' MUHAMMAD ZAFAR YASIN, J.--- Through this jail criminal appeal the appellant Ejaz Ali son of Muhammad Ismail has challenged his conviction vide judgment, dated 14-6-2007 recorded by learned Additional Sessions Judge-I, Sibi whereby the appellant has been convicted under section 392, P.P.C. And sentenced to three years' R.I. With a fine of Rs,2,000 in default thereof to further undergo S.I. For six months. The benefit of section 382-B, Cr.P.C. Has also been extended to the appellant. The appellant Ejaz Ali stands convicted in case F.I.R. No,5 of 2007 dated 8th March, 2007 registered at Police Station Bukhtiarabad District Sibi registered under section 17(3) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 at the instance of complainant Rozey Khan regarding even dated occurrence.
3. The brief facts narrated in the F.I.R. Exh.P.B./A are as under:--- "Complainant Rozey Khan is resident of Goth Nehal Machi. On 8-3-2007 at about 12-00 noon he was coming to Bakhtiarabad City on his motorcycle CD/70 red colour valuing Rs,45/46,000 for collecting groceries. When the complainant had covered 5/6 kilometer distance, three persons on a motorcycle CG-125 green colour came from opposite side and stopped him and asked to hand over his motorcycle. He refused to do so, whereupon one of the culprits had fired with fire-arm which hit him below his knee. Resultantly he fell down. Thereafter, all the three robbers gave him beating also and took away his motorcycle. It was further stated that he can identify the accused persons if they are brought before him. Meanwhile due to firing, Muhammac Bakhsh son of Malik Rasool Bakhsh and Ghulam Qadir son of Sohbat Khan, caste Machi, came there and brought the complainant in injured condition in the hospital. Hence case be registered against three robbers."
4. During investigation on 25-3-2007 the police arrested the appellant as suspect and on his disclosure co-accused namely Shahzada Khan was also pointed out. The Investigating Officer also recorded the statements of the witnesses under section 161, Cr.P.C. And prepared the site plan. The accused was given first aid at Basic Health Unit Bakhtiarabad and thereafter he was referred to Civil Hospital Sibi for further treatment. However, after arrest of the accused identification parade was conducted at the residence of the complainant on 4-4-2007 and finally the present appellant along with Shahzada Khan was challaned. However, Shahzada could not be arrested by the Investigating Officer and was declared proclaimed offender. Hence only the appellant was tried by the trial Court. The appellant was charged under section 17(3), Offences Against Property (Enforcement of Hudood) Ordinance, 1979 on 12-5-2007. The accused denied the charge and claimed trial.
5. To prove its case the prosecution produced as many as eight witnesses and also tendered in evidence the medico-legal report of the complainant, pointation memo., recovery memo. Of the registration book of motorcycle, disclosure memo. Of the accused, site plan and identification parade conducted on 4-4-2007 supervised by D.S.P. After the conclusion of the prosecution evidence the statement of the accused was recorded under section 342, Cr.P.C. The accused also appeared as his own witness under section 340(2), Cr.P.C. And he was subjected to cross- examination. The accused also produced Mst. Noor Jahan as D. W.1 to prove his alibi.
6. The trial Court, on the basis of the evidence on record, convicted the appellant and sentenced as noted above. Hence this jail criminal appeal.
7. Learned counsel for the appellant has argued that;
(i) In the F.I.R., the complainant had not attributed specific role of each person who had robbed him nor has given any description of any of the accused persons on the basis of which he could identify them later on. Furthermore, he made improvements in his statement before the Court wherein he had deposed that apart from his motorcycle the accused also took away 45000/46000 rupees net cash. Furthermore, in the Court he had stated that all the three had muffled faces and during scuffle their faces were unveiled; while in the F.I.R. He did not report so.
(ii) Further argued that the identification parade was conducted on 4-4-2007. This belated identification parade could not be relied upon in view of the judgments of the superior Court.
Further argued that identification parade has been supervised by D.S.P. While in the High Court Rules it had to be supervised by a Magistrate 1st Class at least.
(iii) Further argued that the D.S.P. Appeared as P. W.7 and has stated that the venue of the identification parade was complainant's house where accused was taken and there was no other private person along with the accused person at the time of identification parade, while according to the D.S.P., who had supervised identification parade, 4/5 police constables were mixed up with the accused at the time of identification parade. Thus, the identification parade' was not conducted in accordance with the High Court Rules, therefore, it has no evidentiary value. In this respect reliance is placed on a judgment reported as Shafique Ahmad and 4 others v. The State 2002 PCr.LJ 518 and Lal Pasand v. The State PLD 1981 SC 142.
(iv) Further argued that complainant even did not identify the accused/appellant in the Court as one of the robbers who had participated and committed the offence of robbery and no role has been attributed to the accused/appellant even when the complainant deposed in the Court.
(v) Further argued that there is no corroborative piece of evidence in the shape of recovery i,e, recovery of motorcycle or recovery of alleged robbed money. In view thereof the conviction and sentence is not sustainable in the law.
(iv) Lastly it has been argued that there is dishonest improvement made by the complainant in his statement before the Court. Hence his conviction and sentence is not maintainable.
8. On the other hand learned Additional Advocate-General, Balochistan has argued that the learned trial Court has mainly based the conviction of the appellant on the statement of P.W.1 Rozey Khan, the complainant, which is corroborated by the medical evidence, recovery of blood- stained clothes of the complainant, disclosure memo. Of the accused and identification parade conducted on 4-4-2007 supervised by D.S.P. Hence the conviction and sentence is in accordance with law.
9. Heard. Record perused.
10. In the F.I.R. Which was lodged promptly in this case, the complainant had not specified the role of any of the persons who had participated in the robbery nor he had given any identification feature of any of the participants. There is nothing on the Court record to show that on what basis Ejaz Ali was suspected as an accused person by the Investigating Officer in this case and thus, was arrested on 25-3-2007.
' Further the accused remained on physical remand with the police till 5th of April, 2007 but no incriminating articles had been recovered from the accused i,e, fire-arm used in the occurrence nor any part of the looted property has been recovered. As regard the disclosure memo. Exh.P.5/A made by the accused while in police custody, the law is very clear on the point that any incriminating statement made by the accused in police custody, is not admissible in law and in this respect reference can be made in Articles 38 and 39 of Qanun-e-Shahadat Order, 1984, and the law laid down in a judgment reported in Muhammad Yar alias Yari v. The State 2001 MLD page 807 and Muhammad Alam alias Shin v. The State 2001 PCr.LJ 86 in this respect. In view thereof the learned trial Court has erred in law in relying upon Exh.P.5/A, memo. Of disclosure as incriminating evidence for the purpose of conviction of the accused. Furthermore, despite the fact that accused was arrested on 25-3-2007, the identification parade was got conducted on 4-4-2007. Thus, unexplained delay of nine days, further casts serious doubt apart from the fact that it was supervised by D.S.P., who had no authority to supervise the same and further no private person was mixed up with the accused at the time of identification parade except 4/5 police constables as per statement of D.S.P. P.W.7. Furthermore, it is very pertinent to note that the identification parade of the accused was conducted at the residence of the complainant on 4-4-2007 where the D.S.P. For supervision had gone and accused was also taken to the residence of the accused in police custody. The explanation for conducting the identification parade at the residence of the accused has been given by the Investigating Officer that the accused was unable to walk, while on the other hand it is in the prosecution evidence that the complainant himself walked to the police station on 9-3-2007 i,e, the very next day of the occurrence, and had produced his blood-stained "Qameez and Shalwar". Even the memo. Of recovery Exh.P.6/A has been witnessed by two constables of the police station. Hence, the prosecution evidence of identification parade could not be relied upon and being of very doubtful nature. Furthermore the complainant, as P.W.1 has admitted in his cross-examination that Sattar, the brother of the complainant, had married his son with the girl of the accused family, and further his brother Sattar resides with him. Thus, it can safely be presumed that the complainant Rozi Khan, P.W.1 must have seen Ejaz Ali accused prior to this occurrence, and thus, if accused Ejaz Ali had participated in this occurrence, there would have been no difficulty for the complainant to identify the accused, while according to F.I.R., the accused had not muffled their faces at the time of occurrence. Admittedly the occurrence took place in the broad-daylight.
11. In view of what has been discussed above the conviction and B sentence of the appellant Ejaz Ali, recorded by the trial Couit, on the basis of inadmissible evidence and without any independent corroboration in the shape of any recovery of incriminating articles, cannot be upheld and the appellant is entitled to benefit of doubt.
12. Therefore, this criminal appeal filed by Ejaz Ali appellant against his conviction recorded by Additional Sessions Judge, Sibi, vide judgment, dated 14-6-2 007, is accepted. Resultantly the appellant Ejaz Ali is acquitted of the charge. He shall be released forthwith, if not, required in any other case.