2013 PLP 2680 (YLR)

SADIQ HUSSAIN BHATTI, J.

Khan Muhammad son of Haji Qaim Marri, resident of Rahim Nagar Mirpurkhas, was tried by the learned Sessions Judge, Mipurkhas under section 392, P.P.C. and 20 Harabah (offence against property) E.H.O. 1979, convicting and sentencing him under section 411, P.P.C. to suffer R.I. for a period of 3 years with the benefit of section 382-B, Cr.P.C.

2. On an F.I.R. lodged by complainant Jewan Khan, which was registered as Crime No.73 of 2002 at Police Station Taluka Mirpurkhas on 20-10-2002 at 3-15 p.m.

3. The prosecution version of the occurrence as given in the above F.I.R. is as under:-- "On 16-10-2002, complainant left his village for coming to Mirpurkhas, on his Motorcycle, when he reached near village Mubarak Leghari, Lakho link road, at about 1730 hours two persons gave signal to him to stop the Motorcycle, on which he stopped the Motorcycle and identified one of them to be Khan Muhammad Mari (present appellant) who was residing in Raheem Nagar near the house of complainant's brother-in-law namely Ahmed Leghari. Both the persons were armed with Pistols. Accused Khan Muhammad Mari pointed the Pistol upon him, fell him down and then both the accused persons ran away on his Motorcycle towards the northern side. He narrated the facts to his son Khuda Bux Leghari and his relative Dost Leghari and went to the house of Khan Muhammad Mari, but he was not available in the house. They remained in search of Motorcycle but could not succeed. Thereafter, the complainant lodged the F.I.R."

4. Police after registering the said F.I.R. arrested the accused and secured the robbed motorcycle bearing Registration No.HDJ-2329 and an unlicensed Pistol.

5. Police after usual investigation submitted the charge sheet against the accused before IInd Judicial Magistrate, Mirpurkhas for offences under section 392, P.P.C. and 20 Harabah (offence against property) E.H.O. 1979. The case was sent up and tried by the Court as mentioned above after supplying the relevant documents to accused vide receipt Exh.1.

6. Charge Exh.2 was framed against the accused and they pleaded not guilty and claimed to be tried.

7. Prosecution in order to substantiate their allegations, examined the following P.Ws:-- P.W.1: Complainant Jewan Khan at Exh.7. He produced F.I.R. at Exh.7/A. P.W.2: Khuda Bux son of complainant at Exh.8. Complainant went and informed him about the incident. They returned and lodged the F.I.R. P.W.3: Muhammad Ibrahim at Exh.9, mashir of place of vardat. He produced memo as Ex.9/A. P.W.4: SIP Mushtaque Ali at Exh.10, Investigating Officer. He produced memo of arrest of accused and recovery at Exh.10/A. P.W.5: PC Shahnawaz at Exh.11, mashir. P.W.6: S.H.O. Khuda Bux at Exh.13, Investigating Officer. P.W.7: A.S.-I. Sher Khan at Exh.14, Investigating Officer. Thereafter, prosecution closed its side vide Exh.15.

8. Statement of accused Khan Muhammad under section 342 Cr.P.C. was recorded at Exh.16. Accused denied the prosecution allegations and pleaded innocence. He further pleaded that no private P.W. has deposed against him.

9. Learned trial Court after hearing the learned counsel for the respective parties and examining the record, convicted the appellant/accused as mentioned above in earlier para.

10. Being aggrieved and dissatisfied by the judgment dated 10-2-2004, appellant/ accused filed this Criminal Appeal. His counsel raised the following grounds in support of his pleadings:-- (i) The impugned judgment passed by the trial Court is contrary to the evidence on record. (ii) There are no reasonable grounds which connect the accused with alleged crime. (iii) There is absolutely no evidence with regard to the case of robbery. (iv) The learned trial Court has convicted the accused under section 411, P.P.C. and has ignored the evidence of private witnesses. (v) The judgment of the trial Court is based on merely conjectures and surmises.

11. On the other hand, learned State Counsel has also not supported the impugned judgment.

12. Having heard the contentions raised by learned advocates and perused the record.

13. The star witness in this case is the victim/complainant Jeewan Khan. He has deposed that at the time of incident he had identified one culprit Khan Muhammad only. He further deposed that he then went to his village and informed his sons Khuda Bux and Ibrahim. They returned back and lodged the F.I.R. at Police Station. Motorcycle was recovered by Police which was subsequently given to him on Superdari. He categorically deposed that accused Khan Muhammad shown to me in the Court is not the same. The present appellant Khan Muhammad was not involved in the case of robbery.

14. P.W.2 Khuda Bux also deposed that he did not know any accused as his father had not given him the name of any accused.

15. SIP Mushtaque Ali deposed that he arrested accused Khan Muhammad after four days of the incident. He was apprehended and arrested by police party and robbed motorcycle was recovered. The accused on seeing the police party left the Motorcycle and started running. He was followed and arrested by police. On interrogation he had no papers of Motorcycle. He prepared the memo in presence of his subordinates though he agreed that there was traffic at the place of vardat and people were present.

16. In my opinion, according to the verdict of the trial Court, robbery is not proved and only charge of receiving and retaining of stolen property is proved against the accused and for that he has relied on the evidence of only S.H.O. and his subordinate officials.

17. In the present case, complainant Jeewan Khan was robbed at gun point. He lodged the F.I.R. and disclosed the name of one robber as Khan Muhammad, but during the trial he admits the incident but categorically stated that accused shown to him in the Court is not same Khan Muhammad. Prosecution admitted his testimony. I.O. instead of procuring the privates witnesses, preferred his subordinates though the private persons were available and there is shown a hotel near the place of alleged arrest and recovery. The principle is laid down in Dost Muhammad's case reported in 1986 SCMR 462, by the honourable Supreme Court that:- "Only police witness of recovery produced while two witnesses from public though available not produced."

18. In these circumstances, I am of the humble view that case against the appellant/ accused is not proved. I, therefore, allow this Criminal Appeal and acquit the appellant/accused by giving him benefit of doubt. The appellant is present on bail, his bail bond stands cancelled and surety is hereby discharged.

19. These are the reasons of my short order dated 15-5-2013, whereby I allow this Criminal Appeal. HBT/K-17/L Appeal allowed.