' HASAN FEROZ, J.---By this judgment, I intend to dispose of above criminal revision application moved on behalf of applicants/accused named-above who being aggrieved of the judgment dated 5-8-2013 as passed by Mr. Munir Bakhsh Bhutto, learned 1st Additional Sessions Judge, Mirpurkhas in Criminal Appeal No,8 of 2012 have preferred the captioned criminal revision application challenging its legality and propriety inter alia on the grounds taken in the revision application, with the prayer to set aside the said impugned judgment in Criminal Appeal No,8 of 2012 and so also the judgment of conviction as passed by learned Civil Judge & Judicial Magistrate-II Mirpurkhas in Criminal Case No, 137/2011 whereby the applicants/accused were convicted and sentenced to undergo R.I. For two years each and to pay fine of Rs,2000 each and in default of payment of fine amount, to suffer S.I. For three days more, however, benefit of section 382-B, Cr.P.C. Was extended to them.
2. Facts giving rise to the filing of instant criminal application that the applicants/accused were tried for offence under sections 381/A and 34 P.P.C. Being outcome of F.I.R. No, 73 of 2011 registered at Police Station Phulladiyoon. This F.I.R. Was registered on 13-10-2011 on the report of complainant Mashooque Ali son of Sajjad Shar, resident of Village Mir Khan Shar, presently residence of Phulladiyoon Taluka Sindhri whereby the said complainant reported that on 7-10-2011 at about 15:20 hours he parked his motorcycle. CD Engine No,2864352, Chassis No,401100 AJ Model 2010 black colour in front of his house situated in Phulladiyoon Town Taluka Sindhri and after 15 minutes when he came back, he saw that his said motorcycle was missing and so he started search for his said motorcycle, meanwhile P.W. Ali Nawaz alias Bux Ali and P.W. Deedar met with him who disclosed that his motorcycle was stolen away by accused Sajjad Ali, Atta and Muhammad Bux alias Papoo.
Thereafter according to complainant he met to the accused persons for return of his said motorcycle which was stolen but he was kept on false hopes and finally accused persons declined to return back said motorcycle and then he went to the Police Station where he lodged the captioned F.I.R. The investigation pursuant to the above registration of F.I.R. Commenced and, finally, the report under section 173, Cr.P.C. Was sent up against accused/ applicants to stand trial.
3. Formal Charge was framed on 2-12-2011 to which applicants/accused pleaded not guilty and claimed trial alleging innocence and thereafter evidence of prosecution witnesses namely Mashooque Ali Exh.6, Ali Nawaz alias Bux Ali Exh.7, Hakim Ali Exh.8, H.C. Muhammad Yaqoob Exh.9 and SIP Imam Ali Exh.10 were recorded through these witnesses prosecution brought on record F.I.R.
At Exh. 6/A, mashirnama of place of incident Exh.8/A, mashirnama of arrest at Exh.8/B and Exh.10/A mashirnama of arrest and recovery. After the close of the prosecution side, examination/statement of applicants/ accused were recorded under section 342 Cr.P.C. At Exhs. 12 to 14 who claimed their innocence and had denied to the commission of the charged offence. However, they declined to examine them on oath under section 340(2), Cr.P.C. As witness in their defence, nor examined any witness in their defence. Thereafter impugned judgment dated 31-7-2012 was passed by the learned trial court whereby the appellants were convicted and sentenced as aforesaid and appellants being aggrieved and dissatisfied with the said judgment had preferred Criminal Appeal No, 8 of 2012 to which came up for hearing before learned 1st Additional Sessions Judge Mirpurkhas on 5-8-2013, when the said appeal was dismissed with observation that the judgment as passed by trial court needs no interference and applicants being aggrieved have approached to this forum through instant criminal revision.
4. It has been contended on behalf of the applicants/accused that impugned judgment as passed by the learned appellate court is not sustainable in law and on facts and so same on merits to be set aside as doubt crepts from inception that no registration number of motorcycle was given in F.I.R. And even complainant has not disclosed the registration number of said motorcycle during his evidence and the two courts below have failed to attach any importance to such glaring aspect. She has further contended that the judgment as passed by the learned court below is the result of misreading and non-reading of evidence on record and without adhering to the principle of fair justice, depended upon the baseless prosecution and according to learned counsel complainant is not owner of said motorcycle and so also the original owner was not examined by the police as well as in court and the material contradictions have not been attached to importance by the court below, the complainant is not an eye-witness of the alleged incident and the F.I.R. Was lodged by him on hearsay information of others, the F.I.R. Is belated one and P.W. Ali Nawaz alias Bux Ali is residing in the village of complainant and he is not a resident of Phulladiyoon and similarly P.W. Deedar Ali is not the resident of Phulladiyoon and the mashirs of arrest are also not the resident of the same locality and no notice of this aspect was taken by he courts below and no importance was attached to this material aspect, as such, the mpugned judgment as passed by the earned appellate court and so also the one )assed by the learned trial court merits to )e set aside by this court in exercise of the evisional powers conferred as according to ter the serious miscarriage of justice has esulted. She has also referred to the ,vidence recorded at trial and has contended that it was the duty of the appellate court to have framed the points for the purposes of determination of the criminal appeal, which was not done and straight away the appeal was decided on the submissions made at the time of hearing of the criminal appeal. She has contended that it is for the appellate court while disposing the appeal to have considered each and every aspect of the matter and since according to her, the judgment as passed by the learned appellate court is the result of adopting slipshod method, such practice in no way can be appreciated and rather such practice ought to be deprecated. In support of her submissions she has cited the case of Nur Elahi v. The State and 2 others, reported in PLD 1966 S.C. p.708, Pahalwan Machhi v. Abdul Wahid and another reported in 1991 PCr.LJ Karachi 728, Patasho v. The State Reported in 1997 MLD 1689, Naveed and another v. The State reported in 2014 PCr.LJ Lahore p.250 and she has prayed to allow the instant revision and to set aside the judgments of the court below.
5. On the other hand learned D.A.G. Appearing on behalf of the State vehemently opposed the revision in hand and has contended that during trial held before the learned trial court sufficient evidence was adduced by the prosecution and so the trial court was justified in passing the impugned judgment of conviction and contended that the learned appellate court have examined each and every aspect of the matter and since there was no case made out for the learned appellate court to make any sort of interference in the judgment as passed by the learned trial court, it was justified in dismissing the captioned criminal revision application and further according to her the scope of revision is limited.
6. I have considered the submissions made before me and have in depth examined the material available on record.
7. Being conscious of the Revisional Jurisdiction, I would like to mention here that scope of revision is limited, in-as-much as the revisional jurisdiction is exercisable in cases and my this view gets support from the decisions of the Honourable Superior Court as appeared in PLD 1982 S.C. (AJ&K) P- 13 & PLD 1983 S.C. Page-73. In the decision of the honourable Superior Courts as appeared in PLD 1981 S.C. Page-352 it was laid down that High Court can go into question of fact. In the decision of the honourable Superior Court as appeared in 2005 YLR Page-2325, it was laid down that revisional court has jurisdiction to correct the error resulting from non-reading, misreading of evidence or where the courts below failed to exercise jurisdiction vested in them and I may also refer to the decision of the honourable Superior Court as appeared in PLD 1999 Karachi Page-144, wherein it was held that appellate Courts can interfer for correction of manifest illegality or prevention of gross miscarriage of justice.
8. After having a deep glance on the scope of revision, the powers conferred therein and so also the law applied thereto, since on behalf of the applicants/accused it was vehemently contended that the learned appellate Court has failed to have examined and discuss the evidence adduced at trial by the prosecution, I feel it necessary to observe that no doubt it was the bounden duty to which heavily lay on the shoulders of the learned appellate court to have framed the points for determination for disposal of the criminal cases since it was the first appellate court and since there appears to be force in the submissions as made by the learned counsel for the applicants that the learned trial appellate court has failed to observe and appraise the evidence recorded before the learned trial court by the prosecution witnesses, therefore, to meet the ends of justice and keeping in view of the decision of honourable Superior Court as appeared in 2005 YLR Page- 2325 that revisional court has jurisdiction to correct the error resulting from non-reading, misreading of evidence or where the court below failed to exercise jurisdiction vested in them and further since this court while sitting in revision has the jurisdiction to even assess and examine the evidence adduced at trial, therefore, I am of the view that procedural error can be rectified in exercise of powers under section 537, Cr.P.C. And so also it is the basic duty of the Court to exercise its power and authority when facts calling for its exercise are brought to notice or came to notice as I am of the view that 'Revisional Court, is not a 'toothless paper tiger' and it can always exercise its power to correct manifest illegality or to prevent gross miscarriage of justice and in this context I may refer to the decisions of the honourable Superior Courts as appeared in 1993 PCr.LJ 1463 & 1995 PCr.LJ 1835.
9. At the trial prosecution examined witnesses namely Mashooque Ali Exh.6, Ali Nawaz alias Bux Ali Exh.7, Hakim Ali Exh.8, H.C. Muhammad Yaqoob Exh.9 and SIP Imam Ali Exh.10 were recorded and through these witnesses prosecution brought on record F.I.R. At Exh.6/A, mashirnama of place of incident Exh.8/A, mashirnama of arrest at Exh.8/B and Exh.10/A mashirnama of arrest and recovery.
10. P.W. 1 Complainant Mashooque Ali who was examined at Exh.6 had deposed that on 7-10-2011 he went inside his house situated at Phulladiyoon City after parking his motorcycle at the door. After sometime when he returned back his motorcycle was not present there, then he searched for his motorcycle and P.W. Ali Nawaz and Deedar informed him that his motorcycle has been stolen away by Sajjad, Atta Muhammad, Muhammad Bux and Muhammad Nawaz and had seen the accused while they were riding on motorcycle. He then informed to his family members and also met with the nek-mard of locality for the recovery of motorcycle and so also met with the accused persons for the recovery of the motorcycle and accused persons also gave false hopes hence he finally lodged the F.I.R. Which he has brought on record at Exh.3/A. He has also deposed that police inspected the place of incident and prepared such memo and this witness had identified the accused during his evidence saying that they are same.
11 Although learned defence counsel had exhausted the remedy of cross-examination and P.W.
Replied to a question put to him by saying "I did not look the motorcycle while went to my house at 15:00 hours'. His house is situated in a thickly populated area. P.W. Ali Nawaz alias Bux Ali and Deedar met with him in the street situated near to his house. P.W. Ali Nawaz and Deedar are residing in his village and their village is situated at the distance of three kilometer from the Phulladiyoon City. I did not see any person while they were taking away his motorcycle. He has admitted that specific date is not disclosed in the F.I.R. Regarding the contact with the accused persons. When he contacted with nek-mard of accused persons my elder namely Mir Khan was also present. He has admitted that no nekmard is witness in his case. He has admitted that both the P.Ws. Are his relatives and so also accused persons. However, he had denied to the suggestion of the defense that he had deposed falsely".
12. P.W. 2 H.C. Muhammad Yakoob was examined at Exh.9 and he had deposed that on 23-10-2011 he was posted at P.S. Phulladiyoon. On the same day he alongwith SIP Imam Ali Shar had left P.S. In government mobile to which was after making entry in the station diary and after patrolling when they reached Deh Mitho Fakir at 16:30 hours they saw a person coming towards them but he after seeing the police tried to run away but they caught-hold of him and took his personal search and recovery one .30 bore unlicensed pistol loaded with two live bullets in its magazine. On inquiry he disclosed his name as Muhammad Bux alias Papoo son of Nawaz Shar. On inquiry about the motorcycle, accused disclosed that it is stolen property as required in Crime No,73/2011 of Police Station Phulladiyoon. Then SIP Imam Ali prepared such memo of recovery and arrest and he as well as PC Kamal acted as mashir and he brought on record such memo at Exh.9/A.
13. To the learned counsel for defence in his cross-examination he has admitted that there is distance of three kilometer between place of incident and P.S. They reached at place of incident at about 16:30 hours and they stayed 10/15 minutes at the spot. To a question put to him on behalf of the defence he had replied that they saw the accused about three yards distance and accused after seeing the police tried to runaway on motorcycle but they caught hold of him and they apprehended accused while sitting on motorcycle and I.O. Had obtained his signature on the memo. He has admitted that description of pistol is not mentioned in the memo and so also admitted that the mark available on the pistol is not mentioned in the memo. However, he had denied to suggestion of the defence that nothing was recovered from this accused.
14. P.W.3 SIP Imam Ali who was examined at Exh.10 had deposed that on 7-10-2011 he was posted as duty officer at Police Station Phulladiyoon. On the same day complainant came at P.S. And narrated the facts of cognizable offence and he had lodged the F.I.R. Against the accused and he too during investigation inspected the place of incident where he prepared the mashirnama Exh.6/A. He then recorded the statement of witnesses under section 161, Cr.P.C. And then he had arrested accused Sajjad and Atta in presence of mashirs under mashirnama at Exh.8/B and then on 23-10-2011 he had arrested accused Muhammad Bux under memo Exh.9/A. He then on the pointation of accused made recovery of the stolen motorcycle and on completion of investigation filed the charge sheet.
15. During cross to learned defence counsel, the witness has admitted that incident took place on 13-7-2011 and F.I.R. Was lodged on 13-10-2011. Place of incident is situated near the Al-Masoom School to which is surrounded by thickly populated areas. He has admitted that mashirs were called at the place of incident by complainant and both the mashirs are by caste Shar and he also admitted that he too is Shar by caste and he has admitted that at the place of incident no mark of incident was seen. To a question put to him he has replied that accused Sajjad and Atta were arrested on 17-7-2011 from Hashimabad in presence of complainant and mashirs Hakim and Abdul Razzak. He has admitted that complainant had brought the mashirs at the time of arrest in mobile. He has admitted that nothing was recovered from the possession of accused Atta and Sajjad and he arrested accused Muhammad Bux on 23-10-2011 at about 16:30 hours. He has admitted that he know accused Muhammad Bux Shar prior to this incident. He has admitted that the recovered pistol was not sent by him to the FSL for examination. However, he had denied to the suggestion of the defence to have foisted the pistol or that he has deposed falsely.
16. P.W.Hakim Ali had deposed that on 13-10-2011 police came at the place of incident situated at the Phulladiyoon City where police prepared mashirnama in his presence and in presence of co- mashir Abdul Razzak and police arrested to accused Sajjad and Atta Hussain from Hashimabad in his presence and in presence of mashir Abdul Razzak under mashirnama Exh.8/B and he identified the accused to be same.
17. Learned defence counsel had exhausted the remedy to cross-examine this witness wherein he has admitted that place of incident is situated in a thickly populated area and according to him they reached there are 6-00 p.m. And no mark of incident was seen at the place of incident. He has admitted that Al-Masoom School is situated near the house of complainant and police were already present prior to their reaching at the place of incident. He has admitted that place of people of locality also gathered at spot when police came there. He has admitted that he did not record the statement of any person of locality. He had admitted that that P.W. Razzak is not resident of Phulladiyoon. Place of incident is situated about 7/8 kilometer distance from P.S. Phulladiyoon and he has also admitted that place of arrest is situated in populated area. However, he denied the suggestion of the defence that both the mashirnamas were prepared by him at the P.S. And that both the mashirs had signed the memo at P.S.
18. Evidence of other witnesses have not been filed alongwith the memo of revision application.
19. The above perusal of the evidence and, moreso that of complainant Mashooque Ali Exh.06, Hakim Ali Exh.8, Muhammad Yakoob Exh.9 and Imam Ali Exh.10 makes it clear that there appears sufficient doubt which shrouded the very root cause of the case as complainant Mashooq Ali in his evidence recorded at Exh.6 had stated clearly that he had not witnessed the incident as far as theft of motorcycle is concerned and during his evidence further fact came to the light that the motorcycle was parked by him without locking it. No registration number of the motorcycle was disclosed by him in his evidence and, similarly he has not produced any document to even remotely substantiate that said motorcycle was owned by him or it was in his name. P.W.
Muhammad Yakoob in his examination-in-chief had given fanciful story as according to him they saw a person coming towards them at 16-30 hours but he after seeking the police tried to run- away but they caught hold of him and further according to him it was applicant/accused Muhammad Bux alias Papoo who had disclosed that said motorcycle was case property of Crime No,73/2011 to which in my view is more fanciful. Through witness Imam Ali also certain material facts came to light which included relationship of complainant and mashirs and so also it came to light that it was complainant who had called the mashirs. Further it came to light that place of incident as shown by complainant was situated near a school whereas the complainant had stated in the F.I.R. That he parked his motor cycle in front of his house situated in Phulladiyon Town, Taluka Sindhri looking to above I am of the view that there is substance in the submissions as made by the learned counsel for the applicants that material contradictions have not been attached importance by the two courts below.
20. I have in my view the dictum of the honourable Superior Courts as appeared in 2000 SCMR.
735,wherein it has been laid down that Revisional jurisdiction being corrective jurisdiction power of High Court under section 439, Cr.P.C. Was not a power only but a duty whenever facts calling for its jurisdiction were brought to its notice or otherwise came to its knowledge. In Patasho v. The State reported in 1997 MLD 1689 it was held that 'the points raised in this revision at the time of admission, which were found worth consideration were that provisions of section 103 Cr.P.C. Have been violated in this case as the alleged recovery was from as thickly populated town, near a bus stand during day time but the police made no efforts to secure the presence of an independent mashir.
21. In the case in hand as well it came to record as regards gathering of number of persons at the place of incident and so also at the place of arrest recovery shown and since it has come on record that the mashirs cited in fact were procured by the complainant and the said mashirs/witnesses shown being relations of the complainant belonging to his village and further the story as attempted to be fabricated i.e, complainant was informed by the mashirs/ his witnesses as to the taking of motorcycle from the place of incident shown is also not confidence inspiring and rather same casts serious doubts in the prosecution case.
22. The bare perusal of the judgment as recorded by the learned appellate Court which is dated 5- 8-2013 passed in Criminal Appeal No, 8 of 2012 makes it clear that no points were framed for the disposal of the appeal nor importance were attached to material available on record, hence the decision in said appeal whereby mainly basing to the submissions as made by the learned counsel for the appellants and DDPP is a slipshod method adopted by the learned appellate court, which in no way can be appreciated nor would amount to dispensation of fair justice adhering to due process of law.
23. Now reverting back to the legal proposition involved i.e, it is the duty of the prosecution to establish its case beyond any shadow of reasonable doubt and for extending benefit of doubt to accused it was not necessary that there should be many circumstances creating doubt and if there appears a single circumstance which created reasonable doubt in a prudent mind about the guilt of accused then accused was F entitled to benefit of doubt not as a matter of grace and concession but as a matter of right and in this context I may refer to the decision of the honourable superior court as appeared in 2013 YLR 2600. In the decision of the honourable superior courts as appeared in the case of Rehmatullah and others v. The State reported in 2005 PCr.LJ P.60 it was observed that benefit of doubt was always to be given to accused not as a matter of grace, but as a matter of right. As regards matter of appraisal of evidence I may also refer to the case of Rabnawaz v. The State as appeared in 2000 PCr.LJ 1036 wherein it was held that 'Court is duty bound in a criminal case to review the entire evidence led by the prosecution and the defence and after examination of the same if the court is of the opinion that the defence version might be true, the accused becomes entitled to the benefit of doubt, not as a matter of grace but as of right, because the prosecution has failed to prove its case beyond reasonable doubt.'
24. Therefore, after dilating upon justly and fairly on analyzing and assessing the prosecution case and the prosecution evidence the conclusion reached at by the learned trial court and so also the learned appellate court, I feel no hesitation in observing that the courts below have failed to attach importance to certain material contradictions, which in fact have resulted in serious miscarriage of justice and so the impugned judgment as passed by the two courts below are hereby set aside and in the result revision in hand is allowed and the applicants who otherwise have already suffered a lot by firstly remaining in police custody and then in custody during trial as well as pursuant to their conviction, are set at liberty forthwith if they are not required in any other custody case.