' SAYYED MAZAHAR ALI AKBAR NAQVI, J.---Through this single order I intend to dispose of Criminal Revision No.831 of 2012 filed by Naveed/petitioner and Criminal Revision No.1095 of 2012 filed by Muhammad Rafique/petitioner, as both are arising out of one and the same judgment of the learned trial Court.
2. Naveed son of Muhammad Arif, caste Ghuman, resident of Waryam Bhattian, Police Station Hujra Shah Moqeem, Tehsil Depalpur, District Okara (petitioner in Criminal Revision No.831 of 2012) and Muhammad Rafique son of Allah Ditta, caste Khokhar, resident of Chak Fateh Muhammad, Kanganpur, Tehsil Chunian, District Kasur (petitioner in Criminal Revision No.1095 of 2012), along with Najaf, Mubashar and Awais, were involved in case F.I.R. No.508, dated 31-8-2010, offence under sections 397, 412, 109, P.P.C., registered at Police Station Hujra Shah Moqeem and were tried by Mr. Ghulam Shabbir Hussain Gill, learned Magistrate 1st Class, Depalpur. The learned trial Court seized with the matter in terms of judgment dated 2-2-2012 convicted the petitioners under section 395, P.P.C., read with section 397, P.P.C., and sentenced each of them to undergo R.I. For seven years with direction to pay Rs.45,000 as fine. Benefit of section 382-B, Cr.P.C. Was also extended in favour of the petitioners. The conviction recorded by the learned trial Court was assailed by the petitioners through their respective appeals and the learned appellate court through consolidated judgment dated 11-7-2012 dismissed the same. Validity of judgments of both the learned courts below has been questioned through these petitions.
3. Facts of the case already stand mentioned in detail in the judgments of the learned courts below, therefore, I don't feel necessary to repeat the same here.
4. Learned counsel for the petitioners while addressing the Court contended that the impugned judgments of the learned courts below have been passed in a slipshod manner without adverting to the real facts of the case; thereby committing grave misreading and non-reading of the prosecution evidence available on record. Learned counsel representing Naveed/petitioner submitted that his date of birth is 5-8-1994 and at the relevant time he was minor. He further added that despite the fact that the birth certificate was exhibited (Exh.DC) during the course of trial, however, neither the learned trial court nor the learned lower appellate court took notice of this fact, which even otherwise carries much significance. It was vehemently argued that as a matter of fact mother of Naveed namely Fazeelat Bibi was divorced by Muhammad Arif and on the demand of the petitioner for his share in inheritance, false story was cooked by the complainant.
Learned counsel emphasized that although Naveed/petitioner was closely known to the complainant and other prosecution witnesses, however, he was shown as unknown accused in the first portion of the crime report. Learned counsel further submitted that nevertheless gold measuring 21-Tolas was alleged to have been snatched, however, only a meagre quantity (1.4 anaa) was recovered despite the fact that the petitioners and their co-accused were arrested just after the occurrence near the place of occurrence. Moreover, the independent witnesses, who had encircled the accused at the time of their arrest were neither produced during the course of investigation nor during the course of trial. It was next argued that the firearms (crime weapons) recovered from the petitioners were not sent to the office of Forensic Science Laboratory and despite the fact that indiscriminate cross firing was alleged, however, none received a scratch as a result of firing, hence in these circumstances, learned trial Court fell in error in recording conviction against the petitioners, which aspect also escaped notice of the learned appellate court. Learned counsel finally prayed for setting aside the impugned judgments of the learned courts below.
5. Contrarily, learned Deputy Prosecutor-General assisted by learned counsel for the complainant/respondent No.2 while supporting the judgments of the learned courts below, opposed the contentions raised by learned counsel for the petitioners. Learned counsel for the complainant submitted that both the petitioners are duly named in the crime report with specific role, who were apprehended by the complainant party with the help of inhabitants of the locality after cross-firing. Learned counsel vehemently argued that at the time of spot inspection the Investigating Officer had collected thirteen crime empties. Moreover, during the course of investigation stolen golden article was also recovered from Naveed/petitioner. The main accused namely Muhammad Nawaz, learned Deputy Prosecutor-General submitted, is still fugitive from law.
It was further argued that during the course of investigation the petitioners were found guilty as such their names were placed in column No.3 of the reported prepared under section 173, Cr.P.C.
Finally it was submitted that while appreciating the prosecution evidence in its true perspective the learned trial Court recorded conviction, which was rightly maintained by the learned appellate court below.
6. I have considered the arguments advanced by learned counsel for the petitioners, learned counsel representing the complainant/respondent, as well as, learned Deputy Prosecutor-General and gone through the record available on file.
7. There is no cavil to this proposition that the occurrence had taken place on the night between 30-8-2010 and 31-8-2010 at 12-30 a.m. And the F.I.R. In this regard was lodged at 3-45 a.m. (night), however, in the earlier part of the crime report none of the accused was named rather five unknown accused persons were mentioned and it was in the second part of the crime report; wherein all the accused were named including Naveed/petitioner. An important aspect of the ,case, which cannot be lost sight of easily is that Naveed was born out of the wedlock of Muhammad Arif and Fazeelat Bibi and as per divorce deed available on record as Exh.DB, the marriage tie was dissolved between the parties on 6-3-2008. The claim of Naveed petitioner is that there was a dispute over division of inheritance and in order to solve the issue, the petitioners along with other accused had visited the complainant house, however, the same could not be patched up and after altercation, they were given severe beatings and subsequently booked in a. False case as behnoi of the complainant was enjoying the seat of SHO in the area. Nevertheless this stance of the petitioners cannot be taken as a gospel truth, however, the factum of divorce between the spouses gives support to the fact that possibility cannot be ruled out that Naveed/petitioner along with others might have visited the house of the complainant to resolve the issue with regard to division of inheritance.
' As far as claim of Naveed petitioner that he was minor at the relevant time is concerned, this Court is conscious of the fact that no application was filed by Naveed petitioner for his separate trial under Juvenile Justice System Ordinance, 2000, however, astonishingly the factum of undisputed birth certificate was neither attended to by the learned trial Court nor it was dealt with by the learned lower appellate court while deciding the appeal.
8. As per contents of the crime report the petitioners along with other co-accused all armed with firearms had attacked upon the complainant party and there was exchange of indiscriminate firing and subsequently when after looting golden articles and currency amount when the accused tried to flee away, they were encircled by the complainant party and other inhabitants of the locality. If this version is presumed to be true as it is, admittedly not a single person from both sides received a minor scratch of firearm. The only injury alleged on the ankle of Sajid, P.W., was declared as swelling. Moreover, neither during the course of investigation nor during the course of trial any independent witness from the locality, especially when it is the claim of the complainant that many persons from the surrounding houses had attracted to the spot and by their collective effort the accused were caught hold, was produced and this aspect creates dents in the genuineness of the prosecution story coming from the mouth of Sajid, P.W. It is also worth mentioning that there is no independent corroboration to the statement of Sajid P.W. On record either oral or documentary and Majd, P.W., the other alleged witness of the occular account was given up during the course of trial.
9.As per prosecution version the accused had looted 21-Tolas golden articles, however, nevertheless the accused were apprehended immediately after the occurrence, however, only 1.4 anna (1 masha) gold was recovered from Naveed/petitioner and there is nothing on record that what happened with the remaining golden articles. Similarly, nevertheless the prosecution witnesses had claimed that both the petitioners along with their other co-accused had made firing and not only the police had recovered crime weapons rather at the time of spot inspection, the Investigating Officer had also collected crime empties from the place of occurrence, however, surprisingly those were not sent to the office of Forensic Science Laboratory for comparison. Even there is not an iota of evidence to establish that the crime weapons allegedly recovered from the petitioners were in working condition or not.
10. All these facts and circumstances discussed above when put side-by-side create serious doubts in the authenticity of the prosecution version going to its roots. However, if the factum of date of birth of Naveed petitioner is examined on the touchstone of undisputed birth certificate, which was also exhibited as Exh.DC during the course of trial, the proper recourse seems to be remanding the case back to the learned trial Court for determination as Juvenile and in case that is true then his independent/separate trial. But at the same time while exercising revisional jurisdiction, this Court is also competent to go into facts of the case and form its independent opinion keeping in view the facts and circumstances floating on the record. However, the superior courts appreciate for determination of authenticity of the prosecution evidence in revisional jurisdiction rather remanding back on petty grounds. Respectful reliance in this regard is placed on the ratio decidendi of august Supreme Court of Pakistan in the case of Muzaffar Hosain and 11 others v. The State (1968 SCM R 1429);' wherein it was held as under:-- "Criminal Procedure Code (V of 1898). Ss. 435 & 439---High Court in revisional jurisdiction, competent to go into facts as well---High Court assessing evidence itself instead of sending case back to lower Court---Course adopted by High Court, held, wise."
11. Moreover, it is settled principle of law that this court while exercising revisional jurisdiction under sections 435/439 of the Criminal Procedure Code, 1898, cannot only go into the evidence for its evaluation 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 Anwar and another v. Crown (PLD 1955 FC 185). Similar view was further affirmed by their Lordships in the august Supreme Court of Pakistan in the reported judgment in the case of Abdul Rehman Bajwa v.
Sultan and 9 others (PLD 1981 SC 522).
12. In this backdrop, keeping in view the above narrated facts and circumstances that despite closely related to the complainant side, which has also been admitted by Muhammad Sajid, P.W., Naveed petitioner was shown as unknown in the first part of the crime report; nevertheless indiscriminate firing was alleged, however, there was no scratch of fire arm injury on any person from either side coupled with the fact that no independent witness came forward to support the prosecution case either during the course of investigation nor during the course of trial, as well as, nothing was recovered from the petitioners except meagre quantity of gold despite the fact that as prosecution version 21-Tolas golden articles were snatched, persuade this Court to believe that the prosecution failed to establish link of the petitioners with the commission of offence and the learned trial Court was not justified in passing conviction and similarly learned appellate court also fell in upholding the conviction and sentence. Resultantly, Criminal Revision No.831 of 2012 filed by Naveed and Criminal Revision No.1095 of 2012 filed by Muhammad Rafique/petitioners, are accepted in toto as a consequence conviction and sentence recorded by the learned trial Court vide judgment dated 2-2-2012 and maintained by the, learned Additional Sessions Judge vide judgment dated 11-7-2012 is set aside. Both the petitioners are ordered to be acquitted of the charge in case F.I.R. No.508, dated 31-10-2008 offence under sections 397, 412, 109, P.P.C., registered at Police Station Hujra Shah Moqeem and they are directed to be released forthwith if not required in any other case.