' ABDUL RASOOL MEMON, J.---The appellant has impugned the judgment dated 5-11-2010 passed by the learned VIIIth Assistant Sessions Judge, Karachi East in Sessions Case No,1356 of 2009 whereby the appellant was convicted and sentence to suffer R.I. For five years and to pay fine of Rs, 20.000 and in case of default in payment. He shall suffer R.I. For two months more. Benefit of section 382-B.
Cr.P.C. Has also been extended to him.
2. The facts of the prosecution case as depicted in the F.1.R. No,359 of 2009 of Police Station Jamshed Quarters recorded by complainant Islamuddin are that on 29-7-2009 at about 2200 hours he along with his wife Mst. Rukhsana was going to their relative for condolence on his motorcycle bearing Registration No,KAB-490, when they reached at Dada Bhai Noorji Road near Rajput Kitchen Store, chain of his motorcycle was broken. He parked his motorcycle at Nishter Road and went to search the mechanic. During this time a boy wearing white shalwar Kameez and the girl wearing Burqa came on motorcycle. They snatched two gold bangles on gunpoint from his wife. In the meantime one person in his own Suzuki Hi-roof whose name later on was known as Sajid on seeing this incident, followed the accused persons and fired from his own licensed pistol on which the accused became injured, the girl ran away with another accomplice, while the injured accused started motorcycle and ran away towards the Kashmir Road. Thereafter the complainant came at Police Station where he recorded the F.I.R. Against unknown persons. During investigation the accused/appellant Ghulam Abbas was arrested by ASIP Safeer Ahmed from the Jinnah Hospital Karachi. Inspector Muhammad Nadeem Siddiqui conducted further investigation and during interrogation the accused produced two gold bangles allegedly robbed from the wife of the complainant Mst. Rukhsana. After usual investigation the challan was put up against the appellant.
3. At trial prosecution examined P.W.1 Safeer who has produced Mashirnama of arrest and F.I.R. At Exh.4(a) and 4(b), P.W.2 complainant Islamuddin at Exh.5 who has produced Mashirnama of wardat and recovery of motorcycle and gold bangles at Exh.5(a) and (b), P.W.3 wife of the complainant Mst. Rukhsana, at Exh of mashir of recovery Muhammad Arsalan (son of the complainant) at Exh.7, Muhammad Shahid at Exh.8, I.O. Muhammad Nadeem Siddiqui at Exh.9.
4. In his statement the accused denied the allegations of the prosecution and claimed his innocence. The accused has examined himself on oath under section 340(2), Cr.P.C. And one defence witness Muhammad Ramzan.
5. On conclusion of trial the learned trial Court convicted the appellant vide Judgment dated 5-11- 2010 which is impugned in this appeal.
6. I have heard the learned counsel for the appellant, APG for the State and perused the record of this case.
7. The learned counsel for the appellant has stated that the statement of the appellant recorded under section 342, Cr.P.C. Does not bear the certificate of the court as required under section 364, Cr.P.C. Therefore, the case is required to be remanded to the trial Court. He has further argued that the trial Court has relied upon the interested witnesses and there are inconsistencies in their evidences; that the recovery of the robbed articles, i,e,, gold bangles is highly doubtful and even on merits the appellant has created shadow of doubt upon the prosecution case and its benefit should be given to the accused not as a matter of grace or concession but as a matter of right. In support of his contentions he has relied upon the cases reported in GHULAM MURTAZA v. THE STATE (2010 PCr.LJ 461), GHULAM QADIR AND 2 OTHERS v. THE STATE (2008 SCMR 1221), MUHAMMAD SHAHID v. THE STATE (2008 YLR 288), AZIZULLAH v. THE STATE (2009 YLR 2077), ILYAS v. THE STATE (2011 MLD 712), MUHAMMAD AKRAM v. THE STATE (2009 SCMR 230) AND ABDUL GHAFFAR v. THE STATE (2011 MLD 239).
8. On the other hand learned State Counsel has contended that non-availability of the certificate in the statement of the appellant under section 342, Cr.P.C. Is not an illegality but it is an irregularity which can be cured under section 537, Cr.P.C. On factual aspect of the case, he has stated that the case of the appellant is proved through ocular evidence of complainant Islamuddin, his wife Mst.
Rukhsana and P.W. Sajid who has fired upon the appellant/accused who after committing robbery was running away on Bike. The P.W. Rukhsana has identified the accused in Jinnah Hospital .Where he was brought in an injured condition as well as in court at trial. On the other hand the appellant in his statement on oath under section 340(2), Cr.P.C. And defence witness his brother Ramzan on the contrary have supported the prosecution story regarding sustaining of injuries by him therefore, the case against the present appellant is proved and normal sentence has been awarded by the trial Court which does not require any interference by this court. He has placed reliance on a case of NOOR AHMED v. THE STATE (PLD 2005 KARACHI 177).
9. I have given due consideration to the arguments advanced by the learned, counsel for the appellant and the learned APG for the State and perused evidence with their assistance.
10. As regards the legal objection raised by the learned counsel for the appellant about non- availability of the certificate on the statement of accused recorded under section 342, Cr.P.C., the required certificate is required under subsection of section 364,- Cr.P.C. Which reads as under:-- "(2). When the whole is made conformable to what he declares is the truth, the record shall be signed by the accused and the Magistrate or Judge or such Court, and such Magistrate or Judge shall certify under his own hand that the examination was taken in his presence and hearing and that the record contains a full and true account of the statement made by accused."
11. I have examined the said statement and found that the statement bears signatures of the appellant and the court. However, the required certificate is missing from the said statement. It is pertinent to point out that the appellant has not alleged that his statement was not recorded in presence and hearing of the court or the court did not put question to him or that he did not give any replies to the said question to the court or that the court did not record the said reply at all or recorded them improperly, or that he did not put his signature on his statement or that the court did not sign the same or that the record does not contain full and true statement furnished by the appellant. In such a situation in a case of Noor Ahmed (supra), Hon'ble Mr. Justice Wahid Bux Brohi and Mr. Justice Rehmat Hussain Jaffrey the then Judges of this Court have observed as under:-- "In the absence of the above mentioned objections coupled with the signatures of the appellants and the judge appearing on the said statements are by itself proof that the same were recorded in the presence and hearing of the Court and the record contains the full and true account of the statements of the appellants. Had any of the above mentioned objections been taken or raised then the said objections could have been considered and resolved but in the absence of such objections merely non-availability of the certificate which may be due to inadvertence, ignorance, mistake or any other bona fide reasons, does not amount to an illegality but it is merely an irregularity, which can be cured under section 537, Cr. P.C. Merely non-availability of certificate in the circumstances of the case neither mislead nor prejudiced the appellant nor occasioned a failure of justice."
12. In the aforesaid case, the case-law of Hon'ble Supreme Court, State v. Ajab Petition No, 1986-K of 2001 and a case reported in PLD 1986 Federal Shariat Court 242 was relied upon.
13. In view of above circumstances, non-availability of certificate as required under section 364, Cr.P.C. Is an irregularity which can be cured under section 537, Cr.P.C. Thus the arguments of the learned counsel for the appellant has no force.
14. Now coming to the factual aspect of the case the prosecution has relied upon the evidence of Islamuddin, complainant, his wife Mst. Rukhsana, P.W.Sajid and I.O. Safeer. The complainant in his statement stated that he had gone for condolence of his relative on his motorcycle along with his wife Mst. Rukhsana where the chain of the motorcycle was broken and he went to trace the mechanic leaving his wife Rukhsana there. In the meantime, the appellant along with a lady came and snatched the gold bangles on show of pistol from Mst.. Rukhsana and while going from the scene, P.W. Sajid who was available in his Hi-Roof Suzuki seeing the situation fired from his own licensed pistol upon the person who after committing the robbery was going away on his bike. The said shot hit him, he fell down and thereafter ran away from there on the said motorcycle while the lady ran away with her other accomplice. Thereafter the said injured was admitted in the Jinnah Hospital where the complainant and his wife were called by P.W. ASIP Safeer. The accused was identified by P.W. Rukhsana in the operation theatre of Jinnah Hospital in presence of complainant and P.W. ASI Safeer Ahmed. The P.W. Rukhsana during her evidence before trial Court has identified the accused and property. The complainant Islamuddin and ASI Safir have also supported her version regarding identification of the accused at hospital by P.W. Rukhsana. Their evidences is consistent on material points and the minor inconsistencies in their evidences are inconsequential in nature. No enmity was alleged by the accused against these witnesses for his false implication.
15. On the point of recovery, the Investigation Officer namely Muhammad Nadeem Siddiqui has stated that the present accused led him to Nursery wherefrom he produced the motorcycle. The said recovery was held in presence of complainant and P.W. Arsalan, the son of the complainant.
The contention of the learned counsel that compliance of section 103 has not been made is without substance because the said recovery was not made from any house but the accused himself has led police to the place of recovery, therefore, the prosecution has proved the recovery through I.O.
Complainant and his son Arslan who are mashirs of recovery, beyond reasonable shadow of doubt.
16. In my humble view the case of prosecution against the accused/appellant was based upon the testimony of the prosecution witnesses whose statements are consistent on material points and confidence-inspiring. The contradictions in the prosecution witnesses are minor in nature and immaterial not enough to "shatter the prosecution evidence. It has also been not brought on the record that any of the witnesses had any mala fide against the accused. The case of the prosecution regarding the receipt of the injury by the appellant at the hands of P.W. Sajjad are supported by P.W. Sajjad and the accused in his statement under section 342, Cr.P.C. Has simply denied the version of the prosecution and did not set up any defence, however, under section 340(2), Cr.P.C. On oath he himself has admitted sustaining of the injury at the hands of unknown person and his admission in Jinnah Hospital in consequence of these injuries/wounds. The P.W.
Muhammad Ramzan, brother of the appellant has also deposed same facts hence this plea of the appellant on the contrary has supported the prosecution version. The contention of the learned counsel for the appellant that P. Ws. Are related inter se therefore are not reliable is not convincing because nothing has been brought on record that they have any animus with the appellant, therefore, such contention is repelled. The case against the accused/appellant stood established for the alleged charge, hence the judgment of the trial Court required no interference thus is maintained. The appeal stands dismissed. #EndJudgment