ZAHEER-UD-DIN KAKAR, J.---Petitioner Saifullah, feeling aggrieved of the judgments dated 23.4.2015 and 31.8.2015 (the impugned judgments), passed by the Judicial Magistrate-I (the 'trial Court) and Additional Sessions Judge, Pishin (the appellate Court), respectively, has preferred the instant Criminal Revision Petition, whereby the trial Court has convicted him Under Section 392/34, P.P.C. and sentenced for a period of three (03) years RI with fine of Rs,5000/-. In case of default, he shall further undergo for three months SI. He has further directed to pay Rs,6000/- to the complainant as compensation under section 544-A, Cr.P.C. Benefit of section 382-B, Cr.P.C. was also extended in his favour, whereas the appellate Court upheld the judgment of the trial Court.
2. Precisely stated facts of the case are that, on 25.5.2016, complainant Abdul Khaliq was going to his home on motorcycle and when reached at Charmari road near the mosque at about 9:15 p.m. an Indus Corolla Car white in colour crossed him in which five persons were boarded. Out of them, two persons came out of the vehicle and one person on gun point snatched his motorcycle while the other one took his CNIC and Q-Mobile from his pocket and left towards Burshore road.
According to complainant; he went to his village and gathered the people to chase the culprits and when he along with his companion reached Darwaish Flour Mill, found a person, collided the snatched motorcycle with a vehicle and was lying in injured condition, who disclosed his name as Wali Khan and thereafter, he was shifted to Civil Hospital Pishin. Resultantly, on the report of complainant, FIR No,77 of 2014, under Section 392, P.P.C., dated 25.5.2014 was registered with Police Station, Pishin.
3. On completion of investigation, challan was submitted against the petitioner and co-accused, who were summoned by the trial Court and charge sheeted, to which they pleaded not guilty and claimed trial. The prosecution, in order to prove the accusation, produced six witnesses. PW-1 Abdul Ghaffar is complainant of the case, he produced his Fard-e-bayan (Ex-P/1-A) on the basis whereof FIR (Ex-P/6-A) was registered. PW-2 Abdul Razzaq is an ocular witness but did not state a single word against the petitioner. PW-3 Muhammad Ibrahim is a Mechanic, who checked the damaged motorcycle and stated that the same needed repair against the cost of Rs,19950/-. PW-4 Ain-ud- Din ASI is mushir of the recovery memo. of motorcycle (Ex-P/4-A) and identified the same as Article P/1. PW-5 Abdul Rab ASI, is mushir of the disclosure memo. of the petitioner Ex-P/5-B. PW-6 ASI Amanullah, conducted investigation, recorded statements of witnesses, produced FIR Ex.P/6-A, site plan Ex-P/6-B and Ex-P/6-C, memo. of identification parade of the petitioner Ex-P/6-D and challan Ex-P/6-E.
4. Thereafter, the petitioner was examined under section 342, Cr.P.C. wherein he denied the prosecution accusation and claimed to be innocent. He did not opt to record his statement on oath as envisaged under Section 340(2), Cr.P.C. nor produced any evidence in his defence. The trial Court, after close of the prosecution evidence, vide impugned judgment dated 23rd April, 2015, convicted and sentenced the petitioner, as mentioned herein above. Feeling aggrieved, the petitioner preferred Appeal No,2 of 2015, before the appellate Court, which met with the same fate, hence this petition.
5. Learned counsel for the petitioner contended that the prosecution had failed to prove its case against the petitioner beyond reasonable doubt; that the prosecution was not possessing sufficient evidence as instant case depends on disclosure memo, such disclosure before the police has no evidentiary value and cannot be considered; that so far as identification parade of the petitioner is concerned, the same was conducted after arrest of ten days of the petitioner, which has no evidentiary value under the law, thus, this petition warrant acceptance with a result of acquittal of the petitioner.
6. On the other hand learned Additional Prosecutor General while controverting the contentions, as agitated on behalf of convict/petitioner, argued that the impugned judgments passed by the Courts below are well reasoned and speaking and have been passed on proper appreciation of evidence, therefore, this petition is liable to be dismissed.
7. I have carefully examined the respective contentions, as agitated on behalf of the petitioners as well as on behalf of the State, scrutinized the entire prosecution evidence and perused the judgments of the trial as well as the appellate Courts.
8. By looking into the merit of the case, it is admitted fact that instant case depends upon circumstantial evidence. It is settled proposition of law that circumstantial evidence is to be considered as a chain, and each piece of evidence, is link in the chain, if any one link breaks, the claim would fail. The circumstantial evidence can only form basis for conviction, when it is compatiable with the innocence of accused or guilt of any other person and in no manner be incapable of explaining upon any reasonable hypotheses except that of guilt of accused. Every link in circumstantial evidence should be proved by cogent evidence and if not then no conviction could be maintained or awarded to an accused.
9. While keeping in mind the above said principle, I scanned the evidence available on record. The perusal of available material shows that in the instant case no ocular evidence is available except the admission and identification of the petitioner and the prosecution has examined two witnesses (PWs-5. & 6) with regard to the admission/disclosure and identification of the petitioner by the complainant. It is a settled proposition of law that absence of ocular evidence is not tantamount to acquit the accused persons, but conviction can be awarded on circumstantial evidence, if it is surfaced that the same is connecting with all the aspects with regard to the commission of the offence by the accused persons, which is lacking in the instant case.
10. As far as disclosure of the petitioner (Ex-P/5-B) before the police in which he confessed his guilt is concerned, it is settled principle of law that disclosure of an accused during custody is inadmissible being hit by Articles 38 and 39 of the Qanun-e-Shahadat Order, 1984. There is no cavil to the legal proposition that the extra judicial confession is a very weak type of evidence and no conviction could have been awarded without having strong corroboration which aspect of the matter hardly needs any comments. In this regard reliance is placed on the cases titled Wazir Muhammad and another v. State (2005 SCM R 277), Liaquat Ali v. The State (1999 PCr.LJ 1469 Lahore); Tahir Javed v. The State (2009 SCM R 166) and Zafar Iqbal and others v. The State (2006 SCM R 463). Hence, no weight can be given to such disclosure, while in police custody. Even otherwise, in case, if such extra judicial confession was made by the petitioner during the course of investigation, it was incumbent upon the Investigation Officer to get his confessional statement recorded before the Judicial Magistrate.
11. Another piece of evidence against the petitioner is identification parade (Ex-P/6-D), which was conducted under supervision of the Judicial Magistrate-II, Pishin on 6.6.2014 i,e, after eleven days of his arrest. No satisfactory explanation has been furnished for delayed conducting the identification parade. It is settled law that, a delayed identification test both with reference to the date of occurrence and the date when the accused was taken into custody is always looked upon with the maximum caution by the Courts of law. For this principle, I fortified with the dictum laid down in the case Asghar Ali v. The State (1992 SCM R 2088) and The State v. Farman Hussain (PLD 1995 SC 1). In the instant case, the identification parade carried an inherent defect that is that PW-1 Abdul Ghaffar, complainant, did not describe the role played by the petitioner at the time of the commission of the offence. The same, therefore, has lost its efficacy and cannot be relied upon.
Reliance in this respect is placed on the case of Khadim Hussain v. The State (1985 SCMR 781).
Furthermore, according , to PW-5 Investigating Officer, the test of identification parade of the petitioner was carried out under the supervision of Judicial Magistrate-II, Pishin, but the prosecution failed to examine the said Magistrate before the trial Court as prosecution witness to substantiate the version of the Investigating Officer and to authenticate the identification parade memo. Ex- P/6-D. Therefore, in view of Article 129(g) of Qanun-e-Shahadat Order, 1984, adverse inference, that had this witness been produced before the Court he would not have supported the prosecution case, can safely be drawn against the prosecution. In this regard, guidance is sought from the cases titled Muhammad Rafiq and others v. The State and others (2010 SCM R 385), Lal Khan v. The State (2006 SCM R 1846), Riaz Ahmed v. The State (2010 SCM R 846).
12. It is, by now, well established principle of law that it is the prosecution, which has to prove its case against the accused by standing on its own legs and it cannot take any benefit from the weaknesses of the case of defence. In the instant case, the prosecution remained fail to discharge its responsibility of proving the case against the petitioner. There remains no cavil to the proposition that if there is a single circumstance which creates reasonable doubt regarding the prosecution case, the same is sufficient to give benefit of the same to the accused, whereas the instant case is replete with circumstances which have created serious doubt about the prosecution story. Even as per saying of the Holy Prophet (P.B.U.H), the mistake in releasing a criminal is better than punishing an innocent person. Same principle was also followed by the Hon'ble Supreme Court of Pakistan in the case of Ayub Masih v. The State (PLD 2002 SC 1048), wherein at page 1056, it was observed as under:-- "....It will not be out of place to mention here that this rule occupies a pivotal place in the Islamic Law and is enforced rigorously in view of the saying of the Holy Prophet (P.B. U.H) that the "mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent"
In supra mentioned case of Ayub Masih, the Hon'ble Supreme Court was also pleased to observe as under:-- "...The rule golden rule benefit of doubt, which is described as the Wally as rule of prudence which cannot be ignored while dispensing justice in accordance with the law. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted"..."
13. In the light of above discussion, I accept this petition, set aside the impugned judgments dated 23.4.2015 and 31.8.2015, passed by the Judicial Magistrate-I, Pishin and the Additional Sessions Judge, Pishin, respectively, to the extent of petitioner Saifullah son of Akhtar Jan and acquit him of the charge by extending benefit of doubt. He is on bail his bail bond stands discharged.