' SAYYED MAZAHAR ALI AKBAR NAQVI, J.---Farrukh Shehzad son of Mushtaq Ahmed, caste Awan, resident of Mohalla Masjid Bibi Anaran, Tehsil Fateh Jung, District Attock, appellant was involved in case. F.I.R. No,335, dated 29-8-2010, offence under 9(b) of the Control of Narcotic Substances Act, 1997, registered at Police Station Fateh Jung and was tried by learned Additional Sessions Judge, Fateh Jung, who in terms of order dated 27-10-2010, convicted the appellant under section 9(b) of the Act and sentenced him to one year's S.I. With fine' of Rs,3,000. However, keeping in view the young age of the appellant, instead of lodging him to judicial lock-up, the learned trial Court sent him on probation for a period of one year under the Probation of Offenders Ordinance, 1960 for his better future subject to furnishing surety bond in the sum of Rs,50,000 with one surety in the like amount to the satisfaction of Probation Officer, Attock.
2. The prosecution story as disclosed in the F.I.R. Is that on 29-8-2010, Rashid Iqbal, S.I.
(complainant) along with Zameer-ulHassan 1413/C, Muhammad Irfan 1922/C, was on patrol duty at Football Ground near Masjid Bilal, Fateh Jang. At about 10-05 p.m. a person who later on disclosed his name as Farrukh Shehzad son of Mushtaq Ahmed, caste Awan, resident of Mahalla Masjid Bibi Anaran, Tehsil Fateh Jang, District Attock, was coming down from the stairs of stadium, and on having suspicion, he was stopped by the police personnel. The complainant conducted his formal search on which from the side pocket charas wrapped in a polythene shopper was recovered, which was weighed and found to be 245-grams out of which 5-grams charas was separated for chemical analysis. Case property and sample for chemical analysis were made into separate sealed parcels. Thereafter, Rashid Iqbal, S.I. Drafted the complaint and sent it to Police Station for registration of formal F.I.R.
3. Rashid Iqbal, SI conducted the investigation, recorded statements of the prosecution witnesses under section 161, Cr.P.C, inspected the spot and prepared rough site plan. The Investigating Officer thereafter got the accused/appellant lodged in judicial custody. He also handed over the case property to Moharrar for its safe custody and onward transmission to the quarter concerned.
Having found the appellant guilty, the Investigating Officer after placing his name in Column No,3 of the report prepared under section 173, Cr.P.C, sent the same to the court of competent jurisdiction.
4. On submission of challan, the appellant was charge-sheeted by the learned trial Court on 21-9- 2010 under section 9(b) of the Control of Narcotic Substances Act, 1997 to which he pleaded not guilty and claimed trial. Thereafter, the case was fixed for prosecution evidence on 1-10-2010, on which date due to non-appearance of the prosecution witnesses, the case was adjourned to 13-10- 2010. On 13-10-2010 again due to non-attendance of the prosecution witnesses and transfer of the Presiding Officer the case was adjourned to 27-10-2010 and on that date the appellant volunteered to record his confessional statement, which - offer was accepted by the learned trial court. After recording the confessional statement, the learned trial Court in terms of order dated 27-10-2010 convicted and sentenced the appellant in the above terms. Hence, this appeal.
5. Learned counsel for the appellant at the very outset submitted that admittedly when the charge was framed against the appellant by the learned trial court on 21-9-2010; he had pleaded not guilty and claimed trial. Learned counsel next submitted that thereafter on two consecutive dates of hearing due to non-appearance/non-attendance of the prosecution witnesses, the case was adjourned and thereafter on appellants volunteer confessional statement of the appellant he was convicted and sentenced. It was argued by learned counsel for the appellant with vehemence that once charge was denied and the accused claimed for trial, there was no occasion for the learned trial court to accept the offer made by the appellant for recording his confessional statement.
Learned counsel for the appellant in support of his contentions has placed reliance on the dictum of law in the cases of Faiz Muhammad v. The State (1986 PCr.LJ 2250), Muhammad Sadiq v. The State (1998 MLD 243) and The State v.
Jehandad Khan and 3 others (1998 PCr.LJ 592).
6. The learned Law Officer frankly conceded that the procedure adopted by the learned trial court is not warranted by law and the sentence inflicted by it, in the peculiar circumstances of the case, is illegal and further agreed with the submission made by learned counsel for the appellant that the conviction recorded by the learned trial Court in the manner is not sustainable under the law.
Learned Law Officer, in the circumstances, prayed that the case may be remanded back to the learned trial court for decision afresh.
7. We have heard the arguments advanced by learned counsel for both sides and perused the record available on file on the touchstone of case-law referred by learned counsel for the appellant.
8. There is no cavil to this proposition that at the time of framing of charge on 21-9-2010, the appellant, while replying to specific questions "(2) Do you plead guilty to the charge? (3) Will you claim trial?" in categorical terms, pleaded not guilty and claimed trial. Record available on file further reveals that after denial of the appellant qua verity/veracity of the prosecution version the case was fixed for prosecution evidence on 1-10-2011 and thereafter for 13-10-2010 and on both these dates it was adjourned only on account of non-appearance of the prosecution witnesses and it was on 27-10-2010 when the appellant voluntarily made offer to make confessional statement. Now the issue to be determined by this Court is whether the learned trial court (learned Additional Sessions Judge) was justified in accepting the offer of the appellant to record his confessional statement at a belated stage when admittedly at the time of framing of charge the appellant had pleaded not guilty and claimed trial in explicit terms. To determine this question it would be advantageous to go through the provisions of sections 242, 243 and 244, Cr.P.C. Dealing with the question, which are reproduced herein below for ready reference:- "242. Charge to be framed. When the accused appears or is brought before the Magistrate, a formal charge shall be framed relating to the offence of which he is accused and he shall be asked whether he admits that he has committed the offence with which he is charged.
243. Conviction on admission of truth of accusation. If the accused admits that he has committed the offence [with which he is charged] his admission shall be recorded as nearly as possible in the words used by him; and, if he shows no sufficient cause why he should not be convicted, the Magistrate may convict him accordingly.
244. Procedure when no such admission is made. (1) If the Magistrate does not convict the accused under the preceding section or if the accused does not make such admission, the Magistrate shall proceed to hear the complainant (if any), and take all such evidence as may be produced in support of the prosecution, and, also to hear the accused and take all such evidence as he produces in his defence.
(2)
(3)."
Bare perusal of above provisions of sections 242, 243 and 244, Cr.P.C. Clearly depicts that once a formal charge is framed and put to accused, which is denied by him under section 242, Cr.P.C.
Provisions of section 243, Cr.P.C. Shall ipso facto become inoperative and court has to proceed under section 244, Cr.P.C. By recording the prosecution evidence as well as that of the accused, if lead in defence. Therefore, confessional statement made after 2/3 dates of hearing when at the time of framing of charge the appellant in explicit terms had denied the same, is of no legal effect in presence of sections 244, 265-D, 265-E and 265-F of the Criminal Procedure Code, 1898.
9. Moreover, the superior courts always support that even if the accused pleads guilty during the course of trial, in addition to his plea, independent evidence should be gathered by the court.
Reliance is placed on the dictum of law in the case of King Emperor v. Kasim Waled Mohamed Saffer (AIR 1925 Sindh 188), wherein it was held as under:-- "Independent evidence should be taken by Court notwithstanding accused's plea of guilty."
Hence, in the foregoing circumstances we have been persuaded to hold that the conviction and sentence inflicted by the learned trial court in terms of order dated 27-10-2010 is not sustainable in the eyes of law.
10. Now the question arises that what next modus operandi should be adopted. When the case in hand is tested on the touchstone of case law cited by learned counsel for the appellant it leads to only one conclusion that the same be remanded back to the learned trial Court for retrial but at the same time certain other aspects are also of pivotal importance,' which cannot be lost sight of while rendering any opinion. There is no denial to the fact that in the instant case only a meagre quantity of charas was recovered from the appellant, who is presently student of engineering. Needless to mention that he has already undergone the agony before the police during the course of investigation D and subsequent proceedings before the learned trial court. Moreover, during the period of probation, his conduct has been upto the mark. Therefore, in the interest of justice, for safe administration of criminal justice, while keeping in view the peculiar circumstances of the case, we have been persuaded to set aside the conviction and sentence passed by the learned trial Court in terms of order dated 27-10-2010. Resultantly, Farrukh Shehzad appellant is acquitted of the charge. He is already on bail as the learned trial Court while recording his conviction had sent him on probation for a period of one year under the Probation of Offenders Ordinance, 1960, which is going to expire on 26th October, 2011. Jahangir Khan son of Qamar Zaman, who stood surety of the appellant for the probation period is discharged from his obligation.
Appeal accepted.
2012 P Cr. L.J 357 [Balochistan] Before Abdul Qadir Mengal, J SHA UKAT--- Appellant versus THE STATE---Respondent Criminal Appeal No, 110 of 2010, decided on 2nd August, 2011.
Penal Code (XLV of 1860)--- ----S. 394---Robbery---Appreciation of evidence---Investigating Officer had detained the complainant at the Police Station for about two hours, till the complainant prepared a written report implicating the accused in the case, on which the F.I.R. Was lodged---Investigating Officer, thus, was interested in conviction of accused---Prosecution had withheld and not produced the important witness, brother of the complainant, who had been deprived of his cash and other valuables during the alleged incident of robbery---No recovery of any robbed article or weapon of offence had been effected from the accused to corroborate or support the prosecution version--- Place of incident being already in . The knowledge of the police, disclosure memo also did not support the prosecution case---Mere pointation of the place of occurrence not leading to any recovery was nothing but a futile exercise---Accused was acquitted in circumstances. [pp. 360, 361] A, B, C, D, E, F & G 2007 YLR 924; PLD 1971 SC 541 and 2001 SCMR 1405 rel. Abdul Razzaque Shar for Appellant.
Abdul Karim Malghani for the State.
Date of hearing: 29th July, 2011.
JUDGMENT ABDUL QADIR MENGAL, J.---This criminal appeal under section 410, Cr.P.C. Has been directed against the judgment dated 9-12-2010, passed by the Sessions Judge, Lasbella at Hub in case F.I.R. No,165 of 2010 registered with Police Station Hub, whereby the appellant was convicted and sentenced under section 394, P.P.C., to suffer R.I. For four years and to pay fine of Rs,5,000. In default of payment of fine, the appellant was ordered to further undergo S.I. For three months.
Benefit of section 382-B, Cr.P.C. Was also extended in favour of the appellant/convict.
2. Brief facts leading to file, the present criminal appeal are that on 24-8-2010 at about 1-20 a.m.
(night), the complainant, Barkat Ali, lodged a report with Police Station Hub, alleging therein that he is resident of Baloch Abad Charai, where he runs a shop for easy load of mobiles. It was 11-30 a.m., when he along with his nephew Sadar Hussain and brother Saman Ali, after closing their shop, were going towards their house. When they reached near to their house, two persons, out of whom, one having a T.T pistol stopped them and his accomplice tried to conduct their search, and on resistance of the complaint, the person having pistol, gave him a butt blow of pistol on his head and also fired 2/3 shots, but they were saved miraculously. The accused persons forcibly conducted their search and snatched a China Mobile No,03433851483 and cash amount of Rs,600 from him, while snatched a Mobile Phone LG No,03322986625 from his nephew Saddar Hussain and also snatched cash amount Rs,20,000 and five mobile phones (Nokia 1100) from his brother Saman Ali. In the meanwhile he, his nephew and brother Saman Ali, identified the accused, who having pistol, was their neighbour Shoukat son of Akbar. The accused persons, after snatching mobile phones and cash amount, fled away.
3. After registration of the F.I.R. Vide written report Exh.P/3-A, the IO/SI Sikandar recorded the statements of the witnesses, prepared the sketch of 'Wardat' vide Bxh.P/6-B, Whereafter on the next date arrested the accused, who on 6-9-2010 disclosed about the place of incident vide disclosure memo Exh.P/4-A. The accused was taken to the place of incident and on his pointation, memo Exh.P/4-B was prepared. On completion of investigation, the accused was challaned. The charge was read over to the accused, to which he pleaded not guilty and claimed trial.
4. I have heard Mr. Abdul Razzaque Shar Advocate for the appellant, while Mr. Abdul Karim Malghani Advocate , was heard for the State.
5. Learned counsel for the appellant mainly contended that, the appellant/convict is innocent, he falsely was implicated by the Investigating Officer Sikandar, on account of previous enmity.
Learned counsel further argued that, prior to the instant case, the Investigating Officer had also involved the father of the appellant in a false case. Learned counsel stated that. No recovery of any case property or weapon of offence has been effected from the accused. The complainant, himself has clearly mentioned in his statement that, he had nominated the appellant/convict on the basis of suspicion, as the Investigating Officer/S.H.O. Was pressurizing him to give any name in the instant case. Learned counsel further stated that, the trial Court neglected all the above acts and wrongly has convicted the appellant for the alleged offence.
6. Mr. Abdul Karim Malghani, Advocate, the State counsel, strongly opposed the contention of learned counsel for the appellant/convict and stated that, actually, the appellant after his arrest disclosed about the place of incident, where he had snatched the mobile phones and cash amount from the complainant and his brother. He further argued that, the statement of Saddar Hussain (the nephew of the complainant) shows that, he has identified the appellant/convict.
Being so, the trial Court rightly has convicted the appellant for the alleged offence.
7. After hearing both the parties and perusing the record, I am of the view that, there is a great force in the contention of the learned counsel for the appellant/convict. Admittedly, the complainant, Barkat Ali, in his statement has stated that, he was asked by the Investigating Officer to nominate any person, therefore, he on the basis of suspicion nominated the appellant/convict.
8. The above statement and contents of the F.I.R. Suggests that, the complainant had approached the police for lodging report at about 11-30 p.m., but the Investigating Officer did not lcrdge the F.I.R.
Until got a written report to implicate the appellant convict and then on 24-8-2010 at 1-20 a.m.
(night) lodged the F.I.R., after the delay of about two hours, for which there is a no any plausible explanation. Thus, this delay of lodging F. I. R., puts the Court on notice to make close scrutiny, especially, when the Investigating Officer/S.H.O. Was blamed of bias and enmity with the accused.
The contents of the F.I.R. And the statement of the complainant (P.W.3) does not show that after commission of the offence, the complainant side went anywhere to get the report written and then handed over it to S.H.O. For lodging of the F.I.R. Actually, the facts support the contention of the learned counsel for the appellant/convict that, the complainant was kept waited at police station by the Investigating Officer/S.H.O. From 11-30 till preparation of A the written report by Investigating Officer Exh.P/3-A, to implicate the appellant/convict.
9. Thus in the above background adverting to the statement of the nephew of the complainant P.W.1 Sadar Hussain, who has stated that, his maternal uncle had identified the accused Shoukat son of Akbar on the basis of his voice, because he is their neighbour.
10. Anyhow the interest of the Investigating Officer has come on record, as such, when the Investigating Officer is interested to get conviction, and when the witnesses are not corroborated, then, no conviction could be passed. In this respect reliance has been made on PLJ(sic.) CRC, 196 Lahore.
11. Admittedly, Saman Ali the third person, who is brother of the complainant and he was deprived of his Rs,20,000 including five easy load mobiles, but amazingly the prosecution has withheld him by not producing him as a witness. This fact gives a negative affect on the prosecution case, either no any such incident has taken place or the P.W. Was not supporting the prosecution story. Again, when adverting to the other aspects of the case, it is admitted position that, neither the robbed mobile phones nor any weapon of the alleged incident has been recovered from the appellant/convict, which could support the prosecution. On this score, the prosecution case seems doubtful, as such without any recovery of the stolen articles or weapon of offence, the accused could not have been convicted. In this regard I have benefited my view from YLR 2007 Karachi 924.
12. Again, there is no any corroboration or corroboratory material to support the prosecution version. Normally the corroborative and ocular evidence always to be read together and on the basis of their cumulative effect, a valid order of conviction could be passed. In this respect I have fortified my view from PLD 1971 SC 541.
13. Furthermore, there is no any importance of disclosure memo, as the place of incident already was in the knowledge of the police, as he, before the arrest of the appellant/convict, had visited the site, prepared the sketch of 'Wardat', hence the disclosure memo in such circumstances gives no support to the prosecution case. Even otherwise, mere pointation of the place of incident does not give any support to the prosecution case, especially when it does not lead to recovery of any weapon of offence or stolen articles, as such preparation of memo of pointation of place of incident by the prosecution is nothing, but a futile exercise. In this respect reliance has been made on 2001 SCMR 1405.
14. As the prosecution has failed to establish its case against the appellant/convict beyond any reasonable doubt. Therefore, the appeal is allowed and the impugned' judgment dated 9-12-2010, passed by the learned Sessions Judge, Lasbella at Hub is set aside. Consequently the appellant/convict is acquitted of the charge, he be released forthwith, if not required in any other case.
' These are the reasons of my short order dated 29-7-2011.