1983 P Cr (PLP)

6. Appellant Rasool Bux in his statement had denied the allegation and had stated that he i innocent, case against him is false. From 31st March, 1979 to 2nd April, 1979 he was present on his duty, he has been involved by Abdul Haq, who is opposing his relation Haji Ali Nawaz Dehraj. He is man of Dehraj and has been therefore, implicated falsely in so many cases at Hyderabad.

7. Appellant Amanullah in his statement had denied the allegation and has stated that in 1977 there was emergency and during firing brother A S. H. O. Sarfraz was shot dead and he held him responsible for his death therefore, S. H. O. has implicated him falsely.

8. Appellant Ghulam Kassim in his statement has' denied the allega tion and has stated, that his relations are against S. H. O. Sarfraz, who belongs to Kunda Khahi. He has come to visit them, S. H. O. came and arrested him because of that grudge. Said S. H. O. gave his hand to S. H. O. Kandiaro, where complainant party came and saw him and they were asked to pick up in the identification test, case against him is false.

9. Appellant Muhammad Hussain in his statement had ‑denied the allegation. He has stated that he is innocent, he has been implicated falsely at the instance of Shah Nawaz Khushik, with whom he has got enmity at matrimonial affairs.

10. The learned trial Court taking into consideration the evidence adduced., convicted and sentenced the appellants above‑named as herein before mentioned, while acquitting co‑accused Mushtaque and Gul and consequently the appellants above‑named filed the above jail appeals, on the grounds mentioned in their respective memo. of appeals.

11. The appellants, who were present in Court in custody, in respect of their respective appeals submitted, that they were innocent and have been implicated in this false case due to enmity. The appellants also denied that any recoveries were made from them and/or at their pointation of the alleged robbed property.

12. The learned Advocate appearing for the State took me through the R. & P. of the learned trial Court as well as the impugned judgment and at outset submitted, that there was no case against appellant Ghulam Qasim and appellant Muhammad Hussain at all. As far as appellant Amanullah and appellant Rasul Bux were concerned, the learned Advocate for the State submitted, that in spite of alleged recoveries from these appel lants and/or at their pointations, the case against these appellants also is doubtful due to following reasons: ‑ (a) That in the identification test, ratio of dummies with the appel lants were below the one laid down by various authorities of this Court as well as hon'ble Supreme Court. (b) That the statement of P. W. Moharram as far as the incident is concerned seems to be improbable, specially as the complainant alleges, that right from Rani Pur up to Sekhat, he was being taken by the appellants for the alleged robbery. The complainant in his statement has admitted, that twice in the course of this journey the jeep was stopped for taking tea but in spite of this the complainant did not ask for public help at these places, which seems rather unusual. (c) That except for the word of the complainant, the ownership of the Tape‑Recorder and the golden ring has not been proved beyond reasonable doubt, as the description of these articles given in the F. I. R. is general. Neither the approximately weight of the ring nor the condition of the Tape‑Recorder has been given. P. W. Mushtque in his statement before the learned trial Court, when he was shown the Tape‑Recorder said, that this is not the Tape‑Recorder, which he had produced before the police. (d) That the learned trial Court has disbelieved the complainant in respect of acquitted two accused, on the ground that complainant was under the influence of S. H. O. Abdul Khaliq, who had enmity with acquitted accused Mushtaque Hussain and has falsely involved the said accused Gul. The learned trial Court has also not believed, that the jeep identified by the complainant before the learned trial court, was, involved in the alleged robbery.

13. I have carefully considered the above submissions made by the learned Advocate for the State and have gone through the statements of the prosecution witnesses recorded by the learned trial Court. The story of the incident as given in the F. I. R. by the complainant P. W. 1 Moharram per se seems to be improbable, as according to the complainant right from Ranipur he was taken up to Sakhat and dropped there after the alleged robbery. The complainant in his statement as well as in F. I. R. has stated, that during all this period the jeep in which he was taken had stop ped at few places, either for taking tea and/or water, but still the com plainant did not seek any help from the public at these places. Besides this the complainant neither gave the approximate weight of the gold‑ring nor the number of the Tape‑Recorder, either in the F. I. R. or in his statement before the learned trial Court, nor complainant was put to identification test in respect of these properties, which are commonly avail able. It may further be noted, that except for the complainant P. W. 1 Moharram there is no other eye‑witness of the incident in question. It may also be noted, that the appellants were not known to the complainant and consequently he did not mention their names in the F. I. R. In view of this, the connection of the present appellants with the crime in question, depended upon .the identification of the present appellants by the com plainant: In this connection the identification test in respect of the Appel lants Rasul Bux, Amanullah, Ghulam Qasim and one Manzoor Hussain was held on 10th April, 1979, vide Exh. 19, which shows that the number of dummies mixed with the four suspected accused persons were only 9 to 10, in which test complainant is said to have picked up appellant Rasul Bux, Amanullah and Ghulam Qasim. In my opinion no reliance can be placed on such identification, where the ratio of dummies mixed with the suspected persons was far below the ratio laid down by various authorities of this Court as well as hon'ble Supreme Court. In addition to this I find, that P. W. 1 Moharram in his cross‑examination admitted, that he was shown 7 persons in police lock‑up, which included appellant Rasul Bux, Ghulam Qasim and‑ others, one hour before identification test in question. The second identification test in respect of appellant Muhammad Hussain was held on 12th April, 1979, vide Exh. 20 in which it is alleged, that appellant Muhammad Hussain was picked up by the complainant.

14. It may further be noted that complainant P. W. 1 Moharram in F. I. R. had mentioned, that the jeep in which he was picked up was black and repeated this colour in his statement before the learned trial Court, but at the time of the identification of the said jeep as case property, the complainant stated, that the green jeep which was the case property, was the same jeep involved in the incident. It may further be noted, that the learned trial court disbelieved the complainant in respect of two acquitted accused on the ground, that the complainant under the influence of S. H. O. Khaliq, who had enmity with the said two acquitted accused persons has falsely involved them and also came to the conclusion, that the jeep identified by the complainant was not involved in the incident in question.

15. Keeping in view all the above facts, in my opinion no reliance can be placed on the solitary evidence of P. W. 1 Moharram (complainant), who is held by the learned trial Court to be the under influence of S. H. O. Abdul Khaliq. It may further be noted, that P.W. 4 Mystique from whom the Tape‑Recorder was actually recovered, stated before the learned trial Court, that the Tape‑Recorder produced in Court was not the one handed over by him to the police. There are no identification marks in respect of Tape‑Recorder and the gold‑ring claimed by the complainant as his own and the complainant did not produce any evidence to prove his ownership of the said two articles nor complainant was put to identification test in respect of these two articles. Alleged recovery of currency notes from the appellants by itself does not prove, that the same belonged to the com plainant. I have carefully gone through the statement of P. W. I Moharram (complainant) and to me it does not seem to be straightfor ward and convincing.

16. In view of my above conclusions and appraisal of the evidence of the only eye‑witness of the incident namely P. W. 1 Moharram (complainant), I am of the opinion, that the prosecution has failed to prove it case against the present appellants beyond reasonable doubt, specially when Mashirnama of the initial arrest of the appellants by Naushero Feroze Police was not produced before the learned trial Court, to establish that the appellants were actually arrested by the said police station in police uniform, as it is alleged by the prosecution.

17. Therefore I allow all the above four appeals and set aside con victions and sentences awarded to the appellants by the learned trial Court and acquit them, by giving them benefit of doubt and direct that all the four appellants be released forthwith, if they are not required in any other case. Appeals allowed.