2011 SCMR 1142 (PLP)

TARIQ PARVEZ (CHAIRMAN)

Shabbir Ahmed, the petitioner and his co-accused Bismillah were accused in the case registered vide F.I.R. No. 168 of 2008, Police Station Satellite Town, Quetta for offences under section 17(3) Offences Against Property (Enforcement of Hudood) Ordinance, 1979 read with section 392/34, P.P.C:

2. Brief facts of the case are that, Moor Muhammad, the complainant, was riding a motorcycle bearing registration No.QAL-7261 when he reached near Bugti Colony, he was confronted by two persons, who tried to snatch the motorcycle on gun point, but on resistance by him, one of the accused made a fire shot causing injury to the bladder of the complainant. The motorcycle was taken away by the assailants. During the course of investigation, the house of co-accused Bismillah (not petitioner) was raided and the alleged robbed motorcycle and a pistol were recovered. On the conclusion of trial, learned trial Judge convicted the two accused under section 392/34, P.P.C. to 10 years' R.I. each and fine of Rs. 50,000 each and in default of payment to further undergo six months' S.I. The conviction and sentences were challenged before the Federal Shariat Court through two separate Criminal Appeal No.47-Q of 2009, filed by the petitioner, whereas that of Bismillah was Criminal Appeal No. 45-Q of 2009. Both appeals were heard together and on 22-6-2010, the same were dismissed.

3. It is argued on behalf of the petitioner that the complainant of this case when appeared before the trial Judge has not charged the petitioner nor his co-accused Bismillah and that mere recovery of snatched motorcycle could not connect the petitioner nor his co-accused with the commission of crime because the house wherefrom the motorcycle was recovered, no evidence was produced that the same belonged to the co-accused Bismillah.

4. After perusal of the impugned judgment and the evidence of the prosecution, we find that in this case no regular test identification parade was held. The alleged recovery of motorcycle was made on the joint pointation of the two accused. The house wherefrom recovery is affected does not belong to the co-accused because no person from the locality was associated during the course of alleged recovery.

5. As far as the statement of the complainant is concerned, he stated on oath that he has seen the accused facing trial for the first time in the Court and that he had not identified the assailants at the time of occurrence. He further stated that he has named and charged the accused on the behest of the police and that he has not made a voluntary charge against the accused but was forced to do so by the police. The finally stated that the accused, present in the Court (trial Court), were not the accused and were innocent.

6. In view of the evidence which in no manner connect the present petitioner as well as his co-accused Bismillah, we find that this is a case of no evidence, therefore, the conviction and sentences recorded against the present petitioner as well as his co-accused Bismillah are not sustainable. Notice of petition given to Mr. Tahir Iqbal Khattak, Additional Prosecutor General is accepted by him.

7. For the reasons stated hereinabove, this petition is converted into appeal and allowed. The conviction and sentence of the petitioner is set aside and he is acquitted of the charge and, shall be released forthwith, if not required in any other crime. As far as role of co-accused Bismillah, who has not filed the petition before this Court, but has challenged his conviction and sentence before the Federal Shariat Court is similar to the case of the present petitioner, therefore, benefit of doubt is also given to him. He shall also be released forthwith, if in jail and not required in any other crime. M.H./S-24/SC Appeal allowed.