1988 P (PLP)

Altaf Muhammad Khan for the State. Muhammad Ashraf for the Complainant. Date of hearing: 11th November, 1987. FAKHRUDDIN H. SHAIKH, J.--The above two appellants have been convicted by Additional Sessions Judge, Sheikhupura, Camp at Ferozewala. under section 20 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and sentenced to suffer R.I. for seven years each and to pay fine of Rs.2,000 each or in default of payment of fine to further undergo R.I. for six months each., vide his judgment, dated 24-5-1987. They have challenged their above conviction and sentences by this joint appeal.

2. On 15-3-1981 at about 8-00 p.m. P.W.1 Rana Asghar Ali, complainant, was present in Rana Town Abadi. His wife and children were also present. He had two wives namely Mst. Nazir Begum and Iqbal Begum, who were also present. His son Rana Shahid Asghar and three daughters were also there. It is alleged that they collected dowry for the marriages of the complainant's daughters in the house and were also watching T.V. There was a bell call at the outer door. whereupon Shahid Asghar went to the door to find out who was there. It. is alleged that there were five persons out of whom one stood outside while the remaining four entered the house. These persons were .not known to any of the inmates of the house. It is alleged that the present two appellants were among these culprits. They removed clothes, cash, sewing machine and rifle from the house and went away. After departure of the culprits complainant Rana Asghar Ali informed Ferozewala police on telephone. However the police arrived after two/three days of the incident when his F.I.R. was recorded.

3. After two and half months of the incident the police had shown one rifle to the complainant which he had identified to be the same which was removed by the culprits. In an identification parade the complainant had also picked up appellant Haider alias Bashir as one of the culprits. No identification parade was held in respect of appellant Muhammad Nawaz, although it is claimed that he was also among the culprits. One stolen Chaddar was also recovered by the police during the investigation, which the complainant identified to be his.

4. P.W.8 Muhammad Sharif A.S.I. had recorded F.I.R. on the basis of a written complaint (Exh.P.A.) submitted by the complainant on 6-3-1981 i.e. on the following day of the incident. On the basis of this complaint formal F.I.R. was recorded. The case was partly investigated by P.W.10 Ata Muhammad S.1, and partly by P.W.7 Ahmad Hassan, S.I. of Ferozewala Police Station. On 24-1-1982 Ata Muhammad, S.I. had recovered a rifle from appellant Haider alias Bashir and had. registered a case under the Arms Ordinance. It is alleged that the same rifle was identified later by the complainant. This recovery is said to have been effected after about 8 months of the incident. It is not known as to how and on whose information this recovery was effected.

5. On 23-1-1982 i.e. one day earlier to the recovery of the rifle, appellant Muhammad Nawaz is alleged to have volunteered to produce one woollen Chaddar. He led the police to his village and produced woollen Chaddar in presence of P.W.4 Noor Din and P.W.5 Muhammad Din. There is nothing on the record to suggest as to how appellant Muhammad Nawaz came to be arrested by the police. Ahmad Hassan, S.I. had prepared recovery memo. (Exh.P.C.). These two police officers have not stated anything about identification parade having been arranged in respect of any of the appellants.

6. P. W.9 Rao Tehseen Ahmad, Resident Magistrate, Toba Tek Singh stated that on 13-2-1982 when he was Resident Magistrate Sheikhupura the police had submitted an application for identification parade, which he had arranged in respect of appellant Haider alias Bashir and that Shahid Asghar and Rana Asghar Ali P.Ws. had picked up appellant Haider alias Bashir in the identification parade as the person concerned with this crime. This identification parade has no evidentiary value, because it was held after 20 days of the arrest of appellant Haider. P.W.10 Ata Muhammad, S.I. has stated that on 24-1-1982 when he had recovered rifle from this appellant he was already in custody. If this were so, there was no reason for having delayed the identification parade upto 13-2-1982. It further appears from the evidence of Ata Muhammad that Haider alias Bashir was arrested even before 23-1-1982. His actual date of arrest has not been given by any police officer. No police officer has claimed that any application was made to P.W.9 Rao Tehseen Ahmad for holding identification parade. We should, therefore, attach no importance to the identification parade in which P.Ws. Shahid Asghar and Rana Asghar Ali are alleged to have picked up appellant Haider alias Bashir as one of the culprits. The incident had taken place in March 1981 and the identification parade was held in February, 1982 i.e. after 11 months. It is doubtful if the witnesses, who must have had only a glimpse of the culprits during the night at the time of incident, were able to correctly identify the culprits after a lapse of 11 months.

7. In support of the prosecution case there is evidence of P.W.1 Rana Asghar Ali, P.W.2 Rana Shahid Asghar and P.W.3 Mst. Nazir Begum who have simply stated about the incident as narrated above. Mst. Nazir Begum did not identify any of the culprits. Shahid Asghar had claimed that the two appellants were among five culprits. It has already been stated that no identification parade was held in respect of Muhammad Nawaz. Therefore, it was not possible for the above two witnesses to say that appellant Muhammad Nawaz was one off them. So far as appellant Haider alias Bashir is concerned, we have already held that his identification parade before the two witnesses has no value.

8. The only other evidence against the appellants is recovery of rifle and a Chaddar from appellants Haider and Muhammad Nawaz respectively. P.W.4 Noor Din is said to be one of the witnesses in whose presence the Chaddar was secured at the instance of appellant Nawaz. This witness did not support the prosecution case, he was, therefore, declared hostile by the prosecutor. The other witness of recovery of Chaddar from Muhammad Nawaz is P.W.5 Muhammad Din. He also did not support the factum of recovery of Chaddar from appellant Nawaz. There is solitary evidence of P.W.7 Ahmad Hassan that he had recovered a woollen Chaddar at the instance of appellant Nawaz in presence of Muhammad Din and Noor Din. The solitary word of Ahmad Hassan, S.I. is not sufficient to connect appellant Muhammad Nawaz with this crime. So far as recovery of rifle from appellant Haider by P.W.10 Ata Muhammad is concerned, there is solitary word of Ata Muhammad on this point. No recovery 'memo. has been produced, nor it is stated as to who were the witnesses in whose presence the rifle was recovered. We, therefore, hold than, this is practically case of no evidence so far as connection of the, two appellants with this crime is concerned.

9. Consequently we allow the appeal, set aside the conviction and sentences and acquit the appellants of the offence they have been charged with. Appellant Haider alias Bashir shall be released forthwith if not required in any other case: Appellant Nawaz is present on bail. His bail bond stands discharged. S.A./420/FSC Appeal accepted.