2018 P Cr (PLP)

FAHIM AHMED SIDDIQUI, J.

The Appellants preferred the instant appeal, as they are aggrieved by the Judgment dated 30th November, 2016, passed by the Additional Sessions Judge-I, Mehar, in Sessions Case No.150 of 2015 convicting the appellants for an offence punishable under sections 462-B, 462-F and 379 read with section 511, P.P.C. to suffer R.I. for seven (7) years and to pay fine of Rs.100,000/- and in the case of default in the payment of fine to undergo S.I. for one month more.

2. On 25.09.2014, the complainant ASI Manzoor Ali Chandio of Police Station Radhan (PW-1) left police station with his subordinate staff in official police mobile for routine patrolling at 04:00 hours. While patrolling along PARCO pipeline, they reached at 79 k.m. at about 02:00 hours, they saw in the headlight of mobile that five persons after digging a ditch over PARCO pipeline were installing a clip over the pipeline in order to commit theft of oil. The police party stopped their vehicle but the culprits started to run, and after chasing, the police party apprehended two persons namely Karamat Arain and Rafique (present appellants) While remaining succeeded in escaping from the scene of offence. The police also recovered a clip and screwed wrench from the accused persons. The complainant prepared such memo of arrest and recovery on the spot by appointing PC Javed Ali and PC Manthar Ali as marginal witnesses. The arrested accused and case property were brought back to the police station where FIR was lodged against them.

3. After completion of the investigation, investigating officer submitted the final report before the concerned Judicial Magistrate, who after completing initial formalities sent up the case to Sessions Court, as the case was exclusively triable by the Sessions Court. The learned Sessions Judge entrusted the case to learned Additional Sessions Judge-I, Mehar for disposal according to law.

4. The trial Court after fulfilling the initial formalities, initiated trial and prosecution witnesses were examined. The prosecution has examined the complainant ASI Manzoor Ali Chandio (PW-1) who describe the whole affairs and produced Entry of Daily Diary (Ex.15-A), memo of arrest and recovery (Ex.15-B), FIR (Ex.15-C) and criminal record of absconding accused (Ex.15-D). The prosecution also examined one of the marginal witnesses namely, P.C. Manthar Ali (PW-2), after that prosecution closed their side.

5. Mr. Riaz Hussain Khoso learned counsel for the appellants assailed the impugned judgment on the ground of improper appreciation of evidence and misreading and non-reading of the available evidence. He pointed out some of the contradictions in the evidence, especially regarding recovery from the accused. According to him, as no digging tool is recovered from the appellant, therefore, it is a false allegation that they were digging the earth to retrieve the pipeline of SPARCO for stealing oil. He also pointed out that there was no drum or vehicle etc. either for collecting and transporting the oil.

6. Mr. Sardar Ali, learned APG supported the impugned judgment. According to him, the role of accused is consistently described. According to him, stealing oil from the main pipeline is a serious and heinous offence hence the appellant should not be treated leniently. He requested to maintain the punishment by submitting that the prosecution has proved the case.

7. After having heard the learned counsel for the appellants and the learned prosecutor and after precisely going through the records, I am of the view that the case against the appellants is highly doubtful and their conviction is not justifiable. It is alleged by the complainant in his FIR that, at the time of arrest the accused persons were putting a clip on pipeline after digging a ditch over the pipeline. In such a situation, a memo of inspection of the place of the incident was required to be prepared, but no such memo was prepared during the investigation, as mentioned by the complainant. It is worth noting that if allegations are that the accused were digging the earth, some tools like shovel, spade, scoop, trowel or any other similar tool must be recovered from the possession of the accused persons or found at the place of incident. It is also important to note that the police did not find empty barrels or any other container for storing stolen oil as well as no vehicle was shown to be seen by police for transporting the stolen oil. In such a situation, the only recovery of a clip and a screw wrench is not sufficient to connect the appellants with the commission of the alleged offence.

8. As far as contradictions are concerned, the same are also available in the deposition of the two witnesses produced by the prosecution before the trial court. The complainant during cross-examination, states that he prepared the memo of arrest and recovery in the headlight of police mobile by placing the papers on the pad. In contrast to the version of the complainant, the witness states that the complainant prepared memo by putting on the bonnet of police mobile. The complainant during cross-examination states that he saw the accused persons at a distance of 15/20 while the witness says that they saw the accused from a distance of 200 paces. The complainant during cross-examination discloses that the accused persons ran away in different directions while witness stated that they ran away in the western direction. The complainant during cross examination describes that they did not perform patrolling at any other place while witness says that they went at different places during patrolling before reaching the place of incident. Even, he noted names of different places where they performed patrolling.

9. Another aspect of the case is important, which is regarding defence plea. Appellant Karamat in his statement under section 342, Cr.P.C. describes that the brother of co-accused and his cousin namely Irshad Arain filed an Application No.35/2009 and he produced the copy of that application and some other document. From that document, it transpires that the family of the appellants were also on disputation with police, and they have complained against some of the police officers and even a FIR was lodged against the police under the direction of Court in respect of illegal detention of Muhammad Rafique Arain (Appellant No.2) by an official of the Court. If the defence plea is taken with the juxtaposition of the already doubtful prosecution case, it becomes hard to believe about the happening of affairs as described in the FIR.

10. The consequential outcome of the above discussion is that the prosecution had failed to prove the case against the appellants; hence the instant appeal is allowed. Consequently, conviction and sentence awarded to appellants vide impugned judgment dated 30.11.2016 passed by learned Additional Sessions Judge, Mehar in Sessions case No.150/2015 is set aside. Both the appellants are acquitted of the charge. They shall be released forthwith, if not required to be detained in any other case. JK/K-10/Sindh Appeal allowed.