ABDUL RASOOL MEMON, J.---This Criminal Appeal is directed against the judgment dated 21-12- 2013 passed by learned VIIIth Assistant Sessions Judge, Karachi East, whereby the appellant/accused was convicted and awarded sentence under section 392, P.P.C. To suffer R.I. For 7 years and to pay Rs,50,000 and in case of non-payment thereof, he will have to suffer SI for two months. Accused was also extended benefit of section 382-B, Cr.P.C.
2. Brief facts of the case according to the F.I.R. Lodged by complainant Allah Rakha are that on 28- 12-2011 he after taking night meal went to sleep along with other family members. At about 0300 hours (night) on commotion complainant woke up and saw four muffled faces persons present in his room, out of whom one had rifle and three had pistols. They on gun point asked complainant to remain silent and then took out gold and silver ornaments so also other valuable articles from his room and the room of his children. The culprits remained in the house or complainant for about one hour and in the meanwhile took search of whole house, while leaving the house they issued threats to complainant party not to raise cry otherwise they would be killed. After going of accused, complainant party check the house and found 18 tola gold, 30 tola silver, one wrist watch, one Digital Camera, one Samsung mobile phone and cash of Rs,6,000 missing and stolen away. On 3- 1-2012 complainant registered F.I.R. Against unknown accused. SI Ahmed All Halepota took up the investigation but could not trace out the accused and submitted final report under "A" class.
However, appellant/accused Munawar was arrested by SIC East Police in some other case and during interrogation admitted his guilt about the present case and disclosed the names of co- accused as Tallat alias Shikari, Sarfraz Bagga, Asif Langra and one Haqiqui activist. Consequently, he (Munawar) and accused Muhammad Asif alias Langra were arrested. During interrogation both the accused confessed their guilt and led the police to their houses, where accused Munawar got produced Digital Camera from his house and accused Asif got produced a citizen gold colour wrist watch from his house. They further disclosed that other robbed property had been taken away by co-accused who could not be arrested.
3. On completion of investigation, challan against the accused was put up in concerned Court of Magistrate, ultimately made over to VIIIth Assistant Sessions Judge, Karachi East for trial where the prosecution examined ASI Munawar Abbas (P.W.1), HC Kamran Khan (P.W.2). Allah Rakha complainant (P.W.3) and SIP Ahmed Ali 1.0. (P.W.4) and thereafter, closed the side.
Appellant/accused was also examined under section 342, Cr.P.C. Accused repudiated the prosecution allegations and professed innocence. He, however, neither examined himself on Oath in disproof of the charge as required under section 340(2), Cr.P.C. Nor produced any evidence in defence.
4. After considering the material available on record, the learned trial Court convicted the accused and awarded him sentence as mentioned in opening Paragraph vide impugned judgment.
5. Mr. Asghar Ali Khan, learned counsel for the appellant argued that the name of the appellant does not appear in F.I.R.; that there is no identification test of the appellant held before any Magistrate; that identification of the appellant in Court without holding identification test created shadow of doubt upon the prosecution case, that the recovery of digital camera on the pointation of accused is not supported through an independent evidence and appears to be doubtful; that the complainant in his statement has made improvements and his evidence is contradictory to the F.I.R. And there is no any sort of corroboration to compare from other inmates of the house; that the benefit of doubt has been created by the appellant and its benefit should be given to him a matter of grace or concession but as' a matter of right.
6. Conversely, Mr. Muhammad Iqbal Awan, learned D.P.-G. Contended that the prosecution evidence is constant, trustworthy and inspiring confidence as no enmity has been alleged against complainant Allah Rakha by the present appellant; that the contention of the complainant has not been rebutted by the defence counsel in cross-examination, which is fully supported with recovery of robbed property viz. Digital camera and the prosecution has proved the case against the accused beyond any reasonable doubt, therefore, the trial Court was justified in awarding conviction to him.
7. Having heard the submissions of learned counsel for the parties in the light of material available on file. I find that the prosecution has not been able to prove its case satisfactorily against the appellant I accused for the reasons that only complainant has been examined as an eye-witness of the alleged incident said to have taken place in the house of complainant and that too after hostage of whole family but no other inmates of the home has been examined to corroborate his version. Furthermore, the evidence of complainant is contradictory with his own version given in the F.I.R. In the F.I.R. Accused were shown to be present with muffled faces at the time of alleged incident and he stated to have seen the laces of accused while leaving the place of complainant could not see their faces but in his statement before Court, occurrence and one of them was speaking Urdu. There was no such mention in the F.I.R., consequently, it can safely be deduced that he (complainant) had improved his testimony in Court. It is settled law that person making contradictions and improvements cannot be held worthy of credence, if any law is needed on this point, reliance may be placed on the cases reported in 1984 SCMR 42, PLD 1981 SC 472 and 1977 SC 557.
8. Apart from above complainant stated that in the month of July (after six months of the alleged incident) he was called by I.O. At P.S. And was informed about the accused where he came to know about the names of accused. However, he identified the accused in trial. It is admitted fact on record that accused was not put to any identification B test. Of course, the substantive evidence of a witness is his statement in the Court but the object of identification test is to test that evidence and the sale rule is that the testimony of the witness in Court as to the identity of the accused who was stranger to the witnesses, generally C speaking required corroboration which should be convincing evidence or in the form of an earlier identification proceedings. In case of Farman Ali v.
State (1997 SCMR 971), it has been observed that:- "Holding of identification test becomes necessary in cases, 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 the genuine culprits."
9. Admittedly, the alleged incident took place on the night between 28/29-12-2011, whereas appellant/accused was arrested in this case on 19-7-2012 (after more than six months) and complainant was examined in Court on 21-11-2013. It is common sense that the memory of a person fades away with passage of time. It has not been disclosed as to how the complainant was able to watch full face of the culprits as according to him they were muffled faces but while leaving the place of occurrence showed their faces. It could not he perceived that accused who came for commission of an offence with muffled faces and after accomplishing it in last would show their faces to the victim of alleged offence to make him able to identify them later on if they are arrested by police. It is beyond belief. If they had no intention of concealing their identity, they would not have covered their faces at the first instance, thus, this part of the statement is nothing but dishonest improvement on the part of complainant.
10. That there is also recovery of digital camera shown to have been made on the pointation of appellant/accused from his house. As per memo. Of recovery produced at Exh.5/A, during the interrogation present appellant and co-accused Muhammad Asif admitted their guilt and led the police to their respective houses and from there appellant took out a digital camera and produced before police, disclosed, to be robbed property. Surprisingly, these contents of memo. Of recovery are not supported by I.O. Of the case SI Ahmed in his examination-in-chief. Besides that complainant did not give any particular of Camera in F.I.R. Lodged by him nor even in his statement before the Court. Article like a digital camera is common and it can easily be arranged from open market and foist upon any one. In absence of particular mark of identification of alleged camera, the so-called its recovery is not sufficient to corroborate the prosecution case against present appellant. The evidence of other P.Ws. Is of formal in nature need no further discussion. In the circumstances discussed above, I have no hesitation in holding that the prosecution has failed to prove beyond reasonable doubt, the guilt of appellant, therefore, he has to be given the benefit of doubt.
11. In the result, for the reasons given hereon, on 19-8-2014. I allowed the appeal of the appellant and set aside the conviction and sentence passed against him and ordered his release forthwith from jail unless required on any other charge.