IN THE HIGH COURT OF SINDH, KARACHI.

 

Cr. Appeal No.151 of 2006

 

Date

Order with signature of Judge

 

Appellant:                      Alam Zaib s/o Gul Bakhti Shah through

Mr. Muhammad Sahib Khan Advocate.

 

Respondent:                   The State through Mr. Zahoor Ahmed Shah                                      A.P.G.

 

Date of hearing:             13th and 21st March, 2017.

 

Date of Judgment          21st March, 2017.

 

J U D G M E N T

 

MUHAMMAD IQBAL KALHORO J:    Appellant was tried in Sessions Case No.14/2003 by learned II-Additional Sessions Judge, South-West Karachi for committing offences U/s 392, 34 PPC registered as FIR No.256/2002 at P.S. Garden Karachi South and was convicted vide impugned judgment dated 04.02.2006 to suffer sentence of three years R.I and to pay fine of Rs.5000/-, in default whereof to suffer simple imprisonment for six months more. The benefit of section  382-B Cr.P.C was extended to the appellant.

2.       Facts of the case show that the above stated FIR was registered on 06.12.2002 at about 0030 hours by complainant namely Rehan Akhter, who has alleged that on 05.12.2002 at 2345 hours two boys entered his shop situated opposite Police Headquarter Garden, Karachi, one of them took out a pistol and robbed Rs.5000/- and mobile cards from him. After robbery the accused tried to leave but the complainant put up resistance as a result of which one of the accused injured him and also made a fire, which, however, did not hit him. Thereafter, the accused started to flee but meanwhile a police mobile of P.S. Garden came over there whom the complainant informed of the incident. The police succeeded to apprehend one of the accused and secured from him some of the robbed property as well as T.T. pistol. The apprehended accused disclosed his name as Khalid Mehmood and name of his escaped companion as Alam Zaib, the appellant. The appellant was arrested on the pointation of the apprehended accused on the next day viz. 06.12.2002 at about 2315 hours from his house and subsequently on 16.12.2002, he was put to identification parade conducted by learned IX-Judicial Magistrate Karachi South. During the identification parade, the complainant picked him as the accused, who had escaped from the scene.

3.       After completion of investigation, the challan was submitted before the trial court, which commenced the trial against the two accused. In the trial the prosecution examined P.W.1 Complainant Rehan Akhtar Ex.03, P.W.2/ SIP Allauddin Niazi Ex.04, P.W.3 SIP Tufail Ahmed Ex.05, P.W.4, PC Khamiso Khan Ex.07, P.W.5, Inspector Irfan Ahmed Khan Ex.08 and P.W.6 Mrs. Naseem Akhtar, Judicial Magistrate Ex.9. After prosecution evidence, the statement of the appellant u/s 342 Cr.P.C was recorded, wherein he denied the allegations.

4.       On the conclusion of trial, the appellant and co-accused namely Khalid Mehmood were convicted by impugned Judgment in terms as stated above. The appellant and said co-accused being dissatisfied with their conviction and sentence preferred the instant appeal. However, due to absconsion of co-appellant Khalid Mehmood, his appeal was bifurcated vide order dated 12.02.2013 after cancelling his bail and forfeiting his surety amount. Subsequently vide report dated 13.11.2013 by SHO P.S. Kalri Lyari Karachi it was reported that the said appellant had been killed. Such FIR being crime No.215/2013 and other documents were also filed.

6.       Learned counsel for the appellant has argued that the appellant is innocent and has been falsely implicated in the case; that the investigation conducted in the present case was not proper as the mashir of arrest of the appellant was subsequently made I.O. of the case; that identification parade of the appellant was held after ten days of his arrest which has no value and cannot be considered as an incriminating piece of evidence against him; that although some of the phone cards are shown to have been recovered from the appellant at the time of his arrest but those cards were never put in identification parade to identify them to be the robbed property. Learned counsel has next argued that in the identification parade no role has been assigned to the appellant, therefore, in view of the dictum laid down in the case of Muhammad Rafique V. The State reported in 1996 P Cr. L J 991, the appellant is entitled to acquittal because if in the identification parade no role is assigned, it would become immaterial and irrelevant.

7.       On the other hand, learned A.P.G has supported the impugned judgment. He states that there are no contradictions in the evidence of prosecution witnesses; that the complainant who is an independent person and has no enmity with the appellant has fully implicated him to be one of the accused, who had committed robbery in his shop. Learned A.P.G has next argued that in robbery cases there is no requirement of law that in identification parade the role be assigned to the accused as in robbery cases the intention of the accused to commit robbery could be gathered from his participation in the offence. He has lastly relied upon the case reported in 2010 SCMR 1189.

8.       I have considered the submissions of the parties and perused the material available on record including the evidence of the witnesses. It is the case of the prosecution that on 05.12.2002 at about 2345 hours, two culprits barged into the shop of the complainant situated opposite Police Headquarters Garden, Karachi and committed robbery of Rs.5000/- and mobile cards from him and in the course of which one of the accused namely Khalid Mehmood caused a head injury to the complainant and that the said accused was arrested from the spot. Against the appellant, it is stated that he was one of the culprit but had fled away from the spot soon after commission of the offence and was arrested on the next day i.e. 6.12.2002 from his house. The record reflects that his identification parade was held after 10 days of his arrest and during that period on certain occasions he was brought before the Judicial Magistrate concerned for the purpose of identification parade which however could not held due to non-availability of the said Magistrate. Keeping this aspect in mind, it cannot be ruled out that before the actual identification parade, the appellant was exposed to the complainant. In the peculiar facts and circumstances of the case, the delay in holding identification parade has materially and adversely affected its value. There is nothing on record justifying such delay. The law would require that after arrest of the accused, who is not nominated in the FIR but is alleged to have been seen by the complainant or other witnesses, his identification parade shall be immediately held so that the chances of his exposure to the complainant and witnesses before identification parade are excluded and sanctity of the identification parade is kept reliable. The above position coupled with the fact that the appellant has been facing the trial for the last 15 years has made his case to be one of sympathetic consideration. During the trial the appellant has also remained in jail for more than two months. Keeping in view, such facts and circumstances and the dictum laid down in the case cited at the bar, while extending benefit of doubt to the appellant, he is acquitted of the charge. He is present on bail. His bail bond is cancelled and surety discharged.

The appeal is disposed of.

9.       Before parting with this judgment I must mention here that vide order dated 12.02.2013 surety amount of Rs.100,000/- deposited on behalf of the appellant Khalid Mehmood was confiscated due to his absconsion and the Nazir was directed to get the Defence Saving Certificates deposited by the surety of the said appellant encashed and deposited in Government Treasury in accordance with law. And in compliance whereof Nazir submitted the report dated 04.03.2013 informing that said Defence Saving Certificates of Rs.100,000/- were sent to National Saving Center for encashment but no Government cheque had been received till date. Thereafter the record is silent as to what happened to the surety amount deposited on behalf of absconding appellant. Nazir never submitted any report meanwhile to show that compliance of order dated 12.02.2013 in respect of the surety amount of appellant Khalid Mehmood was made by him. Let Nazir appear before this court on 31.03.2017 with a detailed report in this connection.

         

JUDGE

A.K.