AFTAB AHMED GORAR, J.---Appellant Abdul Qayyum son of Muhammad Hussain assailed judgment dated 25-06-2013 delivered by the learned court of VIII-Assistant Sessions Judge, Karachi East in Sessions Case No, 590 of 2012, crime No, 45 of 2012, Police Station Model Colony, registered under Sections 392, 411 and 34 Pakistan Penal Code. Appellant has been convicted and sentenced under Section 265-H(ii), Cr.P.C. for the offence under Section 411, P.P.C. to suffer rigorous imprisonment for three years and to pay fine of Rs,50,000/- and in default thereof to suffer further simple imprisonment for one month. The benefit of Section 382-B, Cr.P.C. was also extended in favour of the appellant.
2. The sum and substance of the prosecution case as is envisaged in the First Information Report are that on the eventful day accused persons by climbing over roof of neighbor house entered into the house of complainant; on show of force of weapons overpowered complainant tied hands of complainant along with his wife and his sons were locked in another room; out of them one stood over them and two co-accused looted household articles from Almirah viz. five different watches, one movie camera, one digital camera, one laptop, cash of Rs,100,000/=, four golden bangles, one necklace, three finger rings; three earrings, bunday, five different mobile phones, Canadian dollar three hundred, one golden bracelet.
3. After usual investigation, Investigation Officer submitted challan before the learned court for the offence under Sections 392, 412 and 34, P.P.C. Compliance of Sections 265-C, Cr.P.C. were carried out at Ex.3. Charge at Ex.3; to the charge accused pleaded not guilty and claimed for trial vide their plea at Exs.4/A to 4/C respectively.
4. Prosecution in order to establish the charge examined PW-1 Shafiq Ahmed (complainant) at Ex.5, PW-2 SIP Muhammad Jahangir at Ex.6, PW-3 ASI Imdad Ali at Ex.7, PW-3 Syed Habib, Ali, Inspector, at Ex.9 thereafter learned ADPP closed the side of prosecution.
5. Statement of accused was recorded as is provided under section 342, Cr.P.C. at Exs.9 and 10 respectively. Accused Shahid Akram refused to record his statement under Section 342, Cr.P.C. because accused was harsh and shouted and was not in a position to answer questions against evidence as has been brought by the prosecution. All the accused did not choose to examine themselves on oath or led any defence evidence in disprove of the charge as is envisaged under section 340(2), Cr. P.C.
6. Mr. Muhammad Hanif Samma, Advocate, representing the appellant contends that the impugned judgment is the result of misreading and non-reading of the evidence; per learned counsel impugned judgment is result of miscarriage of justice and the evidences so brought on record which requires deeper appreciation and appraisal but the learned court below has failed to apply her judicious mind; per learned counsel there is clear violation of mandatory provisions of Section 103, Cr.P.C.; per learned counsel appellant has been shown to have been accused only on the sole statement of co-accused which is inadmissible under Articles 38 and 39 of Qanun-e- Shahadat Order, 1984; per learned counsel there is delay of one month in lodgment of the First Information Report which negates the norms of section 173, Cr.P.C.; per learned counsel prosecution has failed to bring home the guilt of accused appellant beyond shadow of any reasonable doubt; per learned counsel no incriminating articles or the robbed articles have been recovered from possession of appellant which ultimately proves innocence of appellant; per learned counsel the impugned judgment is not sustainable under the Law; per learned counsel the impugned judgment may be set aside and appeal of the appellant may be allowed; appellant may be acquitted from the charge Learned counsel for the appellant had relied upon the case law reported in 1999 SCM R 2203, PLD 2006 Supreme Court 153 and 2015 M LD 339.
7. Seema Zaidi, Deputy Prosecutor General Sindh oppose the instant Criminal Appeal in toto; per learned DPG the learned trial Court has rightly convicted the appellant by appreciating all ,the evidence as has been brought on record; per learned DPG prosecution has fully established its case beyond any reasonable doubt; per learned DPG there is sufficient material available with the prosecution which utmost prima facie connect the present appellant with the commission of offence; per learned DPG all the prosecution witnesses have deposed true aspect of the case and has fully implicated the appellant; per learned DPG the impugned judgment is sound reasoning and is the result of bare appraisal of the entire evidences brought on record by the prosecution and requires no interference by this Court; per learned DPG these type of offences are increasing day by day in the society therefore to curb assailants the instant Criminal Appeal may be dismissed.
8. Heard and perused.
9. Instantaneously, law is by now well established that in a criminal case it is duty of the court to review the entire evidence that has been produced by the prosecution and the defence. I would like to reproduce herein below some pieces of evidence as stated, in examination in chief by PW-1 Complainant Shafiq Aluned as follows:-- "On 29-02-2012 this incident took place at about 3:30 a.m. At that time I was sleeping in my house suddenly three accused persons duly armed with weapon after broken the lock of the door entered into the house and roped my both hands on back side and took me in the room of my daughter and after taken my daughter along with her children brought me in third room and also taken my daughter and detained all of us in one room. Out of one accused was kept us on gun point while another accused persons were busy in looting the valuable articles in my house and after committing robbery at about 6;00 a.m. all the accused persons went away. After that we checked and were missing gold ornaments consisting bangles, gold rings, etc, cash Rs,1,00,000/-, 300 Candian Dollar, one laptop, one Digital Camera, one movie camera, 7-wrist watches (ladies and gents), 5-mobile phones. The accused persons also took out gold bangles from the hands of my wife on pistol point. There I went to P.S and move application on same day about the incident"
10. On one hand complainant stated in the FIR at Ex.5 that accused entered into his house by the roof of neighbor's house. On the contrary, in his deposition before the court stated that when he was sleeping suddenly three accused persons duly armed with weapon after broken the lock of the door entered into the house. From bare perusal of these two versions which ultimately led the prosecution case suffers from improvements which had created reasonable and serious doubts because entrance of assailants remained questionable? No doubt offence as alleged has been committed inside the house but in the manner in which complainant had described is still wondering as even otherwise it had slightly creates reasonable doubt in a prudent mind. Be that as it may; the offence as alleged had taken place on 29-02-2012, accused were arrested on 31-03- 2012 in the present case perhaps accused were already under arrest in some other case who disclosed about the present appellant being goldsmith had purchased the looted articles and melted the looted gold into a "Golden Biscuit" weighting 72 grams where after present appellant was arrested on pointation of accused Shahid and Sanaullah on 22-03-2012 as per memo. of arrest and recovery vide Ex.7/B however; it could not appeal to the prudent mind that any sound mind person would carry in his pocket huge quantity of gold fearlessly aiming situation of City Karachi. Be that as it may, incident taken place on 29-02-2012, FIR was lodged on 30.03.2012 and the present appellant was arrested on 22-03-2012 much prior to the lodgment of FIR, these vague type of evidences also belated the prosecution story at all from every canon and the arrest of the present appellant in the present case is flimsy in nature. Again coming to Ex.7-B, co-accused Shahid Akram and Sanaullah who were earlier in custody of police informed the police about presence of present appellant and led the police party for arrest of present appellant from "Malir Halt Stop Model Colony it was about 1035 hours". The mushirnama of arrest and recovery Ex.7/B both mushirs are police personnel but no independent persons have been cited as mushir of arrest and recovery because, the arrest of appellant is thickly populated area as alleged is Malir Halt stop Model Colony; for this negligence there is no explanation offered by the Investigation Officer that why kept mum and did not invited any person to act as a mushir; if for the sake one person annoyed not to stand witness; the Investigation Officer is empowered under Section 160, Cr.P.C. to issue notice to such person but herein this case Investigation Officer did not qualify the mandatory requirement of Section 160, Cr.P.C. as well as Section 103, Cr.P.C. Thus it seems that this is a clear violation of mandatory provisions of Section 103, Cr.P.C. For the sake of adjudication I would like to offer Section 103, Cr.P.C. and its requirement as follows: The pre requisite of mandatory provisions of Section 103, Cr.P.C. entails as follows:-
103. Search to be made in presence of witness.---(1) Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more respectable inhabitants of the locality in which the place to be searched is situate to attend and witness the search and may issue an order in writing to them or any of them so to do.
(2) The search shall be made in their presence, and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such office or other person and signed by such witnesses; but no person witnessing a search under this section shall be required to attend the Court as a, witness of the search unless specially summoned by it.
(3) Occupant of place searched may attend. The occupant of the place searched, or some person in his behalf, shall, in every instance be permitted to attend during the search, and a copy of the list prepared under this section, signed by the said witness, shall be delivered to such occupant or person at his request.
(4) When any person is searched under section 102, subsection (3), a list of all things taken possession of shall be prepared, and a copy thereof shall be delivered to such person at his request.
(5) Any person who, without reasonable cause, refuses or neglects to attend and witness a search under this section, when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to have committed an offence under section 187 of the Pakistan Penal Code.
It has been held in 2000 SCM R 683 in the case of Tayyab Hussain Shah v. The State, as follows:-- ----S.103---Penal Code (XLV of 1860), S. 302/34---Search in presence of witnesses----Mandatory, requirement-- Requirement of making two members of the public of the locality as Mashirs to the recovery is mandatory unless was shown by the prosecution that was not possible in the circumstances of the case to have two Mashirs from the public.
11. It's very astonishing and amazing that once complainant was holding numerous household articles but for such explanation, complainant has failed to offer any valid receipt with regard to the purchase of gold, laptop, cameras, wrist watches etc. etc. or it has ever been produced before the Investigation Officer or before the Court to justify his claim that he had purchased the said numerous articles. There is also failure of features and description of the correct looted articles viz. Laptop, Camera, Movie Camera, denomination as alleged has been looted; however explanation thereof is also wondering; however it also creates doubt in the prudent mind.
12. In the case in hand the alleged recoveries have been effected from thickly populated area and there was very much possibility of two respectable persons to be cited as a witness of arrest and recovery but Investigation Officer has failed to comply the mandatory provisions of Section 103, Cr.P.C. which would vitiate the prosecution case being imaginary one. While intercepting the evidence of remaining prosecution witnesses; one of them is Investigation Officer and another are police personnel had given account of venue of occurrence in the manner which they needed to introduce.
13. Time and again coming to Exhibit 7/B which is memo of arrest and recovery; after recovery of "Golden Biscuit" from possession of the appellant; Investigation Officer found it reasonable for insertion and application of Section 412, P.P.C. It provides as follows:--
412. Dishonestly receiving property stolen in the commission of a dacoity.---Whoever dishonestly receives or retains any stolen property, the possession whereof he knows or has reason to believe to have been transferred by the commission of dacoity, or dishonestly received from person, whom he knows or has reason to believe to belong or to have belonged to a gang of dacoity, property which he knows or has reason to believe to have been stolen, shall be punished with [imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
14. Accordingly there is no such evidence available with the prosecution to justify whether this golden biscuit is made of looted gold as alleged from the house of complainant. Be that as it may; learned trial Court has also overlooked the parameters of Section 412, P.P.C. and did not bother to frame the charge in its spirit by insertion and application of Section 412, P.P.C.; all these states of affairs led the prosecution case towards "defective charge" though in the present case the charge is also defective by nature. Almost non-application of Section 412, P.P.C. in the charge vitiate the prosecution case as a whole on the part of present appellant, therefore, it gives presumption of reasonable doubt and it is also well settled law that reasonable doubt if created in the case also goes in favour of the accused. While extending benefit of doubt I am fortified with the case law reported as 1993 SCM R 550 it has also been held as follows:-- "----Benefit of doubt---Accused is presumed to be innocent until prosecution proves case against him beyond shadow of reasonable doubt and if prosecution fails in its duty which never shifts to the defence accused is entitled to the benefit of doubt--[Benefit of doubt],"
15.The nutshell of the whole discussion is that the prosecution case is not free from doubt. It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by the Hon'ble Apex Court in the case of Tariq Pervez v. The State (1995 SCM R 1345) that for giving the benefit of doubt it was not necessary that there should be many circumstances creating doubts. If there is circumstances which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right".
16. For what have been discussed above, the instant Criminal Appeal is allowed; appellant is present in Court on bail, his bail bond stands cancelled and surety is discharged. Office is directed to return the surety papers to the applicant/surety after proper verification and the identification, as per rules.
These are the reasons of short order dated 01-02-2018.