By this common judgment I propose to dispose of Criminal Appeal No.64/Q of 2004 filed under Section 13 of Juvenile Justice System Ordinance, 2000 read with Section 24 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 (hereinafter called the said Ordinance) by appellant Adeel Faiz and Criminal Appeal No.70/Q of 2004 filed by appellant Mir Ahmad under Section 24 of "the said Ordinance". Both the appeals are directed against two judgments, both dated 30.11.2004 separately passed by the learned Sessions Judge (Ad-hoc), Quetta whereby the appellants were convicted under Section 392 PPC and sentenced to undergo four years R.I. and fine of Rs.10,000/-, or in default thereof to further suffer S.I for three months with the benefit of Section 382-B Cr.P.C.
2. Briefly stated the facts as mentioned in the impugned judgments are that on 27.5.2003, at 4.15 a.m. appellant Adeel Faiz along with appellant Mir Ahmad and absconding accused duly armed with kalashnikov and knife had forcibly snatched a pickup, bearing Registration No: WAC-383 Quetta Model 1990 red colour from complainant Abdul Qadir. Case was registered against them under Crime No.57 of 2003 with Police Station, Shalkot, Quetta for offence under Section 17(3) of "the said Ordinance".
3. After completing investigation challan was submitted against the accused before the Court of learned Additional Sessions Judge-1, Quetta. Thereafter the case was transferred to the Court of Sessions Judge (Ad-hoc) Juvenile Court on 27.4.2004 as appellant Adeel Faiz was below 18 years by order of Hon'ble Court of Balochistan, Quetta followed by separate trial of appellant Adeel Faiz and appellant Mir Ahmad on different dates. However, the deposition of prosecution witnesses substantially remained the same.
4. Charge was read over to the appellants to which they pleaded not guilty and claimed trial. The prosecution examined eight witnesses.
5. PW. 1 Abdul Qadir, produced complainant and stated that on 29.2.2004, the police recovered his stolen vehicle on his pointation from Burma Hotel. According to him persons sitting in a vehicle started firing upon him and the police party as a result whereof one passerby was injured. He identified the accused present in Court and denied the suggestion that on 29.5.2003, the police had not recovered his stolen pickup and further the suggestion that since he has identified appellant Mir Ahmad in another case under Section 324 PPC, therefore, he had falsely implicated him in this case.
6. According to PW.2 Muhammad Akbar six persons out of whom four were armed with kalashnikov, one was armed with dagger one was empty hand abruptly appeared on the date of vardat and asked them to get down from the vehicle. Two dacoits took the vehicle and went towards Kirani Road, whereas four dacoit took them by the side of the road and tied their hands and feet and searched their pockets and took away watches, National Identity Cards and money. The culprits were talking in Urdu language with them but amongst themselves they were talking in Brohi. They were threatened by them not to move. Afterwards they got themselves released and went to the house of Muhammad Anwar at Mir Killi Jatak from where they went to Police Station and lodged the report at 5.10 a.m. The dacoits were muffled at that time, therefore, he could not identify them.
7. PW.3 Bilal Ahmad, SI a witness to the disclosure memo, Ex.P/3-A, said that on 30.5.2003, accused Adeel Faiz was in police custody at Police Station in a case FIR No. 125 of 2003, P.S. Sariab, Quetta for offence under Sections 324, 353, 186 and 34 PPC told him that he was present in his house when Munir Ahmad alongwith his companion Mir Ahmad, appellant, came to his house alongwith a pickup and!asked him for parking the pickup in his house. He did not allow them to park the vehicle in his house due to non-permission of his father. They asked him to accompany them in order to park the vehicle at Bazar. Mir Ahmad was driving the vehicle. When they reached Burma Hotel, a jeep crossed the vehicle and stopped the vehicle, whereupon appellant Mir Ahmad stopped the vehicle and ran away. He also made firing due to which Mir Ahmad was injured. The police arrested both the appellants. It was also stated by him that appellants Mir Ahmad and Gulzar had purchased the vehicle in consideration of Rs. 1,10,000/ Maqsood Ahmad, S.I. prepared disclosure memo, Ex.P/3-A, and he acknowledged his signatures on the same. PW-3 also identified the accused present in the Court.
8. PW.4 Abdul Khaliq, ASI is a witness to the recovery memo. PW.5 Liaqat Ali, Head Constable said that on 30.5.2003, he alongwith Maqsood Ahmad, SI went to Police Station, Sariab for handing over recovery memo in respect of Vehicle No. WAC-383.
9. PW-6 Munir Ahmad, an eye-witness to the alleged incident, corroborated the statement of PW.2 and identified the accused present in the Court. He further said that on 23.8.2003, some people of the accused persons came to him at Dhadar and extended threats that if they had deposed against them in the Court, they would be killed. He had lodged report at Police Station, Dhadar.
10.PW.7 Maqsood Ahmad, SI is Investigating Officer. He identified the appellants. He had arrested the accused on 30.5.2003. The investigation of the case was transferred on 26.6.2003 to CIA.
11.PW.8 Ghulam Shabbir, SI investigated the case after its transfer to CIA. He stated that appellants Mir Ahmad and Adeel Faiz were arrested in Crime No. 125 of 2003 for offence under Sections 324, 353 and 186 of PPC. During investigation on 20.6.2003 appellant Mir Ahmad made memo Ex.P/4-A which was also attested by Abdul Majeed Mandokhail. He recorded the statements of the witnesses under Section 161 Cr.P.C. PW.4 said that on 24.6.2003, permission for investigation from appellant Adeel Faiz was procured from the Judicial Magistrate. On 29.6.2003, both the appellants were arrested and he handed over the case file to SHO for preparation of challan.
12.The statements of the appellants were recorded under Section 342 Cr.P.C. wherein they denied the allegation of prosecution and claimed trial.
13.Learned counsel for the appellants Mr. Shabbir Rajput and Mr. Tahir Hussain Khan urged before me that the case against the appellants is made up and motivated by malice. Learned counsel brought to my notice a number of serious loopholes, discrepancies and inconsistencies in the prosecution case. It was pointed out that as per the evidence of prosecution witnesses all the dacoits/assailants including the above named appellants were muffled at the time of occurrence.
They have not been named in FIR and no identification parade had taken place at all. There is no recovery of any kalashnikov or other arms, Identity Cards or cash from the appellants. No statement of either of the appellants was recorded under Section 161 Cr.P.C. although it is stated that when a jeep crossed over the stolen vehicle, appellant Mir Ahmad jumped from the vehicle and ran away and was injured by fire. No evidence of the persons driving the jeep or sitting there has been produced nor any evidence as to who fired at Mir Ahmad. According to PW.3, no signature of any witness of recovery was obtained. He also did not remember the time of arrest of appellant Adeel Faiz and how long he was being questioned. Similarly PW.4 Abdul Khalil, ASI does not remember how long appellant Mir Ahmad had remained in police custody. The only clue for the so-called involvement of the appellants was that cases against them under Sections 324 and 353 PPC were registered during the course of which appellant Mir Ahmad disclosed to PW.8 Ghulam Shabbir, SHO of committing the crime in question which by itself is highly incredible. The cumulative effect of these loopholes, discrepancies and lapses in evidence and procedure necessarily lead to benefit of doubt in favour of the appellants paving way to their acquittal and acceptance of their appeals.
14. Before I part with this judgment I may point out that appellant Adeel Faiz being a child within the meaning of Section 2(b) of the Juvenile Justice System Ordinance, 2000 as he has not attained the age of 18 years and thus could not be awarded rigorous imprisonment in flagrant violation of Section 12 of "the said Ordinance" which reads as under-- "12. Orders that shall not be passed with respect to a child:--Not withstanding anything to the contrary contained in any law for the time being in force no child shall be
(a) awarded punishment of death, or ordered to labour during the time spent in any Borsal or such other institution; and
(b) handcuff, put in fetters of given any corporal punishment at any time while in custody: Provided that where there is reasonable apprehension of the escape of the child from custody, he may be handcuffed."
15. Neither under clause (a) nor under clause (b) of Section 12 of Juvenile Justice System Ordinance, 2000 a child could be awarded rigorous imprison. The expression 'ordered to labour' used in Section 12(a) thereof has no connotation than rigorous physical labour Similarly, the expression 'corporal punishment' used in 2(b) substantially means nothing but rigorous physical labour. Such punishment cannot be awarded to a child under Juvenile Justice System Ordinance, 2000 and in doing so the learned Additional Sessions Judge (Ad-hoc) Quetta has acted with high handedness or gross, ignorance of law.
16. These are the reasons for accepting the appeals and setting aside both the impugned judgments dated 30.11.2004 vide my short order dated 24.11.2006 with direction to the jail authorities to release appellants Adeel Faiz and Mir Ahmad forthwith unless they were required in some other criminal case. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.