1992 PLP 1670 (MLD)

Date of hearing: 10th December, 1991. ABDUL MARD TIWANA, J.‑‑‑The appellants were tried by the Punjab Special Court for Speedy Trial No.V11, Sargodha, on the charge of committing robbery, punishable under section 392/397, P.P.C, by snatching away motor‑bike No.1EW 2380 from Muhammad Amir complainant, by putting him under fear of death on 7‑4‑1988 at 8‑15 p.m. when they intercepted him near Janda Head on Puki Nehr in the area of Burji No.180 in the jurisdiction of Police Station Kallor Kot, District Bhakkar, while returning to his house from Changarwala. On the conclusion of the trial, vide judgment dated 11‑7‑1988, they were convicted under section 392/397, P.P.C. and sentenced to ten years' R.I and a fine of Rs.20,000 or in default of its payment to further undergo two years' R.I.

2. The incident was reported to the Police by Muhammad Amir complainant himself and case: F.I.R. No.63 was registered on the same day against two unknown persons as the complainant could not identify them. During the investigation the snatched away motorcycle was recovered by the police with the help of Khadim Hussain P.W. who was brought to the place of incident by the police. After preparing the moulds of foot tracks and tracing the footprints of the culprits first he took the police party to village Umarwali, where they crossed River Indus and across the river he again traced the footprints which led them to the but of Kails, wherefrom they recovered the stolen motorcycle from one Ashik Hussain Kail. Subsequently on 22‑4‑1988 the police arrested Ghulam Sadiq and Mulazim Hussain appellants and at their instance they recovered rifle (P.1) and pistol (P.6) respectively alongwith five live cartridges from each.

3. On the completion of the investigation they were sent up for trial to the Special Court which, on their pleading not guilty to the charge, recorded the evidence of as many as eight witnesses.

4. To be a little more precise, Muhammad Amir complainant (P.W.1) repeated the version of the incident as given in F.I.R. and summmarised above. Fateh Sher (P.W.2), Muhammad Nawaz (P.W.3) being witnesses of `Wajtakkar' deposed that during the night of occurrence at about 10 p.m. they had seen the appellants pushing the motorcycle to some destination and in response to a query, they had told them that the; same: was out of order. Muhammad Iqbal (P.W.4) had identified the motorcycle as that of Muhammad Amir complainant and deposed accordingly. Mahboob Ellahi P.W. had met Muhammad Amir complainant after the incident and after hearing its details he had transported him on his own motor‑cycle to his village. He testified accordingly. S.I. Khuda Bakhsh (P.W.6) first testified that he had recovered the stolen motorcycle (P.7) from the, but of Ashiq Hussain Kail and then in the same breath he deposed that in fact it was recovered by S.‑I. Muhammad Ashraf. Khadim Hussain (P.W.7) stated that on the request of the police he had visited the spot and prepared the moulds of the foot tracks leading to Umarwali and further on to the River Indus and reached the but of a Kail after crossing the river where the police took into possession the stolen motorcycle. The last witness was S.‑I. Muhammad Ashraf. He gave details of the investigation.

5. The appellants, in their respective statements recorded under section 342, Cr.P.C, denied all the incriminating circumstances figuring against them and alleging their false implication, professed innocence. On the conclusion of the trial the appellants were convicted and sentenced in the manner aforesaid and they came up in appeal to this Court.

6. It is argued on behalf of the appellants that they were not previously known to Muhammad Amir complainant and in these circumstances it was necessary for the police to arrange their test identification parade but this course was not adopted; that the recovery of the stolen motorcycle was effected from one Ashiq Hussain Kail, resident of Dera Ismail Khan District, but he was neither cited as an accused nor he was cited as a witness and one does not know as what connection the appellants had with him; that the witnesses of Wajtakkar had no occasion to see the appellants taking away the stolen motorcycle and they were stock witnesses of the police; that there is nothing on the record to show as to how Khadim Hussain leading the police party with the help of footprints of the appellants covered such a long distance and crossed a big river like Indus and going across it traced the motorcycle in the but of Ashiq Hussain Kail. It is contended that the prosecution story is replete with contradictions, improbabilities and infirmities and the appellants were convicted and sentenced for no valid reason and without any cogent evidence against them.

7. It is an admitted position that the appellants were not previously known to Muhammad Amir complainant. For that reason he did not mention their names in the F.I.R. He described the culprits by means of their features and stature. We have not been assured as to how Muhammad Nawaz and Fateh Sher, the witnesses of Wajtakkar knew the appellants previously when they belonged to another district situated across river Indus. The hollowness of their testimony stands badly exposed. No reliance, therefore, could be placed on their deposition either. Khadim Hussain P.W. who claimed himself to be a Tracker, also told a cock and bull story. It is simply incredible that he would come to the spot during the night of occurrence, pick up moulds of the footprints of the accused and then with the help of footprints he would lead the police party to the but of one Ashiq Hussain Kail across river Indus after crossing it. Being the biggest river in Pakistan it is not easy to cross it at any place and likes even if it is not in spate. To cap it all, it has not been explained by the prosecution as to what connection Ashiq Hussain Kail, from whose but the stolen motorcycle was recovered, had with the appellants and how they were roped in and he was let off.

8. In view of the above, we have come to the conclusion that the prosecution could not adduce any reliable evidence to prove the guilt of the appellants beyond any shadow of doubt. Therefore, their appeal is accepted, their conviction and sentence are set aside and they are acquitted. Being on bail, they shall stand discharged of their liability under the bail bonds. N.H.Q/G‑40/L Appeal accepted.