' HABIB-UR-RAHMAN SHAIKH, J.---Through instant criminal appeal, appellant Shafquat has challenged the judgment dated 31-5-2012, passed by learned Sessions Judge, Hyderabad in Sessions Case No.17 of 2004, whereby he was convicted under section 392 r/w section 394, P.P.C.
And sentenced to suffer rigorous imprisonment for ten years and to pay fine of Rs.100,000, in case of default whereof, the appellant was to undergo simple imprisonment for six months more.
2. Facts of the case in brief, are that on 6-10-2003 at 1400 hours, complainant Syed Ghulam Rasool lodged the, F.I.R. Being crime No.73 of 2003 in offence under sections 324, P.P.C. And 17(3) Offences Against Property (Enforcement of Hudood Ordinance) 1979 at Police Station Cantonment Hyderabad, stating therein that on the same date at 1-00 p.m., he after taking an amount of Rs.700,000 from Muslim Commercial Bank, Gymkhanana Branch, while driving the car when reached at House No.170, Saddar Hyderabad a culprit pointing his pistol asked him to give him the said amount and he robbed the said amount. Meanwhile, one Malook the cook of the aforesaid house came out on commotion and attempted to apprehend the culprit, the culprit fired at him and said Malook fell down after sustaining firearm injury at his leg. Thereafter, the said culprit along with his companion available there with motorcycle made escape good with robbed amount except the amount of Rs.50,000, which was fallen down during the course of grappling of the parties. During investigation appellant was arrested to be the principal accused, who is said to be committed the robbery and fired at Malook. The co-accused Ishrat was also arrested and from his possession Rs.100,000 as robbed property was said to have recovered on 13-12-2003. During the course of investigation, the name of co-accused Barkat was also came on surface as an accused.
After completing the investigation the above named accused were sent up to face the trial for the charge of aforesaid offence.
3. To prove its case, the prosecution has examined as many as six witnesses and they produced relevant documents in their statements.
4. The statements of accused were recorded in which, the accused have denied the prosecution case and claimed to be innocent. Thereafter, the learned trial Court acquitted the co-accused and convicted the appellant as mentioned above.
5. The learned counsel for the appellant contended that as per alleged F.I.R. The complainant has involved two culprits without mentioning their names and showing any descriptions etc.; no recovery has been effected from the possession of the appellant and neither source of information on the basis of which the appellant was involved in the present crime, nor the prosecution produced any witness to say that appellant was connected with the robbery in the challan. He further contended that no identification test had been held by the prosecution before any Court of law. He also contended that the impugned judgment is based on presumptions and assumptions and on the same set of evidence the trial Court acquitted the co-accused, from whom the alleged robbed amount was recovered, and convicted the present appellant without any substantive piece of evidence. There are major contradictions between the prosecution evidence. The eye-witness namely Malook was the servant of the complainant and interested one. On the oral statement, the learned trial Court has convicted the present appellant. The case diary shows that since 2004 the appellant was attending as an undertrial prisoner as well as after grant of bail by the trial Court and the complainant and his witness, both also appeared before the trial Court and the complainant and his cook Muhammad Malook were examined by the trial Court in the year 2010 and during those years they saw the appellant in the premises of the trial Court but the learned trial Court while deciding the case of the appellant observed in its judgment that the complainant as well as injured witness have identified the appellant in the Court is sufficient for his conviction instead of any corroborative piece of evidence regarding the identification without holding identification parade after arrest of appellant. He further contended that the prosecution has miserably failed to establish its case beyond any shadow of doubt against the appellant and the apex Court always given benefit of doubt if arisen even slightest will go in favour of the accused. He further contended that appellant may be acquitted. He relied upon the case-law reported as 2006 YLR 3113, 2009 SCM R 1410, 2010 SCM R 1706, 2012 SCM R 440 and unreported case of this court in Appeal No.S-376 of 2011.
6. On the other hand, the learned A.P.-G. Supported the impugned judgment and contended that no enmity between the complainant and the appellant has been shown for his false implication; this is a day time incident and there is no mistaken in the identification of the real culprits. He further contended that identification during trial before the trial Court is sufficient to convict the appellant. However, he admitted that the case of the appellant requires to be taken a lenient view, as circumstances arisen after the completion of the trial and the statements of the witnesses recorded by the trial Court. The trial Court relied upon the statement of only two witnesses, one is complainant and other is his cook injured Muhammad Malook. He relied upon the case reported as PLD 1998 (Karachi) 539.
7. Heard learned counsel for the appellant, learned A.P.-G. And perused the record.
8. It is revealed from the arguments and perusal of the record that the complainant was looking after construction of Al-Pine apartment belonging to Syed Amir Ali Shah. On the day of incident at about 1300 hours when he reached at the house of Syed Amir Ali Shah on his car a person with light mustached wearing light green colour paint and shirt came and on the pointation of pistol over the complainant's temporal region, snatched Rs.6,50,000 and injured his cook P.W. Malook after that on the same day, the complainant reported the matter at Police Station, The record further reveals that after framing of the charge the prosecution examined complainant on 18-5-2010. In his deposition, the complainant deposed about the contents of P.I.R. And further disclosed that he has identified the accused present in Court. It Is also reveals that his cook Malook was examined, In his chief, he deposed that police has not recorded his statement under section 161, Cr.P.C. He also identified the appellant in Court.
9. Only both witnesses were examined by the prosecution regarding the robbery from the complainant side and injury received by prosecution witness Malook. The prosecution had not effected recovery of the robbed amount from the appellant nor crime weapon was recovered from him. No any identification parade was held by the prosecution after his arrest even though it is essential to prove the prosecution case when neither the name of culprit nor any description or features have been disclosed in the alleged F.I.R., then it is essential for the prosecution to prove its case to put the arrested accused/culprit in the identification parade, but the case in hand, the prosecution had not made explanation regarding the identification parade of the appellant before any Magistrate to identify through complainant and injured prosecution witness. Simply identification of the accused before trial Court during trial is not required for conviction of the appellant without corroborative piece of evidence. The record further reveals that the name of the present appellant firstly appeared in the challan sheet without any source of information that who disclosed the name of the present appellant or what are the materials available to the Investigating Officer to connect the present appellant in the commission of offence. The record further reveals that in the alleged the complainant involved two unidentified persons, one is main accused and another accused who was standing at the motorcycle and after commission of the offence, they fled away from the scene of offence, but the police challaned four persons as an accused in this case. The allegations against remaining two persons were that the robbed amount recovered from them. It is surprisingly to note that the trial Court acquitted the accused from whom robbed property was recovered by giving them benefit of doubt and convicted the present appellant on the same set of evidence. Furthermore, the record reflects that the appellant since his arrest appeared before the trial Court on every date of hearing and the case diaries of the trial Court reveals that since 2004 the complainant and injured witness were also attended the trial Court on each and every date of hearing, when the matter was called and was adjourned on one or other pretext, it appears that the complainant and P.W. Malook were seen the appellant and having knowledge about his name etc. Prior to their statements recorded in the Court, therefore, it can be said that they have only seen and identified the appellant during the recording of their evidence in the trial Court. Such identification before the Court at the time of recording their evidence creates doubt and defect in the prosecution case and such benefit will go in favour of appellant. In this respect, the observations have been made by apex Court in the case of MURSAL QAZMI alias QAMAR SHAH and others v. THE STATE (2009 SCM R 1410), wherein it has been observed that the identification of the accused in Courtprinciple-substantive evidence of a witness in his statement in the Court, but the purpose of identification test is to test that evidence and the safe rule is that the sworn testimony of a witness in Court as to the identity of an accused who was stranger to the witness, requires corroboration, which should be in the form of an earlier identification proceedings, It is further observed that the identification test-necessity and object holding of identification test becomes necessary in cases where names of accused persons are not mentioned in the FIR, holding of such test is a check against false implication and it is a good piece of evidence against the genuine culprits.
10. In another reported case of MUHAMMAD ASGHAR ALIAS NANNA H and another v. STATE (2010 SCM R 1706), in which it has been observed that names of accused were not mentioned in F.I.R. And they were already in custody in other cases, but they were not put to identification though all witnesses were police officials and that both the Courts below did not give any cogent reasons about such lacuna.
11. The record further reflects that in the statement of accused under section 342, Cr.P.C. When it was recorded by the trial Court had not put any question regarding identification of the accused by the complainant and his witness during trial.
12. In the case of GULSHAN and another v. STATE (2006 YLR 3223), it was observed that the trial Court did not put the evidence of identification test to accused so as to obtain their explanation. If a piece of evidence was not put to accused in his statement under section 342, Cr.P.C. Then the same was not to be used against him for his conviction. Evidence of identification parade was not to be used against the accused.
13. The operative part of the judgment of the trial Court is given as follows:- "That present appellant was convicted for offences under section 392 read with section 394, P.P.C.
When the F,I,R, had been lodged under sections 324, P.P.C, and 17(3) Offences Against Property (Enforcement of Hudood Ordinance) 1979 with a view that offence under-section 7 read with section 16 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, requires evidence of at lest two Muslim, adult, male witnesses other than the victims of the offence to attract section 17(3) ibid, whereas in the present case, there is only evidence of victim, therefore, said section 17(3) ibid is not attracted. Nevertheless, it is established that accused Shafaquat committed robbery with injury, as above, therefore, the accused is to be punished under section 392 read with section 394, P.P.C. Now at this juncture, the question arises whether the accused can be convicted under section 392 r/w section 394, P.P.C., even if charge is not framed under it. - Section 237, Cr.P.C. Provides that if an accused is charged with one offence and it appears in evidence that he committed a different offence, for which he might have been charged, he may be convicted of the offence, which he is shown to have committed although he was not charged with it. In this respect, the judgment of honourable Federal Shariat Court in the case of Aas Muhammad alias Aaso (2011 PCr.LJ 607) may be referred to."
14. The learned trial Court had not gone through the section 237, Cr.P.C. It reads as follows:-- "237. When a person is charged with one offence, he can be convicted of another.---(1) if, in the case mentioned in 236, the accused is charged with one offence, and it appears in evidence that he committed a different offence or which he might have been charged under the provisions of that section, he may be convicted of the offence which he is shown to have committed although he was not charged with it."
15. The section 236, Cr.P.C. Says that when the circumstance of the case appears in section 236, Cr.P.C. Then section 237, Cr.P.C. Will be attracted. The said section 236, Cr.P.C. Reads as under:-- "236. When it is doubtful what offence has been committed. If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once; or he may be charged in the alternative with having committed some one of the said offences."
16. After going through both the sections, it appears that where at the time of framing of the charge evidence produced by prosecution reveals as to what offence was prima facie made out, section 237, Cr.P.0 would not apply and the section 237, Cr.P.C. Controlled by section 236, Cr.P.C. And, therefore, application thereof is limited to those cases only which was within the provisions of section 236, Cr.P.C.
17. In the case of MAHAZULLAH v. STATE reported in (2000 PCr.LJ 534), the Federal Shariat Court observed that "sections 237 and 236, Criminal Procedure Code, Penal Code section 363, Offence of Zina (Enforcement of Hudood) Ordinance, 1979, section 14-Convict-Accused was charged under section 363, PPC, but had been convicted under section 14, Offence of Zina (Enforcement of Hudood) Ordinance, 1979 which had provided major penalty-Validity section 237, Cr.P.C. Was an exception to the general rule that no person could be convicted for an offence for which he was not charged section 237, Cr.P.C. Must be construed strictly and applied in those cases only where either offences allegedly committed were cognate when it was doubtful as to what offence was made out of the act or acts allegedly committed by the accused. Accused charged for a minor offence could not be convicted for a major offence. Application of section 237, Cr.P.C. Which was controlled by section 236, Cr.P.C. Was limited to those cases only which fell within the purview of section 236, Cr.P.C. Where, at time of framing of the charge, it was ascertainable from the perusal of evidence produced by prosecution as to what offence was prima facie made out, section 237, Cr.P.C. Would have no application, and accused must be charged for particular offence ascertainable from facts of the case.
18. By minutely gone through the record of the case, admittedly, the appellant has not been charged under sections 392 and 394, P.P.C. At the time of trial he was required to answer the charge under sections 324, P.P.C. And 17(3) Offence Against Property (Enforcement of Hudood)
Ordinance, 1979. It may be mentioned here that section 237, Cr.P.C. Is an exception to the general rule that, no person can be convicted for an offence for which he is not charged, therefore, it must be construed strictly and be applied in those cases only where, either the offences allegedly committed or cognate or it is doubtful as to what offence is made out of the act or acts allegedly committed by the accused. In the instant case, the appellant having been charged for the offence under sections 324, P.P.C. And 17(3) Offence Against Property (Enforcement of Hudood) Ordinance, 1979, only, and not charged for the sections 392 and 394, P.P.C. The punishment of section 17(3)
Offence Against Property (Enforcement of Hudood) Ordinance, 1979 provides that "whoever being an adult is guilty of haraabah in the course of no murder has been committed but property the value of which amount or exceeds, the Nisab has been taken away shall be punished with imputation of his right hand from the wrist and his left foot from his ankle." Further proviso says "that if the left hand or the right foot of the offender is missing or is entirely unserviceable, the punishment of imputation of the other hand or foot as the case may be, shall not be imposed, and the offender shall be punished with rigorous imprisonment for the term which may be extend to 14 years and with whipping not exceeding 30 strips" and the section 392,, P.P.C. Provides punishment with rigorous imprisonment for term which shall not be less than three years nor more than 10 years and shall also be liable for fine and section 394, P.P.C. Provides the punishment imprisonment for life, or rigorous imprisonment for a term which shall not be less than 14 years nor more than 10 years and shall also be liable for fine. Firstly, the offences for which the appellant was charged and convicted are distinct offences and fall within two different penal statutes and secondly, the penal clause in these two enactments would require different facts to be given prominence.
19. Needless to point out that while dealing with a case, the trial Court has to take the cognizance of the offences and not the offenders and if the record indicates that there were some other offenders as well then even should have initiated proceedings against them.
20. For what has been discussed above, the prosecution has miserably failed to prove its case beyond any shadow of reasonable doubt as well as the learned trial Court has not considered the evidence produced by the prosecution minutely and without going into the spirit of law mentioned in the section 237, Cr.P.C., only converted the section 17(3) Offences Against Property (Enforcement of Hudood) Ordinance, 1979 into sections punishable under section 392 and section 394 of Penal Code, without framing the charge and without giving the opportunity to the appellant to defend himself is quite against the cannon of law and procedure. In my view, the appellant has succeeded to make out a case for acquittal from the charge. By giving benefit of doubt to the appellant, the instant appeal is allowed and impugned judgment is set aside. It is ordered that the appellant be released forthwith, if he is not required in any other criminal case.