2018 P Cr (PLP)

MALIK HAQ NAWAZ, J.

The instant Criminal Appeal No.43/2017 has been filed against the judgment/order passed by the learned Sessions Judge Hunza, whereby the learned trial Judge acquitted the respondent from the charges levelled against them at Police Station Hunza.

2. The learned Dy. Advocate General submitted at bar that the respondents were caught red handed by the complainant when he along with some other police officials were on patrolling. The challan of the case was submitted in the Court of learned Judicial Magistrate 1st class Hunza, who after full fledged trial convicted the respondents as find mentioned in para which is re-produced for the purpose of ready reference:- "Recovery of stolen property i.e. three cartons and a packet (Ex-P7/A, B, C, D) has been effected from the premises of old National Bank nearby the dry port Sost at the time of arrest of the two accused namely Syed Naqeeb Hassan Shah and Muhammad Sajjad at the spot. Recovery witnesses Sher Muhammad PW-3 and Mumtaz Karim PW-7 duly testified the recoveries (Ex-P3 and Ex-P4)."

3. The respondents filed an appeal under section 408, Cr.P.C. in the Court of learned Sessions Judge Hunza, who after hearing the parties, finally upset the findings of trial Court and acquitted the respondent from the all the charges.

4. The learned Dy. Advocate General submitted that the judgment/order of learned trial Court is not sustainable in the eyes of law as the learned 1st appellate Court misread the entire prosecution evidence, which caused grave mis-carriage of justice. The learned Dy. Advocate General took us through the statements of PW and the judgment of learned Judicial Magistrate. Per learned Dy. Advocate General the judgment of learned Judicial Magistrate was handed down after full application of judicial mind and the appellate Court gave much weight to those minor contradictions, which are bound to occur during the statements of the PWs as a natural consequence. The learned Assistant Advocate General submits that the judgment of acquittal be reversed in the interest of justice.

5. On the other hand the learned defence counsel defended the judgment of learned Sessions Judge Hunza dated 22-09-2017 and submitted that the discrepancies highlighted by the learned first Appellate Court are of very serious and grave nature, which can not be overlooked. The learned counsel prays the judgment of the learned Sessions Judge does not suffer from any material and inherent defect, which may be upheld in the given circumstances of the instant case as all the statements of the PWs runs counter to each other.

6. We heard both the learned counsel of the parties and record of the case was also minutely examined. The complainant, when appeared in witness box as PW-3 completely took a somersault of his version narrated in FIR. The said PW was re-examined by the trial and during re-examination he created more dents in the prosecution case. The statements of PW-3 and PW-7 are also self contradictory and mutually destructive. We minutely scanned the evidence and were surprised to find that non of the PW nominated the accused in their Court statements for commission of the offence. The main thrust in the case was recovery of mobiles from the respondents but the recovery witnesses have not supported the recovery during their examination in the trial Court.

7. The statements of the prosecution witnesses are self contradictory and mutually destructive. The judgment/order of learned trial Court is neither perverse nor arbitrary, which is maintained. However one factor, which we cannot ignore is that, when the FIR No.06/2016 was lodged at Police Station Hunza, one Javed Hussain filed an application under section 516-A, Cr.P.C. for superdari of the mobile sets, which was turned down by a single bench of this Court. SSP Hunza Nagar was directed to prepare an inventory with EMI NOs of all the mobile sets to avoid pilferage, which was done and a list of all recovered mobiles was submitted in this Court. The handing over of the mobile to the respondent/accused is not understood as it was neither their property nor it was the claim of the respondent. The learned Sessions Judge committed a grave error while ordering so. The order of learned Sessions Judge up to this extent was suspended, on 17-10-2017 with the direction to the SHO Police Station Aliabad Hunza not to hand over the mobiles to any one till disposal of the instant appeal.

8. We direct Deputy Commissioner Hunza to auction the above mobiles in accordance with law and deposit the sale proceeds of the mobiles in government treasury under intimation to the Registrar of this Court. Deputy Commissioner Hunza will form a committee and will ensure the transparent and fair auction of the mobiles, after following the law/procedure in letter and spirit.

9. A copy of this judgment shall be sent to Deputy Commissioner Hunza, SSP Hunza and Chief Secretary Gilgit-Baltistan for information/compliance. HBT/166/GB Order accordingly.