2014 PLP 1683 (SCMR)

ASIF SAEED KHAN KHOSA, J.

Criminal Miscellaneous Application No. 461 of 2014 Instead of pressing this miscellaneous application seeking suspension of the applicant's sentence during the pendency of his appeal the learned counsel for the applicant has requested that the main appeal may be taken up for hearing today and be decided. The learned Deputy Prosecutor-General, Balochistan appearing for the State has expressed his readiness to address arguments in the main appeal today. This miscellaneous application is, therefore, dismissed as having not been pressed. Criminal Appeal No.305 of 2014

2. Muhammad Azam appellant was booked and tried in case F.I.R. No. 61 registered at Police Station Pishin on 25-8-2013 in respect of offences under sections 392 and 395, P.P.C. and vide judgment dated 16-12-2013 delivered by the learned Judicial Magistrate-I, Pishin the appellant was convicted for an offence under section 392, P.P.C. read with section 34, P.P.C. and was sentenced to rigorous imprisonment for three years and to pay a fine of Rs. 20,000 or in default of payment thereof to undergo rigorous imprisonment for three months. The appellant challenged his conviction and sentence before the Court of Session, Pishin through an appeal which was dismissed by the learned Incharge Sessions Judge, Pishin vide judgment dated 27-12-2013, Thereafter the appellant approached the High Court of Balochistan, Quetta through Criminal Revision No. 128 of 2013 which too was dismissed by a learned Judge-in-Chamber of the said Court through the judgment handed down on 22-4-2014. Hence, the present appeal by leave of this Court granted on 9-6-2014.

3. We have heard the learned counsel for the parties and have gone through the record of the case with their assistance. It has been argued by the learned counsel for the appellant that the case in hand was practically a case of no evidence against the appellant and, thus, his conviction and sentence recorded and upheld by the learned courts below need to be set aside by this Court. As against that the learned Deputy Prosecutor-General, Balochistan appearing for the State has supported the impugned judgments passed by the learned courts below.

4. After hearing the learned counsel for the parties and going through the record we have observed that according to the F.I.R. a motorcar belonging to Habib-ul-Haq complainant had been hired by Muhammad Azam appellant and his absconding co-accused namely Janan for going from Islamabad to Pishin and after reaching Pishin the said motorcar had been snatched away from the complainant by the appellant and his co-accused. During the investigation the said motorcar had been recovered from a street outside the local Police Station and it had been alleged by the prosecution that the appellant and his co-accused had tried to get the stolen motorcar repaired whilst it was in their custody. During the trial Habib-ul-Haq complainant, the only eyewitness of the alleged robbery, had appeared as P.W.1 and he had categorically stated before the learned trial court that Muhammad Azam appellant was not one of the persons who had snatched away the motorcar from him, the appellant was not the person who was accompanying Janan co-accused at the relevant time and the appellant was completely innocent in the matter. Muhammad Qasim (P.W.2) had stated before the learned trial Court that he had been approached by Muhammad Azam appellant and his co-accused for getting a motorcar repaired but he had neither seen the motorcar to be repaired nor he had repaired any such motorcar. The said witness had gone on to state unambiguously that Muhammad Azam appellant was innocent and that he had not committed any offence. Javed Iqbal, S.I. (P.W.3) was the witness of recovery of the stolen motorcar but a perusal of his statement made before the learned trial court clearly showed that the stolen motorcar had not been, recovered from physical possession of the present appellant and that at the time of the alleged recovery Muhammad Azam appellant was merely present in the street wherefrom the stolen motorcar had been recovered. All these statements made by different prosecution witnesses before the learned trial Court had gone a long way in establishing that the prosecution had utterly and miserably failed to prove its case against Muhammad Azam appellant beyond reasonable doubt and we have been rather dismayed by the fact that in the presence of such evidence produced by the prosecution all the learned courts below had concluded that the prosecution had succeeded in establishing its case against the appellant beyond reasonable doubt. We have particularly been shocked to notice that in her judgment impugned before this Court the learned Judge-in-Chamber of the High Court of Balochistan, Quetta had clearly referred to the above mentioned aspects of this case but despite that the learned Judge-in-Chamber had concluded in favour of the prosecution which conclusion was presumptive, speculative and conjectural at best. We are constrained to observe that in the circumstances of this case no reasonable court could have arrived at such a conclusion and that such conclusion was possible only when the settled legal principles governing appreciation of evidence in criminal cases were applied inversely and the facts of this case were appreciated and assessed with jaundiced perceptions and perverted sense of justice. We expect the learned Judge-in- Chamber of the High Court of Balochistan, Quetta to do better in future.

5. For what has been discussed above a conclusion is irresistible and unavoidable that the prosecution had failed to prove its case against Muhammad Azam appellant beyond reasonable doubt. This appeal is, therefore, allowed, the conviction and sentence of the appellant recorded and upheld by the learned courts below are set aside and he is acquitted of the charge. He shall be released from the jail forthwith if not required to be detained in connection with any other case.

6. The office is directed to send a copy of this judgment to the Hon'ble Chief Justice of Pakistan and the Hon'ble Chief Justice of the High Court of Balochistan, Quetta for their kind information. MWA/M-41/SC Appeal allowed.