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Petitioner: MUKHTAR HUSSAIN VS Respondent: THE STATEHonorable Justice BASHIR A. MUJAHIDM. Zafarullah Khakwani
2003 M L D 1186
2003 M L D 1186
[Lahore]
Before Naeemullah Khan Sherwani and Bashir A Mujahid, JJ
MUKHTAR HUSSAIN ---Appellant
Versus
THE STATE---Respondent
Criminal Appeal No.415 of 1999, heard on 17th January, 2000.
Penal Code (XLV of 1860)---
----S. 392---Appreciation of evidence---None of the accused was nominated in the F.I.R.---Only description of two accused was given by the complainant, but no identification parade was held after the arrest of the accused---Complainant improved his statement when he was examined as prosecution witness and nominated the accused implicating him in commission of the crime---Both alleged eye-witnesses had clearly stated that they had not identified any of the accused at the time of commission of offence---Nothing was recovered from the accused-- Solitary statement of the complainant which besides having been improved, was not supported from any independent source---Case was of no evidence which had made the case against the accused highly doubtful---Extending benefit of doubt, the accused was acquitted from the charge by setting aside his conviction and sentence.
M. Zafarullah Khakwani for Appellant.
Sh. Muhammad Rahim for A.-G.
Date of hearing: 17th January, 2000.
JUDGMENT
BASHIR A. MUJAHID, J.---Appellant Mukhtar Hussain son of Nabi Bakhsh was charged under section 392, P.P.C. alongwith his absconding co-accused Ghulam Fareed from complainant Mukhtat Hussain son of Ghulam Hussain, for snatching of motorcycle and wad convicted by the learned Special Judge, Special Court under Anti terrorism Act, 1997, D.G. Khan, and was sentenced to R.I. for three years and a fine of Rs.40,000, in default of whereof to further undergo S.I. for six months. The fine if recovered was ordered to be paid to the complainant. Benefit of section 382-B, Cr.P.C. was also extended to the appellant.
2. The brief facts of the prosecution case are that on the complaint Exh.P.A. of Mukhtar Hussain son of Ghulam Hussain F.I.R. Exh.P.A./1 was got registered at Police Station Choti, wherein it was stated that on 28-3-1998 at 7-30 p.m., he was going to his house. When he arrived in the area of village Chit Sarkani, he was stopped by two persons who had way laid came in all of a sudden in front of him. One of them was armed with pistol 38 bore while the other was armed with Kalashnikov. They threatened the complainant and snatched the motorcycle forcibly from him. Motorcycle was purchased by him with a consideration of Rs.40,000. The complainant raised hue and cry which attracted Saidan Khan, P. W.3 and Ghulam Shabbir, P. W.4. The appellant was arrested in the said case. His co accused namely, Ghulam Fareed was also implicated but he absconded. The case was investigated by Rashid Ahmad, S.I./S.H.O., P.W.5 and after completion of the investigation, the appellant was challaned. He denied the allegation and claimed the trial.
3. Ghulam Fareed, co-accused was declared absconded and his case was separated.
4. During the trial, the prosecution examined as many as five witnesses. Mukhtar Hussain son of Ghulam Hussain appeared as P.W.1. He supported the version of the F.I.R. Muhammad Iqbal appeared as P.W.2, who recorded the formal F.I.R. Exh.P.A./1 on receipt of complaint Exh.P.A. Saidan Khan appeared as P.W.3 and Ghulam Shabbir appeared, as P.W.4. They supported the prosecution version and clearly stated that the accused could not be identified by any of them. Rashid Ahmad, S.I./Investigating Officer appeared as P.W.5, who had investigated the case.
5. The accused/appellant was examined under section 342, Cr.P.C. and he denied the allegation levelled against him and to the relevant question as to why this case against him, he replied as under:
"I have an old enmity with the complainant of this case. The P.Ws. have deposed against me falsely due to said enmity."'
6. The trial culminated into conviction as mentioned above which has been challenged by the appellant through jail appeal.
7. The learned counsel for defence appointed by us at State expenses to represent the appellant, raised the following contentions in support of the appeal:--
(a) That none of the accused was nominated in the F.I.R., and no identification parade was held in the present case.
(b) The alleged eye-witnesses, P.W.3 and P.W.4 have clearly stated that they had not identified the accused/ appellant.
(c) That no case property or the alleged weapons were recovered from the appellant.
(d) The complainant has made dishonest improvement in his statement while nominating the appellant in his statement when he was examined as P.W.1. The appellant also produced D.W.1 Yar Muhammad son of Khan Muhammad and D.W.Z Rahim Bakhsh in his defence to prove his innocence.
8. The learned counsel for the State has opposed the appeal on the ground that the appellant was fully implicated in the commission of offence and has supported the impugned judgment.
9. We have considered the arguments of the learned counsel for the parties and gone through the record.
10. None of the accused was nominated in the F.I.R. Only description of two accused was given by the complainant but no identification parade was held, after the arrest of the appellant. The complainant improved his statement when he was examined as prosecution witness No. 1 and nominated the present appellant implicating him in commission .of the crime. Both the alleged eye witnesses clearly stated that they had not identified any of the accused at the time of commission of offence. Nothing was recovered from the appellant. The solitary statement of the complainant Mukhtar Hussain son of Ghulam Hussain which although has been improved, is not supported from any independent source. It is a case of no evidence, which makes the case against appellant highly doubtful. Benefit of which is extended to the present appellant and his appeal is hereby allowed and he is acquitted from the charge, by setting aside his conviction and sentence.
The appellant is directed to be released from Jail forthwith if he is not required in any other case.
H.B.T./M-1832/L Appeal allowed.