' ATHER SAEED, J.--- The appellant preferred this criminal appeal against the order dated 15-4-2005 passed by IIIrd Additional District and Sessions Judge, Karachi (South) in Session Case No,37 of 1998 whereby the appellant and another accused Asif were convicted under section 392/34, P.P.C. And awarded sentence to suffer R.I. For the period they had already undergone and to pay fine of Rs,500 each and in case of default to suffer further simple imprisonment for one month. However, the appellant had opted to pay the fine and did not suffer the simple imprisonment.
2. Brief facts of the case as recorded by the trial Court are that on 14-7-1997 at about 1930 hours when the complainant Mst. Anjum Qureshi along with her son Saleem Qureshi were going to attend marriage ceremony, four armed persons entered in the bungalow and two of them on gunpoint snatched six bangles and one locket. The incident was witnessed by the husband and daughter- in-law of the complainant from the gallery of the bungalow and they made hue and cry upon which all the four accused persons ran away. Thereafter, police reached at the place of occurrence and recorded the statement of the complainant under section 154, Cr.P.C. And F.I.R. Was recorded on the basis of such statement. During investigation the accused Asif and Waseemuddin/ appellant were arrested by the police and Some robbed articles were allegedly recovered from their possession. After usual investigation, challan was submitted and remaining accused Salem alias Chooha and Shahid alias Bhoora were shown absconders. On 7-8-1998, charge was framed under section 17(3) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 to which the accused pleaded not guilty and claimed to be tried.
3. The prosecution examined the complainant Mst. Anjum Qureshi and her son Jawaid Perwaiz Qureshi, however, the prosecution was not able to produce the three police officials who did not appear in spite of issuance of process and in this case the report of the process-server A.S.-I.
Chand Irshad is on record which categorically states that the three official witnesses are not traceable, therefore, the prosecution gave up the production of these witnesses and closed its side.
Accused denied the allegations of the prosecution in their statement under section 342, Cr.P.C. But neither they produced any witness nor examined themselves in their defence. When it appeared to the learned trial Judge that the charges were only framed against the accused under section 17(3) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and not under provisions of P.P.C., he thought it necessary under section 30 to frame the charges under Pakistan Penal Code as the offence fell under P.P.C. And, therefore, on 13-4-2004 the charge against the accused was framed under section 17(3) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 read with section 392/34, P.P.C. To which the accused again pleaded not guilty and claimed to be tried. After analyzing the evidence brought on record by the prosecution, the learned trial Judge came to the conclusion that the evidence produced by the prosecution was not sufficient to prove the guilt under section 17(3) of the Ordinance, 1979, but since no plausible explanation and reason was given by the accused as to why they had been implicated in this case, his opinion was that the prosecution has successfully proved the offence under section 392/34, P.P.C. And, therefore, he convicted the accused and sentenced them to suffer R.I. For the period of sentence they had already undergone and to pay fine of Rs,500 each and in case of default further simple imprisonment for one month and also ordered that they shall be entitled for the benefit of section 382-B, Cr.P.C. Being aggrieved by this order, the appellant Wasimuddin has filed this appeal.
4. Mr. Khawaja Manzoor Ahmed, learned counsel for the appellant, submitted that although the appellant has undergone the terms of imprisonment imposed on him by the learned trial Judge and has also paid the fine in terms of the impugned judgment and has, therefore, been released by the jail authorities, but he has preferred this appeal to challenge the impugned judgment to remove the stigma against his name. He argued that the impugned judgment suffers from a number of legal and factual infirmities and the learned trial Judge has not been able to prove beyond the doubt that the accused was involved in that crime. He further argued that after arriving at the conclusion that the evidence of the prosecution witnesses was not enough to prove the case against the accused under section 17(3) of Offences Against Property (Enforcement of Hudood)
Ordinance, 1979, the learned trial Judge without giving any reasons arrived at the conclusion that the accused in his statement under section 342 failed to explain as to why the prosecution has implicated him in the case and, therefore, the prosecution had proved their case under section 392/34, P.P.C. He stressed that it is a settled law that in criminal cases the benefit of doubt should be resolved in favor of the accused, however, despite the fact the prosecution had failed to prove its case beyond a shadow of doubt, the trial Court has sentenced the accused to punishment under the provisions of Pakistan Penal Code. He pointed out that there was a discrepancy between the statement under section 154, Cr.P.C. Recorded by the prosecution witness Anjum Qureshi on the basis of which the F.I.R. Was prepared and the evidence given by her before the Court inasmuch as in her statement under section 154 and in the F.I.R. There was no mention of any of the accused resorting to firing on her son but this was stated by her in her evidence before the trial Court and the learned trial Court has failed to appreciate this discrepancy. He said that the prosecution had failed to present before the Court the Investigating Officer of the case and the other official police witnesses and had based their arguments on the police papers. He also pointed out that despite the fact that it was alleged in the police papers that some of the robbed articles of the complainant were recovered on their pointation, but these articles were neither produced in the Court nor any identification test was held in respect of these alleged robbed articles not was it revealed before the Court as to which of these articles were recovered and no Mashirnama of recovery was presented before the Court. He further stated that no identification parade was held for the purpose of identification of the accused and the accused had been allegedly identified by the 'complainant Mst. Anjum Qureshi during her statement before the Court where she identified both the accused to be same culprits who had robbed her. He argued that the identification parade is essential, in order to ascertain the identification of the accused. He said that discrimination is evident from examination of sentences imposed by the learned trial Judge on the accused and co-accused Asif Hussain, who had been released on bail, as both of them have been sentenced to suffer R.I. For the period they have already undergone and thus for the same alleged crime the appellant/accused had to suffer a longer period. He stated that since no specific period of imprisonment has been mentioned in the order, therefore,, the provision of benefit of section 382-B, Cr.P.C. Is just a farce. In support of his contention the learned counsel for the appellant relied on the case of Rana Shabbir Hussain v. The State 2005 PCr.LJ 1599. In this case a learned Single Judge of this Court acquitted the accused in similar circumstances. It will be relevant to reproduce the following extracts:-- "The prosecution case is mainly based on the ocular testimony of P.Ws. Mst. Perveen and Mst. Gul Naz and evidence of recovery witnessed by P.W.2, Inspector Muhammad Shafi and P.W.6, P.C.
Muhammad Aftab.
' 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. 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 eye-witness and accused for recording of 164, Cr.P.C. Statements. It would be appropriate to observe here that according to F.I.R. There were seven culprits out of whom only one was with 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.
' Secondly, there is evidence of recovery of Rs,800 and one pair of goldenear-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. Gut Naz, in order to ascertain that it was actually a robbed article.
' 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.
' 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.
' 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.
' 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 earrings. 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.
' 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 effeet 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.
' 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.
' For the foregoing reasons, I am of the opinion that the prosecution failed to bring home the guilt to the appellant 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."
5. The learned State counsel Mr. Sardaruddin Qureshi supported the impugned judgment and argued that since the appellant failed to explain why he was implicated by the prosecution and failed to produce any evidence or examined himself on oath, the learned trial Judge has rightly concluded that the prosecution has proved, its case under section 392/34, P.P.C. And has rightly sentenced him for the alleged crime. He was, however, unable to explain as to why identification parade was not held; why the recovered articles were not identified and produced in Court and no identification test was held and why the provisions of section 103 of the Cr.P.C. Were not followed.
He could also not explain why the applicant was not confronted with the recovery of stolen articles while recording his statement under section 342, Cr . P . C .
6. I have examined the case in the light of the impugned judgment, the R&PS of the appeal, the arguments of the learned counsel and the judgment relied on by the learned counsel for the appellant. I find that the Sessions Judge has not examined the case in its proper perspective while arriving at the conclusion that the prosecution has proved the offence against the accused under section 392/34, P.P.C. And has thus, fallen in error. It is clear from examination of the record that there is discrepancy between the statement under section 154 of the prosecution witness Mst.
Anjum Qureshi and her statement on oath before the Court. It is also apparent that no identification parade was held and accused were implicated on the pointation of the complainant in the Court which is not in accordance with the procedure laid down in the Cr.P.C. And the P.P.C.
There is no mention of whether the recovery of stolen articles were made by following the procedure prescribed under section 103, Cr.P.C. And no Mashirnama of recovery has been produced before the trial Court. The stolen articles allegedly recovered were not identified and such stolen articles were not produced before the Court nor was the accused confronted with the recovery of these stolen articles while recording his statement under section 342, Cr.P.C. The Investigating Officer and other official witnesses were not produced before the Court and the side of the prosecution had been closed without recording evidence of these witnesses.
7. I am, therefore, of the considered opinion that despite the fact that the prosecution had failed to prove its case against the accused beyond doubt, the learned Additional Sessions Judge without recording any plausible reasons held that the prosecution had proved its case under section 392/34, P.P.C. And sentenced the accused. The facts of the case are identical to the facts of the case relied on by the learned counsel for the appellant and this case falls within the four corners of the above quoted judgment. The impugned order, therefore, cannot be sustained and is hereby set aside and it is directed that the fine, which has been paid by the accused in lieu of imprisonment may be refunded to him.
8. This appeal is disposed of in the above terms.