2002 PLP 1017 (MLD)

(3) Whether on the alleged date and time the accused Muhammad Rashid and Nadeem obstructed the police party from discharging their official duties as public servant? (4) Result.

8. The learned trial Court after having gone through the evidence adduced by the prosecution and other material available on record passed the impugned judgment in terms as stated above.

9. It will be pertinent to mention that one of the accused Mst. Sabira Bano alias Zareena has not preferred any appeal against her conviction and sentence. The above named two appellants have preferred this, appeal.

10. Messrs Abdul Majeed and Mahmood Akhtar Qureshi. Advocates for the appellants, have argued that only complainant has been examined by the prosecution whereas her sister namely Shamim Begum has not been examined by the prosecution which renders doubts in the version of the prosecution story. According to them there is no corroboration to the version of the complainant. They have further argued that it is a claim of the prosecution that there was an encounter between accused and police party and three empties were recovered from the place of Wardat but the same empties have not been produced before the Court and this very fact has falsified the claim of the prosecution with regard to the incident. According 'to them the accused were arrested in day time from public place yet no independent witnesses have been associated by the police on the factum of their arrest and incident. They have further argued that the property was not sealed at the spot and they have drawn my attention on the deposition of Inspector which is available at page 51 of the paper book. They have finally prayed for the acquittal of appellants from the charge being faced by them.

11. On the other hand, Mr. Habib-ur-Rasheed, Advocate for A.-G. for the State, has supported the impugned judgment and has argued that the recovery has been effected from their possession and they have been apprehended from the spot and the appeal be dismissed.

12. I have considered the arguments advanced by the learned counsel for the parties and with their assistance I have gone through the evidence adduced by the prosecution and other material available on record.

13. The complainant in F.I.R. has very categorically stated that on the day of incident on opening the door, he found a woman standing there alongwith two boys whose names later on were learnt as Muhammad Rashid son of Ibrahim and Nadeem alias Bhola son of Abdullah alias Abdul Wohra. Since the complainant has specifically named the accused in F.I.R. with their parentage. Yet it is not known i with regard to the source of information on the part of the complainant with regard to names of the aforenamed accused which goes unexplained in the contents of the F.I.R. by the complainant and nowhere he has stated in F.I.R. that he knew both the accused intimately. Before the learned trial Court complainant who is the material witness in the case has stated that he found at 3-00 p.m. one lady who knocked the door of his house and asked for a glass of water, two boys were standing behind her. He went to bring the glass of water and brought the same and meanwhile two boys who were standing behind the lady entered the house and the lady disappeared from the place of Wardat. Both the boys were armed with TT pistols. They threatened the complainant party and removed the Rado Wrist-Watch which was being worn by the complainant, and also they committed robbery of two wrist-watches from the Almirah and they also removed the golden bangles from the hands of his sister and also a golden pair of ear-rings from the ears of his sister and after committing the robbery accused ran away from the house and he came out from the house and started raising cries of thief thief. I have very carefully examined the examination-in-chief of the complainant. Nowhere he has stated that their names were later on learnt as Muhammad Rashid son of Ibrahim and Nadeem alias Bhola son of Abdullah alias Abdul Wohra. This shows that either the contents of the F.I.R. have been written wrongly by police or complainant wrongly narrated to the police officer the names of the aforenamed appellants while recording the F.I.R, or the complainant never knew the names of the accused as it is not being deposed by him before the learned trial Court that their names were Muhammad Rashid son of Ibrahim and Nadeem alias Bhola son of Abdullah alias Abdul. Moreover the source of information of names of the accused incorporated in F.I.R. are also lacking on the part of the complainant. In both the cases the complainant is not narrating clear episode of the incident and thus has caused a dent in its own version.

14. Since complainant in F.I.R. has not only named accused -appellants but also has stated in the F.I.R. that the accused on his cries were apprehended by mobile police. Yet the accused were put to the identification alongwith 20/25 other persons and both the appellants were picked up by the complainant from the aforementioned 20125 other persons. The complainant nowhere has stated in his deposition as to where the identification parade was held and before which Magistrate or Court. He only says that he was called at the City Court for identification of the accused. In these circumstances the prosecution is not putting forward its genuine justification towards apprehension of the accused from the spot and thereafter holding identification parade when the accused were already apprehended by mobile police in presence of the complainant. "It is also very startling that nowhere it appears that the identification of the accused was held before which Court or before which Magistrate. Prosecution has miserably failed even to examine any Magistrate on this factum before the learned Trial Court and this aspect of the case has not been considered by the learned trial Court while delivering the judgment. Besides the sister of the complainant who has not been examined by the prosecution is also an eye-witness on the factum of incident, strange enough that she was not called for the purpose of identification, of the aforenamed appellants and co-accused Sabira Bano.

15. As far as the recovery and arrest of accused from the place of Wardat is concerned, the Mashirnama of arrest and seizure of articles have been prepared in presence of complainant and another witness Muhammad Amin son of Muhammad Ahmad. It has also been noted that this witness Muhammad Amin has not been examined by the prosecution when he is also one of the witnesses on the factum of recovery and arrest and only complainant .who is not only complainant but also Mashir on the factum of recovery and arrest has been examined and there is no explanation whatsoever from the side of the prosecution as to why Muhammad Amin has not been examined by the prosecution.

16. Moreover, the robbed articles which have been recovered from the appellants Muhammad Rashid son of Ibrahim and Nadeem alias Bhola son of Abdullah alias Abdul Wohra have not been subjected to identification test in presence of the Magistrate complainant and his sister who could have said, at the time of identification test of the robbed articles that these are the articles which were removed forcibly by the appellants and co-accused lady from their house. Even nowhere it appears that during the identification parade of the accused persons as being narrated by the complainant before the learned Trial Court and he had also pointed out to accused Muhammad Arshad son of Ibrahim and Nadeem alias Bhola son of Abdullah alias Abdul Wohra that what articles were robbed by them from the house of the complainant and nowhere it has been stated by the complainant in his examination-in-chief that what role was played by the aforenamed appellants during the commission of the offence. This is not being narrated by the complainant in his examination-in-chief absolutely and for the recovery whatsoever has been effected cannot be thrown on the shoulders of the aforenamed appellants when the persons from the locality have not been associated in daytime particularly, Muhammad Amin has not been examined by the prosecution and so also the sister of the complainant. Since it has been disclosed by the complainant that the culprits also removed the ear-rings and other articles from the hands of his sister yet his sister has not been examined by the prosecution as discussed supra. Adverse inference can be drawn upon the prosecution in that event as non examination of such material witness by the prosecution cuts the root of the case of the prosecution and it-can be presumed that had she been examined, she would have not supported the case of the prosecution in a manner as being narrated by the complainant in his F.I.R. and deposition.

17. I have also very carefully examined the statements of the accused under section 342, Cr.P.C. by the learned trial Court. I have also examined the Mashirnama of arrest and seizure which reveals as under:-- "(1) Accused Muhammad Rashid:

One TT Pistol without numbered alongwith magazine loaded with twit live bullets from his right hand while one pair of gold ear-rings weighing about 3.5 grams. One Citizen Wrist-watch with golden dial and chain and one Sehar Wrist-watch with white chain from right side pocket of his v. c acing Qameez were recovered (2) Accused Nadeem alias Bhola:

One TT pistol without number alongwith magazine loaded with two -live bullets from his right hand while one Rado Dister Wrist-watch bearing serial number and two gold bangles weighing about 15 grams from right pocket of his wearing pant were recovered. From further search of person one b?ack purse containing different documents and cash Rs.30 were also recovered from his pocket of the same pant. " The aforenamed complainant as per Mashirnama of recovery has stated that the recovered gold jewellery and wrist-watches to be his own property pointed out that the same were stolen away from his house by the accused prior to this incident.

18. The statements under section 342, Cr.P.C. revealed that no specific question has been put to the nature of recovery of the articles in the light of the Mashirnama of recovery as discussed supra and this is the adverse evidence which is existing against the appellants, strange enough that no such specific question with regard to recovery has been put to the accused by the prosecution. This shows that the learned trial Judge has not taken into consideration the entire evidence as the only question put by the learned trial Court under section 342, Cr.P.C. to the accused is:-- "It has also come in evidence that after commission of robbery while you were running, police party chased you and after exchange of firing apprehended you and robbed property alongwith TT pistol with cartridges recovered from your possession? Nowhere it appears that when they were apprehended by police and when such robbed property was recovered from their possession is lacking in the statements under section 342, Cr.P.C. Even as discussed supra no specific question with regard to recovery from both the appellants has been put by the learned trial Court in view of Mashirnama of recovery of the robbed articles.

19. In view of above discussion failure on the part of the prosecution, non-examination of the sister of the complainant, no identification test of the robbed articles, no independent witness on the factum of recovery and arrest of the accused, non-examination of Muhammad Amin co-Mashir and the statement of the complainant before the learned Trial Court who has deviated from his earlier statement which he narrated before police in F.I.R. have riddled the case of the prosecution with material contradictions. Identification of the accused has not been held in manner as held by the superior Courts. Non examination of the Magistrate on the factum of identification parade. All the factors have shattered the case of the prosecution.

20. Although such kinds of incident are happening in the country and such elements enter the house of the people for want of glass of water or foods and they enter forcibly the houses of the innocent people and they commit such offence but it is regretted to say that the investigation conducted by the police has always given crushing blow to the case of the prosecution and they do not investigate the case properly and do not conduct the investigation in accordance with the mandatory provisions of requirement of law and the parameters laid down by the Hon'ble superior Courts. Which ultimately results in failure on the part of the prosecution to prove its case beyond reasonable doubt.

21. Upshot of above discussion is t a t e prosecution itself has injected the elements of doubts in the case. It has been held by the Hon'ble Supreme Court in 1995 SCMR 1345 that if a single circumstance creates a doubt in the prudent mind, benefit of doubt goes i to the accused not as a matter of grace but as a matter of right. In the instant case the prosecution itself has created so many doubts and in that event the benefit of doubt goes to the appellants/accused. I give benefit of doubt to the appellants. Their conviction and sentence are set aside. In result both the appeals are allowed. Both the appellants are on bail, their pF bail bond and surety stand discharged. H.B.T./M-318 K Appeal accepted.