1999 PLP 2414 (MLD)

2. An F.I.R. was lodged at Police Station Market, Larkana on 22-7-1994 at 11.30 a.m. by Muhammad Hassan (P.W.2) wherein he alleged that on the same day at about 4-30 a.m. he left his house as usual on his motor-cycle to collect money for Municipal Committee Larkana being its contractor in this behalf. At about 10-30 a.m. while he was accompanied by his friend Farooq Ahmed on the same motor cycle, he found a speed breaker near the clinic of Dr. Roshan and, therefore, he slowed the speed as he was driving. Suddenly two unidentified persons with muffled faces, and one of them armed with a pistol got stopped him on the point of the said pistol. Then one of the culprits pushed him resulting into the fall of both the friends proceeding on the motorcycle. The offender possessing pistol controlled both of them, whereas another offender got possession of the motorcycle and sat on the driver's seat. The other culprit armed with pistol sat behind him. Both the victim could not make noise out of fear and the motorcycle was taken towards the western direction. One of two culprits who was unarmed was identified by, the present appellant. In the meanwhile a C.I.A. Police mobile came and they were informed about the incident. The mobile went after the culprits and the matter was reported at the Police Station Market which lodged report. Appellant was arrested vide challan and his co-accused is shown as absconder, but by the commencement of trial even the co-accused, Mumtaz by name, was arrested. Both of them were charged on 8-1-1996 under Article 17/3 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 to which they did not plead guilty.

3. To prove its case prosecution examined 7 witnesses. Farooq Ahmed (P.W.1) has proved the story of prosecution per F.I.R. and has deposed further that the robbed property was secured by the police and given to the owner he has also deposed that the accused present in the Court are not the same persons who had robbed the motorcycle whereas he has also deposed that both the culprits were with muffled faces. Muhammad Hassan (P.W.2), the complainant, has proved the contents of F.I.R. Exh.9 and his signature on it. He has also deposed that he had correctly nominated Abdul Sattar Deprani Chandio (the present appellant) as one of the culprits but in conflict to this statement on oath before the Court, he has also deposed that the accused present in the Court, which included the present appellant, were not amongst the culprits. He was declared hostile and cross-examined by D.D.A. Asadullah (P.W.3), A.S.I., C.I.A., Larkana has proved that on the day of occurrence he was on patrol duty alongwith other personnel of C.I.A. Staff vide entry No.34 in the Police Record. When they reached the clinic of Dr. Roshan, one Muhammad Hassan (P.W.2) came running towards them and was crying that two persons had robbed motorcyle from him on point of weapons and had taken the robbed vehicle towards Qaim Shah Bukhari Road. He has deposed further that he followed the culprits alongwith his staff, and near U.B.L. Branch, Lahori Mohalla, Larkana the culprit sitting on the rear seat of the motorcycle fired at them with T.T. Pistol ineffectively. In return he ordered his subordinates to open fire on the culprits. This exchange of fire made the motorcycle slip. The offender firing at police ran away while continuing firing towards police, but the deriving person was arrested at the spot and the robbed property was taken into custody. This arrested person turned out to be the present appellant. He disclosed the name of his co-accused to be Mumtaz and the robbed motorcycle was registered at No. HDL 1591. Such mashirnama of arrest and recovery Exh.9 was prepared by him in presence of mashirs Mahmood Ali (P.W.6) and Inayatullah. Later on he handed over arrested culprit and recovered motorcycle to his Incharge Inspector of C.I.A. He identified the appellant to be the same person arrested by him. Muhammad Ilyas (P.W.4) is a mashir of arrest of appellant who was already arrested and was in the lock-ups of C.I.A. Larkana, He has proved mashirnama of arrest of appellant Exh.12 Abdul Rashid (P.W.5)) is a mashir of wardat near the clinic of Dr. Roshan which is Exh.15. He has also proved Exh.16 being Mashirnama of the photo copies of the documents of motorcycle. Mehmood Ali has proved being a member of raiding party and has deposed almost in conformity of the story of prosecution. Zulfiqar Ali (P.W.71 has proved that he lodged F.I.R. being Incharge S.I. at Police Station Market at 11.30 a.m. on 22-7-1994 when complainant accompanied by Farooq Ahmed arrived at police station and narrated the occurrence. He read over F.I.R. to the complainant which is Exh.9 and bears his signature as well as complainant's signature. He has proved recording the statement of P.W. Farooq Ahmed under section 161, Cr.P.C. immediately. He then started investigation and after its completion submitted challan. Appellant in his statement under section 342, Cr.P.C. has denied all the specific questions, has declined to be examined on oath and has not produced any evidence in his defence. The trial Court has acquitted co-accused Mumtaz and has convicted appellant as mentioned above. I have heard the counsel for appellant and State. The counsel for the appellant has mainly relied on hostility of Farooq Ahmed (P W.1) and Muhammad Hassan (P.W.2), the complainant. Both of them are victims but have denied the accused persons present in the Court namely the appellant and acquitted co-accused Mumtaz to be the same persons who had robbed motorcycle from them. According to the counsel for appellant the only ocular and victimised witnesses have indicated substitution of the culprits and. therefore, it is a case of acquittal specially when P.W.1 has not even been declared hostile. I wonder in what way Farooq Ahmed (P.W.1) is deposing that the accused present in Court are not the culprits when in earlier part of his examination-in-chief he has declared that both the robbing persons were with muffled faces. He has given all other details which are completely corroborated by all the other P Ws. He has admitted his examination by police under section 161, Cr.P.C. Now this statement is clearly nominating the unarmed culprit to be the present appellant. About the armed person he has stated that on seeing him he shall be able to identify him. He has admitted immediate complaint to C.I.A. Police on mobile and immediate following of the culprits by the said Police. Muhammad Hassan (P.W.2) is also corroborated by all the P.Ws. in all the details. He has admitted his signature on F.I.R. (Exh.9) and has admitted its contents including the nomination of the appellant to be correct. Under what circumstances, then, he is denying that the appellant and his co-accused present in the Court are not the same persons? He was declared hostile. During cross by D.D.A., he has contradicted his own deposition during examination-in-chief and has replied to a suggestion as under: -- "It is not a fact that the person who was empty handed was identified by us as Abdul Sattar son of Ch. Shabir Deprani Chandio resident of Kambar. " During examination-in-chief he has stated on oath that both the culprits were with muffled faces and were unidentified. In conflict to this during cross he has deposed: -- "It is a fact that I had seen both the accused carefully and can identify them when brought before me. It is not a fact that I had stated to police that a mobile of C.I.A. Police alongwith staff came at spot to whom we narrated the incident and the C.I.A. Police accordingly followed the culprits. It is not a fact that the contents of the F.I.R. were read over to me by the police. " From this conduct of P.W.1 and P.W.2 it is clear that they had compromised with the culprits outside the Court whereas the offences committed are not compoundable. To these two witnesses law is a joke and statements on oath before the Courts are Jugglery. They have prima facie committed offences of perjury falling within the meaning and scope of section 3 of the contempt of Court Act, 1976 read with Article 203-E(3) of the Constitution of Pakistan and section 193 read with section 191, P.P.C. Issue show-cause notices to both the P.W.1 and P.W.2 as to why criminal cases should not be instituted against them. The notices may be served through trial Court and the reply should be received by this Court within one month from the date of the receipt of theses notice failing which ex parte proceedings, shall be initiated against them.

5. So far as the appeal is concerned, it is dismissed and the impugned judgment is upheld as the prosecution has proved its case beyond reasonable doubt. Appeal is dismissed. N.H.Q./21/FSC?????????????????????????????????? ??????????????????????????????????? Appeal dismissed.