2000 P Cr (PLP)

Appellants have assailed a judgment delivered by the Court of IInd Additional Sessions Judge, Hyderabad on 14-10-1998 whereby they have been convicted under section 392, P.P.C. and sentenced to suffer R.I. for 7 years each. They are further penalized to pay fine of Rs.5,000 each. In case of non-payment of fine, they shall further undergo S.I. for 3 months each. They have also been extended the benefit of section 382-B, Cr.P.C.

2. One Hakim Ali (P.W.3) appeared at Police Station City, Hyderabad oft 1-9-1992 at 17-00 hours and lodged an F.I.R. wherein he reported that he is a servant of Mst. Kalsoom (P.W.2) Assistant Professor of Sindh University. In the house of Mst. Kalsoom her mother Mst. Amanat and her sister Mst. Ghulam Zohran (P.W.1) are residing. On the date of report, at about 15-30 hours, the complainant was going outside the house that on the door he found three persons in whose hands there were T.T. Pistols. They made him to come inside the house on the point of said T.T. Pistols and asked them to give them everything which was there on their bodies. Apprehending, Mst. Kalsoom gave them 6 golden bangles, one golden chain which was in her neck, two golden rings which all were worn by her and Mst. Zohran gave them four golden bangles and one golden chain which were worn by her. Then they took out Rs.30,000 cash which was there in the almirahs. Afterwards these three culprits ran away and after then running away all the persons in the house remained silent as they were threatened on the points of the T.T. Pistols. When they ran away the complainant came out of the house and he was intimated by the people that those persons had run away towards Khata Chowk. The faces of the culprits were open and in case they are brought before them they can identify them. Mst. Kalsoom informed her relatives who also came and saw the Wardat. On the basis of this F.I.R., all the three appellants/accused were arrested, challaned and they were charged under Article 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, hereafter to be referred as the said Ordinance, and to this charge the appellants did not plead guilty.

3. To prove its case prosecution examined 11 witnesses. Ghulam Zuhran (P.W.1), has deposed that complainant Hakim Ali (P.W.3) is a cook in the house of her mother. She has deposed in accordance with the contention in the F.I.R. Mst. Kalsoom Pathan (P.W.2) has deposed that complainant Hakim Ali is a Government servant and is working in their house since 6 or 7 years. She has also deposed almost in accordance with the statements in F.I.R. Hakim Ali (P.W.3), the complainant has deposed that the incident had taken place. He has further deposed that the contentions of the F.I.R. were not read over to him by the police and that no identification parade was held in his presence before any Magistrate and that the present accused/appellants are not the same persons who had committed the offence. Abdul Hussain (P.W.4) has deposed that he acted as Mashir in this case. Police did not secure any jewellery from the accused/appellants- in his presence. Police obtained his signature on blank paper. Neither identification parade was held in his presence nor any identification of jewellery was held before any Magistrate.in his presence. Police obtained his signature on some blank papers. He was declared hostile and cross-examined by D.D.A. It appears that for the sake of Tazkiya-tul-Shahood this witness, declared hostile, was once again summoned by the trial Court on 14-3-1998 and examined as P.W.10. He was asked certain questions in connection with Tazkiya-tul-Shahood and then was made to depose. He has deposed that he was made Mashir by police in this case. No identification parade was held in his presence. His signature was obtained on Exh.27/A at the Police Station Hyderabad where it obtained his signature on some blank papers. He did not act as Mashir of identification of accused persons, as the Mashir of production of the golden ornaments and that the P.W. Mst. Kalsoom did not identify the golden ornaments before Mukhtiarkar in his presence. Accused present in the Court are not known to him. The witness was once again summoned by the Trial Court on 14-3-1998 for the Tazkiya-tul-Shahood and he has once again deposed as P.W.11. After the questions about Tazkiya-tul Shahood, he has deposed that 10/ 15 days after the incident he was called at the police station where his signatures on the plain papers were obtained. He, has not acted as Mashir of the identification parade. He, however, was made to sign on Exh.27/A but he does not know what were the contents of this exhibit. He was declared hostile and cross-examined by P.P. Abdul Qayoom (P.W.7) has deposed that on 27-9-1992 he was working as S:I.P. at Police Station City Hyderabad and that he received case papers of this case from the S.H.O. on that date. He interrogated accused Muhammad Ali who was arrested at Police Station Cantt. in Crime No.46. During interrogation this accused confessed having committed offence of this case and showed his willingness to produce the case property which was lying in his house. He thereafter arranged for the Mashirs and then alongwith the accused he proceeded for his house which was situated at Alam Chand Line. The accused Muhammad Ali led to the upper story of the house and produced one bundle from under the Gadda of Palung. The bundle, when opened was having 10 golden bangles. He prepared such Mashirnama in presence of Mashirs Abdul Hussain and Jawed. Thereafter, leaving accused Muhammad Ali at Police Station Cantt. he returned to Police Station City alongwith the recovered property which was handed over by him to the W:H.C. He called the P. Ws. for identification of the golden ornaments and then he took accused Muhammad Ali to the office of A.D.M., Hyderabad who issued orders that the identification parade be held by the IInd Class Magistrate, Latifabad. The identification parade was held and the ornaments were mixed with other ornaments. During which Mst. Zohran identified the ornaments to be the same. Thereafter, accused Muhammad Ali got identified through the P. Ws. in the identification parade. Such Mashirnama was prepared. He produced the Mashirnama as Exh.23/A and stated that it bears his signatures. The Mashirs were Anwar and Muhammad Morial. On 15-10-1992 he handed over the case papers to the S.H.O. as remand period had come to an end. Remaining two accused were not apprehended by him. Abdul Hameed (P.W.8) has deposed that nn 1-9-1992 he was working as A.S.-I. at Police' Station City Hyderabad. At 5-00 p.m. complainant came at police station and he registered the F.I.R. verbatim under his signature under Article 17(3) of the said Ordinance. He has proved F.I.R. as Exh.17/A. After lodging the F.I.R. he went to the place of Wardat alongwith the complainant where he prepared the Mashirnama of the place of Wardat in presence of Mashirs Nazar Muhammad and Qadeer. He has proved the Mashirnama of Wardat as Exh.19/A. Then he recorded statement of P. Ws. Mst. Kalsoom, Mst. Amanat and Mst. Zohran. Thereafter, the plain papers taken from,' by the S.H.O. Nazeer Ahmad (P.W.9) has deposed that on 10-10-1992 he was working as Assistant Mukhtiarkar and T.C.M., Latifabad. On that day S.I.P., Police Station City Hyderabad came to him for holding identification parade of accused Muhammad Ali alongwith four witnesses. He completed the necessary procedure for holding the identification parade and got the handcuffs of the accused removed. Thereafter, he called the witnesses one by one for the identification who identified the accused in his presence. He prepared such Mashirnama in presence of Mashirs which is Exh.18/C and say that it is the same Mashirnama which bears his signature. Due to lapse of time he cannot say in the Court whether the accused present in the Court was the same who was identified. He had also arranged for identification of the ornaments recovered from the accused. For that, too, on that very same date already mentioned by him, the S.H.O. had come alongwith the witnesses. He completed procedure and got the golden ornaments identification which were 10 golden bangles, one golden ring and one golden chain. The witness identified the ornaments and a Mashirnama was prepared which is Exh:18/B and it is the same which bears his signature. Due to the lapse of time he cannot say whether the case property shown to him in the Court is the same. In. his statement under section 342, Cr.P.C. appellant/accused Syed Muhammad Ali, has denied all the specific questions. To question No.5 as to why the P. Ws. have deposed against him, he has replied that. no P. W. has deposed against him except police officials. He has declined to be examined on oath and has not produced any witness in his defence. Appellant Munawar Ali has also taken the same line in his statement under section 342, Cr.P.C. and so is the case of appellant Muhammad Naeem.

4. I have heard the learned Counsel for appellants Malik Rab Nawaz Noon and learned Counsel for the State Mrs. Qamur Nisa. The learned Counsel for appellants has rightly contented that this is a case of no evidence in view of the facts that firstly complainant has not supported the F.I.R. and that he was not declared hostile, secondly that P.W.5 namely Fareed Hussain who acted as Mashir of the place of incident has deposed that his signature was obtained on blank paper and that the police had not visited the place of incident in his presence and that his signatures were obtained at the police station at the time of recording the F.I.R. but he has not been declared hostile and thirdly that P.W.6 who has been shown as Mashir of identification of the accused persons and the Mashir of production of the golden ornaments has not. supported the prosecution and has not been declared hostile. In view of this position when the complainant and two important material Mashirs have not been declared hostile then in that case a clear doubt is created in the story of prosecution. Another, contention of .the learned Counsel for appellants is that the deposition of P.W.7 has not been believed by the trial Court and that the trial Court itself in its impugned judgment, para,. No.20 has admitted that the case stands doubtful. This para reads as under:-- "According to prosecution's case the Investigating Officer recovered the stolen property from accused Muhammad Ali in presence of Mashirs Abdul Hussain and Jawed Hussain. During trial both the Mashirs Abdul Hussain and Jawed Hussain have not supported the recovery of stolen property from accused Muhammad Ali hence both the Mashirs were declared hostile. On the point of recovery there is only evidence of S.I.P. Abdul Qayoom but his evidence is not corroborated by any piece of evidence. hence mere evidence of Investigating Officer without corroboration will be highly unsafe for awarding the conviction, hence the prosecution has failed to establish the point No.3 without any shadow of doubt. The point No.3, therefore, stands doubtful." Another contention of the learned Counsel for appellants is that in F.I.R. neither the features nor the descriptions of the culprits are given although it has also been said that the faces of the culprits were opened at the time of the incident. In their statements under section 161, Cr.P.C., which were recorded four days after the incident. The P.Ws. have not made an iota bf reference to the features and descriptions of the culprits. In this context the learned trial Court has relied upon PLD 1988 Kar. 539, but it has not made a reference to another case of the Supreme Court of Pakistan reported as 1993 SCMR 585 in which the apex Court has not agreed with the rulings of the abovementioned cited case of Karachi jurisdiction in the following words:-- "S. 302

Special Courts for speedy trials Act (IX of 1992), S.13(5)

Appeal against acquittal

Appreciation of evidence-- Identification test had no value for want of description of accused in F.I.R.

Ocular evidence was unreliable and doubtful

Motive against accused was of weakest kind

Appraisal of evidence by Trial Court was satisfactory

Appeal against acquittal of accused was dismissed in circumstances. " On the one hand there is a delay of four days in recording the statement under section 161, Cr.P.C. and for this delay no explanation has been given. On the other hand witnesses of the recovery are declared hostile and the complainant . has not supported the prosecution. The Mashirs of the identification parade have resiled and the trial Court has not believed the recoveries as shown by S.I.P. Abdul Qayoom and in view of this situation the ruling appearing in 1985 SCMR 721, 1988 SCMR 557 and 1997 SCMR 971 do come into the picture and this Court is bound by the rulings of Shariat Appellate Bench. When confronted with this situation, the learned Counsel for State has conceded that even the trial Court in its impugned judgment has admitted that in this case there is clear doubt, yet she has supported the impugned judgment. It is an established rule that the benefit of doubt is always given to the appellant/accused. In the present case this benefit is extended to the appellants, and the impugned judgment is set aside. The appeal is accepted. The appellants namely Muhammad Ali alias Mamoon son of Anwar Ali Shah, Munawar Ali son of Haji Mozart Ali and Muhammad Naeem son of Muhammad Saleem shall be released from the custody in case they are not wanted in any other case. In the end I feel it essential to appreciate the adequate assistance given by the learned Counsel for appellant namely Malik Rab Nawaz Noon, Advocate. N.H.Q./89/FSC Appeal accepted.