2005 PLP 371 (MLD)

Date of hearing: 8th November, 2004. The appellants namely Salahuddin son of Haji Qasim Khan and Basrullah Jam son of Ghulam Haider, both residents of Aba Khel; Tehsil and District Lakki Marwat through instant Criminal Appeal No.70 of 2004 have challenged judgment dated 17‑7‑2004 passed by learned Sessions Judge, Lakki Marwat whereby they were convicted under 392, P.P.C. and sentenced to suffer seven years R.I. each and fine of Rs.5,000 each or in default thereof, to undergo one month further S.‑I. with benefit of section 382‑B, Cr.P.C.

2. Shortly narrated facts of the case are that Samar Gul complainant lodged a report to the effect that on 8‑9‑2002 he along with his cousins Tahir Muhammad and Munir Ahmad was present in his grocery shop situated in 'Mela Mandi' Lakki City. At about 3‑15 p. m. two persons, one armed with Kalashnikov‑and the other with .30 bore pistol entered his shop, aimed their weapons at them and directed them not to move. They took out an amount of more than rupees one lac from the drawer of the table lying in the shop. While leaving the spot, they disconnected telephone and also made aerial firing. On report of the complainant, a case vide F.LR. No.358 dated 8‑9‑2002 was registered by A.S.‑I. Obaidullah Khan (P.W.2) against unknown accused at Police Station Lakki Marwat for offence under section 17(3) of offences against property (Enforcement of Hudood) Ordinance, 1979.

3. On receipt of information through wireless about the occurrence, S.H.O. Tahir Khan (P.W.6) chased the culprits and apprehended them near Gulwali Abad. He recovered a sum of Rs.1,09,000, a Kalashnikov, a bandolier, three magazines, 74 live rounds of 7.62 bore, a hand grenade and a dagger from possession of accused Salahuddin and a .30 bore pistol from possession of accused Basrullah Jan. A recovery memo. to this effect was prepared. The witness‑in‑hand prepared site‑plan Exh.P.B./1 and after finalization of the investigation, submitted challan against the accused in Court.

4. The appellants were formally charged to which they pleaded not guilty and claimed trial. The prosecution in order to prove its case against the appellants, examined nine witnesses in all Appellants in their statements recorded under section 342, Cr.P.C. denied the prosecution allegations and claimed to have been charged falsely. Accused Salahuddin appeared as his own witnesses on Oath as required under section 340(2) Cr.P.C. and produced Shaista Khan (D.W.2) and Noor Illahi Dad (D.W.3) in defence.

5. Upon consideration of the material available on file, the learned trial Court convicted and sentenced the appellants as mentioned above.

6. Mr. Ehsanul Haq Malik, Advocate for the appellants bitterly criticized the impugned judgment and attempted to argue that findings recorded by the trial Court are based on mis‑appreciation and non appreciation of evidence; that despite material discrepancies visible in the evidence adduced at the trial by prosecution, the appellants have been found guilty and convicted and that the statements of defence witnesses demonstrating complete unanimity have been discarded without any justifiable reason. The learned counsel also submitted that the recovery was made in a clandestine manner and in total disregard to the mandatory provisions of section 103, Cr.P.C. and no efforts seems to have been made to associate, independent witnesses with the recovery proceedings. To substantiate, the arguments, reliance was placed on Ahmad Sher and another v. The State (PLD 1995 FSC 20), Ihsanullah v. The State (PLD 1995 Peshawar 106), Muhammad Asghar alias Pappu v. The State (1999 PCr.LJ 1575), Muhammad Riaz and 3 others v. The State (PLD 1994 Peshawar 102) and Muhammad Aslam and others v. State (PLJ 2004 Cr.C Lahore 826).

7. Mr. Muhammad Sharif Chaudhry, learned Deputy Advocate General for the State did not support the impugned judgment of conviction and conceded that prosecution case is full of contradictions and omissions and the learned trial Judge has proceeded on wrong premises to find the appellants guilty of the offence and convict them.

8. It is well settled that burden to prove all the ingredients of the charge always lies on the prosecution and it never shifts on the accused who is entitled to stand on the innocence assigned to him under the law till it is dislodged. Even, in a case where defence plea, on its face, appears to be sham, prosecution is not absolved of the duty to prove its case. The Court while deciding a case, should, at first, evaluate the prosecution evidence and see as to whether it has the capacity to bring home charge against the accused and if answer is in the affirmative, only then plea of the accused along with defence evidence, if any, may be weighed so as to reach at a definite conclusion. The Court in order to award or maintain conviction has to base the findings on evidence and that too having come from an unimpeachable source.

9. The case of the prosecution is that on the day of occurrence, complainant along with his cousins was present in his shop when two unknown persons, one armed with Kalashnikov and the other with .30 bore pistol, entered into the shop and took away an amount of mire than rupees one lac from the drawer of the table lying m the shop. The culprits were chased and apprehended the same day i.e. 8‑9‑2002 by S.H.O. Tahir Khan. Complainant Samar Gul (P.W.3) in his statement recorded at the trial charged two unknown persons for the commission of crime and admitted in cross‑examination that he had identified the accused at the time of occurrence The present accused are not those B persons who had snatched the money from his shop. He had seen the accused while in police custody. After the arrest, the accused were brought to his shop by the S.H.O. He also admitted that one Shaista Khan had told him that some unknown persons had kept the Arms and ammunication and a bag of cloth containing money in his house and he produced the same to S.H.O. Tahir Khan, Munir Ahmad (P.W.4) has B also given a similar statement and admitted in his cross‑examination that the accused present in Court are not the persons whom he had suspected at the time when they were brought to the shop.

10. Mere absence of enmity is not sufficient to stamp the statement of a witness with truth. The mere fact that the police witnesses had no enmity or grudge or malice against the appellants, by itself, is not a strong circumstance to hold that whatever has been alleged by the prosecution, should be implicity relied upon without asking fox supporting evidence.

11. No doubt it is true that in a criminal trial it is never the quantity but quality of evidence which weights with the Court while appreciating the evidence. It is needless to mention here that even one reason or factor, if creates any reasonable doubt in the probability of a version being true, the same can be taken as sufficient to clinch the matter and not many are required.

12. A perusal of the record would reveal that on materials particulars, the prosecution evidence is inconsistent and full of doubts, therefore, the same even in absence of defence evidence cannot result into conviction of, appellants. It may be observed here that two witnesses namely Shaista Khan and Noor Illahi Dad have been examined in defence who have totally narrated a different story and negated the version of the prosecution. Even if both the version, one put forward by the appellant and the other put forward by the prosecution, arc considered in a juxtaposition, then the version of the appellants seems more plausible and convincing and near to truth while the version of the prosecution is totally false. There is a possibility of the version of appellants being true which makes the prosecution story doubtful.

13. In short the prosecution has failed to bring home charge against the appellants. The case of prosecution is full of doubts and contradictions. It is not necessary that there should be more than one reason in the circumstances, if one reason creates reasonable doubt in prudent mind, which alone would be sufficient for discarding the prosecution evidence as held in Riaz Maseeh alias Mithu v. State (1995 SCMR 1730) and Saeedullah v. Shah Nazar and others (2001 PCr.LJ 1740). In any case, a conviction is to be based on the evidence on record and, in the present case, evidence as discussed above does not prove beyond a reasonable doubt that the appellants were perpetrators of the crime.

14. Resultantly, the appeal is accepted, the impugned judgment of conviction is set aside and the appellants are acquitted of the charge. They be set free forthwith from Jail if not required in any other case. H.B.T./282/P Appeal accepted.