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Criminal Appeal No.239/L of 1986, decided on 11th February, 1987.

---S.20--Evidence, appreciation of--Occurrence at dark night time--No overt act attributed to accused--Articles belonging to complainant recovered from accused and his co-accused on same day but identified by him after two days--Delay not explained--Ownership of watch not proved--Articles of common pattern commonly available in market--Only identity card of complainant recovered from accused while valuable articles recovered from other co-accused--Particulars of persons invovled in crime, not given in F. I. R.--Acquittal ordered in circumstances.

M. Ashraf Hijjazi for Appellant.

Ghazi Abdur Rashid for the State.

Date of hearing: 11th February, 1987.

.--This appeal is directed against the order of conviction dated 22-6-1986 passed by the learned Additional Sessions Judge, Sialkot whereby the appellant Muhammad Aslam alias Achho alongwith one Islam Masih son of Sardar Masih have been found guilty of offence punishable under section 20 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 read with section 392, PPC and sentenced to five years' R.I. with a fine of Rs.2,000/ or in default of payment of fine to further undergo R.I. for six months each.

2. The alleged occurrence took place on 19-1-1980 at about 7-00 P.M. in the area of village Harar (on the road) within the jurisdiction of police station Saddar Sialkot at a distance of only three miles from the police station. Muhammad Latif (P.W.1) approached P.W.5 Masaud Pervaiz SHO while the latter was present near village Harar and stated that he was going to Adalat Garha from village Harar on a bicycle. He had hardly covered a distance of one furlong when three unknown persons appeared and stopped him. Later on their names were known. Talib Hussain was armed with a revolver whereas Islam Masih accused had a chhuri. Talib Hussain accused placed his pistol on his chest and Islam Masih brought out a chhuri. Talib Hussain accused directed the complainant to hand over every thing which he possessed. Islam R9asih accused snatched the wrist watch (Omax). The accused also snatched Rs.1,090/- from his pocket. The purse as well as his identity card was also taken away. Thereafter the accused threatened him with dire consequences and went towards Wazirabad. It was stated that Muhammad Latif could identify the accused persons if they are brought before him. This statement was reduced into writing by Masaud Pervez and signed by Muhammad Latif and was sent to the police station through Mumtaz Ahmed Constable No.466 (not examined) for formal registration of the F.I. R. The investigation was taken in hand by Masaud Pervez who inspected the spot, prepared the rough site plan Ex.PH on the same day arrested three persons namely Islam Masih, Muhammad Aslam and Talib Hussain. On the personal search of Talib Hussain a Purse Ex.P/2 and currency notes valuing Rs.1,090/- Ex.P/4/1-44 were recovered which were taken into possession vide recovery memo. Ex.PE on the same day. Islam .Masih was personally searched and Wrist watch Ex.P/3 was recovered from his possession vide recovery memo. Ex.PD. On the personal search of Muhammad Aslam accused /appellant only identity card Ex.P/1 was recovered which was taken into possession vide recovery memo. Ex. PB. These recovery memos were attested by P.W.3 Khadim Hussain and Muhammad Ramzan (not examined in Court). On 21-1-1980 Muhammad Latif P.W.1, the complainant, it is alleged identified the case property Ex.P.l to 4 in the presence of Umar Hayat P.W.2 and Amir-ud-Din (not examined) from Talib Hussain a country made revolver was also recovered which was taken into possession and a separate challan was submitted under section 13, Arms Ordinance. On the personal search of Islam Masih a chhuri was also recovered which was also taken into possession and a separate challan under section 13, Arms Ordinance was also put up. On the completion of the investigation the challan was put up before the Court.

3. At the trial the charge was denied by the accused/ appellant and by the co-accused Islam Masih, Talib Hussain had absconded after the investigation therefore, he was declared proclaimed offender. At the trial the prosecution examined five witnesses whose names have been mentioned above. The learned trial Court convicted the accused /appellant and Islam Masih and has sentenced them as mentioned above. Islam Masih has not filed any appeal.

4. We have gone through the evidence on record and found that the alleged occurrence took place at 7-00 P.M. which definitely it was a dark night. No overt act has been complained about the present appellant. The allegation as contained in the statement of Muhammad Latif which forms the basis of F.I.R. is only this much that Talib Hussain had taken out Pistol and Islam Masih brought out the chhuri. The accused persons according to Masaud Pervez S.H.O. Police were arrested the same day at 8-30 P.M. but the complainant was required on identify the property after two days. There is no explanation shout this delay. It is significant that Muhammad Latif was not ask to prove the ownership of the wrist watch which he had alleged in his statement, no particular of the persons who were involved in the commission of offence was furnished to the police also. It cannot therefore, be safely said that the articles really were the same which belonged to the complainant Muhammad Latif as the articles are so common pattern and are commonly available in the market. On what basis the property was identified by Muhammad Latif is also no satisfactorily brought on record. The delay of two days therefore, assumes importance. The fact that only the identity card was found in the possession of the appellant appears to be funny while the others received cash and watch the appellant was given only identity card which could be of no use to him. It is simply not believable. Since no overt act has been complained by Muhammad Latif in the F.I.R. and the recovery and the identification appears to be doubtful it would not be safe to maintain the conviction passed against the present appellant. Giving the benefit of doubt to the appellant we accept this appeal, set aside the conviction and sentences passed against the appellant. He shall be released forthwith if not required in any other case.

S.A./338/F.Sh.C. Appeal accepted.

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