SAYYED MAZAHAR ALI AKBAR NAQVI, J.---Through the instant criminal revision petition filed under sections 439, Cr.P.C, Nasrullah petitioner has called in question the conviction and sentence passed by learned Judicial Magistrate Section-30, Depalpur against the petitioner in terms of judgment dated 22-5-2010, which on appeal was upheld by learned Additional Sessions Judge, Depalpur in terms of judgment dated 22-6-2010.
2. Succinctly, facts of the case required for determination of the lis in hand are that Dr. Abdul Ghoffar Chaudhry, complainant (P.W.1) lodged case F.I.R. No,74 of 2008, dated 7-2-2006, offence under sections 395, 412, P.P.C., registered at Police Station City Depalpur, District Okara against unknown persons with the averments that on the fateful day i.e, 5-2-2008 at 10-15 p.m. the complainant along with Muhammad Ahmed and Muhammad Hanif entered his house, four dacoits stopped them on gun point, committed dacoity and took away household articles. On 10-2-2008 through supplementary statement, the complainant introduced Muhammad Nasrullah (present petitioner), Badar Munir, Muhammad Umar and Muhammad Ameen accused persons. Vide 2nd supplementary statement recorded on 20-4-2008, the complainant introduced another set of four accused namely Imran alias Jajji, Muhammad Afzal, Muhammad Ameen alias Ainee and Zafar Iqbal alias Zafri. During the course of investigation having found Muhammad Nasrullah (petitioner), Muhammad Umar, Muhammad Afzal and Zafar Iqbal alias Zafri, their challan was sent to the learned trial Court, whereas accused Badar Muneer, Ameen and Muhammad Imran were declared proclaimed offenders. The accused were formally charge sheeted under sections 395, 412, P.P.C., by the learned trial Court.
3. The prosecution in order to substantiate its case adduced evidence. Dr. Abdul Ghaffar complainant appeared as P.W.1 and deposed in line with the contents of F.I.R. and that of his supplementary statements. Muhammad Ahmed (P.W.2) is the second witness of occular account.
Muzammal Hussain (P.W.3) identified the looted property. Shahadat Ali 516/C (P.W.4) and Muhammad Yar 203/C (P.W.5) are the witnesses of recovery. Muhammad Yousaf SI (P.W.6) had conducted the investigation of the case. After conclusion of prosecution evidence, statement of accused/petitioner was recorded under section 342, Cr.P.C; wherein he opted neither to produce evidence in defence nor to appear as his own witness on oath as provided under section 340(2), Cr.P.C. Thereafter learned trial Court after hearing arguments from both sides on the touchstone of evidence available on record, acquitted the petitioner under section 395, P.P.C. However, convicted under section 412, P.P.C., and sentenced him to four years' RI with direction to pay Rs,50,000 as fine and in default whereof to further undergo six months' SI.
4. Being aggrieved of the judgment of the learned trial Court, the petitioner impugned the same through filing criminal appeal before the learned Additional Sessions Judge, Depalpur. The learned appellate court vide its judgment passed on 22-6-2010, dismissed the appeal and upheld the judgment of the learned trial Court. Both the judgments of the learned lowers courts have been assailed through the instant revision petition.
5. Learned counsel for the petitioner submits that the petitioner is not nominated in the F.I.R. who was roped in this case through supplementary statement, which as per dictates of law has no value and in no way can be equated with that of F.I.R. Learned counsel further stated that in the F.I.R., the complainant mentioned four unknown persons/dacoits but subsequently he introduced two sets each of four accused/culprits. Learned counsel stated that in such cases where accused are not nominated, test identification parade becomes essential, which has not been conducted in the instant case. Learned counsel stated that there are material contradictions in the statements of the witnesses of recovery, which aspect of the case escaped notice of the learned trial Court as well as learned appellate court. Learned counsel argued that the case of the complainant was that the accused had committed robbery in his house who also identified them, however, when the learned trial Court disbelieved the prosecution evidence qua section 395, P.P.C., how it convicted the appellant under section 412, P.P.C.
6. Contrarily, learned D.P.-G. assisted by learned counsel for the complainant has opposed this petition and has supported the impugned judgments of the learned courts below with the assertions that the same have been passed while appreciating the evidence in its true perspective.
7. Arguments heard. Record available on file perused, especially the testimony of the prosecution witnesses.
8. There is no cavil to this proposition that in cases of dacoity usually the accused are not known to the complainant. However, in the F.I.R., though it is not mandatory but specification of body structure of the accused is oftenly mentioned, which leads prosecution case to better footing. In the instant case, firstly the F.I.R. was lodged after a delay of two days and then complainant stated therein that four accused persons/culprits committed robbery in the house of the complainant.
However, through supplementary statement recorded on 10-2-2008, the complainant not only involved four persons but astonishingly on 20-4-2008, the complainant introduced a quite different set of accused persons, those too, four in number. In this way the complainant involved eight accused persons although in the statements recorded under section 161, Cr.P.C. both the witnesses of occular account had mentioned the strength of accused as four. Moreover, Muhammad Ahmed (P.W.2) though stated that four accused persons committed robbery but he did not name the present petitioner during the course of recording his evidence. Another material aspect of this case is that no test identification parade was held. Though test .identification parade is not essential in some cases, where the accused are connected with the offence through some other cogent/corroborative source/evidence, however, in the instant case as the accused had not muffled their faces, conduct of test identification parade was necessary, which has badly hit the prosecution case. I am not inclined to discuss this aspect any more as the petitioner has already been acquitted from the offence under section 395, P.P.C.
9. Now I advert to discuss the authenticity of recovery effected from the petitioner. Perusal of statement of Shahadat Ali 516/C, witness of recovery reveals that nothing was recovered on the pointing out of the accused persons in his presence. It also depicts in his statement that mobile recovered from the accused was not available in the learned trial Court when his statement was recorded. It is also mentioned therein that currency notes recovered from the accused were not marked/signed. Quite contrary to this, in the statement of Muhammad Yar 203/C (P.W.5)., the 2nd witness of recovery, it is mentioned that in his presence, the Investigating Officer had marked the recovered currency notes and also prepared recovery memos. Moreover, clothes and other articles were also marked by the Investigating Officer. However, he frankly confessed that on the day of recording his statement the case property both articles as well as currency notes produced were neither signed nor marked. Material discrepancies, which proved fatal to the prosecution case, do not stop here rather this P.W. has stated that the accused were brought at the place of recovery together in the same van and the recovery was effected from the one and the same village. The contention of learned counsel for the petitioner that the recovery has been planted upon the petitioner, in such circumstances of the case, not only carries weight rather the same cannot be ruled out.
10.When one prosecution witness of recovery is deposing that recovered articles were marked/signed in his presence and the other P.W. of the same set has stated that recovered articles were not marked/signed in his presence and on the respective dates when the statements of witnesses of recovery were recorded, both of them stated that the articles were not the same, which were recovered on the pointing out of the accused persons, I fail to understand that how the learned trial Court was justified in convicting the accused/petitioner while believing, such evidence which is not only weak but also full of discrepancies. Needless to mention that it is well known principle of criminal justice, which is also well practiced that benefit of each and every doubt/discrepancy is to be extended to the accused.
11.For the foregoing facts and circumstances I am persuaded to hold that sufficient material/evidence on the record exists to establish that the learned trial Court was not justified in convicting the petitioner/accused while believing prosecution evidence, which does not D inspire confidence and shatters the prosecution story to hilt. Similarly, learned appellate court also escaped notice of material discrepancies/ contradictions in the statements of the prosecution witnesses of recovery. Keeping in view the dictates of law of apex Court of the country, it is a fit case facts of which call for interference by this Court. Reliance is placed on the dictum of law in the case of Syed Manzoor Hussain Shah v. Syed Agha Husain Naqvi and another (1983 SCMR 775); wherein their lordships in the august Supreme Court of Pakistan while commenting upon the scope of revision under section 439, Cr.P.C. read with section 561-A, Cr.P.C. held as under:-- "There is no doubt that the revisional jurisdiction of High Court is very wide and that may be exercised whenever facts calling for its exercise are brought to the notice of the Court."
' Moreover, it is settled principle of law that this Court while exercising revisional jurisdiction cannot only go into evidence and reverse the findings and adjudge the propriety of judgment rather can also evaluate the reasonability and correctness of conviction and sentence. Humble reliance in this regard is placed on the ratio decidendi of august Supreme Court of Pakistan in the case of Abdul Rehman Bajwa v. Sultan and 9 others (PLD 1981 SC 522). Similar view was held in the cases of Anwar v. Crown (PLD 1955 FC 185) and Abdur Rashid Khondkar v. Chandu Matbar and 15 others and the State (PLD 1974 5C 795).
12. In sequel to above while following golden principle that benefit of every doubt is to be extended in favour of the accused, by allowing this petition, conviction and sentence recorded by learned Judicial Magistrate section-30, Depalpur in terms of judgment dated 22-5-2010 and subsequent judgment dated 22-6-2010, passed by the learned Additional Sessions Judge, Depalpur; whereby appeal preferred by the petitioner was dismissed, are set aside. As a consequence whereof, Nasrullah, petitioner is acquitted of the charge. He is directed to be released forthwith, if not required in any other case.