NAIMATULLAH PHULPOTO, J.---Appellants/accused Munawar Alam Khan, Muhammad Naseer and Muhammad Zeeshan were tried by Mr. Abdul Kareem Ansari, learned IV Assistant Sessions Judge, Central Karachi for offences under sections 392, 34, P.P.C. On conclusion of trial appellants were found guilty by judgment dated 21-7-2009 and they were convicted under sections 392/397/34, P.P.C. And sentenced to 5 years' R.I. And to pay fine of Rs,10,000 each, in case of default in payment of fine accused were ordered to suffer S.I. For five months more. However, accused were extended benefit of section 382-B, Cr.P.C.
2. Appellant Muhammad Naseer through jail has filed appeal whereas appellant Munawar Alam Khan has challenged the aforesaid conviction recorded the trial Court. As both appeals arise out of the same judgment, therefore, I intend to dispose of both appeals by a single judgment.
3. Brief facts of the prosecution case leading to the filing of the instant appeals are that on 11-6- 2007 complainant lodged his F.I.R. Alleging therein that incident took place at 11:15 hours in his jewellery shop where he along with his brother Ilyas was dusting the shop. It is alleged that two young unknown accused persons appeared, they were armed with pistols. It is alleged that they inquired about Idrees. Therefore, culprits issued threats to the complainant and his brother, in the meanwhile, employees of the complainant P. Ws. Suleman and Anees entered into the shop.
Appellants/accused took ornaments of the gold, diamond ring of Rs,175,000, prize bonds of Rs,200, Rs,1,500, Rs,750 and Rs,7,500, cash Rs,35,000 and 4000 Saudi Riyal. Culprits after commission of offence succeeded in running away. Complainant went to the police station and lodged F.I.R. It was recorded vide Crime No,68/2007 under sections 392, 34, P.P.C. During investigation appellant Munawar Alam Khan was arrested on 8-7-2007, he led police and produced cash of Rs,25,000 from his house. Other accused were also arrested on 15-7-2007. Without holding identification parade, on the completion of investigation challan was submitted against the accused under above referred sections.
4. Charge was framed against the appellants at Exh.2 for offences under sections 392, 34, P.P.C.
Accused pleaded not guilty and claimed to be tried. At the trial, prosecution examined the following witnesses:--
(i) P.W. Muhammad Idrees at Exh.5
(ii) P.W. Muhammad Anees Farooqui at Exh,6.
(iii) P.W. Ali Gohar at Exh.7
(iv) P.W. Muhammad Iqbal at Exh.8
(v) P.W. Shahnawaz Memon at Exh.9 There after, prosecution side was closed by D.D.P.P. Vide his statement elated 30-5-2009 at Exh.11.
5. Trial Court recorded statements of appellants/accused under section 342, Cr.P.C., in which they claimed false implication in this case and denied the prosecution allegations, recoveries have also been denied and it is stated that prosecution case is false. Accused did not lead any defence and declined to give statement on oath in disproof of prosecution allegations.
6. After assessm ent of evidence and hearing the learned counsel for the parties, trial Court found the accused guilty and convicted and sentenced them as stated above.
7. Learned advocate for appellant Munawar Alam Khan argued that name of the appellant did not transpire in the F.I.R. And he was arrested on 8-7-2007 but no identification parade was arranged.
He has submitted that recovery of Rs,25,000 after 7 days of arrest of accused was highly doubtful.
He has also submitted that recovery was also made in violation of section 103, Cr.P.C. It is also argued that no substantive piece of evidence has been brought on record to connect the appellant in this case. He has submitted that prosecution case is highly doubtful. In support of his contentions he relied upon the case of The State v. Bashir and others (PLD 1997 SC 408).
8. Mr. Zafar Ahmad Khan, learned Additional Prosecutor-General Sindh argued that appellant Munawar Alam Khan had produced the robbed cash of Rs,25,000, which connected him in the commission of offence. He has argued that prosecution has proved its case and supported the judgment recorded by the trial Court.
9. After hearing the learned counsel for the parties, I have scanned the entire evidence.
10. It appears that complainant Muhammad Idrees in his evidence has deposed that after one week of the incident he was called by police at police station where he saw the accused Zeeshan and he was prepared to produce robbed articles and accused Zeeshan produced ornaments of gold from the upper room of a house. He has further deposed that accused Zeeshan along with his companions committed offence. Simply he has deposed that accused Naseer present in the Court is same. P.W. Anis Farooqui who is eye-witness has also deposed that after one week of the incident, Inspector Shahnawaz informed the complainant that he has arrested some accused persons and recovered robbed articles from them. He along with complainant went to the police station where accused Zeeshan produced ornaments of gold to Inspector Shahnawaz Nothing incriminating has been deposed against appellant Munawar Alam by him. HC Muhammad Iqbal has deposed that accused Munawar Alam was arrested and he admitted before the police that some amount is lying in' his house situated in Qasimabad, Karachi and produced cash Rs,25,000 from his house.
11. From perusal of the evidence it is crystal clear that names of the accused persons did not transpire in the F.I.R. No specific role has been assigned by eye-witnesses against appellant Munawar Alam. Appellant Munawar Alam Khan was arrested on 8-7-2007 but he was not put to identification parade through eye-witnesses of the incident. Holding of identification test becomes necessary in a case where names of the culprits are not given in the F.I.R. Holding of such test is a check against false implication and it is a good piece of evidence against genuine culprits. Holding of identification test could not be dispensed with in this case, simply because present accused after committing the robbery have been subsequently found in possession of robbed cash. It is the case of the prosecution that cash of Rs,25,000 was produced by the appellant Munawar 'Alam Khan from his house. Appellant has raised specific plea that he has been involved falsely in this case as he belongs to a political party. Prosecution has also not brought cogent evidence on record to show that box lying in the house of Munawar Alam Khan in which he had kept cash of Rs,25,000 was in his exclusive possession. It may be mentioned here that as provided by Articles 37 to 39 of the Qanun-e-Shahadat Order, 1984, confession made by an accused person, while he is in police custody, is not admissible. However, if something related to the case is recovered or any face is discovered in consequence of the information conveyed by the accused person, then the information so received would be admissible in evidence within the purview of Article 40 of the Qanun-e-Shahadat Order, 1984 because the presumption would be towards its truthfulness. It would be advantageous to reproduce herein below the said Article which reads as follows:-- "40. When any fact is deposed to as discovered in consequence of information received, from a person accused of any offence, in the custody of a police officer, so much of such information whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, maybe proved."
But if nothing in consequence of the disclosure is recovered or discovered then the information so received by itself would not be admissible. For instance, if in consequence of a statement made by the accused to the police, a weapon used in the offence is recovered, then the fact so, discovered would become relevant. Needless to point out that in such an eventuality it would still be necessary for the prosecution to prove that the recovered cash belonged to complainant party. Prosecution has failed to prove it by direct evidence. There is material contradiction in the evidence of HC Muhammad lqbal and Investigating Officer Shahnawaz with regard to the mode of recovery from appellant Munawar Alam. P.W. HC Muhammad Iqbal has deposed that brother of accused Munawar Alam produced amount of Rs,25,000 lying in the house in a box. Prosecution has no reply to resolve such ambiguity in evidence.
12. For the above stated reasons, case against appellant Munawar Alam Khan appears to be highly doubtful. Trial Court has recorded conviction against accused Munawar Alam on mere surmise and not on any evidence. There was no confidence inspiring evidence to establish charge against above appellant. A conviction is certainly not to be based on the weakness of defence, but only on the strength of prosecution case.
13. The concept of benefit of doubt to an accused person is deep-rooted in our Country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts.
If there is a circumstance, which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right, as held by the honourable Supreme Court in the case of Tariq Pervez v. The State (1995 SCMR 1345). In the present case, there are several circumstances as discussed above, which create reasonable doubt in the prosecution case.
14. For the above stated reasons and while relying upon the above cited authority, I have come to the conclusion that prosecution has failed to prove its case against the appellants/accused beyond any reasonable doubt. Judgment of the trial Court is not sustainable under the law, appeal filed by appellant Munawar Alam Khan is allowed. Consequently, conviction and sentence recorded against the appellant is set aside. Appellant Munawar Alam Khan is acquitted of the charge. He is present on bail, his bail bond stands cancelled and surety stands discharged.
15. Superintendent, Central Prison, Karachi has reported that appellant Muhammad Zeeshan has been released on 5-8-2010 on expiry of sentence on remission system.
16. As regards to the Criminal Jail Appeal No,275 of 2009 filed by Muhammad Naseer is concerned, it is reported by the Superintendent, Central Prison, Karachi vide his letter dated 26-5-2011 that appellant Muhammad Naseer has been released from the jail on 28-6-2010 after expiry of sentence on remission system and payment of full fine. Several notices were issued to appellant Muhammad Naseer for his appearance to pursue his appeal but he failed. Therefore, Criminal Jail Appeal No,275 of 2009 filed by appellant Muhammad Naseer has become infructuos and it is accordingly disposed of.