2023 P Cr. L J Note 98
[Balochistan]
Before Abdullah Baloch, J
MUHAMMAD HAYAT ---Appellant
Versus
The STATE--- Respondent
Criminal Appeal No. 2 of 2022, decided on 23rd May, 2022.
Penal Code (XLV of 1860) ---
----S. 412--- Dishonestly receiving property stolen in the commission of dacoity---
Appreciation of evidence ---Benefit of doubt ---Prosecution case was that the snatched
motorcycle was recovered from the possession of the accused--- Prosecution in order to
establish the charge had produced complainant, recovery witness and Investigating Officer ---
Comparative study of statements of all the said three prosecution witnesses would establish
the case it was absolutely a defective case and no proper investigation in the matter had been carried out ---According to the case of prosecution the alleged motorcycle was owned by "S",
from whom the motorcycle was stolen and in order to establish that fact as to actually the motorcycle was stolen from him or otherwise, his association in the investigation and his
examination in the Trial Court was essential in order to eliminate all the ambiguities, but the Investigating Officer ignored that fact and neither associated the said important witness in the investigation process nor produced him before the Trial Court, which had created reasonable doubts in the case of prosecution---Soon after stealing of motorcycle, the complainant lodged FIR at Police Station and it was confirmed to the complainant through CPLC that the motorcycle was stolen from the area of Karachi, thus soon after its recovery the Police Authorities concerned should have approached the concerned police station for handing over the possession of motorcycle and the custody of the accused in order to conduct the trial and also the witnesses of case should have been arrayed as witnesses in the already registered case, but that had not been done so and illegally and without any justification second FIR was lodged--- In continuation of preceding FIR, it had been observed that the FIR
showing the engine number of motorcycle as 940308 instead of engine No.R -940308
mentioned in the FIR as well as chassis number mentioned in FIR No.473 of 2021 as 622939 instead of Chassis No.EB622939 in FIR No.53 of 2021--- Engine and chassis numbers of
motorcycle mentioned in FIR did not match with engine and chassis numbers mentioned in the FIR ---In that behalf there was no explanation made by the prosecution---Even otherwise,
the ownership documents of case property had not been taken into possession by the Investigating Officer ---All such glaring contradictions had rendered the case of prosecution
as doubtful ---Circumstances established that the prosecution had failed to prove its case
against the accused beyond shadow of reasonable doubt ---Appeal against conviction was
allowed, in circumstances. [Paras. 5, 6 & 7 of the judgment]
Illahi Bakhsh Mengal and Ahmed Nawaz for Appellant.
Abdul Karim Malghani, State Counsel.
Date of hearing: 18th May, 2022
JUDGMENT
ABDULLAH BALOCH, J. ---This judgment disposes of Criminal Appeal No.02 of
2022 filed by the appellant Muhammad Hayat son of Jaleel Ahmed, against the judgment
dated 27th January 2022 ("the impugned judgment") passed by learned Additional Sessions Judge -II Hub ("the trial Court"), whereby the appellant was convicted under section 412,
P.P.C. and sentenced to suffer four (04) years' R.I. with fine of Rs.20,000/ - (Rupees Twenty
Thousand) each or in default thereof to further suffer one (01) month's S.I., with the benefit of section 382- B, Cr.P.C.
2. Facts of the case are that on 3rd May 2021, the complainant Sakhi Dad, SI, lodged
FIR No.53 of 2021 at Police Station Winder, under section 412, P.P.C., with the averments that on the day of occurrence he along with other police officials blockade at main RCD Road near LG Mor Winder and were checking vehicles, meanwhile at about 05.30 p.m., they stopped a motorcyclist, which was coming from Karachi side, who disclosed his name as Muhammad Hayat. On checking motorcycle was found as Honda CG -125 Registration
No.Nil, Engine No.R940308, Chassis No.EB622939, while on demand the appellant has failed to produce the registration or ownership documents of said motorcycle, thus CPLC was approached at the spot, from where it was confirmed that the said motorcycle has been snatched from the area of Police Station Aziz Abad Karachi on 12th April 2021.
3. After registration of FIR, the appellant was arrested and was subjected to
investigation. On completion of investigation, the appellant was challaned before the trial Court, which indicated the charge and after denial, the prosecution produced three (03) witnesses. On close of prosecution side, the appellant was examined under section 342, Cr.P.C. However, he neither recorded his statement on oath under section 340(2), Cr.P.C. nor produced any witness in their defence. On conclusion of trial, the appellant was found guilty under section 412, P.P.C. and was sentenced as mentioned above. Whereafter, instant appeal has been filed.
4. Heard the learned counsel and perused the available record. Perusal of record reveals
that the prosecution in order to establish the charge has produced the evidence of three (03) witnesses, the perusal whereof are not justifying the impugned conviction order. The complainant of the case Haider Ali, appeared as PW- 1, who mostly reiterated the contents of
his fard -e-bayan by stating that on the day of occurrence they were conducting the search of
vehicles, when the alleged motorcyclist arrived at the Naka and on demand he has failed to
produce the ownership documents of motorcycle, while on approach to CPLC Karachi, the said motorcycle was found to be stolen from Aziz Abad Karachi. PW -2 Javed Ali, is also the
member of police party as well as the recovery witness of motorcycle, who mostly corroborated the story of PW -1. PW -3 Habib -ur-Rehman, SI, is the Investigating Officer of
the case, who counted the steps taken by him during the course of investigation and also
produced the FIR No.453 of Police Station Aziz Abad Karachi.
5. The comparative study of statements of all the prosecution witnesses would establish
the case it is absolutely a defective case and no proper investigation in the matter has been carried out. According to the case of prosecution the alleged motorcycle was owned by one Sumair Saleem, from whom the motorcycle was stolen and in order to establish this fact that as to actually the motorcycle was stolen from him or otherwise, his association in the investigation and his examination in the trial Court was essential in order to eliminate all the ambiguities, but the I.O. ignored this fact and neither associated the said important witness in the investigation process nor produced him before the trial Court, which has created reasonable doubts in the case of prosecution.
6. Another important aspect of the case is that soon after steal of motorcycle, the
complainant lodged FIR No.453 of 2021 at Police Station Aziz Abad Karachi and it was confirmed to the complainant through CPLC that the motorcycle was stolen from the area of Karachi, thus soon after its recovery the Police Authorities of Winder should have approached the concerned police station for handing over the possession of motorcycle and the custody of the appellant in order to conduct the trial at Karachi and also the PWs of instant case should have been arrayed as witnesses in the already registered case at Karachi, but this has not been done so and illegally and without any justification second FIR was lodged at Police Station.
7. In continuation of preceding FIR, it has been observed that the FIR No.453 of 2021
lodged with Police Station Aziz Abad Karachi showing the engine number of motorcycle as
940308 instead of engine No.R -940308 mentioned in the FIR No.53 of 2021 of Police
Station Winder as well as Chassis number mentioned in FIR No.473 of 2021 as 622939 instead of Chassis No.EB622939 in FIR No.53 of 2021 of Police Station Winder. Thus, the engine and chassis numbers of motorcycle mentioned in FIR Nos.453 of 2021 of Aziz Abad do not match with engine and chassis numbers mentioned in the FIR No.53 of 2021 of Police Station Winder. In this behalf there is no explanation made by the prosecution. Even otherwise, the ownership documents of case property have not been taken into possession by the I.O. from Police Station Aziz Abad Karachi. All such glaring contradictions, have rendered the case of prosecution as doubtful, but while delivering the impugned judgement the learned trial Court has failed to appreciate all these facts of the case, which otherwise are creating sufficient doubts in the case of prosecution and under the law the appellant is entitled for the benefit of such doubts.
For the above reasons, the appeal is accepted. The impugned judgment dated 27th
January 2022 passed by learned Additional Sessions Judge -II Hub is set -aside and the
appellant Muhammad Hayat son of Jaleel Ahmed is acquitted of the charge, under section 412, P.P.C. The appellant is on bail; his bail bonds are discharged after lapse of appeal period.
Above are the reasons of my short order dated 18th May, 2022.
JK/110/Bal. Appeal allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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