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Criminal Appeal No. 147 of 1979, heard on 27th November, 1983.

-- Ss. 394 & 457-Accused convicted on more or less on same set of evidence on which co-accused were separately tried and acquitted----- Delay in lodging F. I. R. not explained-Enmity between parties and discrepancy in statement of witnesses present-Conviction of accused, in circumstances, not safe-Conviction set aside.

Ramchand Rangwani for Appellant.

M. I. Memon for the State.

Date of hearing : 27th November, 1983.

Appellant above-named, being aggrieved by judgment, dated 31st March, 1979 of the learned Assistant Sessions Judge, Shahdadpur, in Sessions Case No. 70/78, by which appellant has been convicted under section 394, P. P. C. and sentenced to suffer R. I. for 5 years' and to pay fine of Rs. 500 or in default to suffer further R. I. for six months and has also been convicted under section 457, P. P. C. for the said terms, has preferred the above appeal, on the following facts and grounds :--

Briefly stated the prosecution story is, that complainant Ismail was sleeping in house, on the night of 17th November, 1977 and his cattle herd were tethered nearby. He awoke on the barking of dogs at 3-00 a. m. and found four persons driving away his two bullocks. He flashed torch and identified the culprits as Peri, Hamzo Bhoro and Ramzan. He grappled with appellant Hamzo, on which Peri dealt hatchet blows causing injury to him. He raised cries on which many persons from locality came there, but in the meanwhile the culprits bad gone away with the bullocks. The complainant narrated facts to the persons collected there, who after putting the complainant on a cot in his house, left in search of thieves and bullocks. The complainant kept lying at his house in injured condition and the tracking party returned in the evening with the stolen bullocks and informed, that the thieves were seen with stolen bullocks after covering a distance f 6 miles and on seeing tracking party, the thieves ran away leaving the bullocks. P. Ws. Rafique, Nazir. Latif, Sharif and others, who were in the tracking party identified the culprits to be the appellant persons. Thereafter complainant was taken to Police Station Tando Adam, where he lodged F. I. R. and was referred to Medical Officer Tando Adam, for examination, treatment and certificate. A. S. I. Uris who recorded F. I. R. proceeded to the place of incident and completed the usual formalities. He arrested appellant Bhoro on 20th November, 1977 and appellant Ramzan on 4th December, 1977. Co-accused Persi and appellant Hamzo absconded and could not be arrested, therefore, A. S. I. Uris handed over papers to S. H. O. who challaned the appellant in Court. During the course of trial against appellant Hamzo prosecution has examined com plainant Ismail, P. W. Nazir, P. W. Sharif, P. W. Muhammad Rafiq and P. W. Muhammad Uris Investigating Officer. On the application of learned A. P. P. the statement of Doctor Muhammad Ismail recorded in the trial Court during the trial of co-accused Ramzan and Bhoro was brought on the file of trial of present appellant, with the consent of Mr. Kaleech Baig. Leghari learned counsel for appellant, who had cross-examined the doctor as Advocate for co-accused Bhoro. The appellant has been examined under section 342. Cr. P. C. and he has denied. that he absconded after the incident and had stated that he was residing in his village. He has stated that he has been falsely implicated at the instance of Moula Bux with whom he has long standing enmity over matrimonial affairs. He has not led any evidence in his defence.

The learned trial Court taking into consideration the evidence adduced before it, convicted and sentenced the appellant above-named as herein before mentioned and consequently appellant has filed the above appeal, on the grounds mentioned in memo of appeal.

The learned counsel for the appellant in support of the above appeal submitted as under :-

(a) Identify of the appellant was not established beyond reasonable doubt, as it is admitted position that night was dark. In this connection the learned counsel submitted, that in Sessions Case No. 13/79 two other co-accused persons, who were tried separately were given benefits of doubt, on this ground alone. but in case of present appellant, it was denied for no cogent reasons.

(b) Delay in lodging of F. I. R. not at all explained and as such false implication cannot be ruled out.

(c) That appellant had alleged enmity with Moula Bux Wadero, who was present at the time of lodging of F. I. R. and according to P. W. 2 Mohomed Nazir-in connection Sessions Case No. 13/79, F. I. R. was in fact lodged by said Wadero, but prosecution failed to examine him, though he was cited as P. W. and consequently doubts have been created in prosecution case.

(d) That according to P. Ws. faces of all culprits were muffled and as such no reliance can be placed on identification of present appellant, on the grounds given by learned trial Court.

(e) That appellant remained in custody from 27th September, 1978 upto 7th June, 1981 and as such benefit of section 382-B, Cr. P. C. be given to appellant, in the alternative. In view of the above submissions, the learned counsel stated, that prosecution has failed to establish its case beyond reasonable doubt.

The learned Additional Advocate-General appearing for the State on the other hand submitted, that on merits he fully supports the impugned judgment, as prosecution by P. Ws. statements has proved its case against the appellant beyond reasonable doubt. However, the learned counsel submitted that as far as sentence awarded to appellant is concerned, the same may be reduced, keeping in view the fact, that the appellant has been facing trial right from 1977 and has remained in judicial custody for over 2 years and 6 months.

I have carefully considered the above submission made by the learned Advocates before and have gone through the R & P of the learned trial Court as well as impugned judgment.

It is admitted position, that two co-accused persons of the same alleged incident who were tried separately, in Sessions Case No. 13/79, wet acquitted by the learned trial Court, on the same set of evidence led of prosecution, vide judgment, dated 9th August, 1978, by which statements of P. W. Ismail and P. W. Nazir in respect of identification of co-accused persons, in the said case was not relied upon. Furthermore, I find that learned trial Court, in said Sessions Case No. 13/79 came to conclusion, that police investigation was not above-board and as such gave benefit o doubt to said co-accused persons. It is surprising, that the learned Additional Sessions Judge, Shahdadpur, in present case came to different conclusion in respect of these facts, simply because appellant is alleged have absconded after the incident. It may be noted, that appellant in his statement under section 342, Cr. P. C. had denied these allegations. In view of these admitted facts, on record of this case, in the face of alleged enmity by appellant against Wadero Moula Bux over matrimonial affairs and on account of undue delay in lodging of F. I. R. which in my opinion, has not been satisfactorily explained and on account of contradictions inter se in the statement of P. W. in both these cases, about actual place of lodging of F. I. R. and actual complaint, in view of the statement of P. W. 2 Muhammad Nazir, in Sessions Case No. 13/79, that F. I. R. was in fact (Sic) by Wadero Moula Bux, it would be unsafe to convict the present appellant as well, on more or less same set of evidence, in Case No. 13/79.

Therefore, I allow the above appeal and set aside conviction of the appellant and sentence awarded to him by impugned judgment and acquit him by giving him benefit of doubt and discharge the bail bonds executed by the appellant in the above appeal.

M. B. A. Appeal allowed.

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