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Criminal Appeals Nos. 4/K and 6/K of 1987, decided on 2nd July, 1987.

---S. 17(3)--Presence of eye-witnesses at scene of occurrence highly doubtful--Statement of complainant about arrival of eye-witnesses to scene of occurrence also falsified to a great extent--Some of articles allegedly snatched by accused from complainant not mentioned by complainant in first information report--Complainant made improvements in his statement during trial--No incriminating articles recovered from possession of accused--Inordinate delay, which occurred in lodging report, not properly explained--First information report was result of consultation and deliberations and entire story stated therein appearing to be result of an afterthought--Conviction manifestly based on unsatisfactory oral evidence which apart from being discrepant and contradictory falsified by circumstances appearing in case--Case of prosecution, held, not established beyond reasonable doubt-Conviction and sentence set aside.

---S. 17--House of accused searched but nothing incriminating found out--Case property (motor-cycle) shown to have been recovered from a cycleshed in absence of accused--No site plan available on record to show actual place wherefrom motor-cycle was recovered--Other articles shown to have been recovered from possession of accused not supported by evidence of witness--Deep enmity existing between parties--Not possible to say conclusively that motor-cycle in question was kept by accused or the place where it was kept was in his exclusive possession or was not accessible to anyone else or that it was within boundary wall of his house--Held, prosecution failed to prove case against accused beyond all reasonable doubts--Conviction and sentence set aside.

Ali Murtaza Hussain for Appellants.

Agha Imdad Ali for the State.

Date of hearing: 17th June, 1987.

Ali Mohammad son of Galo, aged about 18 years resident of Tehsil Mirpur Mathelo, Ali Gul son of Ali Murad, aged about 25 years resident of Khanpur, Tehsil Mirpur Mathelo and Rano son of Wadan, aged about 40 years, resident of Gul Hassan Malik, Tehsil Ghotki in District Sukkur, were tried in a case registered vide F.I.R. No. 53 of 1986 in Police Station Ghotki, dated 24-3-1986 under section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance) on the allegation that they committed robbery on the evening of 23-3-1986 by depriving one Mubarik son of Moulah Dad, complainant, of his motor-cycle, cash and wrist-watch etc.

2. Vide his judgment, dated 11-1-1987, the learned Additional Sessions Judge, Sukkur who tried the accused, found all the mentioned accused guilty under section 20 of the Ordinance read with section 392/398, P.P.C. and each of the accused was convicted under the mentioned provisions of law. On conviction each of them was sentenced to seven years" R.I. and to a fine of rupees one thousand. In default of payment of fine each of the accused was to suffer further R.I. for six months. The benefit of section 382-B, Cr.P.C. was however, allowed to the accused for the period they remained in custody during the trial.

3. Feeling aggrieved Ali Mohammad and Ali Gul, convicts have assailed the impugned judgment by preferring a joint appeal against their convictions and sentences. Similarly a jail Criminal Appeal No. 6/K of 1987 was also preferred by Rano, accused against his conviction and sentences in the case. We propose to dispose of Criminal Appeal No 4/K of 1987 Ali Mohammad and another v. The State and Jail Criminal Appeal No. 6/K of 1987 Rano v. The State by the same judgment.

4. The facts of the case briefly stated are that on 23-3-1986, complainant Mubarak Khan had gone to Pano Akil. In the evening while he was returning back home he found a motor-cycle parked near Kundan Mal bridge on Qazi Wah at sunset time. While he was passing near the parked motor-cycle three persons who were identified by him as the present appellants way laid him. According to him Ali Gul and Ali Mohammad, accused were armed with guns while Rano accused was armed with a rifle. They snatched away his motor-cycle, wrist watch, cash of rupees fifteen hundred alongwith the documents concerning the motor-cycle. The accused left the spot and on their departure the complainant raised alarm which attracted Abdul Qadir and Fateh Mohammad (P.Ws.). The complainant then went to his village, collected some persons from the village and followed the accused. They ultimately lost the tracks and wheel marks of the motor-cycle in the morning near village Pirano Mahar. The complainant then went to the police station and lodged the report. The Investigating Officer after the registration of the case proceeded to the spot. During the investigation, it is stated, that the motor-cycle, wrist watch and the documents concerning the motor-cycle were recovered from the possession of Rano, accused. It is also alleged that recovery of a short-gun and some cartridges were also made from the possession of Rano, accused. Ali Mohammad, appellant, was arrested on 30-3-1986 while Ali Gul was arrested on 6-4-1986. It has been stated that Rano, appellant was arrested on 9-4-1986 from his house. After the usual investigation a complete challan was submitted for trial against the accused.

5. At the trial the prosecution examined five witnesses. Mabarak Khan, complainant, appeared as P.W.1. In his statement he has reiterated almost the same facts as given in the F.I.R. According to him on the day he lodged the F.I.R. the police secured the stolen motor-cycle from the custody of Rano, accused. According to him he received back his motor-cycle, his wrist watch, keys of the motor-cycle and the documents concerning the motor-cycle. Abdul Qadir son of Abu Bakr (P.W.2) has supported the version of the complainant. According to him he and Fateh Mohammad (given up P.W.) were present in their lands adjacent to the spot at sunset time on the day of occurrence. As stated by him they saw the appellants depriving the complainant of his motor-cycle and other articles. On raising alarm, he alongwith Fateh Mohammad went towards the complainant and accompanied him to his village. The complainant collected some person from the village and all of them followed the wheel marks of the motor-cycle but ultimately they lost the wheel marks near village Pirano Mahar in the morning. According to him the complainant went to the police station for lodging the report while he alongwith others remained in the village Prano Mahar. Gulsher son of Mithun (P.W.3) is the recovery witness of recovery memos Exs. 14 and 15. According to him on 25-3-1986 the motor-cycle was recovered-from the cattle-shed of Rano, accused, lying concealed under the hay in the absence of Rano, appellant. Kauro son of Sachal (P.W.4) was made a Mashir of the arrest of Rano, accused. According to him in his presence a gun, 3/4 cartridges and a watch were recovered from his possession. This witness has however, denied the recovery of registration certificate, insurance certificate, driving licence, the receipt of motor-cycle or the keys of motor-cycle. He is the witness of recovery memo. Ex.19. Ghulam Nabi son of Sher Mohammad, A.S.I. (P.W.5) has investigated the case, recorded the statements of the witnesses, made recoveries from Rano, accused, prepared the recovery memos and handed over the case papers after the completion of the investigation to the S.H.O. for submitting a complete challan for trial against the accused.

6. The accused in their respective statements have denied the allegations and have alleged enmity against the complainant party. The accused Ali Mohammad who is stated to be a student of First year had quarelled with the complainant in connection with the payment for the repair of tyre and tube of his motor-cycle. Both Ali Mohammad and Ali Gul, accused are stated to be running a shop of tyre repairs and are stated to be closely related to each other.

7. Rano accused has stated that he has been falsely involved in the case on account of enmity. According to him he is the man of Haji Chard while the complainant is the man of Zabardast Khan. He has also given full details about his enmity with Kouro (P.W.4) in the following words:---

"I have enmity with Kouro the Mashir as Kouro and his relatives had committed murder of Illahi Bux who is my nephew. They have been acquitted for that case. This murder took place 7/8 years back. I am the man of Haji Chand while the complainant is the man of Zabardast Khan. Haji Chand and Mubarak complainant have dispute between themselves over land. Due to that enmity I have been involved in this case falsely."

All the accused have, however, declined to give statement on oath in disproof of the allegations but Ali Gul and Ali Mohammad, accused, examined Noor Ahmad son of Mohammad Salah, a Patwari (D.W.1) and Haji son of Ghazi (D.W. 2) in their defence. Noor Ahmed (D.W.1) has produced revenue record pertaining to the land adjacent to the place of incident while Haji (D.W.2) has supported the plea of Ali Gul and Ali Mohammad concerning their altercations with the complainant over the mentioned affairs. He has also stated that both Abdul Qadir and Fateh Mohammad P.Ws. are cousins of the complainant and they were neither owners of the land nor tenants of any land in the area adjoining the place of occurrence.

8. We have heard the learned counsel for the parties and have also gone through the material available on the record with their assistance.

9. As already mentioned in the instant case the complainant has charged all the appellants by name in the F.I.R. The occurrence according to the F.I.R. has taken place at about sunset time on 23-3-1986 while the report was lodged in Police Station Ghotki at 17-15 hours on the following day i.e. 24-3-1986 after about 24 hours of the occurrence. From the material available on the record it is evident that the complainant party belonged to a faction rival to the faction of the accused. As mentioned above Ali Mohammad and Ali Gul, appellants have taken the plea in their statements under section 342, Cr.P.C. that they were charged on account of a quarrel between the complainant and Ali Gul, appellant. Kauro (P.W.4) has clearly admitted in his cross-examination that there existed criminal litigation between them and Rano, appellant and he also admitted that there were murder cases between them and Rano, accused.

10. The first question is whether the prosecution has succeeded in bringing home the charge against Ali Muhammad and Ali Gul, appellants. In this connection the prosecution has mainly relied on the ocular evidence of Mabarak, complainant and that of Abdul Qadir (P.W.2). It is mentioned in the F.I.R. that soon after the occurrence F1teh ;Muhammad (given up P.W.) and Abdul Qadir (P.W.) were attracted to the spot. Out of the mentioned two witnesses the prosecution has examined Abdul Qadir. It is, therefore, to be seen whether the ocular account furnished by Abdul Qadir is reliable and true in the circumstances of the case. In his statement the complainant Mabarak has deposed that both the mentioned witnesses who were attracted to the spot were owners of some landed property and were also in possession of some land as tenants near the place of occurrence. Abdul Qadir (P.W.2) has however stated that they were "Haries" (tenants) of the land adjacent to the scene of occurrence belonging to one Kundan Lal. It was also admitted by him that their villages were at a distance of 2 miles from the spot. He has further stated that they had covered about 20 miles of area with the complainant while following the tracks of the motor-cycle but at the same time admitted that he was suffering from pains in his legs since the last one year on account of a fall from motor-cycle. Ali Muhammad and Ali Gul, appellants have produced one Noor Ahmad a Patwari of the area in order to ascertain whether the claim of the witnesses about their land in the vicinity of the spot was correct. According to Noor Ahmad (D.W 1) none of the two witnesses, namely, Abdul Qadir and Fateh Muhammad has any land belonging to them adjacent to the scene of occurrence. He has further clarified the position by stating that their names have nowhere been recorded in the revenue record even as tenants in the mentioned land. In his statement Ghulam Nabi, A.S.I. (P.W.5) who investigated the case, has also stated that he was unable to see the land of Fateh Muhammad and Abdul Qadir from where they claimed to have seen the "wardat".

11. In the circumstances stated above the version of Abdul Qadir (P.W.) that he alongwith Fateh Muhammad had come to their land at the relevant time at that late hours of the day had no basis whatsoever. The presence of Abdul Qadir at the scene of occurrence at the given time is, therefore, highly doubtful, and the learned trial Court had no justification to rely on the ocular account given by this witness.

12. The statement of the complainant and the version, given by him in the F.I.R. about the arrival of Abdul Qadir and Fateh Muhammad (P. Ws.) to the scene of occurrence is also falsified to a great extent. It is also worth mentioning that in the F.I.R. some of the articles alleged to have been snatched away from him by the accused were not mentioned by the complainant. In his statement during the trial he has made improvements and included more items like keys of the motor-cycle etc. It was also mentioned by the complainant that he brought about 30 persons from his village soon after the occurrence for tracking the wheel-marks but not a single person was cited as a witness or produced to support the mentioned version. In his cross-examination the complainant has also admitted that he had a quarrel with Ali Muhammad, appellant in connection with the repairs of the tube of his motor-cycle. It may be mentioned that no incriminating article whatsoever has been recovered either from the possession of Ali Muhammad or that of Ali Gul, appellants, during the course of investigation. It is also in the statement of Ghulam Nabi, A.S.I. (P.W.5) that Ali Muhammad was arrested from his house on 30-3-1986 while Ali Gul on 6-4-1986 many days after the occurrence without any evidence on the record showing that they had either absconded after the occurrence or there was some other reasons for such delay in their arrest. The factum of the quarrel between Ali Muhammad and the complainant, a few days prior to the occurrence has also been clearly admitted. Both Ali Gul and Ali Muhammad, appellants are stated to be closely related and Ali Muhammad is a student of 1st year.

13. The inordinate delay of 24 hours in lodging the report has also not been properly explained. Explanation to the effect that the complainant remained busy in tracking the wheels of motor-cycle in the vicinity of the spot is not plausible as the accused were charged in the F.I.R. by their names. It was, therefore, not necessary for him to trace out the culprits when they were already known and were shown identified in the F . I . R .

14. Taking all the above facts into consideration one cannot avoid in arriving at the conclusion that the F.I.R. eras the result of proper consultation and one deliberations and the entire story stated therein appeared to be the result of an after thought. The conviction of Ali Gul and Ali Muhammad, appellants, is manifestly based on unsatisfactory oral evidence which apart from being discrepant and contradictory has also been falsified by the circumstances appearing in the case. We are, therefore, of the view that the case of the prosecution so far Ali Muhammad and Ali Gul are concerned is not at all free of doubt and the benefit of such doubt shall have to be extended to them.

15. Reverting to the case against Rano, appellant, it may be stated that the case against him is on somewhat different footings. It is stated that his house was searched but nothing incriminating could be recovered. However, in his absence the motor-cycle in question was shown recovered from a cattle-shed of Rano, appellant, which has been shown adjacent to his house. According to the Investigating Officer and the recovery witness it had been shown lying concealed under hay. This recovery was allegedly made on 25-3-1986. It has, however been stated by Mobarak, complainant that his motor-cycle was recovered on 24-3-1986. According to the Investigating Officer (P.W.5) Rano, appellant was arrested from his house on 9-4-1986. It is in the evidence that a gun, 3/4 cartridges and a wrist watch were recovered from his possession. In the recovery memo Exh. 19 besides the abovementioned articles the registration certificate of motor-cycle, insurance certificate, driving licence, receipt relating to the sale of motor-cycle and a key of the motor-cycle were also recovered from the possession of Rano, appellant. It may be mentioned that no site plan is available on the record to show the actual place where from the motor-cycle was recovered. As already stated besides the gun, cartridges and wrist watch some other articles were also shown recovered from the possession of this appellant but the only recovery witness of memo is Exh. 19 appearing in the case has not supported the mentioned version. Kauro (P.W.4) has clearly stated in his examination in chief that no registration certificate, insurance certificate, driving licence or key of motor-cycle were secured from Rano, accused in his presence. He has further explained that it was wrongly mentioned in the memo that the mentioned documents of motor-cycle and key were secured by police in his presence. According to him the Investigating Officer had recovered a gun, mentioned cartridges and the watch and nothing else. Gul Sher (P.W. 3) a witness of the recovery memo. Exh. 15 has stated that at the time of the recovery of the motor-cycle from the mentioned place the complainant and the Investigating Officer were the only persons present at the spot. It was also admitted by this witness in his cross-examination that Rano, accused had two houses in the village. Kauro (P.W. 4) has also clearly admitted during his cross-examination that there existed deep enmity between them and Rano appellant and that both the parties were involved in murder cases.

16. Taking all the above stated facts into consideration it becomes clear that the only piece of evidence to connect Rano, appellant with the crime is the recovery of the motor-cycle from but near the shed of the accused in his absence. In the absence of any site plan or other cogent evidence, it cannot be said conclusively that the motor-cycle in question was kept by Rano, appellant and that the place of recovery was in his exclusive possession not accessible to anyone else and that it was within the boundary wall of his house. The alleged recovery of watch will also be of no consequence for the reasons that it has nowhere been proved that the wrist watch so recovered belonged to the complainant it was the same watch which was allegedly snatched away from him and was properly identified after the recovery.

17. In view of the above infirmities in the evidence the prosecution has not been able to prove the case against the appellants beyond all reasonable doubt. Consequently, we allow both the appeals, set aside the convictions and sentences passed against the appellants and acquit them of the charge. They shall be set at liberty forthwith if not required in any other case.

M.Y.H./369/F.Sh. Appeal allowed.

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