1. ' This appeal is directed against the judgment dated 17-5-2003 passed by the 1st Additional Sessions Judge, Karachi (West) in Sessions Case No,340 of 1997, F.I.R. No,56 of 1997, under section 394, P.P.C. (wrongly shown in judgment under sections 392, 397, 342, 354 and 506-B, P.P.C.) Police Station Pak Colony, Karachi, whereby appellant Rana Shabbir Hussain has been convicted for the commission of offence under section 397, P.P.C. And has been sentenced to rigorous imprisonment for three years and fine of Rs,5,000 and has been further convicted under section 397, P.P.C. And has been sentenced to seven years' imprisonment. He has been further convicted under section 342, P.P.C. And sentenced to rigorous imprisonment for two years and to pay fine of Rs,25,000. He has been convicted under section 506, P.P.C. Also and has been sentenced to rigorous imprisonment for two years and to pay fine of Rs,5,000. The sentences have been directed to run concurrently and benefit of section 382-B, Cr.P.C. Has been extended.
2. ' Briefly stated the relevant facts are that complainant Muhammad Faheem lodged F.I.R. At Pak Colony Police Station, on 29-3-1997 to the effect that he reached his house at 7-30 p.m. And found his household articles lying scattered. On inquiries his wife Mst. Gul Naz informed that, she along with neighbourer Mst. Parveen wife of Ghulam Nabi was in the house when seven persons out of whom six had covered their faces entered inside the house and committed dacoity on gun-point.
3. They took away Rs, 26,000 and gold jewellery. Subsequently, Inspector Muhammad. Shafi, who was incharge Investigation of Pak Colony Police Station, arrested appellant Rana Shabbir Hussain along with two other persons on 2-4-1997. The other two persons were released after interrogation.
4. According to Investigating Officer, Rana Shabbir admitted hi guilt and showed the place of incident. He subsequently, led to the recovery of Rs,800 and a pair of golden ear-rings of a minor baby from his house on 8-4-1987. 164 statements of P.Ws. Mst. Gulnaz and. Mst. Parveen were recorded on 12-4-1997. After completion of investigation, the appellant was challaned to face trial along with other accused persons.
5. ' The appellant pleaded not guilty to the charge and the prosecution examined eight witnesses before the trial Court, including the Investigating Officer, P.W.2 Muhammad Shafi, P.W.6, Muhammad Aftab, Police Constable, Mashir of recover) and eye-witnesses Mst. Perveen wife of Ghulam Nabi and Mst. Gul Naz wife of Muhammad Faheem, P.Ws.7 and 8 respectively.
6. ' The prosecution case is mainly based on the ocular testimony of P.Ws. Mst. Perveen and. Mst. Qul Naz and evidence of recovery witnessed by P.W.2, Inspector Muhammad Shafi and P.W.6, P.C.
7. Muhammad Aftab.
8. ' The admitted fact is that the names of culprits are not shown in the F.I.R., which is very natural and obvious for the reason that the, culprits were not known to the victims prior to the incident.
9. However, the prosecution case has been destroyed totally by Inspector, Muhammad Shafi, who arrested the appellant as a suspect in this case but made no request to the concerned Magistrate for holding the identification test. 164, Cr.P.C. Statements of the two eye-witnesses were recorded where the appellant and co-accused were produced in custody. It was incumbent on the - Investigating Officer to have resorted to identification parade in order to ascertain the identity of the appellant before producing the eyewitness and accused for recording of 164, Cr.P.C.
10. Statements. It would ,be appropriate to observe here that according to. F.I.R. There were seven culprits out of whom only one was within open face, while the faces of other six culprits were muffled. In these circumstances, the identification test was absolutely necessary, which has not been held.
11. ' Secondly, there is evidence of recovery of Rs,800 and one pair of golden ear-rings, According to prosecution, these recoveries were, made on 8-4-1997 at the pointation of accused who was already in custody from 2-4-1997. In these circumstances, it was incumbent on the Recovery Officer to arrange for independent private Mashir. The recovery, is violative of the provisions contained in section 103, Cr.P.C. After alleged recovery of golden ear-rings, the Investigating Officer ought to have arranged for identification of the 'golden ear-rings, through Mst. Gul Naz, in order to ascertain that it was actually a robbed article.
12. ' I have further observed a gross irregularity in conducting of the prosecution case in the trial Court whereby the Investigating Officer, S.I.P. Mehmood Alam, who recorded the statements of witnesses under section 161, Cr.P.C. Was examined as P.W.3 and both the eye-witnesses were examined subsequently as P.Ws.7 and 8. Consequently, the defence was deprived of the right to confront the Investigating Officer, with the contradictions between the statements of two eye-witnesses at trial and their statements under section 161, Cr.P.C. Likewise, the first Investigating Officer Muhammad Shafi, was examined as P.W.2 and Mashir of recovery P.C. Muhammad Aftab, was examined as P.W.6 and in this case also the prosecution was deprived of the right of confronting, the Investigating Officer with the contradictions in the statements of witnesses at trial and in his 161, Cr.P.C. Statement.
13. ' I further find that a suggestion was made to the Mashir of recovery that the golden ear-rings belong to the younger sister of accused and with the non-identification test of the said golden ear- rings, the doubt has not been removed.
14. ' A perusal of the prosecution evidence on record and the impugned judgment shows that the learned trial Court has failed to properly conduct the case and consider the infirmities in the prosecution case.
15. ' The Presiding Officers of the trial Courts are not supposed to act as mere recording machine of the statements of witnesses but it is their responsibility to see that the prosecution evidence is recorded- in a way that the requirements of the law are fulfilled and any valuable right of any party is not denied.
16. ' I further find that the learned trial. Court has not confronted the appellant while recording statement under section 342, Cr.P.C. That he led to the, recovery of Rs,800 and robbed pair of ear- rings. A piece of evidence cannot be used against an accused specifically drawing his attention to such evidence and, without providing opportunity of giving explanation in that behalf. Thus, the evidence of recovery cannot be used against appellant/accused for his conviction.
17. ' A perusal of the impugned judgment shows that the learned trial Court has not considered the effect of absence of identification parade through the eye-witnesses, the absence of identification test for ascertaining that the alleged recovery of golden ear-rings is actually a robbed property, the absence of private Mashir of recovery and the effect of examining the Investigating Officers, prior to the examining of the witnesses whose 161, Cr.P.C. Statements were recorded by the respective Investigating Officers.
18. ' I have specifically asked the learned State Counsel, whether there is any explanation for not holding the identification test and absence of private Mashir at the time of recovery. The learned State Counsel has frankly stated that he has no explanation and the Investigating Officers have not conducted the investigation properly and diligently, with the result that the lacunae have been left in the prosecution case.
19. ' For the foregoing reasons, I am of the opinion that the prosecution failed to bring home the guilt to the appeal up to the hilt and beyond reasonable doubt. The trial Court has committed serious error in not considering the lacunae and shortcomings in the prosecution case and recording the judgment of conviction against the appellant.
20. ' A perusal of the impugned judgment further gives impression that the learned trial Court was sitting, with vindictive mind and has recorded convictions for which there is no jukification. The learned, trial Court has recorded conviction under sections 392 and 397, P.P.C. Both. This shows total ignorance about law, on the part of learned trial Court. It appears that, she has not taken the trouble of going .Through the provisions contained in section 397, P.P.C. Section 397, P.P.C. Is not an independent section, it merely provides aggravated form of sentence and prescribes minimum punishment if at the time of committing robbery or dacoity the offender uses any deadly weapon or causes grievous hurt to any person or attempts to cause death or grievous hurt to any person. In such eventualities imprisonment with which such an offender shall be punished shall not be less than seven years. Thus, once an offence under section 397, P.P.C. Is made out and a person is convicted under section 397, P.P.C., he cannot be convicted against under section 392 or 395, P.P.C.
21. Simultaneously. It would amount to convict a person twice E for the commission of same offence.
22. Likewise conviction under two other sections of P.P.C. Are uncalled for The Courts are supposed to administer justice and not to sit with vindictive attitude. Such conduct as above, is highly deprecated and it is expected that the trial Courts shall not be swayed by emotions while passing the judgment and shall always act within the parameters of the law.
23. ' I further find that the learned Additional Sessions Judge who framed the charge and the learned Additional Sessions Judge who conducted the trial have not applied their mind. In the charge and 342, Cr.P.C. Statement of accused, there is allegation of commission of dacoity, but not charge was framed under section 395, P.P.C.
24. ' For the foregoing reasons, it is held that the impugned conviction and sentence awarded to appellant is not sustainable in facts and law which is hereby set aside. The appellant who is serving out his sentence in Central Prison, Karachi, is directed to be released forthwith if not required in any other case.
25. ' The appeal is allowed as above.