1985 P Cr (PLP)

Muhammad Bashir Kiyani for Appellant. Muhammad Aslam Uns for Respondent. Date of hearing: 7th November, 1984. Noor Muhammad son of Haji Abdullah was proceeded against for Harrabah, under section 17 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979. He was tried by learned Additional Sessions Judge, Multan who vide his judgment, dated 1‑11‑1983 impugned before me through Jail appeal, convicted him under section 392, P.P.C. and sentenced to seven years' R.I. and a fine of Rs. 2,000 or in default to further undergo one year's R.I.

2. On the request of the appellant he was summoned to the Court and heard. Mr. Muhammad Bashir Kayani, Advocate was also engaged at State expense to defend him in the appeal filed through jail.

3. In short compass the prosecution story as revealed at the trial is that on 23‑6‑1982 i.e. the day of occurrence Muhammad Ramzan P.W.2 the complainant was on his way to his home after visiting Shah Shams. When at 12‑15 p.m. he was passing through the field of Jawar within the limits of village Chah Andheywala, Noor Muhammad accused appellant and his un‑identified companion accosted him. Noor Muhammad accused caught hold of the complainant by neck whereas his confederate robbed him of Rs.2,110 and a wrist watch. The alarm raised by the complainant attracted Ain‑ul‑Haq P.W.3 at the spot. Noor Muhammad accused who, was armed with pistol fired at Ain‑ul‑Haq. The bullet injured him on the right shoulder. The complainant and Ain‑ul‑Haq tried to overpower Noor Muhammad accused. In the scuffle the pistol went off again as a result Noor Muhammad accused also got injured. Noor Muhammad accused was overpowered and soon after produced before Liaquat Ali S.I. (P.W.7). Liaquat Ali took the pistol Exh. P.1 into possession having four live cartridges in the magazine. Both Ain‑ul‑Haq (P.W.3) and Noor Muhammad accused were got medically examined and the report of the Doctor indicates that they have received these injuries from close quarters. In all seven prosecution witnesses were produced and examined by the prosecution in support of the charge. When questioned Noor Muhammad accused denied the allegation and stated that in fact he was attacked and injured by Muhammad Ramzan and Ain‑ul‑Haq, who tried to rob him. Later they connived with the police thereby a false case was fabricated against him. The accused emphatically denied the ownership and recovery of the pistol from him.

4. This case has some exceptional features pointed out by the learned counsel for the appellant, which render the prosecution case highly doubtful. While appearing in Court Muhammad Ramzan complainant stated that actually the occurrence took place at 9‑30 a.m. and not at 12‑15 p.m. as recorded in the initial report. The Investigating Officer as well as Ain‑ul‑Haq P. W. 3 the injured witness gave the time of occurrence to be 12.00 noon. The taking away of the watch by the companion of the accused appellant is conspicuous by its omission in the first information report. According to both the eye‑witnesses they succeeded in apprehending the accused as he had exhausted the ammunition in the pistol. Whereas according to the I. 0. when he took over the pistol in possession, soon after the occurrence it still had four live cartridges in the magazine. No effort was made to recover any of the two empties from the spot which would have helped the Court in pin‑pointing the scene of delict. The version of Muhammad Ramzan was that the money was removed from his pocket. On the other hand Ain‑ul‑Haq P. W. 3 stated that it was removed from the fold of loin cloth. Ain‑ul‑Haq's evidence is that when he reached the spot the companion of the accused had already left the scene. It is on record that soon after the occurrence about 50/60 persons gathered on the spot, which would show that the place was not a deserted one. The counter‑version of the parties about robbery is highly immaginative. Keeping in view the time and place of occurrence the robbery in broad day‑light in an inhabited area appears to be least plausible. The pro fession of Muhammad Ramzan complainant is given to be a labourer. Why and for what purpose he was carrying a sum of Rs.2,110 on his person is an enigma shrouded in mystery.

5. In between the lines one can read that there was something else between the parties which both sides have successfully supressed. Anyway the inconsistencies noted in the prosecution case are of crucial consequences which has rendered the case of robbery doubtful, the benefit of which has to be extended to the appellant. As such the appeal is accepted, the conviction and sentence awarded to the appellant under section 392, P.P.C. are set aside. He shall be released forthwith if not required in any other cause. M. Y. H. Appeal allowed.