Haraabah

Section 391 of the Penal Code, 1860 (the Code) describes the number of accused persons committing the offence of a robbery conjointly committed by five or more persons, however, S. 396 of the Code provides punishment to the accused involving the offence of robbery committed conjointly by five or more persons

So far as, present case was concerned only three persons had been booked for the offence of committing robbery with murder which did not fall within the category of dacoity with murder as per S. 396 of the Code whose requirement of number of accused was five or more

Trial Court while awarding alternative sentence was required to take into consideration the mandatory provisions of law as required under S. 367 of Cr.P.C.

Trial Court was obliged to state the reasons in its judgment as to why death sentence was not passed as required by subsection (5) of S. 367 of Cr.P.C.

Appeal was allowed by setting aside the conviction and sentence and the case was remanded to the Trial Court for re-writing of judgment by taking into consideration the mandatory provisions contained in S. 367, Cr.P.C.

Accused were charged for entering into the house of complainant looting cash amount and gold ornaments, and on resistance, causing injuries to two inmates

Record showed that the FIR was lodged after more than 03 hours of the incident

On receiving information the police of local Police Station immediately reached at the place of incident at about 07:00 a.m. where the complainant allegedly handed over the custody of two apprehended accused

Moreover, the statements of the witnesses under S. 161, Cr.P.C., were recorded after six days of the incident and lodgment of the FIR

No plausible explanation had been furnished for such an inordinate delay in lodgment of the FIR and in recording the statements of the witnesses

First Investigating Officer stated that Investigation of the crime remained with him for five days

During said 05 days complainant did not produce any witness before Investigating Officer for recording 161, Cr.P.C statement, and such inordinate delay in reporting the matter and recording the statements of the witnesses was incomprehensible

Delay in lodgment of the FIR is viewed with grave suspicion, and how much clouds of suspicion it throws on the seeds of prosecution, depends upon a variety of factors

In the present case, it required careful scrutiny when number of accused was large and delay in lodging FIR had resulted in embellishment, which was a creation of afterthought, assuming importance in absence of convincing explanation, which prima facie pointed out to fabrication of the prosecution story; and increasing the number of accused, by false implication of the innocent persons, throwing a very wide net and in the wake of previous hostility between the parties over the landed property, which was admitted in evidence by witness/brother of complainant

Such unexplained inordinate delay in lodgment of the FIR and in recording statements of the witnesses under S. 161, Cr.P.C., being significant could not be lost sight of

Under the given circumstances, the possibility of false implication of the accused, who had not been assigned any specific role in commission of the offence, by exaggeration in the number of accused, after consultations and deliberations, could not be ruled out

Circumstances established that the finding of acquittal rendered by the Trial Court was neither arbitrary nor was capricious, thus did not call for any interference

Appeal against acquittal was dismissed.

Accused were charged for entering into the house of complainant looting cash amount and gold ornaments, and on resistance, causing injuries to two inmates

In the FIR, no specific role was assigned to the accused, but in the evidence, brother of the complainant stated that two accused persons robbed gold ornaments from their house and also robbed licensed weapon of his brother, however as per prosecution, accused were apprehended empty handed at the time of incident, as neither the alleged robbed ornaments of gold and/or licensed repeater were secured from them nor the weapons allegedly carried by them at the time of incident were recovered from them

Other witness did not ascribe any overt act to said accused

Injured witness who could be termed as star witness in the case, stated that co-accused fired upon him hitting his right leg, but he neither implicated the accused persons nor did he state about commission of robbery in their house

Circumstances established that the finding of acquittal rendered by the Trial Court was neither arbitrary nor was capricious, thus did not call for any interference

Appeal against acquittal was dismissed.

Accused were charged for entering into the house of complainant, looting cash amount and gold ornaments, and on resistance, causing injuries to two inmates

Undoubtly, the lady inmates were available in the house of the complainant, and one of them was shown to have accompanied the injured lady from the house of the complainant to the hospital and she was shown to have remained with injured lady, who died in hospital after three days of the incident

However, none of the lady inmates of the house of the complainant was examined by the prosecution

Investigating Officer admitted that he had not recorded 161, Cr.P.C statement of any lady inmate of the house of the complainant

Place of incident was thickly populated area but

Investigating Officer did not record the statement of any local person from the place of incident during investigation

According to the prosecution case as set-out in the FIR, the accused caused blows to injured lady, on her showing resistance to the robbery of ornaments of gold, but the weapon or article used for causing blows to her was no where mentioned in the FIR

Medical Officer, who initially examined deceased in injured condition at had found only two injuries on her person caused by hard and blunt substance as was evident from the provisional Medico-Legal Certificate issued by her but postmortem report revealed three injuries on the person of deceased, caused by firearm weapon

According to witnesses absconding co-accused made two straight fires, one hitting the mouth of deceased and the other hit the leg of injured, who also ascribed role of firing to said accused, but Medical Officer, who carried out postmortem on the dead body of deceased, stated that as per postmortem report deceased did not have any injury on her mouth

According to Medical Officer, he examined only two injured persons and no medical evidence relating to deceased the accused and injured co-accused was brought on record by the prosecution

Circumstances established that the finding of acquittal rendered by the Trial Court was neither arbitrary nor was capricious, thus did not call for any interference

Appeal against acquittal was dismissed.

Accused were charged for entering into the house of complainant looting cash amount and gold ornaments, and on resistance, causing injuries to two inmates

Contradictions were found in statements of witnesses regarding as to how the accused were apprehended at the spot

According to witness/brother of complainant after 1 to 1½ hour police arrived at the place of incident, whereas the other witness stated that police itself came at place of incident within half an hour of incident

Injured witness did not state about arrival of police at the place of incident

According to the Investigating Officer, on receiving information about the incident, he along with Police Constables arrived at the place of incident where they saw sister and son of complainant lying injured and two accused persons lying injured in the veranda of the house whose custody was handed over to him by complainant in presence of mashirs and memo. of handing over the custody was prepared at 07:00 am

According to witnesses/ brothers of complainant no such document was prepared during that time, while injured witness did not state about preparation of memo. of handing over

Circumstances established that the finding of acquittal rendered by the Trial Court was neither arbitrary nor was capricious, thus did not call for any interference

Appeal against acquittal was dismissed.

So far as the plea of non-determination of role of the accused was concerned, High Court observed that in the offences of robbery, dacoity, etc. individual role of an accused did not matter much and every participant regardless of his role could be considered an accused of equal share

No mala fide intent or motive was found on the part of the complainant to falsely implicate the accused

Investigation had not been concluded so far and in terms of penalty provided for the offences, the matter fell within the ambit of prohibitory clause of S. 497, Cr.P.C.

Accused was not entitled for the concession of bail

Appeal was dismissed.

Accused was booked as preparator for commission of an offence under S. 17(3) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979

FIR was delayed for which there was no explanation, whatsoever

Initially the complainant had not proposed to visit the police station rather had approached Nek Mards of the area and subsequently, he had filed application before Justice of Peace

No evidence was available to prove the fact that the complainant had approached the Nek Mards and he was advised not to lodge the FIR

In the absence of such evidence the inference could not be ruled out that the delayed FIR was lodged after consultation and deliberation just to concoct and fabricate a story and rope males and females in the case

Prosecution witnesses had contradicted each other on material particulars

Evidence on record was misread, misconstrued, mis-constructed and the facts were mis-appreciated which had resulted in grave miscarriage of justice

Trial Court had acquitted one co-accused and the other was acquitted by the Federal Shariat Court

In such view of the matter, the conclusions drawn by the Trial Court were not sustainable as the law of the land was falsus in uno falsus in omnibus

Appeal against conviction was accepted and the accused was acquitted of the charge.

Accused were charged that they entered into the shop, snatched repeater, cash and four mobiles from the complainant, meanwhile brother of complainant entered into the shop followed by a Police Official, the perpetrators opened direct fires upon the complainant, due to which, brother of complainant, his servant and Police Official died

From perusal of the impugned judgment it would be seen that the Trial Court had rendered the finding of guilt of the accused holding that the prosecution had successfully proved its case against the accused beyond reasonable doubt by adducing convincing evidence for committing murders of three deceased during robbery

On the one hand the Trial Court had held that the requirements of S.7 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979, for awarding conviction to accused under "Hadd" were missing, on the other the Trial Court had convicted the accused for an offence punishable under S.17(4) Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and sentenced him to suffer life imprisonment as Ta'zir

Although sub-section (4) of S.17 of the Ordinance only provided death sentence as "Hadd" for an adult guilty of Haraabah in course of which he committed murder and it did not provide any other sentence

Said case was involving horrific crime of brutal murders of three innocent persons committed by the culprits by indiscriminate firing at them with weapons during the course of robbery in the shop of deceased located in heart of City

Federal Shariat Court observed that approach of the Court, in such like cases, should be dynamic and pragmatic in approaching true facts of the case and drawing correct and rational inference and conclusion while deciding such type of cases and not static, as inflicting conviction and imposing sentence was not a mechanical exercise, but it was onerous responsibility to inflict fair, reasonable and adequate sentence, commensurating with gravity and or severity of crime, involving conscious application of mind and it was duty of a Judge to ensure not only that he dispensed justice, but what was equally of vital importance, that justice also seemed to have been done

Patently the trial Judge was not alive to the law and he without applying his conscious judicious mind had awarded sentence of life imprisonment as Ta'zir under S. 17(4) of the Ordinance to the accused and that too by holding that the requirements of S.7 of the Ordinance for awarding conviction to the accused under "Hadd" were missing

Despite the fact that S.17(4) of the Ordinance did not provide any other sentence except the death sentence as "Hadd", Trial Court had also not specified in the impugned judgment the reasons and or mitigating circumstances for awarding lesser punishment of imprisonment of life as mandated by the provisions of S.367(5) of the Code, which legally he was not competent to do so and that being completely in negation of the mandate of the law, having been impliedly prohibited, could not be approved

Impugned judgment, which was violative of the mandatory provisions of the law and procedure, suffering from incurable defects, was not sustainable in law

Appeal was allowed by setting aside impugned judgment and remanded the case to the Trial Court for re-writing of the judgment by adhering to the mandatory provisions of law and by applying conscious judicious mind and affording opportunity of hearing to the parties.

Accused along with others was alleged to have snatched a vehicle of complainant along with registration book, driving licence and his CNIC

Accused was not named in the FIR, rather the complainant identified him through his photograph

Statement of the complainant under S.164, Cr.P.C. was recorded after about 28 years of the occurrence

No incriminating recovery could be effected from the accused nor he led the police to the place of occurrence for the purpose of pointation

Identification of the accused after lapse of 28 years created a question which could only be resolved after recording prosecution evidence

Petition for grant of bail was allowed, in circumstances.

Record showed that as per allegation and contents of FIR, initially the case was rightly got registered under Ss.302 & 324, P.P.C., but later on erroneously converted into S. 17(4) of Offences Against Property (Enforcement of Hudood) Ordinance, Haraabah, which resulted into miscarriage of justice

Trial Court failed to pass judgment fulfilling the requirement of S. 367, Cr.P.C., which required that a judgment must contained therein points of determination and reasons for the decision thereupon

Provision of S. 367, Cr.P.C., was mandatory

Judgment not showing the points for determination of decisions thereon was not a "judgment" in the eyes of law

Impugned judgment was silent about the fact under which provision of law the accused was convicted and the punishment to which he was sentenced

Failure to specify the points for determination as required under S.367, Cr.P.C. was an omission which was not curable under S. 537, Cr.P.C. and absence of decision on the points for determination and reasons in the judgment amounted to an illegality which prejudiced the case of the accused

In the present case, no offence or provision of P.P.C. under which the accused had been convicted and sentenced was mentioned, hence, it was not clear that under which provision of P.P.C. the accused was sentenced

Appeal against conviction was allowed, in circumstances, by setting aside the impugned judgment and the case was remanded to the Trial Court for de novo trial.

Prosecution, in order to prove its case, relied on recovery of stolen articles and confessional statement of an accused before the Magistrate

Held; recovered articles were not sealed on the spot

Entry and roznamcha was not produced to prove movement of police from police station to the place of arrest and recovery of case property

Identification test of case property was not conducted in accordance with settled principles of law as recovered articles were shown to the complainant prior to the identification test

Confessional statement of accused was not available on file and its legal authenticity was discarded by Trial Court

Appeal against acquittal was dismissed.

Empties and the rifle were sent together and delay of 13 days was shown in the receipt of the parcel of the empties by the Forensic Science Laboratory, whereof no explanation was offered

Evidentiary value of such forensic evidence was reduced to nullity.

Complainant (eye-witness) did not describe the assailants in FIR but identified the accused persons in the identification parade

Complainant and injured eye-witness nominated three assailants but in his suplementary statement complainant nominated four persons

Injured eye-witness admitted in his cross-examination that the occurrence took place in the wink of an eye but claimed to have identified the culprits

Prudent mind could not believe that in a dark night, complainant and injured eye-witness were able to identify the assailants, who emerged in the wink of an eye, made indiscriminate firing and escaped

Statement of injured eye-witness was recorded after considerable delay, although an explanation was offered to the effect that he was admitted in the hospital but no evidence was produced to prove that he was unable to get his statement recorded

Delayed statement of injured eye-witness impaired its evidentiary value

Procedure of identification was carried out only two times instead of thrice, which was not lawful

Identification parade was conducted with a considerable delay after the arrest of accused persons

7 mm empties were taken into possession from the crime scene on the very next morning but after recovery of 8 mm rifle, investigating officer managed an opinion from an armourer, who opined subsequently that empties were of 8 mm rifle instead, whereof no other inference could be drawn except that prosecution had maneuvered the recovery of the empties with the purpose to match it with 8 mm rifle

Prosecution had failed to prove its case beyond doubt against the accused persons

Appeal against acquittal was dismissed.

Prosecution case was that accused persons with opened faces entered into the house of complainant, with pistols in their folds, they snatched keys of cupboard on gun point, robbed gold ornaments, cash and mobile phone and went away

Record reflected that the allegations levelled in the FIR lodged after eighteen days of the alleged occurrence could not be substantiated or established through evidence

Record showed that prosecution had failed to bring home the charge against the accused persons beyond reasonable doubt and the defence succeeded to create serious doubt and dents in the prosecution case

Trial Court had rightly acquitted the accused persons of the charge

No case of interference in the impugned judgment was made out

Appeal against acquittal having no merits was dismissed in limine.

Prosecution case was that respondents/accused persons committed murder of the deceased/brother of the complainant and robbed his vehicle

Record reflected that complainant in his statement under S. 164, Cr.P.C. recorded after twenty days of the incident, involved all the accused by name with parentage without showing any source of information

Cross-examination of the complainant was reserved and thereafter the accused were not afforded opportunity to cross-examine the complainant though all the accused were involved on the strength of unknown source/clue which was not unveiled during trial

Record showed that the robbed vehicle was recovered from the possession of one "A", who was not joined as accused nor was put in the witness box by the prosecution

Investigating Officer admitted that pistol was recovered from one accused, but was not sent to Fire Arm Expert in order to ascertain whether it was capable of firing or not

Recovered pistol was not sent to Forensic Science Laboratory in order to ascertain whether any firing was made from the said pistol or not

Said recovered pistol was not sent to the Finger Print Expert in order to ascertain the finger prints of the accused and others

Investigating Officer had admitted that at the place of recovery of pistol and mobile telephone, people of the locality were present but their statements were not recorded

Record transpired that one of the accused made confessional statement but the same could not be considered free from extraneous influences such as threat, promise or inducement and therefore, it was neither made voluntarily, suffered from various defects and infirmities, nor it was true statement which was retracted by the said accused

Confession of the said accused was not worth reliance

Circumstances established that the occurrence had taken place in which deceased was shot to death but not in the manner asserted by the prosecution, thus prosecution had failed to bring home the charge against the accused persons beyond reasonable doubt

Appeal was dismissed in circumstances.

Prosecution case was that respondents/accused persons committed murder of the deceased/son of the complainant and snatched Rs. 2,55,000/

Record reflected that the complainant had involved the accused persons through his supplementary statement, without disclosing any source of information

Complainant had clarified in cross-examination that the person who informed him regarding the occurrence was an unknown boy and police reached at the spot after thirty minutes of his arrival at the place of occurrence

Complainant had not mentioned in his report nor informed the Police Officials that the deceased had an amount of Rs. 2,55,000/

Similarly he had not stated in his report that he was informed by unknown boy at his house regarding the occurrence

Investigating Officer had admitted that he did not collect any ocular evidence during the investigation

Judicial Magistrate, who recorded the confessional statement of co-accused under Ss. 164/364, Cr.P.C., had admitted in his cross-examination non-mentioning the name of Police Official, who brought the accused for recording his confessional statement

Findings recorded by the Trial Court were neither perverse, illegal, leading to miscarriage of justice nor artificial or suffered from jurisdictional defects

Order of the acquittal was based on proper appreciation of evidence

Appeal was dismissed accordingly.

Jurisdiction of Federal Shariat Court in offences committed under Offences Against Property (Enforcement of Hudood) Ordinance, 1979

Scope

Applicability of Criminal Procedure Code, 1898

Applicability

Scope

Accused persons were charged for the murder of father of the complainant after snatching his car

Record showed that on 22.3.2014, formal charge was framed against the accused persons under S. 17(4) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and they were tried for the said offence

Trial culminated into their conviction under Ss.302(b), 392 & 34, P.P.C. and accused were awarded death sentences

Accused had assailed their conviction and sentences before the High Court

Validity

Section 24 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, provided that offence punishable under S. 9 or S. 17 shall be triable by a Court of Session and an appeal from an order under either of the said sections or from an order under any provision of the Ordinance, which imposed a sentence of imprisonment for a term exceeding two years shall lie to the Federal Shariat Court

Present appeal against conviction was not competent before High Court and the proper forum for entertaining the same was the Federal Shariat Court

Case file was sent to the Federal Shariat Court accordingly.

Testimony of the complainant, was not only doubtful, but the very identification parade on the basis whereof, the case of prosecution rested was shettered

Complainant not only failed to furnish description of culprits, but also did not attribute any role to them

Not only there was sufficient unexplained delay in recording the alleged judicial confessional statement, but Judicial Magistrate, while recording the same had not complied with the requisite formalities

Judicial confessional statements of accused persons, were exculpatory and played no incriminating role

Numerous contradictions, existed to believe that judicial confessional statements were untrue, untrustworthy and not confidence inspiring

Same being not worthy of credence, could not be believed for holding accused persons to be guilty of the charge, especially, when such judicial confessional statements had been retracted

Pointation of the place of occurrence by accused persons in presence of prosecution witnesses, had no importance as it could not be considered as incriminating evidence in terms of Art.40 of the Qanun-e-Shahadat, 1984

Such pointation would be hit under Arts.38 & 39 of Qanun-e-Shahadat, 1984, as in consequence of such pointation, neither any recovery, nor any other new fact had been discovered

No reliance, could be placed upon such evidence

Testimony of prosecution witness, who was stated to have got recovered Kalashnikov on the pointation of an accused, was important to be examined, but confessional statement of one of the accused persons had suggested that the role of making fire from Kalashnikov upon the deceased, was attributed to another accused

Recovery of Kalashnikov, therefore, was of no corroborative value, even if, with the positive matching result

Trial Court had rightly appreciated the evidence in true perspective and impugned judgment, did not suffer from any infirmity, illegality, mis-reading and non-reading of evidence, warranting interference

Appeals, being meritless, stood dismissed, in circumstances.

Trial Court recorded conviction of accused, sentenced him to death and submitted reference to High Court for confirmation or otherwise of death sentence

Rule 25 of the Federal Shariat Court (Procedure) Rules, 1981, provided that reference submitted to High Court by lower court, would be heard as an appeal and the provisions contained in Chapter III of the said Rules, would mutatis mutandis, apply

High Court under provisions of S.376, Cr.P.C., was competent to make three types of orders, while deciding the reference under S.374, Cr.P.C. could confirm the sentence, or pass any other sentence warranted by law; could annul the conviction and convict accused of any offence of which the Sessions Court might have convicted or order fresh trial on the same or on amended charge; could acquit the accused.

Ocular account furnished by prosecution witnesses and medical evidence, though proved the unnatural death of the deceased, but that fact by itself would not be sufficient to prove the culpability of accused

Prosecution witnesses, did not highlight the description of accused in their respective statements recorded under S.161, Cr.P.C.

Omission to disclose descriptions of un-identified accused was significant going to the root of the case, putting a serious dent in the case of prosecution and by itself was sufficient to brush aside the proceedings of identification parade

Witnesses in their evidence, failed to describe role of accused in the occurrence

Statements of the prosecution witnesses under S.161, Cr.P.C., were recorded on the next day of the occurrence

Prosecution witnesses had made improvements in their direct statements, which raised serious question about the veracity of the witnesses

No empty was recovered from the spot

First Information Report, though was lodged with promptness, but that fact by itself was not sufficient to prove the culpability of accused when he was not named in the FIR

Recording conviction of accused under S.396, P.P.C., was also legally not sustainable as the number of accused, was less than five

Prosecution had failed to prove its case against accused beyond shadow of doubt, benefit of which was to be extended to the accused

Conviction recorded and sentence of death awarded to accused, were set aside answering murder reference in negative.

Inference, by itself, would not be sufficient to prove the guilt of accused, though it could have been used as positive inference in order to support the convincing and confidence inspiring evidence, which prosecution failed to produce

Convictions could not be based on high probabilities.

Complainant had not named the present accused either in his initial report or subsequently, and rather, he had charged two unknown culprits for the commission of the offence

Police official had named the accused in the initial report with the version that on the report of fire shots, when he was being attracted to the spot, he had noticed the accused and the co-accused climbing on the nearby hill

Said police official, who had handed down the report to the complainant, was not the eye-witness of the incident

Identification parade of the accused had not been conducted through the complainant

Complainant had also not disclosed the features and descriptions of the assailants in his report

Accused had not confessed his guilt before any court

Nothing incriminating had been recovered from direct or indirect possession of the accused to depict his connectivity with the commission of the offence

Mere abscondence of the accused could not have been a ground for refusal of bail, since on merits, the case for grant of bail had been made out

Reasonable grounds, therefore, existed, which made the case of the accused arguable for the purpose of bail

Bail application was allowed accordingly.

No recovery of alleged stolen articles had been effected, either from direct or indirect possession of accused, or on his pointation

Accused had not confessed his guilt before the competent court of law

Except statement of complainant, there was not incriminating evidence to connect accused with the commission of offence

Authenticity, credibility and admissibility of identification parade of accused, was yet to be determined during trial, as it had been conducted after the complainant had already seen accused in photographs and in Police custody

Reasonable grounds existed, which made the case of accused arguable for the purpose of bail

Accused, was admitted to bail, in circumstances.

Star witness of the prosecution, who was daughter-in-law of the deceased and complainant, in her evidence had clearly deposed in her evidence that one of the accused along with two co-accused had committed the murder; whom she had later on identified at the time of identification parade

Evidence on all material points had gone unshaken in cross-examination

Availability of accused persons at the time of incident in the house of complainant causing murder of the deceased and recovery of weapons used in crime, had neither been disputed nor challenged by the defence counsel during cross-examination

Star witness had no enmity, personal grudge or motive against accused persons to implicate them maliciously

FIR had been lodged promptly

Enmity of accused persons with the complainant party, prior to the incident, was neither alleged nor proved by the defence

No material discrepancy or contradiction in the prosecution evidence or any misreading or non-reading of the evidence was found by the Trial Court

Evidence brought on record by the prosecution, was confidence inspiring and sufficient to prove the charge against accused persons

Callous murder had been committed and the ocular and circumstantial evidence, had connected accused persons with the commission of crime

Appeal being without substance, was dismissed in circumstances.

Alleged recovery of skeleton of the deceased on pointation of accused from a field of sugarcane, was not helpful to the case of prosecution, because no post-mortem report was available to show that alleged recovered skeleton was that of the deceased

Recovery of crime weapon/pistol and live rounds on pointation of accused from his residential room was also not helpful to the case of the prosecution; because neither any empties had been recovered from the place of occurrence, nor any matching report had been obtained

No medical report was available to ascertain that deceased in fact had received any bullet injuries

Recovery of mobile phone and SIM belonging to deceased on pointation of accused, was also doubtful, as no document was available on the record to conclude that alleged recovered mobile belonged to the deceased or same was in his use

No data was collected to confirm that said phone SIM was in use of deceased

Recovery of NIC of deceased, was not helpful to the case of prosecution, because the alleged room from where NIC was recovered, was not in exclusive use and occupation of accused

Independent recovery mashir was not produced by the prosecution

Sole independent witness, was not examined by the prosecution to corroborate the recoveries

FIR, was lodged by the complainant with unexplained delay of about one month

Accused were produced before concerned Judicial Magistrate for getting recorded their confession statements under S.164, Cr.P.C., but they refused to do so

Prosecution failed to produce the alleged recovered generator tractor trolley, which was allegedly recovered on pointation of accused

Prosecution was unable to collect concrete evidence against accused persons which could be used for conviction of accused persons

Trial Court without proper appreciation of evidence had convicted and sentenced accused persons, which called for interference by the Federal Shariat Court

Order of conviction and sentence passed by the Trial Court were set aside, accused were acquitted of the charge and were ordered to be set at liberty forthwith, in circumstances.

While said female accused was travelling in her car three persons fired at her, and as a result she received injury on her right foot

Criminal case was registered regarding said incident

Two days after the incident, impugned order, whereby she along with other two accused persons, were convicted was passed by the Trial Court

Counsel for the complainant, raised preliminary objection that appeal was incompetent and convict/appellant was required to surrender before the court; and if she was injured in attack, court could suspend her sentence under S.426, Cr.P.C.; and that without surrendering before the court or jail authorities, appellant had become fugitive from law and could not file appeal

Counsel for the appellant had submitted that she had threats to her life, and she was not in a position to appear before the court; that as she had executed a power of attorney in his favour, appeal was competent

Validity

Under provisions of S. 410, Cr.P.C., only convicted persons could file appeal

Convict if on bail, had to surrender before the court

If convicted person would not surrender before that court, appeal could not be filed

Appeal though had been admitted, but counsel for accused/convict had concealed the facts from the court that convict/appellant was neither in jail nor before the court

Court, as such, could not take that fact into consideration; and in ordinary manner admitted appeal for regular hearing as it was against conviction

Order passed by the court was due to concealment of facts; and said order would not make appeal maintainable

Incumbent upon the counsel for the appellant that he should have clarified the position before the court that appellant was not in a position to appear before the court; and that appellant was neither in jail nor present before the court

Appeal, as such was not filed by convict/appellant

Once appeal was admitted for regular hearing then it could not be dismissed for non-prosecution or disposed of summarily, rather it had to be decided on merits

Said principle was distinguishable and appeal could not be filed by fugitive from law

Mere filing power of attorney, was not sufficient to file appeal on behalf of a convict person

Convicted person must surrender before the authority of the court first

Judgment of the Trial Court must be complied with, and then appeal could be filed

Appeal filed being incompetent, was dismissed, in circumstances.

Haraabah, had been defined in S.15 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, but punishment for the said offence could be awarded as Hadd under S. 17(4) of said Ordinance

For imposing Hadd, the criteria of evidence had been provided in S. 7 of the Ordinance

Section 16 of the Ordinance had provided that the provisions of S. 7 would apply mutatis mutandis for the proof of Haraabah

Punishment as Hadd, could be awarded only if evidence in accordance with S. 7 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 was available

Present case did not qualify the test given in said S.7 of Ordinance; and in absence of that evidence Hadd could not be imposed

Under S.17(4) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, the only penalty which could be imposed was death, and not life imprisonment

Since accused had neither pleaded guilty nor required evidence was available, conviction recorded under S.17(4) of the Ordinance, and that of life imprisonment was totally illegal

If evidence provided for imposition of Hadd was not available, accused could be convicted under Tazir

Accused, could be convicted under S.392, P.P.C., read with S. 302/34, P.P.C., as the two offences provided in S.17(4) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979, and S.392 read with S.302, P.P.C., were not distinct offences

Dead body, in the case was recovered from a lonely place after six days of the incident

Nobody had been charged in the FIR

No evidence was available on record to show as to how complainant party or the Police came to know that accused persons were involved in the case

Recovery of the car and snatching of the same, could not be believed

Nothing was on record to show that Mobile phone actually belonged to the deceased

If said mobile was recovered on the pointation of accused from the place of occurrence, Police was required to associate witnesses from the locality but same had not been done and recovery memos were witnessed by Police Officials

Recovery of Mobile Phone was doubtful and did not connect accused with the alleged offence

Statement of prosecution witness, who was chance witness and belonged to different place, could not be believed after delay of 6/7 days

Dead body had been recovered along with the articles allegedly used for committing the murder

In such a situation belated statement of alleged eye-witness could not be believed

Statement of said alleged eye-witness, was also in contradiction with the medical evidence

If recoveries of motorcar and Mobile phone, were kept aside, there was no motive for the offence, as to why accused persons killed the deceased

Conviction recorded and sentences awarded to two accused persons, was illegal

Same were set aside they both were acquitted of the charges levelled against them and were set free, in circumstances.

Rioting, rioting armed with deadly weapon, common object, mischief causing damage, mischief by fire or explosive substance, assault or criminal force to deter public servant from discharge of his duty, house-trespass, act of terrorism

Haraabah

Appreciation of evidence

Eye-witnesses were taking names of different persons as members of the mob

None of the said prosecution witnesses, were attributing any role or alleging against accused persons

Said prosecution witnesses were simply taking names of few of accused persons, showing only their presence in the mob

Trial Court, did not rely on the whole statement of any of the prosecution witnesses

Findings of the Trial Court, were against the principles of acceptance of whole of the statement of any prosecution witness or discarding the whole

Trial Court, had on the one hand accepted part statement of prosecution witnesses against some of accused, and had discarded the other part of the statement of prosecution witness regarding some accused

Such attitude of the Trial Court was without any explanation on its part

Conclusion of the Trial Court was completely contradictory to the prosecution evidence

Findings of Trial Court, were quite different from the examination-in-chief of the statement of S.H.O. concerned

About 700/800 persons had gathered in front of a Bank, turned into an illegal mob entailing to the occurrence, but the Trial Court had convicted the persons who had not been charged by any of the prosecution witness for any of the offences

In a case of rioting by a mob every member of the mob was responsible for the occurrence, but in the present case Trial Court had selected accused persons for trial

Prosecution witnesses had stated mere presence of said accused persons in the mob

Accused persons, could not be convicted and punished merely on the basis of their presence, when none of the prosecution witnesses had stated that any of the said accused did any act amounting to offence alleged against them

Prosecution evidence, did not show any circumstance showing attraction of the offences of Ss.6 & 7 of Anti-Terrorism Act, 1997, and offence of 'Haraabah' under S.17 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979

Ocular evidence against accused persons, was not only insufficient, but was wrong also

Circumstantial evidence, could hardly corroborate ocular evidence

Trial Court had accepted statements of accused persons recorded under S.21-H of Anti-Terrorism Act, 1997, while such confessional statement was not admissible, but was irrelevant against accused persons

Trial Court should have abandoned such confessional statements, as said statements did not contain any question showing that prosecution had no alternative except to produce the appellants (accused persons) before the High official of police who recorded such statement

Prosecution levelled allegation of looting the weapons and cartridges from 'Malkhana' of Police Station, while no evidence was available to the effect that Police had stored any weapon in that 'Malkhana'

Medical evidence was not against any of accused persons

Impugned order of the Trial Court being bad in the eyes of law, merited reversal

Conviction and sentence, awarded to accused persons, were set aside, in circumstances.

Eye-witness, whose name was mentioned in the promptly lodged FIR, correctly identified two accused persons in identification parade

One of said accused persons got recovered weapons of offence used in the occurrence

Two crime empties of .12 bore gun were recovered from the Jeep where deceased was sitting

Both accused persons, attempted murderous assault on injured prosecution witness, both of them having fired two shots each, both were jointly and severally responsible for the crime

Initially, the charge was framed for the offence of "Haraabah", but robbery was not proved, so both accused persons were only convicted for murder, attempt to commit murder and causing injuries to the prosecution witnesses; and were not convicted for robbery

No appeal in respect of their acquittal for 'Haraabah' or 'robbery', had been filed by the complainant side or the State

In absence of any kind of evidence, specifying accused responsible for causing injury to injured witness, no one could be convicted for causing such injury to injured witness

Conviction of accused persons under S.337-A(iv), P.P.C., for causing injury to injured prosecution witness, was set aside while extending benefit of doubt

No role in respect of murder and murder assault had been assigned to third accused by the witnesses

As per confessional statement of co-accused, third accused was empty handed at the time of occurrence; it could not be assumed that said third accused was having common intention with co-accused in respect of murder of the deceased, and murderous assault on injured prosecution witness

Prosecution having remained unable to prove any charge against said (third) accused beyond reasonable doubt, he was acquitted by extending him benefit of doubt; his appeal was accepted, and he was released

Presence of both prosecution witnesses at the time of occurrence, was established beyond reasonable doubt and they had no reason to falsely implicate other two accused persons, their statement was worth reliance

Identification parade in respect of involvement and participation of said two accused persons, was reliable

Inculpatory judicial confession of accused, provided sufficient support to prosecution case

Said two accused persons, were rightly convicted under S. 302(b), 324, 34, P.P.C.

Convictions of said two accused in that respect, were upheld, however, as it was not established, as to who amongst those two accused persons, had caused fatal injury to the deceased, extending benefit of doubt, their sentence under S.302(b), P.P.C., was converted into life imprisonment

All the sentences of imprisonment, would run concurrently

Benefit of S.382-B, Cr.P.C., was also extended to accused persons.

F.I.R., had been lodged by the complainant as per facts disclosed by his cook in whose presence six persons, five with open faces and one with muffled face entered into the house of complainant

No description about appearance of said accused persons was disclosed in the F.I.R.

F.I.R. was also silent as to which of the culprit had pointed pistol at the prosecution witness at the time of offence, or caused him fists and kicks blows

Star witness of the prosecution, who was the only eye-witness of the alleged crime, in his evidence, though had deposed that accused present in the court were same, but he had not assigned any specific role to any of the accused

No independent witness of the vicinity was examined to support the alleged incident

No recovery had been made from accused; and no corroboratory piece of evidence was available against accused to connect them with the commission of crime

Identification parade had been held jointly in respect of three accused persons; and witnesses of that identification, were not eye-witnesses of the case

No explanation was for six days delay in holding identification parade

Solitary eye-witness had not come forward to identify accused before the Magistrate

No reliance could be placed upon identification memo, which was neither in accordance with law, nor was supported by any witness

Identification parade, in circumstances had lost its value and could not be relied upon at all

Mashir of arrest had admitted that he was relative of complainant, and was already available there at the time of arrest

Manner in which mashir had been arranged, and arrest had been made, appeared to be doubtful

Conviction no doubt could be awarded on solitary evidence of one eye-witness, but such evidence should have been confidence-inspiring, which fact was lacking in the present case

Eye-witness had given contradictory evidence regarding arrest of accused

No other incriminating evidence, such as recovery of stolen articles, or the pistol used in the crime, was there

In absence of any sort of corroboratory piece of evidence, no reliance could be placed on mere contradictory verbal assertions of the only eye-witness

No plausible reason was available for upholding the conviction of accused persons by the Trial Court

Conviction and sentences of accused persons, were set aside by extending them the benefit of doubt, they were acquitted of the charge, and their bail bonds stood cancelled and sureties discharged.

Besides accused, co-accused was made principal accused to whom bail was refused even by High Court; because there was strong corroborative circumstantial evidence against him and because the crime was committed in a ruthless manner

On the entire available record there was no incriminating evidence available against accused expect statement of co-accused recorded under S.161, Cr.P.C., which did not fall within the purview of legal evidence

Case being that of further inquiry, accused was granted bail, in circumstances.

Complainant admitted in her cross-examination that her house was surrounded by houses of her neighbours and on raising alarm her relatives were attracted to the spot, but it did not appeal to prudent mind that in the presence of so many persons, living within the same compound, accused could successfully accomplish the offence of such nature and succeeded in fleeing away

Evidence of prosecution witness was based on hearsay as he was not the witness of occurrence

Complainant, did not attribute/assign any role to accused

Enmity was also established between the parties

Crime report was registered with a delay of 15 hours, and no explanation was given by the complainant in such regard

Accused remained in police custody on physical remand for fourteen days, but neither the snatched/robbed articles, nor the alleged crime weapon, were recovered from him

Scissors allegedly used in the crime, was not recovered from the possession of accused, but was stated to be lying at the place of occurrence and was blood-stained and same was not sent for forensic test

Complainant and her grandson were the main witnesses in the case, but many improvements and contradictions were present in their statements regarding the occurrence

Statements of the complainant and prosecution witnesses, were contradictory on the material points of entry of accused into the house by breaking or cutting the lock/chain and their leaving the house; on the descriptions of the stolen/robbed items, and on the ownership and possession of gold ornaments/case property in the name of complainant

Record had shown that there was continuing inter se dispute and relationship between the parties was inimical

Impugned order passed by the Trial Court, was upheld, in circumstances

Appeal against acquittal was dismissed by Federal Shariat Court accordingly.

Allegation against the accused and his co-accused was that they robbed valuable articles from the house of the complainant after confining the inmates of the house in a room

Contentions of the accused were that after framing of charge, matter was taken up on 32 dates of hearing but on all such dates the matter was adjourned due to various reasons including adjournment by court, absence of prosecution witnesses and non-production of accused persons in court; that if four (4) adjournments sought by the accused were excluded from the total period of the trial, his case clearly fell within the provisions of S.497, Cr.P.C., and that the accused was not a previously convicted offender for an offence punishable with death or imprisonment for life and there was no material to substantiate that he was a hardened or desperate criminal or was accused of an offence of terrorism punishable with death or imprisonment for life

Validity

Case diary sheets revealed that throughout the proceedings accused sought adjournment on four (4) dates of hearing

Three years had passed but the trial had not concluded and such delay was not solely attributable to the accused

Accused being not a previously convicted offender for an offence punishable with death or imprisonment for life, neither was he a hardened, desperate or dangerous criminal nor was he accused of an act of terrorism punishable with death or life imprisonment, had made out a case for grant of bail on the ground of statutory delay in conclusion of his trial, and he was admitted to bail, accordingly.

Trial Court should have made specific queries from accused himself; and express assessment should have been recorded, in order to ensure that the confessional statement to be reliable, was truly voluntarily made, was self-prompted without any torture or coercion, knowing its consequences for which accused was mentally prepared

Identification parade of accused had not been conducted according to law and formalities of law had not been fulfilled by Supervising Authority

Witness who identified the accused during identification parade, failed to appear before the Trial Court

Such identification parade had no legal consequences

Recovery of looted property was also a question mark on the part of the prosecution

Neither F.I.R., nor recovery memo mentioned denomination of currency notes

Recovery memo of snatched amount became doubtful and it carried no legal value on the basis of which capital punishment could be awarded to accused

Contradictions between the story of prosecution and version of accused with regard to occurrence, had mutually damaged written complaint and confessional statement of accused, particularly in the absence of evidence, which was needed in the trial

Accused being in jail, nothing was recovered from his possession and no independent and dependable witness had been taken in that respect

Identification of recovery, and identification parade of accused were not conducted as per legal requirements

Accused had no opportunity under S.164, Cr.P.C. separately, after his alleged extra-judicial confession as accused had to be produced before the Trial Court for judicial confession

Accused had one less opportunity at earlier stage, to retract, if he so wanted

Since no question was put as to why accused was making the confession, the motive could not be determined

Prosecution having failed to prove guilt of accused beyond shadow of doubt conviction and sentence of accused, was set aside, he was acquitted of the charge and was released, in circumstances.