Haji ABDULLAH vs KHURASAN and 3 others

ORDER

1. ' MRS. SYEDA TAHIRA SAFDAR, J.---Through instant appeal the appellant sought remand of the case to the trial court for deciding it on merits after completion of trial while setting aside of the impugned order dated 12-2-2009, whereby the trial court while accepting application under Section 249-A, Cr.P.0 acquitted respondents Nos.1 to A 3 of the charge. It is case of the appellant that respondents No,1 to 3 along with two other persons stole his tractor bearing Registration No,MLW-9266, Chassis No,090775, Engine No,55M905-E in between night of 21st and 22nd July, 2007.

2. F.I.R. Was lodged on his report on 25-7-2007, on basis of statements of eye-witnesses, detection by tracker dog and on undertaking of respondent No,1 in respect of producing the stolen tractor and thieves. Further, on arrest of respondents, the appellant was asked to produce witnesses, thus on 18-10-2008 statements of witnesses were recorded under section 161, Cr.P.C. Thereafter, on 24-11- 2008 he produced registration book of stolen tractor, which was taken into custody. On completion of investigation case was challaned and statements of three witnesses were recorded. Whereafter, the court while accepting the application under Section 249-A Cr.P.0 acquitted the respondents from the charge. Feeling aggrieved by the order the instant appeal has been preferred on grounds that the trial court acquitted the respondents on grounds of delay in filing of F.I.R. And recording of statements, but that no opportunity was given to the prosecution to explain the delay. Secondly, the improvements made in the statement recorded before the court by appellant were not confronted to him (appellant) through statement made under Section 161, Cr.P.C, wherein he had given all the details, and benefit of this improvement cannot be extended to accused persons unless such improvement is not verified by the Investigation Officer while recording his statement before the court. Thirdly that the trial court below failed to appreciate the extra judicial confession made by respondents Nos. I to 3 before witnesses. Fourthly, that the trial court failed to record statements of Arbitrator and two other witnesses, who also appeared before the court. As such proper opportunity was not afforded to the prosecution to substantiate the charge against the respondents/accused. Even the motive for false involvement is not asserted. He has prayed accordingly.

3. The perusal of impugned order dated 12-2-2009 reveals that trial court accepted the application thereby acquitted the respondents on grounds, eight in number, such as delay in filing of F.I.R. And recording of statements of witnesses, which is unexplained, non-mentioning of registration number of stolen tractor in F.I.R., dishonest improvement in statement of complainant/ appellant before the court, existence of previous enmity, thereby inference of false involvement cannot be over ruled.

4. Further, that extra judicial confession is of less evidentiary value. Absconsion of accused persons was also held not to have been proved. Furthermore, registration of two F.I.Rs, having same number and registered at same Levies Thana Killa Saifullah. The points noted and conclusion drawn by the trial court are based on material present on record.

5. It is an admitted position that alleged incident occurred in between night of 21st/22nd July, 2007, while the matter was reported on B 24-7-2007, but no reason was disclosed for the said delay. In case the appellant got help of tracker dog to locate the thieves, he should have disclosed this fact in F.I.R. And or in his statement recorded in front of Naib Tehsildar on 25-7-2007. The appellant however, said nothing about the same. Rather appearing before the court he stated a different story about taking help of a dog. It is further an admitted fact that soon after registration of F.I.R.

6. Statement of witnesses were not recorded, rather Investigating Officer recorded the statements on 18-10-2008 and 29-11-2008. What was the reason of recording these statements with a delay of more then two and three months is not explained.

7. ' As far as Arbitration proceedings are concerned, though it has been asserted by appellant/ complainant that respondent No,1 admitted theft of tractor during arbitration proceedings, but perusal of Arbitration Decision reveals that it is mentioned therein that second party Khurasan respondent No,1 denied committing of theft. The eye-witnesses and the complainant differ from each other about the season in which the incident occurred, which the trial court correctly pointed out in tfie order. The appellant in his statement before the court deposed that he is not in possession of any title documents or any other proof to prove his ownership in respect of tractor allegedly stolen, further, the registration of it is also not in his name. He further contended that he produced the title documents to the investigation officer, which were taken in custody. The relevant memo bears date 24-11-2008. While the certificate of registration reveals that the vehicle is in the name of Gulzar Hussain and Ahmed Yar. Moreover, the trial court in impugned order observed that two F.I.Rs, of same number at same levies Thana were registered. The copies of both these F.I.Rs, are present on record, which bear Registration No,7 of 2007 Levies Thana with different particulars.

8. The appellant has remained completely silent about the same. There seems to be some collaboration between the appellant and staff of concerned Levies Thana. The observations made by the trial court are based on record.

9. Keeping in view the above mentioned facts and circumstances the whole case of the prosecution is doubtful. The order impugned before this court is well-reasoned and the trial court has come to the right conclusion. The appellant has failed to point out any illegality or irregularity in the impugned order, due to which any interference is required therein. Moreover, on the basis of available evidence no conviction can result, therefore, there is no need to remand the case. In the circumstances the appeal is dismissed in limine.