1995 P Cr (PLP)

Ali Murad Abro for Appellant. Abdul Fatah Mughal for A.A. -G. for the State Appellant Muhammad Mithal preferred this appeal being dissatisfied with the judgment and sentence passed against him by learned 4th Additional Sessions Judge, Larkana convicting and sentencing him to undergo R.I. for one year under section 14, Offence Against Property (Enforcement of Hudood Ordinance), 1979 read with section 382, P.P.C. and imposing a fine of Rs.1,000 or in default of payment of fine to undergo R.I. for three months. The brief facts of the case are that on 5-2-1983 one Bhooro Gadhi lodged his report which was recorded in Roznamcha at Police Post Rashid Waggan of Taluka Police Station, Larkana under section 382, P.P.C. which was later on incorporated in 154, Cr.P.C. Book at Taluka Police Station, Larkana as Crime No.30 of 1983. The complainant has stated in his F.I.R. that on the day of incident i.e. 5-2-1983 complainant left his bullocks in the morning for the grazing of lands. A short while thereafter when he again went to look after his bullocks, he saw one of his bullocks missing and at a distance, he saw one man taking away his bullock. He challenged him and raised cries of "thief thief" which attracted his relatives Ghulam Sarwar, Achar and other village people. All of them followed the bullock and in the meanwhile they saw police of Police Post Waggan which also followed the thief and the bullock. The thief seeing the police in uniform left the bullock and started running but was apprehended by the police and complainant party. On enquiry he disclosed his name as Muhammad Mithal son of Ali Muhammad by caste Bughio resident of Village Gud Taluka Dokri. From his personal search a country-made pistol of .12 bore and 3 live cartridges were recovered in presence of Tagio and Khair Muhammad. Thereafter police brought the accused, pistol, cartridges and bullock at Police Post Rashid Waggan and entry in Roznamcha was recorded by S.I.P. Muhammad Hashim at 10-30 a.m. Accused was arrested and challaned under section 9, Offences Against Property (Enforcement of Hudood Ordinance, 1979) and learned 4th Additional Sessions Judge was entrusted with this case and he conducted the trial by framing the charge against the appellant under section 9, Offences Against Property on 14-7-1985. Prosecution examined complainant Bhooro, P.Ws. Muhammad Achar, Ghulam Sarwar and S.I.P. Muhammad Hashim and given up P.Ws. H.C. Muhammad Pariah and P.C. Abu Bakar. Statement filed by A.P.P. on 11-11-1991 shows that Mashir Khair Muhammad has expired away and the co Mashir Tagio was called who was also given up on 8-12-1991. As such prosecution was left with the evidence of complainant and P.Ws. Ghulam Sarwar alias Lalo, Achar and S.I.P. Muhammad Hashim on the factum of incident of this case. The appellant in his statement under section 342, Cr.P.C. recorded by the learned Trial Court had denied the allegations of prosecution and had stated that P.Ws. have deposed against him due to enmity and that he had been involved due to party politics. He had neither examined himself on oath nor had led any evidence in defence. The learned trial Court had framed the points for determination that whether the appellant had committed theft of bullock belonging to the complainant and that what offence had been committed by the appellant and as such had replied that offence under section 14, Offences Against Properly Enforcement of Hudood Ordinance, 1979 read with section 382, P.P.C. has been proved against the appellant after giving the reasons for the same. Mr. Ali Murad Abro, Advocate for appellant contends that the trial Court has not property appreciated the evidence recorded against the appellant and has convicted him without appreciating the factual as well as legal aspect of the case. He has submitted that there are material contradictions in-between F.I.R. and deposition of complainant on the factum of commission of theft as according to F.I.R. complainant says that he went towards his land and found one of his bullocks missing and he also saw one man taking away his bullock arid on his cries of "thief thief" P. Ws. Ghulam Sarwar alias Lalo, Achar son of Muhammad Murad and other villagers came running, whereas in deposition he says that after half an hour he went to his lands and saw one of his bullocks missing and then he went to co-villagers Achar and Ghulam Sarwar and informed them about missing of his bullock and then they tracked the footprints of bullock and they found foot-prints of one person alongwith hoof marks of the bullock. He has also further pointed out that there is inconsistency with regard to the securing of cartridges from the appellant in-between F.I.R. and deposition. His next contention is that P.W. Muhammad Achar cousin of complainant has not supported the case of prosecution, so much so that he has denied to identify the accused in Court. In cross-examination P.W. Muhammad Achar stated that police told them that the said bullock was secured during Nakabandi from some culprits who fled away leaving the bullock. With regard to evidence of P.W. Ghulam Sarwar learned counsel points out that he has given a quite different version than that of the incident by deposing that he heard two fire shots of the police at the time of incident and also says that he does not remember as to when he was examined by police. As regards the evidence of Muhammad Hashim, S.I.P. learned counsel points out that neither cartridges were available in the Court nor bullock was present in the Court at the time of his examination. He has also not produced entry No.2 of the Roznamcha and has also deposed that chasing party was consisting of 10 to 15 persons. The further arguments of the Advocate for the appellants are that there is no evidence of recovery collected by prosecution and no one has been examined on this important piece of evidence. He has also relied upon the case-law 1977 PCr. LJ 671 and 1992 PCr.LJ 1200, para "B" and submits that there are two versions of this case and the trial Court has not taken into consideration the defence version favourable to the appellants and has convicted without consideration. Mr. Abdul Fatah Mughal counsel appearing, on behalf of State has not supported the judgment of the trial Court and has contended that it is a case where benefit of doubt can be extended to the appellant. The trial Court has convicted the appellant under section 14, Offences Against Property read with section 382, P.P.C. and has disproved the case under section 9 of Offences Against Property (Enforcement of Hadd), as according to learned trial Court requirements of section 7 for bringing the case within ambit of Hadd is lacking. Section 14 of Offences Against Property is quite an independent offence and is punishable as theft liable to Tazir provided for the offence of theft in Pakistan Penal Code, section 14 reads as "Punishment for theft liable to Tazir whoever commits theft liable to Tazir shall be awarded the punishment provided for the offence of theft in the Pakistan Penal Code". The definition of section 382, P.P.C. is as: "Whoever commits theft, having made preparation for causing death, or hurt, or restraint, or fear of death, or of hurt or of restraint, to any person, in order to the committing of such theft, or in order to the effecting of his escape after the committing of such theft, shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine." In this case learned trial Court has convicted the appellant 'under section 14 of Offences Against Property Enforcement of Hudood Ordinance, 1979 read with section 382, P.P.C. which in my opinion is not sustainable as the ingredients of section 382, P.P.C. and section 14, Offences Against Property are not attracted while going through the evidence on record of this case. Section 14 Tazir is with regard to unwitnessed theft whereas under section 382, P.P.C. theft is committed after preparation of causing death or hurt: or restraint, or fear of death, or of hurt, or of restraint to any reason in order to committing such theft. From the evidence both these provisions of law are not proved against the appellant. I have also given ample thought to the evidence that has come on the record of the trial Court and find that the prosecution has failed to prove case against the appellant and a clear doubt is created with regard to the veracity of the prosecution story. P.W. Achar the cousin of complainant has not supported the case and there are also material contradictions which go to the root of the prosecution case and specially when the evidence of recovery of bullocks, pistol and cartridges has not been brought on record against the appellant so much so that the very bullock has not been produced in the trial Court at the time of E examination of complainant and P.Ws. The appellant has been facing this trial since 1983 which is also a sufficient sort of punishment and this factor is also being taken into consideration while deciding this appeal. In such circumstances the benefit of doubt is created and appellant is given benefit of doubt and appeal is allowed, conviction and sentence passed against him by the trial Court is set aside. He is on bail granted by this Court, his bail bond stands discharged N.H.Q./M-2143/K Appeal allowed.