' HASNAT AHMAD KHAN, J.---Through this single judgment I intend to dispose of Criminal Revision No,482 of 2007 titled "Muhammad Sharif and another v. Basharat Hayat and others" and Criminal Revision No,625 of 2007 titled Muhammad Akhtar alias Sohni v. The State etc, as both these revision petitions are stemming from one and the same impugned judgment dated 26-3-2007 passed by the learned Additional Sessions Judge, Mandi Bahauddin.
2. Brief facts of the case are that on the written application of Basharat Hayat, complainant (P.W.1), a case F.I.R. No, 287 dated 31-5-2003 was registered at the Police Station Saddar Mandi Bahauddin in respect of the offences under sections 392/ 397, P.P.C. While filing the application for registration of case, the said complainant alleged that on the night of 31-5-2003, at 2-00 a.m. Eight gun-toting persons barged into his house after scaling over its walls and on gunpoint asked the complainant and his father to remain quite. On the resistance put up by the complainant's father, two of the dacoits inflicted blunt weapon injuries upon him with the butts of their respective firearm weapons.
According to the complainant after making dacoity on the gunpoint, all the dacoits made good their escape while relieving the complainant party of jewellery, cash and other valuables worth Rs,1,68,000. The complainant claimed that all the accused were seen by the complainant, his father, namely, Muhammad Hayat, P.W.2 and nephews in the light of a bulb. He, however, failed to give description/ physiognomies of any of the dacoits. On the receipt of the said application Exh.P.A., Wajid Fakhar Bashir, Inspector (P.W.6) recorded the formal F . I. R. Exh.P.A/1. The said Inspector prepared the injury statement Exh.P.H. Of Muhammad Hayat. Thereafter, he prepared the site plan Exh.P.I. And after medicolegal examination of Muhammad Hayat P.W.1, he added offences under sections 337-A(i), and 337-L(ii), P.P.C. In the F.I.R.
' On a tip off that the culprits of the said crime had been arrested in some other case the said Inspector sought transfer of the accused from District Okara and arranged for their identification parade. During the investigation, the petitioners led to the recoveries of certain looted articles. After the conclusion of the investigation, report under section 173, Cr.P.C. Was submitted against them and they were tried by Ms. Mahrukh Tarar, learned Magistrate Section-30, Mandi Bahauddin.
3. During the trial the prosecution produced as many as 12 witnesses out of whom Basharat Hayat appeared as P.W.1. While Muhammad Hayat, father of the complainant came forward as P.W.2.
Both of them furnished ocular account of the occurrence. They further deposed that during the identification parade conducted under the supervision of Iftikhar, Civil Judge First Class/Magistrate Section 30 (P.W.12), the petitioners had been correctly identified by them (eyewitnesses). They further narrated about the due identification of the looted articles, allegedly recovered on the pointing out of the petitioners. Sarfraz Ahmad appeared in the witness-box as P.W.3 and proved the fact of recoveries of some of the looted articles on the discovery of the petitioners. To the similar effect the statement was made by Sabir Ali, Constable (P.W.5). Dr. Muhammad Akhtar, who had medically examined Muhammad Hayat (P.W.2), stepped forward as. P.W.6 and proved the Medico- legal Report Exh. P.G. Prepared by him. Wajid Fakhar Bashir, Inspector/ Investigating Officer appeared in the witness box as P.W.7 and furnished the detail of investigation conducted by him. .Waris Ali and Muhammad Akram, Constables who were members of the raiding party, which had arrested the petitioners, appeared as P.W.10 and P.W.11 respectively. Iftikhar Ahmad, Magistrate Section 30, who had supervised the identification parade showed up as P.W.12 and proved his report Exh.P.R. Whereafter all the accused were examined under section 342, Cr.P.C. All the petitioners, however, refused to make the statements under section 340(2), Cr.P.C.
4. After the conclusion of the trial, the petitioners were convicted and sentenced as under:- ' Under section 457, P.P.C., 5 years imprisonment each and Rs,10,000 fine. In case of non-payment of fine six months' S.I.
' Under section 395, P.P.C., seven years' imprisonment each and fine of Rs,10,000. In case of nonpayment of fine one years' S.I.
' Under section 337-A(i), P.P.C., two years imprisonment as Tazir each and Rs,5000 as Daman.
' Under section 337-L(ii), P.P.C., two years imprisonment each.
' Under section 412, P.P.C., two years' imprisonment each and fine of Rs,10,000. In case of nonpayment of fine further one year R. I.
' Benefit of section 382,- .Cr.P.C. Was given to the petitioners.
5. The petitioners filed two separate appeals before the appellate Court challenging their conviction and sentence while Basharat Hayat complainant filed Criminal Revision seeking enhancement of the sentence awarded to the petitioners. The appeals filed by the petitioners were dismissed by the learned Additional Sessions Judge, Mandi Bahauddin, however, the revision petition filed by the complainant was accepted and the sentence awarded to the petitioners under section 395, P.P.C. Was enhanced from 7 years to 10 years along with a fine of Rs,1,00,000 each and in case of nonpayment of fine they were further directed to undergo six months' S.I. The other sentences were kept intact. Through these revision petitions the petitioners have sought their acquittal of the charge.
6. Pir S.A. Rasheed, learned counsel appearing on behalf of Muhammad Sharif and Rasheed Ahmad-petitioners, has contended that admittedly the petitioners were not named in the F.I.R. That it is also an admitted fact that the occurrence in this case took place during the wee hours of the night; that according to the complainant eight dacoits who had committed the offence of dacoity in the house of the complainant were observed/identified by him and the other witnesses in the light of a bulb but the said bulb was neither shown in the site plan nor was it recovered during the investigation; that no description in the shape of the features etc. Of the dacoits was given by the complainant in the F.I.R. That according to the complainant the petitioners were implicated in this case oh the basis of a supplementary statement, while the investigating officer contradicted the complainant on this subject; that though according to the prosecution the petitioners were duly identified during the identification parade but the said evidence was useless for the prosecution inasmuch as the said identification parade was held against all settled principles and rules on the subject. To expound his arguments learned counsel has submitted that the prosecution failed to establish that while transferring the accused from District Okara, where they were arrested in some other case, all the necessary precautions were not taken to hide their identity/faces; that during the identification-parade, all the accused were identified by each eye-witness in one go instead of arranging identification parade on individual basis; that under the law the identification parade was required to be held after arranging at least 9-10 dummies against each accused but during the said parade, three accused/petitioners were placed along with 18 other persons, which is violative of the law; that at the time of identification, the accused were not identified by describing their individual role; that the occurrence having taken place during the night hours the evidence regarding the identification of the petitioners becomes doubtful and that the recoveries were allegedly effected from the petitioners from an open place, which is situated quite near to the house of the complainant, therefore, the same are of no consequence. Learned counsel concluded his arguments while placing reliance on the case of Asghar alias Sabah and others v. The State (1992 SCMR 2088), Khadim Hussain v. The State (1985 SCMR 721), Ghulam Rasul and 3 others v. The State (1988 SCMR 557), Mushtaq Ali Kalhoro and 2 others v. State 1996 PCr.LJ 1315), Mehmood Ahmad and 3 others v. The State and another (1995 SCMR 127), State/ Government of Sindh through Advocate-General Sindh, Karachi v. Sobharo (1993 SCMR 585), Bashir alias Bashra and another v. The State and others (1995 SCMR 276), Kaim and others v. The State) PLD 1961 (W.P.)
Karachi 728), Kirir v. The State (PLD 1996 Karachi 246) and Shabir Ahmad and 4 others v. The State (1972 P.Cr.L.J. 310).
7. Learned counsel appearing on behalf of Muhammad Akhtar alias Sohnipetitioner adopted the arguments advanced by Pir S.A. Rasheed, learned counsel for Muhammad Shard and Rasheed Ahmad petitioners.
8. Conversely, learned Deputy Prosecutor General assisted by the learned counsel for the complainant has strenuously opposed the revision petitions contending that concurrent finding of fact cannot be disturbed in the revisional jurisdiction; that there is sufficient evidence on the record to establish the guilt of the petitioners; that both the eye-witnesses, who were duly supported by the medical evidence, furnished straightforward and consistent ocular testimony and that the petitioners are guilty of commission of a heinous offence, therefore, they are not entitled to any relief or concession.
9. After hearing the arguments put forth by both the sides, I have straightaway noticed that admittedly the offence of dacoity was committed in the dark hours of the night. Though according to the complainant all the eight accused were seen by the eye-witnesses in the light of a bulb but the same was not taken into possession during the investigation. The contents of the application on the basis of which the F.I.R. Was registered clearly indicate that while lodging the F.I.R. The features/ physiognomies of none of the dacoits was given by the complainant. So much so, that even the age of the culprits was not mentioned while getting the case registered. I have further gathered that while lodging the F.I.R. The presence of two nephews of the complainant at the time and place of occurrence was also mentioned but the said witnesses, admittedly, were neither produced during the investigation, as admitted by P.W.1, nor were they produced by the prosecution in the witness box.
10. During the examination-in-chief P.W.1 admitted that he had made a supplementary statement before the police on 1-6-2001 He further stated that in the supplementary statement he had nominated three petitioners along with five others.
' Though while appearing as P.W.7 the Investigating Officer denied the recording of such a supplementary statement but I have gone through the police file and after taking judicial notice have found that on 1-6-2003 the complainant indeed made a supplementary statement wherein he nominated 12-accused as the culprits of the dacoity. According to the said statement after commission of the offence he had visited a nearby tent where some people were residing. He further deposed that on entering the said tent/haveli, he had found twelve persons whom he identified/ recognized as the dacoits who had committed dacoity in, his house. In the said supplementary statement the names of all the twelve accused along with their parentage and addresses were given. Muhammad Hayat P.W.2. During his examination also admitted that to supplementary statement names of all dacoits were given by him. Supplementary statements, wherein detail of names with particulars of accused was given, were made just on next date of the occurrence. Investigating Officer while appearing in witness-box denied the recording of the statements by him. In this view of matter, holding of the identification pat had lost its efficacy as the accused was already known to the complainant. Be as it may, the prosecution failed to establish that while getting the accused transfer from Okara to Mandi Bahauddin identification purposes the necessary precautionary measures to hide their identity were duly taken by the investigating officer. Said conduct of the police cannot be condoned. At the time of identification parade the petitioners claimed that before holding of the said parade their snapshots were taken by the police to facilitate their identification by the eyewitnesses. Said facts do raise some doubts about the authenticity and veracity of the said evidence. Reliance in this regard is placed upon the case of Kirir v. The State (PLD 1996 Karachi 246).
10. Insofar as the proportion of the innocent persons to be mixed with the accused persons at the ratio of 1 accused to 9-10 persons is concerned, the proceedings of the identification parade show that apart from the petitioners 18 other persons were joined/mixed up during the identification parade, therefore, on this account the identification parade cannot be held illegal. However, admittedly ,during the identification parade the accused were picked up without describing their individual role played during the alleged crime. So much so even at the time of the trial individual role of each of the petitioners was not described by the eyewitnesses whose evidence in this regard is in the generalized form. The law requires that at the time of the identification parade the accused should be picked up while describing the roles played by them in the crime. Reliance in this regard is placed upon the cases of Asghar alias Sabah and others v. The State (1992 SCMR 2088), Khadim Hussain v. The State (1985 SCMR 721), Ghulam Rasul and 3 others v. The State (1988 SCMR 557), Mushtaq Ali Kalhoro and 2 others v. State 1996 PCr.LJ 1315 and Mehmood Ahmad and 3 others v. The State and another (1995 SCMR 127).
11. It would be pertinent to observe here that during the identification parade, P.W.2 could not identify Muhammad Rashid petitioner in his first attempt rather after picking up a wrong person he had pointed out towards Rashid petitioner.
12. Moreover, at the cost of repetition, it is observed that the occurrence took place during the night hours and no description in the shape of their features/physiognomies etc. Of the accused was given in the F.I.R. At all which also makes the identification doubtful. Reliance in this regard is placed upon the cases of State/Government of Sindh through Advocate-General Sindh, Karachi v. Sobharo (1993 SCMR 585), Lal Pasand v. The State (PLD 1981 SC 142), Bashir alias Bashira and another v. The State and others (1995 SCMR 276).
13. Besides, the prosecution cannot rely on the report (Exh. P.R.) prepared by the Magistrate who had supervised the identification parade, for the said report F was never put to any of the petitioners during their statements recorded under section 342, Cr.P.C.
' Moreover, the bulb in the light of which the petitioners were allegedly identified was neither recovered by the police nor was it exhibited during the trial. The conduct of the Investigating Officer of this case has not been found by me to be above board, for, firstly, while going against the record, he denied the recording of supplementary statements of the eyewitnesses, secondly during his cross-examination he candidly conceded in the following terms:-- {{URDU TEXT}}
14. In this backdrop the prosecution has failed to prove its case against the petitioner beyond doubt, and the identification of the accused during the identification parade has become doubtful.
It is true that the prosecution did succeed in I proving that an offence of dacoity as alleged by the eye-witnesses was committed by some dacoits but it badly failed to prove that said offence was indeed committed by the present petitioners. It is an established principle of criminal jurisprudence that benefit of doubt howsoever slight it may I be, has to go to the accused and not to the prosecution. Therefore, insofar as the conviction and sentence awarded to the petitioners under sections 395, 457, 337A(i) 337-I (ii), P.P.C. Are concerned the same are set aside and they are acquitted of the said charges.
15. Insofar as the recovery of the some of the looted items at the instance of the petitioner is concerned, the prosecution has successfully proved its case against the petitioners. It would be relevant to point out here that mere establishing the recovery of the looted property from the accused, the main offence of dacoity cannot be established but the fact remains that some of the looted articles during the dacoity were recovered on the pointing out of the petitioners. During the investigation a chain of gold along with a handbag was recovered from Muhammad Akhtar- petitioner. Similarly a cell-phone was recovered from Rasheed Ahmed-petitioner. While a purse containing some cash and other articles was recovered from Muhammad Shard-petitioner. The said recoveries were established by the prosecution by producing Sarfraz P.W.3 and Sabir Ali constable L P.W.S. Though Sarfraz P.W.-3 is related to the complainant party but P.W. -5 cannot be disbelieved only on the ground that he is a police officer. The said articles were duly identified by the complainant party. Therefore, the conviction awarded to the petitioners under section 412, P.P.C. is maintained. However, considering the nature of the recovered articles and the fact that the petitioners are suffering incarceration in this case since their arrest i.e, 18-6-2003, I have concluded that the sentence already undergone by them would serve the ends of justice. Therefore, it is directed that the petitioners be immediately released from jail, if not required in any other case.
With the abovesaid modification in the conviction and the sentence awarded to the petitioners the revisions are partly allowed.