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Criminal Appeal No. 139 of 1967, decided on 27th November 1968.
, Ss. 394 & 397‑Robbery with attempt to cause grievous hurt‑Prosecution signally failing to prove guilt of accused‑Conviction set aside.
Azizullah K. Shaikh for Appellants.
A. Karim Lakhan for the State.
Dates of hearing : 25th and 27th November 1968.
Mushtaq son of Raben (55), his son Kariko (30), Motoo son of Dad Ali (50), and Alkhan son of Iddan (55), all Bugties by caste, residents of Deh Lahri Dombki, Taluka Kandhkot, District Jacobabad, were tried under section 394, P. P. C. read with section 397, P. P. C. Kariko and Alkhan were also tried for offence under section 13‑D of the Arms Act. Mr. Sadiq Ali G. Khoja Additional Sessions Judge Jacobabad, by his order dated 26‑4‑67, convicted and sentenced the aforesaid accused as follows:
Mushtaq:‑Under section 394, P. P. C. to one years' R. I. and a fine of Rs. 1,000 or in default to undergo one years' further R.I.
Kariko:‑Under section 411, P. P. C. sentenced to two years' R. I. and a fine of Rs. 500 or in default to undergo one years' further R. I.
Alkhan:‑(1) Under section 394 read with section 397, P. P. C., sentenced to seven years' R. I. and a fine of Rs. 1,000 or in default one year's further R. I.
(2) Further convicted under section 13‑D of the Arms Act and sentenced to two years' R. I. Both the sentences to run concurrently.
The learned Additional Sessions Judge gave direction that the fine if paid should be given as compensation "to the complainant and his people in equal shares." It is important to observe here that the learned Additional Sessions Judge had recorded that accus ed Motoo was absent and reported in writing that he was dead. He, however, directed "but it needs confirmation from the police. In the meanwhile he is found guilty and sentenced to two years' R. I. and a fine of Rs. 1,000 in default R. I. for one year under section 394, P. P. C."
2. The prosecution story as narrated at the trial is that in the forenoon, Lal Din (P. W. 2) Chijan by caste, alongwith his cousins and family members, Allah Rakhio, Hussain, Suleman and Ishaq were harvesting crop and carrying to the threshing floor while Halim (P. W. 5) at that time was looking after their cattle nearby, when in the meantime some sheep and goats of the "Bugties" trespassed into the land and started damaging the crop. The sheep and the goats were collected by Allah Jurio, Allah Jewayo, Pir Bux and Taiyab P. W. and taken to the cattle pound at Risaldar, situated at a distance of about a furlong from the scene of occurrence. After sometime the four appellants, out of whom Alkhan and Kariko allegedly armed with guns and the other two armed with hatchets, arrived on the scene. The two gunmen started firing in the air and rounded up the bullocks, buffaloes and cows of the complainant party and drove them away to the village. Halim (P. W. 5) allegedly received a pellet injury in the ear, which resulted in bleeding. Lai Din (P. W. 2) placed Halim (P. W. 5) in a bullock cart and carried him to the nearby Police Post Risaldar, where F. C. Aitbar Khan (P. W. 7) recorded his report entered in parchi Exh. 25 at 2‑30 p.m. The name of Kariko appellant is conspicuously missing and in his place one Dattar, son of Sherdil, is said to be one of the four accused. The value of the buffaloes and cows is entered to be Rs. 200. In the parchi an offence under section 382, P. P. C. was indicated. It is important to observe that in the parchi no mention whatsoever of the gun‑shot injury to anybody was made. Lai Din (P. W. 2) after recording the report at the Police Post repaired to Police Station Kandhkot at a distance of 15 miles, where he lodged the F. I. R. Exh. No. 5 at 7‑30 p.m. with Imam Din S. H. O. (P. W. 9). 1t is also important to observe here that in this report, too, the name of Kariko is not mentioned, the person named is one Dattar, son of Sherdil. The name of one Rahim Bakhsh and not Halim is mentioned to have received a pellet injury as a result of the gunshots.
3. Imam Din S. H. O. (P. W. 9) reached the scene of occurrence on 27‑3‑65 and on 1‑4‑65 he raided the cattle‑pen of accused Kariko and secured two cows allegedly belonging to P. W. Muhammad Hussain, two bullocks, belonging to Rato, and one buffalo belonging to Pir Bux, under Mashirnama Exh. 29. Muhammad Azim (P. W. 6), maternal uncle's son of P. W. Lai Din is one of the Mashirs of the said Mashirnama. On the same date the S. H. O. recovered two buffaloes allegedly belonging to one Suleman, four cows belonging to Muhammad Hassan, and one buffalo belonging to Ishaq, under Mashirnarna Exh. P. 22, from the cattle‑pen of Mushtaq.
4. The principal witnesses examined by the prosecution are Laldin (P. W. 2) and Halim (P. W. 5) in regard to the second incident in which the appellant allegedly collected the cattle at gun point and fired shots as a result of which Halim allegedly Trot injured with a pellet in the ear. Jurio (P. W. 3), Taiyab (P. W. 4) and Muhammad Bachal (C. W. 1) were examined to prove the factum of seizure of the sheep and goats belonging to Bugties tribe having been collected and taken to the cattle pound.
5. All the accused pleaded not guilty to the charge and stated that they had been charged on account of bad blood between them and the complainant party over trespassing of the cattle, in that they owned land close to the fields of the complainant party.
6. Mr. Azizullah K. Shaikh, learned counsel for the appel lants, vehemently argued that no case has been brought home to any one of the appellants on any one of the charges and as such they were entitled to acquittal.
7. The learned counsel for the State, on the other hand, argued that the convictions of the appellants were well founded.
8. I have been very elaborately taken through the material evidence and after giving the arguments addressed at the Bar my earnest consideration I have formed the opinion that the prosecution has miserably failed to make out a case against any of the accused, and as such their conviction cannot stand. I now proceed to give my reasons in support of the view.
9. The name of Kariko appellant, as already stated, was not mentioned in the parchi nor in the F. I. R., but in his place one Dattar, son of Sherdil is mentioned, while Kariko is the son of Mushtaq. It was admitted by Lal Din P. W. in his statement at the trial that he had misinformed himself about the name of Kariko and that he was corrected by Halim. Jurio (P. W. 3) in the Committing Court had mentioned Alkhan as Allah Rakho. The other substantial reason which completely discredited the prosecution evidence in regard to the complicity of any one of the appellants in the crime is that in the parchi, as already stated, it is not mentioned at all whether anybody was injured much less that the injured person was Halim. Again, in the F. I. R. one Rahim Bakhsh is said to have received the gun‑shot injury and not Halim. The evidence of Dr. Ghulam Hussain suggests that he had examined Halim (P. W. 5) and found that he was bleeding from the ear, but as a result of X‑ray examination no pellet injury was indicated. The doctor had even on examining Halim not stated that the bleeding was caused with pellet shot. It follows from the above discussion that the pellet injury to any one of the complainant party appears to be an after thought put forward with a view to roping in the accused.
10. The prosecution story from the beginning to the end does not have the ring of truth. The prosecution tried to suggest that the sheep and goats belonging to the three appellants and Motoo deceased accused had strayed into the fields of Lal Din and the same were rounded up and taken to the cattle pound at Risaldar. The evidence of Muhammad Bachal, cattle pound Munshi (C. W. 1) read along with Exh. 11 (at pages 56 to 61 of the paper book) would reveal that Taiyab (P. W. 4) on 24‑3‑65 had en rusted 61 sheep and 152 goats to him. In Exh. 11 under column No. 9, pertaining to the "name, father's name and address of the owner", the entry is Dingo son of Dad Ali, and in Col. No. 10 the "date of return of the owner" is shown to be 28‑3‑65. The said Dingo on payment of the prescribed fee had released the cattle. These entries conclusively show that the sheep and goats which were taken to the cattle pound did not belong to any one of the four accused. It, therefore, follows that the prosecution story that the accused including the three appellants had in retaliation of impounding of their cattle in the cattle pound, taken away the cattle of the complainant party appears to be false.
11. The prosecution had also signally failed to make out a case that any cattle belonging to the complainant party had been taken away. As already stated, in the parchi the value of the cows and buffaloes was given Rs. 200 which will indicate that 'here were one or two cattle. In the F. I. R., too the number of cows, buffaloes and bullocks is not indicated nor they have given any descriptions of the cattle. Strangely enough the prosecution has not examined any one of the owners of the cattle which were allegedly collected by Imam Din S. H. O. (P. W. 9) from the cattle pens of Kariko and Mushtaq. Lastly but not the leastly. Muhammad Azim (P. W. 6) one of the Mashirs of the Mashir nama in regard to the recovery of the cattle from the catty pen of the aforesaid two accused has given a lie to the statement of Imam Din S. H. O. to the effect that any cattle were at all recovered from the cattle pen of the two accused, in that he has stated:
"Police recovered the cattle consisting of 1‑12 heads of cows and buffaloes from a jungle where it was grazing. There were houses of Bugties away from that place where the cattle belonging to Laldin and others were grazing. We did not find any person attending this cattle. We did not find this cattle kept in a cattle pen belonging to any person. Police prepared the Mashirnama about the recovery of this cattle belonging to complainant and his people."
12. The above statement clinches the matter against the prosecution on the point that Imam Din S. H. O. had recovered any cattle from the cattle pens of the two accused, referred to above. In this state of evidence the prosecution has signally failed to prove that any of the three appellants had in retaliation armed with shotguns and hatchets collected some cattle and fired any shot in the air, as a result of which Halim P. W. received a pellet injury. In the result, I accept the appeal, set aside the convictions and sentences of the appellants, and acquit them. Mushtaq and Kariko appellants are on bail. Their bail bonds are cancelled. Alkhan appellant is in jail. He should be released forthwith.
13. Motoo on his death has not preferred any appeal, but since the record is before me, I acting under section 439, Cr. P. C. also set aside his conviction and sentence including that of fine, and the fine if paid, should be refunded to his heirs. The necessity for acting under suo motu revisional powers in the case of Motoo was the apprehension that since no appeal has been preferred against his conviction on account of his death, the Government might use coercive methods for recovery of the fine from his heirs.
Appeal accepted.
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