2010 PLP 140 (YLR)

MAQBOOL AHMED AWAN, J.--This appeal involves. The appeal is directed against the judgment dated 15-3-2008, passed by the learned III-Additional Sessions Judge, Karachi Central, whereby the appellant was convicted under section 395, P.P.C. and sentenced to undergo R.I. for 10 years and to pay fine of Rs.5Q,000, in default, the appellant shall further undergo suffer R.I. for six(6) months. The learned trial Court has extended the benefit of section 382, Cr.P.C. to the appellant. Precisely the facts of the prosecution case are that the complainant lodged F.I.R., stating therein that on 18-5-2005 he was performing his duty as Manager in Bank Al-Habib, he was present in his room and talking on telephone, when at about 9-15 a.m. two persons wearing Shalwar Qameez entered and sat on the chairs in front of the complainant. In the meanwhile two other persons also had entered into the Bank and went towards the counter. According to the complainant, as soon as he completed his telephone talks he saw two persons duly armed, entered into the bank and caused butt of Kalashnikov to the security guard, who fell down and they directed him to stand on side, the culprits also disconnected the telephone connection; That thereafter another person also entered into the Bank and gave weapons to other culprits which were taken out by him from bag, the complainant alleged that accused persons took his mobile phone, U.P.S. weapon of security guard, and looted cash of Rs.18,02,752 and made their escape good. The charge was framed to which accused pleaded not guilty and claimed to be tried. The prosecution to prove the case examined P.W. complainant Bashirullah, P.W.2 Muhammad Maroof, P.W.3, Syed Phool Badshah, P.W.4, Zafar Iqbal P.W.5, Faiz Ahtned, P.W.6, Shireen Zada, P.W.7 Muhammad Tahir and P.W.8 Mr. Abdul Ghaffar Khan, the learned Judicial Magistrate. Thereafter the learned D. D. P. P. closed the side of the prosecution. The accused was examined under section 342, Cr.P.C. in which he has denied the allegations of the prosecution and claimed that he has been falsely implicated in this case by the complainant at the instance of police. However, he did not examine himself on oath in terms of section 340(2), Cr.P.C. and also did not lead any evidence in his defence. The learned counsel appearing on behalf of the appellant argued that the appellant argued that the appellant is the victim of police; that the recovery has been foisted upon him; that on the basis of same evidence the co-accused has been acquitted by the learned trial Court, that the evidence of identification parade is doubtful suffering from legal infirmity and cannot be relied upon. He therefore prayed for acquittal of the appellant. Mr. Zafar Ahmed Khan learned A.P.G. appearing on behalf of the state has supported the judgment of the learned trial Court on the ground that the judgment is well reasoned and is not suffering from any illegality, infirmity and discrepancy; that the trial Court has properly discussed the evidence available on record. I have heard the learned counsel appearing on behalf of the appellant, learned State counsel and perused the material and evidence available on record. The present case is based upon the following pieces of evidence:

1. The Identification Parade

2. The recovery.

1. Identification parade.

From perusal of evidence it appears that the complainant so also the other witnesses had not disclosed the name, feature and descriptions of the accused. It has come in the evidence that the incident is said to have taken place on 18-3-2005 at 9-20 a.m. and the same was reported by the complainant on the same date at 10-05 a.m. The accused was arrested on 24-5-2005 and they were put to identification parade on 3-6-2005 with the delay of about 10 days which has not explained by the prosecution and this also creates serious doubt. It has come in the evidence that before holding of identification parade, the appellant was shown to the witnesses Phool Badshah and Shireen Zada, as such the identification parade had become doubtful and looses its credibility. According to the case of the prosecution, the accused persons were remained present in the room of the complainant for sufficient time and it has not come in the evidence that these accused persons were with muffled faces. The prosecution, for the reasons best known to them, had not produced the complainant at the time of identification parade to identify the appellant. The complainant in his evidence has deposed that he cannot say whether accused present in the court are same or not as such he did not avail proper opportunity to see the accused, therefore, he cannot identify. P.W.3 Phool Badshah, in his evidence has not specifically pointed out the appellant with his specific role, at the time of identification parade. In the Mashirnama of identification parade, this witness even had not stated before the learned Magistrate who supervised the identification parade, that the appellant Tahir was the same person who snatched the repeater from him. P.W. Shireen Zada has also not specifically pointed out the accused with their specific role in the identification parade. P.W.2 the eye-witness Muhammad Maroof in his evidence has deposed that he cannot say whether the accused present in the court are same or not. P.W.6 Shireen Zada the second witness of the identification parade, in his evidence has deposed that in all four persons entered into the bank, one was having black colour bag in his hand. They opened the bag and taken out pistols and kalashnikov. Two culprits pointed out their weapons on his hand, while the other had overpowered the other security guard Phhool Badshah. He further deposed that they snatched weapons from him. As discussed above, at the time of identification parade this witness has also not stated before the Magistrate that the appellant is the same culprit who had snatched the weapon from him, as well as from P.W. Phool Badshah. The above evidence shows that the prosecution has miserably failed to prove this piece of evidence against the appellant and it is very difficult to say that the appellant was the same person who along with the other co-accused committed the offence. It is well settled law that the view which is favourable to the accused can thus certainly be found by appreciating the prosecution evidence in its proper perspective. This view to give benefit of doubt to the appellant is, therefore, asserted in the safe administration of criminal justice. The Recovery.

From the evidence it appears that the prosecution has not been able to prove the fact that the appellant is the same person who had committed the robbery from the Bank. It has come in the evidence that the appellant voluntarily lead the Police party to his house and produced the robbed cash before them. It has not come in the evidence whether the house from where the accused appellant produced the cash was in exclusive possession of the appellant. It has further come in evidence that not a single witness, who identified the appellant in the identification parade, the complainant, P.W. Maroof in their evidence had not deposed the appellant is the person who committed the robbery from the Bank. P.Ws. Phool Badshah and Shireen Zada in identification parade had also not pointed the appellant to be the person who robbed the Bank. The prudent man cannot believe the story of keeping huge amount by a culprit in his custody for such a long time and waiting for the time to produce the same before the police who used this piece of evidence against him. Therefore, I am of the considered view that the Prosecution has also not been able to prove this piece of evidence against the appellant beyond reasonable shadow of doubt. As discussed above, it is a well settled law that a slightest possible doubt creates in the case of prosecution that must be gone in favour of the accused. The learned trial Court has committed the serious illegality, while not giving the benefit of doubt to the appellant on the basis of the same evidence, the co-accused was acquitted. From the above discussions, I come to the conclusion that the Prosecution has miserably failed to prove the charge against the appellant, therefore, this appeal is allowed and the conviction and sentence passed against the appellant is set aside. The appellant is in jail his bail bond stands cancelled and surety bond executed by his surety stands discharged. The above are the reasons of my short order dated 3-6-2009. H.B.T./T-14/K Appeal allowed.