IN THE HIGH COURT OF SINDH AT KARACHI

 

Criminal Appeal No. 154 of 2012

 

Noman & Another - - - - - - - - - - - - - - - - - - - - - - - - - - - Appellant

V E R S U S

The State - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Respondent

 

 

Cr. Jail Appeal No. 99 of 2016

 

Mohsin son of Abdul Ghaffar  - - - - - - - - - - - - - - - - - - - - Appellant

V E R S U S

The State - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Respondent

 

J U D G M E N T

 

 

Date of hearing      :         13th April, 2017.

For Appellants       :         Mr. Shamshad A. Qureshi, Advocate

For the State         :         Mr. Abdullah Rajput, A.P.G., Sindh.

<><><><><><><><><> 

 

Syed Muhammad Farooq Shah, J.:- By this common judgment captioned appeals arising from the same judgment are taken and decided together.

 

2.         Vide impugned judgment dated 02.4.2011, pronounced by learned Sessions Judge, Karachi-Central in Sessions Case No. 138 of 2011 arising from FIR No.32/2011 under section 392/34 PPC registered with New Karachi Industrial Area, Karachi, appellants Noman and Mohsin were convicted and sentenced to undergo RI for three years and fine of Rs.5,000/- each, in default whereof to suffer further RI for six months. The appellants have assailed the impugned judgment on the facts and grounds narrated in the memo of appeal with prayer to set aside the impugned judgment and to acquit them from the charges leveled against them.

 

3.         The story of prosecution, as narrated by the complainant Shakoor Ahmed in the aforesaid FIR is that on the fateful day due to maternity ailment of his wife; he, his brother and his uncle Shabbir brought the woman at Godhra Hospital. His wife was admitted in the hospital and they were sitting at the ground of hospital when three person came on a motorcycle and two of them on the point of pistol snatched cellular phones from the complainant and his uncle. It is alleged that when they tried to flee from there one of accused Mohsin was apprehended and remaining two made their escape good. Later on, remaining two accused were also arrested in some other case and subsequently they were arrested in the instant case as well, to whom the complainant identified at Police Station. Prosecution examined complainant and PW Farooq and three police officials and closed prosecution’s side. The charge framed by the trial court is reproduced here in below:-

 

“That on 11.01.2011 at about 1030 hours, at inside the ground near Godhra Hospital 11-G, New Karachi, you came duly armed with deadly weapons with your common intention on pistol point robbed Mobile Phone Nokia 5130 from the complainant Shakoor Ahmed son of Jam Madad Ali and one Nokia Mobile 1600 from his uncle Shabbir Ahmed, as such you have committed the offence punishable under section 392/34 PPC within the cognizance of this court.”

 

 

Aforesaid charge was reproduced by the trial court by framing the identical question No.1 while recording statement of all accused under section 342 Cr.P.C.

 

4.         Arguments heard. Record perused.

 

5.         At the very outset, learned counsel contended that while recording statements of accused under section 342 Cr.P.C. all incriminating pieces of evidence available on the record are required to be put to the accused for the purpose of enabling the accused to explain any circumstance appearing in evidence against him which clearly demonstrate that not only the circumstances appearing in examination-in-chief are put to the accused but the circumstances appearing in cross-examination or re-examination are also required to be put to the accused, if they are against him as held by the Hon'ble Supreme Court of Pakistan in the case of MUHAMMAD SHAH V/S THE STATE (2010 SCMR 1009). Learned counsel for the appellants contended that accused was not put in the identification test in accordance with law before the Magistrate but prosecution witnesses identified them at Police Station. To support his contentions learned counsel for appellants placed reliance upon the case of MUHAMMAD ASGHAR V/S THE STATE (PLD 2008 SC 513) wherein it was held that identification is relevant part of prosecution and if it has been dealt in accordance with law. Learned counsel, lastly, pleads acquittal of appellants.

 

6.         Learned Assistant Prosecutor General, Sindh without controverting the arguments advanced by the learned counsel for appellants, supported the impugned judgment and stated that even the evidence of complainant without any animosity and ill-will is sufficient to award conviction.  He while placing the reliance upon the case of Qaddan and others V/S The State (2017 SCMR 148) submitted that in this case he himself had appeared in the cited case which is latest ruling of Hon'ble Supreme Court wherein it has been held that the law is settled that any piece of evidence not put to an accused person at the time of recording of his statement under section 342 Cr.P.C. could not be considered against him.

 

7.         The Statement of accused recorded under section 342 Cr.P.C. reflects that only the name, father’s name, age, occupation and resident of accused have been changed. Learned counsel for the appellants and learned Assistant Prosecutor General, Sindh has developed consensus on legal point that all incriminating pieces of available record are required to be put to each accused separately as provided under section 342 Cr.P.C.; the record reflects that trial court did not apply its mind by recording the statement of accused persons under section 342 Cr.P.C. as statement of three accused appears to be identical and without considering the prosecution evidence, therefore such statements are having no legal sanctity in the eyes of law.  It needs to be iterated that examination of accused under section 342 Cr.P.C. is not only a mandate to enable the accused to explain any circumstance appearing against him in the prosecution evidence. Neither the charge was framed with specific role of each accused nor the statement under section 342 Cr.P.C. was recorded in accordance with law. Reliance in this regard may be made to the case reported as MUHAMMAD SHAH V/S THE STATE (2010 SCMR 1009). Reliance can also be placed on SHIRAL ALIAS SHER ALI V/S THE STATE (1999 SCMR 697), wherein Hon'ble Supreme Court held that law requires that any circumstance appearing in the evidence must be put to the accused before it uses against him. There is absolutely no reason as to why same was not suggested to the appellants and their explanation obtained thereto. The court should not and must not disturb its judicial mind with gruesome nature or heinousness of offence, rather to appreciate the evidence in a proper and legal rhythm, otherwise any such influence might lead the trial court to a patently wrong conclusion. Reference may be made to the case titled AZEEM KHAN AND ANOTHER VS. MUJAHID KHAN AND OTHERS (2016 SCMR 274). In the case of ABDUL GHAFFAR V/S THE STATE (2011 MLD 239), a Single Judge of this Court held that recovery of case property not put to the accused while his statement under section 342 was recorded, cannot be used as evidence against the accused in the circumstances. The court should not derail from the settled principle that in case of possibility of two interpretations of evidence, one favouring the prosecution and other favouring the accused, the latter one should be acted upon. Reference can be made to the case titled MUHAMMAD SHAH V/S THE STATE (2010 SCMR 1009).

 

8.         From the combined study of material on record, it is established that the prosecution has failed to prove the guilt of the appellants beyond reasonable doubt. The lacunas pointed out in the prosecution version have not been taken into consideration by the learned trial court while convicting the appellants. It is also an admitted position that accused was not put in the identification test in accordance with law before the Magistrate but prosecution witnesses identified them at Police Station.  

 

9.         Identification test would become necessary where names of culprits are not given in the FIR and holding of such a test is not only a check against false implication but a good piece of evidence against real culprits. In a criminal case, identification parade becomes very essential which is to be conducted strictly according to guidelines and legal requirements enunciated by the law. As a rule of prudence the Court insists upon having the ratio of dummies. When a witness, who has given details of the commission of a crime and of the persons engaged in committing it, the act of the police officer in subsequently asking the witness to point out those persons from amongst others, who are mixed up with them to test the power of observation of the witness assure that the person, who was previously unknown to the witness was rightly pointed out by the witness at a test, in proof of the identity of the accused under Article 22 of the Qanoon-e-Shahadat Order, 1984, without contravening the provisions of Section 162 of the Code of Criminal Procedure. In PLD 1956 Supreme Court Ind. 327, it was held that the statement of identifying witness is a primary evidence of identity and not hearsay. Where the accused is not previously known to the witness and he i.e. witness had only a fleeing glimpse of the accused holding of test identification parade is essential and vital because normally statement of witnesses are recorded in Courts much after the occurrence and, therefore, possibility that a witness might not have mistakenly nominated or pointed out by some body cannot be ruled out. When accused is charged in the FIR and in statement under Section 161 Cr.P.C by the description of their structure, then identification in formal parade is must as held in 1992 SCMR 196/2003 P. Cr. L J 1928 (FSC). In PLD 1971 Supreme Court 541, it was held that such test has corroboratory value and it by itself not substantive piece of evidence and only corroborative evidence of witness if he deposes that he had seen the culprit on the date, time and place of incident and subsequently identify him to be the same culprit in identification test. In 2003 P. Cr. L J 1928, the Hon’ble Court held that identification parade is not only the preferred and approved method of identification of suspects by Courts but also requirement of police rule as well. Rule 26.32 of the Police Rule, 1934 is explicit in this regard. In sub-Rule-I (C) it has been held obligatory for the police officers to arrange for identification parade of the suspects soon after their arrest.            

 

10.       For the aforementioned reasons, these appeals are allowed, conviction and sentence awarded to the appellants by learned trial court vide impugned judgment is set aside. They are acquitted of the charge/charges leveled against them and be set at liberty forthwith, if not required/wanted in any other case. The appellants are on bail, their bail bonds stand cancelled and sureties discharged.

 

 

*Aamir/PS*                                                                          J U D G E