PLJ 2020 Cr.C. (F.S.C.) 155
Criminal Procedure Code, 1898 (V of 1898)--
----S. 410--Pakistan Penal Code, 1860 (XLV of 1860), S. 392, Conviction and Sentence--Challenge to--Acquittal of--As per complainant, robbery of mobile phone, gold ornaments and cash was committed by appellants--FIR was registered on Court direction--Only point requires consideration and determination is as to whether impugned judgment is sustainable in law or not--Appreciation of evidence--In criminal administration of justice, totality of facts are to be taken into consideration determining intrinsic value of evidence added by prosecution--Recovery of amount from personal search of appellant /accused would not be sufficient to prove case of prosecution because such amount even if recovered, cannot be said case property. [P. 162] A
Offences Against Property (Enforcement of Hudood) Ordinance, 1979 (VI of 1979)--
----S. 17(3)--Punishment for Haraabah--Conviction and Sentence--Appeal against--Acquittal of--Inordinate delay in lodging FIR--Inherent defects and legal infirmities in prosecution evidence--Non mentioning names of appellants in application nor conducting of inquiry regarding robbed case property--Benefit of doubt--Held: It is now settled proposition of law that a single circumstance creates a reasonable doubt in a prudent mind about guilt of accused then he entitled to such benefit not as a matter of grace but also a matter of right--Conviction cannot be based on high probabilities and suspicion cannot take place of proof, therefore, no legal sanctity is attached to FIR lodged after inordinate delay merely on disclosure of some unknown source or information--Appeal accepted. [Pp. 162 & 163] B
Mr. Khadim Hussain Khooraho, Additional Prosecutor General, Sindh for State.
Mr. Aijaz Shaikh, Advocate for Appellant in Cr. Appeal No. 14/K of 2015).
Mr. Kazi Wali Muhammad, Advocate for Appellant in Cr. Appeal No. 15/K of 2015).
Mr. Munsib Jan, Advocate for Complainant.
Date of hearing : 12.3.2019.
PLJ 2020 Cr.C. (F.S.C.) 155
Present : Syed Muhammad Farooq Shah, J.
AFTAB AHMAD alias Taboo and 2 others--Appellants
versus
STATE--Respondent
Crl. Appeal No.14/K of 2015, linked with Jail Crl. Appeal No. 15/K of 2015, decided on 12.3.2019
Judgment
Both captioned appeals arising from common impugned judgment are taken together.
2. Through impugned judgment pronounced on 15.08.2013 by the learned Additional Sessions Judge, Kotri, District Jamshoro, the appellants were convicted for Harrabah liable to Ta'zir and sentenced for an offence punishable under section 392 PPC to suffer RI for seven years and to pay fine of Rs.50,000/- each; in default of payment of fine, each appellant shall suffer SI for three months more. Benefit under Section 382-B Cr.P.C was extended to them. The appellants Aftab Ahmed alias Taboo, Muhammad Ali and Shafique Ali all s/o Qurban Ali Mangi filed Criminal Appeal No. 14/K of 2015 against their conviction through counsel; however, the appellant Muhammad Latif S/o Lal Zarin Awan (complainant) filed jail criminal appeal No. 15/K of 2015, praying therein to set-aside the impugned judgment and acquit them on facts and grounds averred therein.
3. Story of the prosecution case in nutshell is that on the eventful night at 03:00 hours viz 12.04.2010 when the complainant along with his brother Muhammad Rehman, his son Muhammad Taif and other house inmates were in sleep in the house and woke-up and saw appellants Aftab Ahmed alias Taboo, Master Muhammad Ali, Shafique Ali and complainant's son Muhammad Latif armed with pistols had trespassed into his house and on gun point the appellant Aftab Ahmed alias Taboo took his licensed pistol lying under the pillow of bed, as well as key of Almirah, appellant Muhammad Ali robbed a mobile phone from him, appellants Aftab Ahmed alias Taboo and Muhammad Latif went inside the room, took golden ornaments weighing five tola, cash amounting to Rs.21,00,000/- (twenty one lac only) and went away. The FIR had been registered on 24.05.2010 on directions of the Court dated 05.05.2010, in criminal miscellaneous application No. 117/2010. Certified copy of the said application under section 22 A I(6) Cr.P.C (Ex.18/C) was produced by the appellant Muhammad Ali reflects that the appellant Muhammad Latif i.e son of the complainant and three other unknown persons have committed the alleged crime. However, in the FIR the complainant has mentioned the names of all four appellants with their specific role in commission of alleged crime, without explaining any source of information vide Order dated 05.05.2010 (Ex.18/D), passed by the learned sessions judge on the said criminal miscellaneous application, the SHO, Police Station Kotri was directed to record the statement of applicant and if cognizable offence is made out then register FIR and conduct himself with the parameters of section 154 Cr.P.C. Admittedly, statement of the complainant prior to registration of FIR under section 154 Cr.P.C has not been recorded by showing the source of information of disclosure the names of appellants Aftab Ahmed, Muhammad Ali, Shafique Ali.
4. A perusal of record transpires that initially the appellants Aftab Ahmed alias Taboo and Muhammad Latif were challaned under Section 173 of the Code, by showing the names of the appellants Muhammad Ali and Shafique Ali to be absconders.
5. On commencement of trial, the charge was framed against the appellants Aftab Ahmed alias Taboo and Muhammad Latif as (Ex.4), for an offence punishable under section 17 (3) of The Offences against Property (Enforcement of Hudood) Ordinance, 1979, to which they pleaded not guilty and claimed trial. Subsequently, remaining two accused/appellants namely Muhammad Ali and Shafique Ali joined the trial and amended charge was framed against all the four appellants (Ex.8) for an offence punishable under Section 17 (3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, to which they did not plead guilty and claimed trial.
6. During trial, the complainant Lal Zarin Awan was examined (Ex.9) who produced FIR (Ex. 9/A), PW Muhammad Rehman (Ex.10), PW Muhammad Taif (Ex.11), Mashir Umar Khan (Ex.12), produced memo of venue of incident (Ex.12/A), ASI Ghulam Farooq Rahpoto (Ex, 14), produced memo of arrest and recovery (Ex.l4/A) and departure entry (Ex.14/B), ASI Manzoor Hussain Babar (Ex.15), produced memo of arrest of accused/appellant Muhammad Latif and recovery (Ex.l5/A) and lastly evidence of Investigation Officer SIP Nisar Ahmed (Ex.16) was recorded. On conclusion of prosecution evidence, the statements of accused persons under Section 342 Cr.P.C were recorded (Ex.18 to 21), in which they have categorically denied the prosecution story and professed their innocence. Appellant Aftab Ahmed alias Taboo produced certified true copy of judgment dated 29.11.2012 (Ex. 18/A), Appellant Muhammad Ali produced certified true copy of judgment dated 15.9.2011 (Ex.19 of 2011) deposition of Muhammad Taif in crime No. 17 of 2011 (Ex. 19/B), application under section 22-A I(6) Cr.P.C (Ex. 19/D) passed thereon.
7. The only point requires consideration and determination by this Court is that as to whether the impugned judgment is sustainable in law or not? On this point, worthy arguments advanced by the learned counsel for the appellants, learned counsel representing the complainant so also learned Additional Prosecutor General are considered. Record has also carefully been perused.
8. It is an admitted fact that one of the appellant namely Muhammad Latif is real son of the complainant Lal Zarin Awan. Except mentioning his name in criminal miscellaneous application under section 22-A I(6) Cr.P.C (Ex. 18/C), the complainant has not given the names and descriptions of remaining three culprits. However, in FIR (Ex.9/A), without mentioning any source of information, the complainant has disclosed the names of remaining three appellants/accused with their parentage, address and with their specific role in commission of offence. In paragraph 7 of the criminal miscellaneous application under section 22-A I(6) Cr.P.C (Ex. 18/C), the complainant has stated as under:--
"That between the night of 11/12.01.2010, after taking the suffer the applicant alongwith his wife and children, went to sleep, when at 3 a.m he woke up on natural call i.e. pissing, he heard some voice in the room as such he-rushed there. He saw in the room that 4 persons were sorting out the articles lying in the Almirah, on seeing the applicant the accused persons threatened him as such, he rushed to come out of the room and came to his wife and other sons to inform them and get their help, who also joined the applicant. They all saw that accused No. 1, the applicant real son was amongst the accused persons. The faces of the other 3 culprits were opened and they can identify them if seen".
9. Contents of the FIR are found contrary to the above mentioned facts narrated by the complainant, as in the FIR he has given specific role of each accused, with their names in commission of alleged robbery.
10. M/s Aijaz Shaikh and Kazi Wali Muhammad, Advocates representing the appellants in both appeals, after having read the prosecution evidence and other material available on record argued that appellants in appeal No. 14/K of 2015 were not named in the application under section 22-A I(6) Cr.P.C, but subsequently they were involved by the complainant in the FIR. It is argued that there is no independent and unimpeachable evidence against the appellants as ocular accounts of prosecution case rest on close relatives of the complainant. Moreover, neither proper identification parade was held before the Magistrate nor there is any corroborative evidence against the appellants, therefore, the contradictory evidence of prosecution witnesses appears to be not inspiring confidence. It is argued that learned trial Court did not consider the defence version in juxtaposition and passed the impugned judgment in haphazard manner without applying judicial mind, as such conviction awarded to the appellants through impugned judgment is not sustainable in law.
11. Conversely, Mr. Khadim Hussain Khooraho, Additional Prosecutor General, Sindh for the State supported by Mr. Munsib Jan, learned counsel representing the complainant without controverting the contentions raised by learned counsel for the appellants supported the impugned judgment and submitted that there is sufficient iota of evidence adduced by the prosecution to connect the appellants in commission of the offence. Learned counsel for the complainant placed reliance on the case of Dr. Javed Akhtar Vs. The State reported as PLD 2007 SCMR 249.
12. Evidence available on record has carefully been scanned. For the sake of proper appreciation of evidence, some relevant portions of depositions of prosecution witnesses, which have not considered by the learned trial Court, are reproduced hereinbelow:--
13. Ocular account of prosecution case hinges upon testimony of three prosecution witnesses. PW Lal Zarin Awan (Ex.9) did not support the story of commission of offence as narrated in criminal miscellaneous application filed under section 22-A I(6) Cr.P.C. However, he had supported the contents of FIR and stated that on gun point accused Aftab Ahmed alias Taboo took out his licensed pistol Bearing No. A-2538, beside keys, of Almirah; meanwhile accused Shafique Ali and Muhammad Ali hostaged all the family members of his house and accused Aftab Ahmed alias Taboo and Muhammad Latif took out cash amounting to Rs.21,00,000/- and 5 tola gold. Thereafter accused Muhammad Ali robbed mobile phone from him and subsequently, all the accused went away from his house by bolting the door from outside the house. In the morning, he disclosed the facts of the incident to his relatives arid approached to the Court of Sessions Judge and on obtaining directions lodged FIR. He further stated in examination-in-chief that about six months prior to the incident, his son Muhammad Latif had left his house on some dispute over property and joined criminal type persons and subsequently, he alongwith co-accused committed robbery from the house. In cross-examination., he has admitted that except accused Muhammad Latif, co-accused were not known to him prior to the incident and that he had inquired from the neighbourers and they disclosed to him the names of accused. He admitted that he did not mention the source of information regarding the names of co-accused except Muhammad Latif and that he has not given the names of neighbourers who disclosed to him the names of accused. He further Stated that in the morning he had disclosed the names of accused to Advocate Mr. Shoukat Ali, Phathan, being his neighbourer, who drafted his application for registration of FIR; stated that in the morning he had disclosed the facts of the incident to Advocate Mr. Shaukat Ali Phathan, Sher Ali, Ghulam Nabi and the other persons who used to offer prayer in the Mosque. All these three persons did step in the witness box as their names have not been included in the calendar of prosecution witness. He has also admitted non-mentioning the names of accused Shafique Ali, Muhammad Ali and Aftab Ahmed alias Taboo in his application for registration of FIR and that no identification of pistol was made at PS or before competent Court, which was recovered by the police. He has further stated that he had also registered a case bearing crime No. 17/2011 at PS Kotri against the accused and the accused have been acquitted in the said case.
PW Muhammad Rehman (Ex.10), real brother of the complainant, supported the complainant by stating the names of accused persons with their specific role. However, in cross-examination he has stated that the accused except accused Muhammad Latif were not known to him prior to the incident but alter their arrest he came to know about their names he do not remember the date when accused were arrested and identified by him. He has further stated in cross-examination that he was having partnership in the robbed amount of Rs.21,00,000/- and has shown ignorance that for how many days the cash amount was lying in Almirah.
PW Muhammad Taif (Ex, 11) is real son of complainant, has stated briefly almost similar facts of incident in his examination-in-chief. However, in cross-examination, he has stated that his brother accused Muhammad Latif was annoyed with his father (Complainant) on the matter of property and six months prior to incident his brother had not visited the house and was residing in a street near to their house, nor his father visited his brother accused Muhammad Latif's House. He has categorically stated in cross, conducted by learned counsel for the accused Muhammad Latif that "the accused were not known to me by names-prior to the incident; but I had seen them in the muhallah as they reside there."
PW Umar Khan (Ex.12) acted as Mashir of place of occurrence (Ex.12/A) stated in cross-examination that co-mashir Jan Muhammad is brother of complainant, who reside at
PW ASI Ghulam Earooq, (Ex.14) stated that on direction of the Court of Sessions, he recorded the statement of complainant in which he disclosed the facts of cognizable offence, as such he registered the FIR and handed over the same to IT branch for investigation. He further stated that on the same day he arrested accused Aftab Ahmed alias Taboo and from his personal search a pistol Bearing No. A-2538 and cash amounting to Rs. 1,32,000/- lying in his front pocket were recovered and such Mashirnama (Ex. 14-A) was prepared. In cross, he has stated that about 10/12 days prior to registration of FIR, he came to know about the alleged offence, committed within the jurisdiction of P.P Khurshid Colony but since none had arrived at police Station hence case was not registered. Stated in cross-examination that place of arrest of the accused is situated in a populated area but he had not asked any private person to become Mashir from locality. Admitted in cross-examination that he had not sealed the weapon at the spot and the number and denomination of currency notes have also not been mentioned in memo. of arrest and recovery.
PW Manzoor Hussain (Ex.15) acted as Mashir of arrest and recovery of the accused Aftab Ahmed alias Taboo supported the contents of the memo. However, in cross-examination, he stated that he do not remember particular time when they left P.P Khurshid Colony for PS Kotri. He admitted that many persons were residing in "Khuda ki Basti" but they did not ask any private person to act as mashir of arrest of accused. He has also admitted in cross-examination that the recovered property was not sealed at the spot.
PW Nisar Ahmed (Ex.16) conducted the investigation, stated in cross-examination that neither he examined Mr. Shaukat Ali Phatan, Advocate residing adjacent to the house of incident nor any other inhabitant of the locality. He has also admitted that he did not conduct enquiry regarding robbed case property viz cash amount and weapons recovered from accused Aftab Ahmed alias Taboo and Muhammad Latif and they he did not made any enquiry that who was owner of the pistol, allegedly recovered from accused Aftab Ahmed alias Taboo. He has further admitted in cross-examination that in charge sheet he has mentioned two pistols alongwith two magazine, 7-live bullets, the case property of crime Nos. 154 & 155 of 2010 of PS Kotri.
On closure of prosecution side, PW ASI Manzoor Hussain Babar (Ex. 18) was recalled and examined, who admitted that he did not produce departure and arrival entries under which the accused was arrested. He has also admitted that neither he had sealed the property nor dispatched it for forensic report; the memo was written by him in his own hand writing, when learned defence counsel requested that white paper may be given to the witness to write down Sindhi language in order to ascertain whether the memo was written by him or not? The witness corrected himself and stated that memo (Ex.l5/A) was written down by WHC. He has further admitted that memo was not prepared at the spot but at police station by WHC. Such conduct of the Investigation Officer shows that he has not given true version of preparation of different memos. From cursory examination of writing on FIR (Ex.9/A), memo of place of occurrence (Ex.12/A), memo of arrest and recovery (Ex.14/A & 15/A) reveals that all these documents had been written by one and the same hand writing, which shows that all these documents were prepared at the police station.
The case law relied upon by the learned counsel for the complainant is not attracting in the peculiar facts and circumstances of the case. Viewed from whichever angle, prosecution has miserably failed to produce evidence sufficient to maintain the conviction against the appellants and as such while extending benefit of doubt to them, the impugned judgment is set aside; both appeals are accepted and consequently, the appellants are hereby acquitted of the charge. The appellants are present on bail, their bail bonds stand cancelled and sureties discharged.
(Z.A.S.) Appeal accepted
0 Comments