P L D 1992 Federal Shariat Court 390 (PLP)

4. Muhammad Saeed (wrongly stated as P.W.6), a salesman in Rashid General Store, stated that he was present at the shop at the time of occurrence. He was Mushir of the pointation of the accused Nadir Khan (Exh.14). His statement was also recorded under section 161, Cr.P.C. This witness further stated that "the accused present before the Court was the same person, whom I recognized".

5. The statement of Nadir Khan, the convict/accused‑appellant was recorded under section 342; Cr.P.C. who after having denied the various allegations and charges against him in reply to question No.6 "As to why the P.Ws. have deposed against you", replied that the police involved me in false case". He declined to make statement on oath under section 340(2), Cr.P.C. and also declined to produce any evidence in defence.

6. Dr. Hameed Ahmad Ayaz, learned counsel for the appellant submitted that the complainant. was not present at the time of the alleged occurrence. Whatever has been stated by him in the FIR was hearsay as narrated to him by his younger brother Hanif Ahmad (P.W.2) who was present in the shop at the time of occurrence. Moreover, he gave no names of the accused in the F.I.R. In fact, the FIR was lodged against unknown persons. He further submitted that no identification parade was conducted under the supervision of the Magistrate. The extra‑judicial confession made to police is not admissible in law. Furthermore, the case disclosed in the F.I.R. is that of theft whereas in the evidence it has been tried to establish a case of robbery.

7. It is true, that P.W.1 is not an eye‑witness. The eye‑witnesses are P.W.2 Hanif Ahmad and P.W.7 Muhammad Saeed and both of them are stated to have identified the accused/convict‑appellant. It is also true that he gave no names of the persons who had entered the shop and it is but natural as they were not known.

8. It may be pertinent to observe that the appellant was not known by face or name to witnesses, P.W.2 Hanif Ahmad and P.W.7 Muhammad Saeed previously. The reliance placed by the counsel for the State on the case of Ismail and another v. The State 1974 SCMR 175 as such has no relevance. In case where the culprits are not known to the witnesses either by face or name an identification parade through such witnesses in presence of Magistrate is a must. The novel way of the police getting identified the appellant through Hanif Ahmad and Muhammad Saeed has not impressed me. In such view of the fact no reliance can be placed on such identification. If some authority is needed the same may be found in Muhammad Bashir Alam v. The State PLD 1958 SC (Pak.) 1, wherein Muhammad Munir, CJ. who wrote the le4ding judgment, while referring to his earlier decision in Ibrahim Bhak's case PLD 1955 FC 113 observed that "And finally let me address a warning to those police officers who are charged with the investigation of crime where the question of identity of a criminal is a vital factor in the case. Let them not run away with the idea that this Court's decision in Ibrahim Bhak's case provides them an excuse to do away with the presence of a Magistrate at an identification test. I pointed out in that case that ordinarily not much weight can be attached to such identification where the investigating officer gives no explanation of why a Magistrate was not called to supervise the parade. Where a Magistrate is available and is not called the result of the identification parade, unless the circumstances be quite exceptional, would be valueless and. no Court will act on such evidence where everything is arranged by the investigating officer himself and no nearby Magistrate is called."

9. Regarding the extra‑judicial confession and leading of the appellant to the place of offence, it may further be observed that nothing was recovered therefrom on such pointation, thus it has no evidentiary value, much less to say that the alleged pistol and Chhuri used as a show of force at the time of the alleged commission of offence remain a mystery. It is, however, noticeable that there is no mention of the pistol and Chhuri in the FIR. In fact, the FIR gives an impression that the offence falls under section 14 of the Offences Against Property (Enforcement of Hudood) Ordinance VI of 1979, whereas the challan was submitted for the commission of offence under section 17(3) of the said Ordinance. In Muhammad Naseer v. The State (PLD 1988 FSC 58) a Full Bench of this Court observed that extra‑judicial confession, not made before a Court of competent jurisdiction, is not to be taken as a confession but just a statement of the witness that he heard the accused saying that he had committed the offence. Such an evidence must be corroborated by other evidence and circumstances of the case if it is to be considered to impose Ta'zir punishment. In Arif Nawaz Khan and others v. The State PLD 1991 FSC 53 a Full Bench of this Court held that a confession made by a co‑accused in "police custody" cannot be said to be made voluntarily: A number of cases were referred to in the said judgment.

10. Thus, the so‑called extra‑judicial confession of the appellant cannot be made base for the conviction of the appellant. I have gone through the judgment passed by the learned Additional Sessions Judge‑VII South, Karachi, who has neither properly assessed the question of the absence of the identification parade nor the extra‑judicial confession of the appellant. It seems pertinent to reproduce the relevant para. of his judgment:‑‑ "The accused for the first time was produced before the witness on 10‑3‑1990 at about 13‑30 hours. The novelty introduced in the Exh.14 is that the accused himself pointed out the place of commission of Vardat and that was Rashid General Store, 8th Commercial Street, Phase‑IV, D.H.S., Karachi. It was written by the police and the same was read over to the witnesses namely Muhammad Hanif and Mohammad Saeed. The practice had been that accused is not produced in the manner, while recording Exh.14 and without showing the accused to the witnesses identification parade before the Magistrate is held. Since the accused himself was making extra‑judicial confession and leading to the place of Vardat and at his pointation the Special Team could find out that the accused alongwith other absconding accused had committed Haraabah. Though the evidence of Mohammad Hanif and Mohammad Saeed is unshattered in order to ascertain the truth and non‑identification of the accused, Court had asked question to Mohammad Saeed to know as to whether the accused was got identified at the P.S. to which P.W., Mohammad Saeed at Exh.20 replied that he did not go to the P.S. and he sees his signature on Exh.14. It was signed at the shop, where the incident had taken place. He also testifies the attendance of Mohammad Hanif, the victim of the Vardat. So by scrutinising the evidence of the P.W. Mohammad Hanif and Mohammad Saeed, I find that recovery of the cash and arrest of co‑accused was not only made, but the vehicle used by the accused i.e. Toyota Corolla bearing No.150‑643 owned by Mst. Mubarak Jan was also pointed out by the accused. Under the circumstances I find that Haraabah was committed and there is no illegality on the part of the witnesses Mohammad Hanif and Mohammad Saeed in identifying the accused. Section 17 of the Offences Against the Property (Enforcement of Hudood) Ordinance reads as under:‑‑

17. Punishment for Haraabah ‑‑(1) Whoever, being an adult, is guilty of Haraabah in the course of which neither any murder has been committed nor any property has been taken away shall be punished with whipping not exceeding thirty stripes and with rigorous imprisonment until the Court is satisfied of his being sincerely penitent: Provided that the sentence of imprisonment shall in no case be less than three years. (2) ................................................... (3) ................................................... (4). .................................................. (5)................................................... (6) ................................................... I find that the minimum punishment provided for the offence is 3 years. It is imperative by operation of law as such alongwith the stripes to give the quantum of detention provided." The observation and discussion made by the learned Additional Sessions Judge seem to be self contradictory. It means that the learned trial Judge is not convinced on the question of robbery of Rs.15,000 cash and the wrist‑watch because conviction under section 17(1) of the said Ordinance can only be made if the incident of Haraabah has taken place but no property is robbed and taken away. If that is so, it belies the whole story. In such view of the matter, I am not inclined to either rely on the identification of the appellant (in police custody) made through witnesses Hanif Ahmad and Muhammad Saeed and his extra‑judicial confession before the police officer.

11. The recovery of the car, on the alleged pointation of the appellant only goes half way, as the same has neither been produced in Court for got identified by the witnesses (P.Ws.2 and 7) who had allegedly seen the car parked in front of the store at the relevant time, nor there is anything on record so as to connect the same with the offence and the appellant beyond any doubt.

12. It may be observed that since the learned trial Judge had convicted the accused under section 17(1) of the said Ordinance and awarded minimum sentence of three years' R.I., under proviso to section 17(1) of the said Ordinance and five stripes, the matter was referred to the learned trial Judge for the purpose of Tazkiyahtul Shuhood vide my order dated 11‑7‑1991 which is reproduced as under:‑‑ "Let the appeal remain on file of this Court. The R & P be sent back to the learned trial Judge with a direction to conduct Tazkiyahtul Shuhood by making an inquiry, open or secret, of the witnesses produced in the case in accordance with law. Reference may be made to the case of Ghulam Ali v. The State (PLD 1986 SC 741) and several textbooks, e.g. `Islami Oanuni Shahadat' by Maulana Muhammad Maken Hashmi published by Diyal Singh Trust Library, `Islami Qanuni Shahadat' by Dr. Abdul Malik Irfani published by Qanuni Kutab Khana, Lahore and `Islami Qanune Shahadat' written by me, published by Qanuni Kutub Khana, Lahore, chapter on `Tazkiyahtul Shuhood' for seeking guidance therefrom by the learned Judge. The Sessions Judge to complete the inquiry and submit its report on Tazkiyahtul Shuhood to this Court within three months."

13. In reply to the said reference No.CrA.23‑K/1991 Federal Shariat Court, Branch Registry, Karachi, dated 14‑7‑1991, the learned Judge testified the character of the witnesses particularly those of Hanif Ahmad and Muhammad Saeed, the eye‑witnesses as Adil (just) witnesses. The Tazikiyahtul Shuhdood of the two witnesses, P.W.2 Hanif Ahmad and P.W.7 Muhammad Saeed would not however, strengthen the case of the prosecution regarding the commission of robbery by the appellant for the reasons stated above.

14. In the circumstances discussed hereinabove, I am constrained to accept the appeal, set aside the conviction and sentences of the appellant, awarded by the learned Additional Sessions Judge‑VII, South Karachi. The appellant is acquitted of the charge. He be set at liberty forthwith if not required in any other case. Notice for enhancement of sentence stands discharged. M.BA./683/FSC Appeal accepted.