2013 PLP 194 (YLR)

NISAR MUHAMMAD SHAIKH, J.

By this common judgment, these two Criminal Jail Appeals shall stand disposed of as the same have been filed against a common judgment. The Appeal No.221 of 2009 was filed by appellants Aaqib Hussain and Rano alias Ali Nawaz while the Appeal No.222 of 2009 was filed by the appellant Shahid Hussain. By way of impugned judgment dated 21-8-2009 passed by learned 1st Additional Sessions Judge, Thatta, all these three appellants were awarded conviction for the offence under section 412, P.P.C. and sentenced to suffer R.I. for ten years and to pay fine of Rs.50,000 each. In default of payment of fine, to undergo further R.I. for one year. The benefit of section 382-B Cr.P.C. was extended to them.

2. As per the prosecution case, a Toyota Corolla Car bearing No.AES-812 was robbed from the area of Police Station Gizri, Karachi and such F.I.R. No.104 of 2007 was registered under section 395, P.P.C. It is alleged that on 19-5-2007 the SIP Wali Dino Jatoi, S.H.O. of Police Station Jhirk of District Thatta was on patrolling duty as per Entry No.18, during which he apprehended the above named three accused/ appellants and recovered the said car from their possession, in presence of mashirs HC Muhammad Urs and PC Abdul Karim and such Mashirnama was prepared at the spot, whereafter such F.I.R. No. 22 of 2007 was lodged by said SIP/S.H.O. Wali Dino Jatoi at Police Station Jhirk under section 412 P.P.C. On completion of investigation, the accused/ appellants were challaned and after due trial of the case, the trial Court convicted and sentenced the appellants as mentioned above.

3. During the course of arguments, it appears to be an admitted position that the accused/appellants, against whom the earlier case of robbery of the car was pending at the time of impugned judgment dated 21-8-2009 passed in this case of recovery of such car, were subsequently acquitted by learned 1st Additional Sessions Judge, Karachi South, on 15-2-2011 in such Sessions Case No.293 of 2007. It is also an admitted position that the prosecution adduced the evidence of sole eye-witness of alleged recovery being HC Muhammad Urs, who was also the mashir of the alleged recovery. Admittedly his evidence is not corroborated by any other witness. The co-mashir PC Abdul Karim was given up by the prosecution vide their statement Exh.8 dated 11-8-2009 whereby the side of prosecution evidence was also closed. The complainant SIP Wali Dino, S.H.O. Police Station Jhirk, who was also the witness of the alleged recovery, was not examined by the prosecution before the trial Court as his whereabouts were not known. The PC Ali Muhammad who was driver of the police mobile in which the raiding party arrived at the spot, was also not examined by the prosecution without assigning any reason, though the name of this witness is also appearing in the list of witnesses given in the challan.

4. However, prosecution examined Investigating Officer Abdul Irshad SIP but admittedly, he was not the witness of recovery and he simply identified/verified the signature of the complainant Wali Dino Jatoi appearing in the F.I.R. and the Mashir-nama. Accordingly his evidence, so far as the arrest and recovery in question is con-cerned, is not helpful to the prosecution to corroborate the evidence of sole witness examined by prosecution on such material point.

5. It is also a matter of record that the robbed car allegedly recovered from the possession of the accused/appellants, was not produced before the trial Court. It is also an admitted position that Roznamcha Entry No.18, on the basis of which the complainant party left the police station and arrived at the spot and effected the alleged recovery, was also not produced before the trial Court during the evidence of P.Ws. Apart from this, learned counsel also argued on some contradictions and other defects of the case of prosecution which, according to him, is very doubtful to the extent that the prosecution story is not believable even.

6. It is also an admitted position that the appellants have served sufficient punishment while remaining in jail and only the sentence of 1 year, 8 months and 19 days remained in balance as on 26-10-2011 when such jail roll was submitted by the Jail Superintendent.

7. Although the learned A.P.-G. opposed these appeals but the contentions of the learned counsel for the appellants, get support from the material available on record which indicates that the case of prosecution cannot be said to have been proved beyond any shadow of doubt and therefore, the conviction and sentence awarded to the appellants is not sustainable in law.

8. Consequently, both the appeals of the respective appellants are hereby allowed and the impugned judgment is set aside. These appellants stand acquitted of the alleged charge and they are directed to be released forthwith if not required in any other case. HBT/A-87/K Appeals allowed.