorism Court, D.I.
Khan, dated 16-9-2002, whereby he was convicted under section 382, P.P.C. And sentenced to six years' R.I. With a fine of Rs,10,000 or in default in payment of fine to further suffer two years' simple imprisonment.
2. F.I.R. Was lodged by Faizullah Khan (P.W.6) on 22-7-2001 at 9 p.m. It was alleged in the F.I.R. That on the eventful day at about 11 a.m. He alongwith his Datsun happened to be present in Adda, when Munshi of the Adda asked whether he was ready to take his Datsun Pick-up to Tajori. There were three persons; they booked his vehicle for carrying cow to Tajori in consideration of Rs,600. They left the Adda for Tajori reaching at about one p.m., they told that their houses were at some distance towards the West and requested him to take them there. He reached the destination six persons duly armed appeared and signalled the Datsun to stop. He was forced to leave the vehicle and they took away the vehicle. The vehicle was recovered by its owner on 20-8-2001 as a 'result of his own efforts. Wazir was arrested on 31-12-2001. The remaining accused are out-laws. The appellant was charged under section 382, P.P.C. He pleaded not guilty and exercised the right of trial.
3. The prosecution produced as many as 8 witnesses in all.
4. I have gone through the record with the assistance of the learned counsel for the parties as well as Deputy Advocate-General. Admittedly, the star-witness of the prosecution is Faizullah (P.W.6) the maker of the A F.I.R. He made somewhat deviation at the trial by stating that 3 persons hired his vehicle for Tajori for carrying cow on payment of Rs,680. When he reached Tajori, 6 persons duly armed with kalashnikovs included one Sehra GuI boarded in the Datsun. They took charge of the driving and he was made to sit on the top of the roof of the Datsun Pick up while he was made to sit on the top roof of the Datsun; the accused snatched Rs,600 and thereafter he and his cleaner Salahuddin were left. May it be mentioned that he did not name Wazir in the initial report. There is no evidence, direct or circumstantial, to show that the appellant had hatched any conspiracy or had consultation with the other six persons. Similarly evidence is lacking about the existence of sharing common knowledge or prosecution of common object with other six persons. Simply because six persons boarded in the Datsun for Tajori is not enough to burden the appellant with the commission of crime. The vehicle in question was also not recovered from him. P.W.6 Faizullah is silent about direction the appellant left with his cow. Abdur Rashid P.W.7, owner of the vehicle, during the examination-in-chief gave wrong impression that he was also travelling by the same vehicle when the occurrence took place. Another' insurmountable hurdle in the way of prosecution is non-production of Salahuddin, cleaner of the vehicle. No explanation had been given as to why he was not produced. Perusal of the record reveals that he was abandoned as unnecessary. The prosecution has miserably failed, to bring home charge to establish case against the appellant beyond any shadow of doubt.
5. In view of what 'has been discussed above, the appeal is accepted and the appellant is directed to be released forthwith, if not required in any other case.