HANEEF ALIAS QADEER Versus THE STATE A.Q. Halepota , Zaheer Qureshi

1. The appellant was charged alongwith co-accused under section 392, P.P.C. and tried before learned IInd Additional Sessions Judge, Tharparkar, at Mirpurkhas, who convicted him and co-accused Shabbir son of Jiwan to suffer R.I. for three- years and to pay fine of Rs. 1,000 each or in default to undergo further R.I. for three months while the co-accused were acquitted vide judgment, dated 30th April, 1984.

2. The brief facts of the prosecution case are that on 5-4-1978, one Narumal lodged a report at Town Police Station, Mirpurkhas, inter alia alleging therein that he used to reside on the upper storey of Lal Building, Hirabad, in western portion alongwith his family. If is a Zamindar and his lands are situated in Deh Khiraho Taluka Mirpurkhas. That his brothers and other relations used to live in the same building. That on the preceding night after taking dinner he, his wife and their children went asleep in the room. His mother and sister were sleeping in another room. The light of Varanda was on. The door of the room was open. At about 2-45 a.m. he was awakened and saw three persons armed with daggers present in the room. One of those persons asked him to hand-over keys of almirah. He got up and took the keys of iron almirah from wooden cupboard. One of those accused stood over his children having dagger in his hand. One of them got over him, while the third person who was armed with a dagger switched on the light of the room. He opened the almirah and the third accused took out the below mentioned jewileries and cash. He had seen the faces of the accused who hail slightly muffled their faces. He identified one accused to be Shabbir, who was known to him. One other accused used to reside in their mohallah but he did not know his name. He will be able to identify them. The third accused took the key of another almirah from him and went to the wooden cupboard and took out the cash and jewellery. Before leaving, the accused also removed the bangles and wrist-watch from the arm of his wife. They put all the articles in handkerchief. He also saw in the light that one of the accused was walking in the Varandah, near the window who also disappeared alongwith the others. This F.I.R. was recorded by A.S.I.P. Mohammad Siddiqua P.W.8. The F.I.R. has been produced as Ex.8-A. He accompanied the complainant to the place of incident, and prepared Mashirnama of wardat in presence of Motumal and Persram. The Mashirnama has been produced as Ex. 13-A. On the same day he recorded the statement of Mst. Lachmi Bai, thereafter he came to know that A.S.I. Mukhtiar Ahmad had arrested accused Aslam Pervez, Zaheer, Ramzan, Shabbir son of Jiwan, Shabbir son of Faqir Mohammad from Tando Adam while they were going in taxi car of Jumman. The further investigation was carried on by Mohammad Hassan Solangi S.H.O. who after necessary investigation challaned the appellant and co-accused.

3. A formal charge was framed against the accused to which they pleaded not guilty.

4. At the trial, prosecution examined complainant Narumal P.W. 1, he has produced the F.I.R. as Ex. 2-A, Mst. Lachmi Bai wife of complainant P.W. 2, an eye-witness, Mohandas P.W. 3, who was given facts of the incident by the complainant, mashir Motumal P.W. 4, he has produced Mashirnama of Wardat as Ex. 5-A P.W., Rekha Bai and Radha Bai were given up vide statement Ex. 6, Mohandas Mashir P.W. 5, he had acted as mashir of identification test of accused and jewellery and arrest of co-accused, and has produced the Mashirnamas as Ex. 7-A and Ex. ?-B. Mashirnamas of arrest of accused Shabbir son of Faqir Mohammad, Aslam Pervez, Zaheer Ahmed, Shabbir Ahmad son of Jiwan and Ramzan, Mohammad Jumman taxi driver P.W.6. Lower Court deposition of P.Ws. Narumal, Lachmi Bai and Mohandas son of Rewachand were also brought on record at the request of A.P.P. and the same were exhibited as Exs. 9-A to 9-C. Mukhtar Ahmed A.S.I.P. P.W.7, he had arrested the above 5 accused and had carried on part of the investigation, Mohammad Hassan Solangi the then S.H.O. P.W.-8, he had arrested accused Mohammad Hanif from bus stand and recovered stolen property from him under mashirnama which' has been produced as Ex. 12-A. Lower Court deposition of Mehboob was brought on record under section 33 of the Evidence Act. Mahboob had acted as mashir of arrest and had produced the Mashirnama as Ex. 9-A. A.S.I.P., Mohammad Siddique, he had recorded the F.I.R. and carried on part of the investigation.

5. After close of the prosecution case the statements of the accused were recorded in which they denied the allegations. It was further stated by the appellant that he belongs to the group of Malik Allahdino and Usman alias Matka who had enmity with town police Mirpukhas. There have been cases between the parties and therefore, he has been falsely implicated due to above enmity. He produced certified copy of case diary dated 15-8-1979 of F. C . Suit No. 394 of 1978; Allahdino v. S.H.0 Town Police Station and others as Ex. 16/8. The then S.H.O. Mohammad Hassan Solangi was party in that suit and was examined on that day. He also produced certified copy of the application and order thereon passed by S.D.M Mirpurkhas as Ex. 16-B. The same was produced by his brother Muhammad Rafique, in Criminal Case No. 258 of 1978 under section 43 ('3) of Abkari Act. He was also involved in a false case a day earlier to his arrest in this case and was acquitted by the learned joint Civil Judge and FCM Mirpurkhas. Police arrested him from his house on 6-11-1978 at about 2.00/ 3.00 p.m. in presence of Arif, Zahoor and others. The rest of the accused denied the allegations and further stated that their statement was same as that of accused Mohammad Hanif. However, they did not examine any witness in their defence. The learned trial Judge while relying upon the evidence of Mohammad Jumman taxi driver convicted the present appellant and co-accused Shabbir son of Jiwan as described above, while the co-accused were acquitted. The present appeal is directed against the said judgment of conviction.

6. I have heard Mr. A.Q. Halepota, learned counsel appearing for the appellant Mohammad Hanif, and Mr. Zaheer Qureshi learned counsel appearing for the State, I have gone through the R.P.

7. It was contended by Mr. A.Q. Halepota, learned counsel appearing for the appellant that the prosecution had relied upon three pieces of evidence against the appellants namely, identification test by complainant Narumal and his wife recovery of property, and the evidence of P.W. Jumman taxi driver. As far as the evidence of identification test and recovery was concerned, the same was discarded by the learned trial Judge. That the appellant has been convicted only on the evidence of the taxi driver Mohammad Jumman. That the appellant was not arrested from the taxi of Mohammad Jumman and his evidence that appellant had hired that taxi was not enough to convict the appellant specially when the co-accused who were found in his taxi were acquitted.

8. Mr. Zaheer Qureshi, learned counsel appearing for the State has not controverted the factual contentions raised by the learned counsel for the appellant. On the contrary, he has conceded that in view of the fact that the evidence of identification test and recovery of stolen property from the appellant having been discarded, he was not able to support the judgment of the learned trial Judge.

9. I have considered the contentions of the learned counsel. It is not necessary to refer to the evidence of complainant Narumal and his wife Lachmi Bai, inasmuch as their evidence regarding identi?fication test of the accused has been discarded by the learned trial Judge except against accused Shabbir son of Jiwan, whose name was given in the F.I.R. As far as the evidence of identification test was concerned, he has discussed the same at pages 144,145 and 146, of the paper book. He has given valid reasons for not relying upon the identification test, it was admitted by the complainant that they had seen the accused at P.S. before the test was held: That all the six accused were put to identification test with eight dummies and. therefore, the ratio of dummies was in total disregard of the settled principles and that the complainant had not given the physical features of the assailants in his F.I.R. As regards the recovery, the learned Judge has observed at page 143 of paper book in his judgment that:-

10. "It will thus appear from the evidence on record that the recovery is totally belied by the Mashir and even the version of A.S.I.P. Mohammad Siddique who is said to have been present at the time of recovery is in conflict with the Mashirnama Ex. 12-A. In this view of the matter sole evidence of Investi?gating Officer which is not supported by private Mashir and even by A.S.I.P. Mohammad Siddique could not be considered for the purpose of sustaining any conviction for recovery of theft articles. He has further observed that the prosecution has, therefore, failed to prove the case of recovery of theft property from accused Mohammad Hanif."

11. The above observations are based on correct appraisal of evidence of Mashir Mehboob, A.S.I.P. Mohammad Siddique, and S.H.O. Mohammad Hassan Solangi. The only private Mashir Mehboob had not supported the recovery and he was not declared hostile nor cross-?examined by the State Counsel. The recovery is said to have been made at bus stand, a busy place, but no other private person was selected to act as Mashir. The appellant had also alleged enmity with the police for which he had produced the certified copies, therefore. I am of the considered view that the learned trial Judge had rightly excluded the evidence of identification test and recovery from consideration.

12. In view of the above position, we are left only. with the evidence of Mohammad Jumman taxi driver who has deposed that about 4/5 years back one of the present accused came to him at taxi stand at 7.00 a.m. and engaged his taxi for going to Tando Adam via Sanghar. There were five other persons who came in taxi after having covered a distance of about one furlong. He pointed out accused/appellant, Mohammad Hanif in Court, and stated that he had come to engage his taxi. In Sanghar one of them got out from the taxi, thereafter, they went to Tando Adam where the taxi was stopped for taking breakfast, while they were taking roasted meat, police raided the area and arrested the accused and thereafter they were brought to Town Police Station Mirpurkhas. He could not say whether all the accused, present in Court, were the same except accused Mohammad Hanif as it was a matter of more than four years. In cross-examination, he has depose that accused Mohammad Hanif was not arrested by the police at the time of raid, as he ran away. He denied the suggestion that he was deposing falsely at the instance of Police.

13. The evidence of Mohammad Jumman mentioned above in no way, shows that the appellant accused Muhammad Hanif was one of the persons who had committed robbery in question. At the most, it shows that he had helped the co-accused in engaging taxi. The learned trial Judge has discussed the case of accused appellant Mohammad Hanif in the following words:-

14. "The case of accused Mohammad Hanif is on different footing. It is correct that prosecution has failed to establish the case of recovery of theft property against him and the identification test is also replete with discrepancies. However, it is a strong piece of circumstantial evidence coming from taxi driver Mohammad Jumman to connect accused Mohammad Hanif with the incident. P.W. Mohammad Jumman had taken all the accused persons in his taxi which was hired by accused Mohammad Hanif. This witness did not know the remaining accused persons but he knew accused Mohammad Hanif. He had deposed that accused Mohammad Hanif had come to him and engaged his taxi for going to Tando Adam via Sanghar. According to his evidence, accused Mohammad Hanif was alone when he engaged his taxi and five other persons joined him after he had covered some distance. He has further deposed that all the persons were arrested by the police at Tandoadam except accused Mohd. Hanif as he had run away. Mashirnama of arrest of the accused Ex.7-C proves that accused Shabbir son of Jiwan and others had been arrested from Tandoadam. Accused Shabbir was travelling in the same taxi and he was the person who was clearly identified by the complainant and his wife at the time of incident. It is also in the evidence that police had not secured any theft property from the accused who were arrested at Tandoadam. This is a circumstance to show that accused Muhammad Hanif had run away with the theft property. It is correct that the recovery of the theft property is not proved against him. Nevertheless his implication in the incident is established by the fact of his hiring the taxi allegedly after incident, in which accused Shabbir son of Jiwan was also travelling who was identified by name by the complainant. Taxi driver Mohammad Jumman has not been cross-examined in order to show false implication of accused Mohammad Hanif. That the enmity has been alleged against him. I am, therefore, of the considered view that the evidence of P.W. Mohammad Jumman is impartial and independent, and can be treated as strong piece of circumstantial evidence to connect accused Mohammad Hanif in the incident. I am, therefore, satisfied that the prosecution has successfully brought the evidence on record against him to connect him with the incident of robbery."

15. From the above discussion of the learned trial Judge it is clear that finding regarding the guilt of the appellant under section 392, P.P.C. was based on conjectures and surmises. On the one hand he had discarded the evidence of identification test and recovery produced against him, and on the other hand he convicted the appellant solely on the evidence of Mohammad Jumman which at the most goes to show that the appellant had hired the taxi in which they had gone to Tandoadam, and the co-accused were arrested from the said taxi.

16. In no case, it could be presumed that since the appellant had hired a taxi in which co-accused travelled, he had also participated in the robbery specially when four of them were acquitted. It was unfortunate that the learned trial Judge after excluding the evidence of identi?fication test and recovery from the appellant convicted him on the evidence of taxi driver Mohammad Jumman which according to him was a strong piece of circumstantial evidence against the appellant.

17. In view of the above discussion, I am of the considered view that the conviction of the appellant was based on conjectures and surmises, there was no evidence to connect him with crime therefore, the above appeal is allowed, conviction and sentence of the appellant are set aside, and he is acquitted of the charge. The appellant is on bail and his bail bond stands discharged:

18. I had decided the above appeal by a short order dated 14-2-1988 and these are the reasons for the same.

19. S.A./H-85/ K ?????????????????????????????????????????????????????????????????????????????????????? Appeal accepted.