' FAROOQ ALI CHANNA , J.---By this criminal jail appeal forwarded by the Superintendent, Central Prison, Karachi, the appellant has assailed the judgment dated 29-9-2011, passed in Sessions Case No,624 of 2007, which was the outcome of the F.I.R. No,591 of 2007 of Police Station Gulshan-e-Iqbal, Karachi (East), whereby the trial Court found the appellant guilty of an offence punishable under section 393, P.P.C. And sentenced him for four years' R.I. With fine of Rs,10000, under section 397, P.P.C. For five years' R.I. With fine of Rs,15,000, under section 302, P.P.C. For imprisonment for life with fine of Rs,50,000, under section 353, P.P.C. For one year and under section 324, P.P.C. For five years'
R.I. With fine of Rs,20000. All the sentences were ordered to run concurrently with benefit of section 382-B, Cr.P.C.
2. The facts of the prosecution case as per the contents of the F.I.R. Are that on the basis of statement of complainant Shaukat Ali recorded under section 154 Cr.P.C, the F.I.R. Was lodged on 12-11-2007, wherein it was stated that on the same day when he was busy in his office of travelling agency, two young persons, appeared to be Punjabi, entered into office and inquired for Islamabad ticket and thereafter pointed out their weapons and demanded money and mobiles from him and his staff. The complainant made resistance and tried to apprehend the culprits, on which they started firing. The complainant and his nephew Humayun Shahzad sustained fire shot injuries. The complainant after sustaining injuries hit the iron rod to one of the accused. On the noise and firing the patrolling police party headed by S.H.O, Police Station Gulshan-e-Iqbal, Karachi reached there and apprehended the injured culprit, whereas his companion escaped away. A 9 mm pistol was recovered from the apprehended culprit, who disclosed his name as Sarfaraz and the name of his companion as Zeeshan. The complainant saw his nephew Humayun Shahzad who died at spot due to fire shot injuries. The police thereafter took the apprehended culprit to police station, where, F.I.R was lodged.
3. During the trial, after recording the evidence of complainant Shaukat Ali and P.W Muhammad Bilal the apprehended accused Sarfaraz made an application to the trial Court for pleading guilt.
On the basis of his application the trial Court recorded his statement on oath and thereafter convicted accused Sarfaraz, whereas the case proceeded against the appellant Zeeshan, and the evidence of the remaining witnesses was recorded. After giving opportunity of hearing, the trial Court found the appellant guilty and awarded him sentence as stated above, vide judgment dated 29-9-2011, which is impugned in this criminal jail appeal.
4. It is pertinent to mention that this appeal was filed by the appellant in person through Superintendent of Central Prison, Karachi. However, since it was a murder case, therefore under the order of this Court, the Prosecutor General, Sindh appointed Mr. Hakim Ali Shaikh, Advocate to assist the appellant at the State expenses, but later on Muhammad Ramzan, Advocate filed vakalatnama on behalf of the appellant and argued the appeal. The learned advocate has contended that the case is false and fabricated and the accused has been awarded sentences on unreliable evidence and by relying upon the statement on oath of co-accused Sarfaraz recorded by the trial Court. The trial Court has relied upon the evidence of the prosecution witnesses without considering the fact that no name of those private witnesses and their presence at spot was disclosed in the F.I.R. The learned advocate has further contended that no identification parade of accused had taken place during the investigation, as such the entire proceedings were suffering from illegality not curable under section 537, Cr.P.C. It is further contended that no P.W. Had disclosed the name of the appellant Zeeshan in his statement recorded under section 161, Cr.P.C. By the I.O. It is the further contention of the learned advocate that the specific role of causing murder of deceased Humayun Shahzad and fire shot injuries to complainant is on the part of co-accused Sarfaraz Ali who in his statement on oath has also admitted the above fact but yet the appellant was convicted for causing the murder of deceased Humayun Shahzad and injuries to complainant though no specific role has been assigned to the appellant. The main contention of the learned advocate for the appellant is that the trial Court has convicted the appellant by relying upon the confessional statement of co-accused Sarfaraz Ali before the trial Court, which statement cannot be considered as evidence against the appellant. He has relied upon the following citations:--
(1) PLD 1995 FSC 20 (1) Ahmed Sher (2) Zakaullah v. The State)
(2) 2006 PCr.LJ 62 (Muhammad Azam and others v. The State)
(3) 1982 SCM R 321 (State v. Asfandyar Wali and 2 others)
(4) 1997 PCr.LJ 1639 (Muhammad Khalil alias Kach v. The State).
5. Mr. Imtiaz Ali Jalbani, A.P.-G. Has contended that the prosecution has established its case before the trial Court without any reasonable doubt against the appellant by producing the cogent ocular testimony. It Was further contended by the learned A.P.-G. That the trial Court after considering the credibility of the evidence of prosecution witnesses has found the appellant guilty of offence, and convicted him. The learned A.P.-G. Has further contended that the identification test of accused during the investigation is not the requirement of law. Learned A.P.-G. Has further contended that all the prosecution witnesses during trial have identified the appellant properly before the trial Court. He has further contended that the co-accused Sarfaraz Ali in his confessional statement has also implicated the appellant to be his companion. As such the impugned judgment is not suffering from any illegality or misreading of evidence.
6. I have considered the arguments and perused the record. The trial Court while recording the conviction has relied upon two pieces of evidence i.e, (1) confessional statement of co-accused Sarfaraz Ali recorded during the trial on his own request for pleading the guilt and (2) the evidence of the prosecution witnesses produced in support of case.
7. The trial Court while recording conviction to the appellant seems to be impressed from the confessional statement of co- accused Sarfaraz Ali recorded during the trial wherein appellant was implicated as co-accused. The trial Court has observed that the statement of co-accused Sarfaraz Ali was inculpatory in nature in which he has not only involved and nominated the appellant but has also claimed to have caused murder of deceased Humayun Shahzad and injuries to the complainant Shaukat Ali by firing. It was further observed by the trial Court that a confessional statement of co-accused inculpatory in nature can be used against co-accused. But the trial Court has ignored the plea taken by the defence advocate that no opportunity of cross- examination to accused Sarfaraz Ali was given to the appellant.
8. It is an admitted fact that at the time of recording the statement on oath of accused Sarfaraz Ali, the appellant was also facing the trial as co-accused and as per case diary dated 14-1-2011 was present in Court and since accused Sarfaraz Ali had implicated him in this case as his companion, as such it was incumbent upon the trial Court to provide an opportunity of cross examination to appellant irrespective of the request for cross examination made or not by the appellant and since no such opportunity of cross-examination was offered to appellant, therefore the statement of accused Sarfaraz will not be considered as a piece of evidence against the appellant Zeeshan.
9. However, it is essential to mention that this was not for the first time that accused Sarfaraz Ali had taken the name of appellant as co-accused in his statement on oath recorded by the trial Court, nor it was the sole piece of evidence against appellant but the name of appellant was disclosed by accused Sarfaraz Ali on the very first day of incident on spot at the time of his arrest; such narration of name of the appellant at the spot also corroborated by identification of appellant during trial by all the prosecution from doubt. The incident had taken place during the day time and the complainant had seen both the accused from very close range, therefore, no question of mistake in identifying the appellant before the trial Court arises. The other prosecution witnesses, although their names were not mentioned in the F.I.R but being the employee of A the travelling agency and brother of the complainant, their presence at the place of incident seems to be natural without any doubt. They have also implicated the appellant to be one of the accused.
There appears also no contradiction in the evidence of prosecution witnesses.
10. The next contention of the learned advocate for appellant is for not holding the identification parade of the appellant during the course of investigation. This plea was considered, discussed and .Replied by the trial Court properly. Furthermore the identification parade during investigation is mere a piece of evidence collected by Investigating B. Officer in support of case but it has no evidential value unless corroborated during trial. For example if an accused is picked-up in identification test before Magistrate during investigation but not identified by the witnesses before trial Court, the result would be acquittal, likewise, if there was no identification parade before Magistrate but the accused was identified during trial before the trial Court, it would be considered strong piece of evidence against the accused and this was the reason of observation by the apex Court that the real/true test of identification of the accused is during trial.
11. The last contention of advocate for the appellant that no specific role has been assigned to the appellant and it was co- accused Sarfaraz who murdered Humayun Shahzad and injured through the contents of F.I.R., as in the F.I.R. It is alleged that both the accused started firing from their respective weapons and caused fire shot injuries to complainant and deceased Humayun Shahzad, as such both the accused are equally responsible of committing the offence in terms of section 34 of P.P.C. Irrespective of it that which role was played by whom in the occurrence. It is provided under section 34, P.P.C. That when a criminal act is done by several persons in furtherance of the common intention of all, each of such person is liable for that act in the same manner as if it was done by him alone. In the instant case the appellant and co-accused Safraraz Ali had taken the active participation in the offence of committing robbery and during the course of which one person lost his life and other sustained injuries, hence both the accused are equally responsible to be dealt with in same manner and thereby guilty of offence irrespective of their role in the incident/crime.
12. Beside above there is another strong circumstantial evidence against the appellant that after the incident he had absconded and was declared proclaimed offender after initiating proceedings under sections 87 and 88, Cr.P.C, and was arrested after a considerable period. This abscondence of the appellant seems to be intentional and deliberate and he being nephew of the co-accused Sarfaraz Ali as stated by the advocate for the appellant, cannot claim that he was unaware of the registration of F.I.R. And pendency of trial against him.
13. The perusal of record also reveals that defence plea was not taken during trial as no prosecution witness was suggested enmity with the appellant or even reason of his false implication by the prosecution witnesses. However, on defence plea it was argued by the advocate for appellant and stated by the appellant in his statement recorded under section 342, Cr.P.C., that due to family dispute between the appellant and his real uncle co-accused Sarfaraz Ali took place on account of "KHULLA" taken by the mother of appellant from the brother of co-accused Sarfaraz Ali, the appellant was implicated by co-accused in this case falsely. This defence plea of family dispute between both the accused is not enough to shake the evidence of prosecution witnesses against whom admittedly there was no enmity and family dispute between the accused doesn't mean that the prosecution witnesses have deposed falsely, as such if the defence plea is kept in juxta position, the D same carries no weight.
14. For the above mentioned reasons, I find no illegality in the impugned judgment, calling for no interference by this Court. Criminal jail appeal is dismissed.