MEHMOOD MAQBOOL BAJWA, J.---Questions the legality and validity of Judgment dated 14th of November, 2009 handed down by a learned Additional Session Judge, Khairpur whereby after concluding of Trial, Respondents Nos. 1 to 4 were acquitted while extending benefit of doubt.
2. One Mashooq Jamali was also cited as Respondent No. 5 but since he did not face trial being absconder and as such being conscious of the fact, prayer was made for deletion of his name as is evident from order dated 27th March, 2013 which was allowed.
3. Prosecution version in brief contained in crime report (Ex-P.8) lodged by Zahid Hussain (P.W.1) on 28th December, 2004 is that on 06th November, 2004, he (PW-1) along with his cousin Muhammad Raheem (not produced) and Ali Gohar (PW-2) while coming back from Akri to their native village were intercepting at about 08:45 p.m. near the from of Mehmood by 05 armed persons who snatched the car, cash and copy of identity card. The appellant and his. associates identified Ajeeb (Respondent No. 1), Mashooq Jamali (Absconder). Rest three could not be identified as they were not known to the appellant and others.
4. The Respondents No. 1 to 4 were formally charged under Section 17(3) of The Offences Against Property (Enforcement of Hudood) Ordinance VII of 1979. (Hereinafter called the Ordinance), Section 341 read with Sections 148, 149 of The Pakistan Penal Code 1860 (Act XLV of 1860) who did not plead guilty requiring the prosecution to produce evidence resulting in production of 07 witnesses including appellant (PW-1) and Ali Gohar, an eye-witness (PW-2).
5. The respondents in their respective statements recorded under Section 342 of The Code of Criminal.
Procedure, 1898 (Act V of 1898) questioned the incriminating evidence put to them, pleading false implication.
6. The respondent No. 1 produced Bashir Ahmed (D-W-1) in defence.
7. Heard adversaries and perused the record.
8. Learned counsel for the appellant while making reference to the evidence of appellant Zahid Hussain (P.W.1) and Ali Gohar (P.W.2) contended that both the witnesses categorically implicated the respondent No.1 in the commission of crime who was also named in the FIR but the learned Trial Court brushed aside the evidence of both the witnesses on surmises and conjectures. Making reference to the trend of cross-examination, it was submitted that there is nothing on record to suggest any malice or bias on the part of the witnesses, particularly, upon the appellant (P.W.1) to implicate the respondents falsely. Argued that car owned by the appellant was ultimately recovered as is evident from recovery memo (Ex.P.20), which fact was fully corroborated by Akbar, S.I.P (P.W.5) and Atta Muhammad, recovery witness (P.W6).
Adverting to the culpability of respondents Nos. 2 to 4, it was argued that all the three respondents were subject to identification test and the appellant as well as Ali Gohar (P.W.1 and P.W.2) identified respondent No.2, Nek Mohammad, on 9th of February, 2005, while Meharban and Moula Bux (respondents Nos. 3 and 4), were rightly picked up by above-named witnesses on 14th of February, 2005. Further submitted that the proceedings of identification test (Ex.P.9 and Ex.P.10) are not subject to any exception as no objection, whatsoever, was raised by any of the respondent to question the legality of identification test during the proceedings.
Highlighting the accumulative effect, it was argued that the conclusion drawn by learned Trial Court is result of mis-reading and non-reading of evidence, which as such is not sustainable.
Controverting the arguments, the learned counsel for respondents in their respective arguments, first of all drew our attention to the delay in lodging the FIR. Contended that no explanation was offered by the appellant in this regard and as such it was rightly concluded by the learned Trial Court that delay in lodging FIR has caused serious doubt about the veracity of prosecution version.
Making reference to the evidence of appellant (P.W.1) and Ali Gohar (P.W.2), it was submitted that no implicit reliance can be placed upon the evidence of both the witnesses in order to connect the respondent No. 1 in the commission of crime.
Dealing with the case of respondents Nos. 2 to 4, it was submitted that the identification parade cannot be used as inculpatory evidence because the role has not been explained by both the witnesses in the said proceedings.
Further argued that both the witnesses (P.W.1 and P.W.2) also did not utter even a single word while appearing as a witnesses with reference to role of respondents Nos. 2 to 4. Argued that the findings of learned trial Court recording acquittal are based on evidence.
10. The learned law officer while submitting arguments supported the judgment of acquittal contending that no exception can be taken to it.
11. Prior to dealing with the respective contentions of adversaries on merits and the reasons given by learned Trial Court to reach the conclusion assailed by way of present appeal, it is desirable to make reference to the parameter for setting aside the judgment of acquittal.
12. Perusal of the Rule of law enunciated in "Sheo Swarup and others v. King Emperor" (AIR 1934 PC 227(2))
"Ghulam Sikandar and another v. Mamaraz Khan and others" (PLD 1985 SC 11), "Captain Abdul Rahim v.
Naeem Sagar and others" (2009 SCMR 288), "The State and others v. Abdul Khaliq and others" (PLD 2011 SC 554), "The State through Mehmood Ahmed Butt v. Sharaf-ud-Din Sheikh and another" (2013 SCMR 565) and "Muhammad Zaman v. The State and others" (2014 SCMR 749) reveals that ordinarily following points shall be considered by the Appellate Court amongst others while re-appraising the evidence to make interference in the judgment of acquittal: i) Slowness of the appellate court to make interference in the verdict of acquittal. ii) Attachment of due weight and consideration to the findings of the lower court particularly when had the occasion not only to record the evidence but also observing the demeanor of the witnesses. iii) Decision of acquittal affirms the initial plea regarding innocence of the accused unless proved otherwise. iv) Right of the accused to the benefit of doubt. v) Admission of evidence illegally. vi) Ignoring the material evidence. vii) Manifest wrong, perversity or uncalled for conclusion from facts proved on record. viii) Parameter for re-appraisal of evidence has to be applied strictly being different as compared to the yardstick for interference in the judgment of conviction.
Possibility of formulation of another opinion does not furnish any ground to set aside the judgment of acquittal if based on evidence.
13. Delay in lodging FIR was heavily canvassed on behalf of respondents before us, which was also banked upon by the learned trial Court. However, our attention has been drawn by the learned counsel for the appellant 'to the explanation given by the appellant, which according to him was not adhered to.
Occurrence took place on 6th of November, 2004 at 20:45 p.m. while FIR was lodged on 28th of December, 2004 at 11:00 a.m. Admittedly matter was reported to police after more than one month. We have gone through the statement of appellant (P. W.1) making an attempt to justify the delay by adding that on the following day of the occurrence, he along with his father and Athar Hussain approached respondent No. 1 (nominated accused), who promised to return the vehicle in few days. However, omission on his part prompted them to approach respondent No. 1 second and third time and on his ultimate refusal, FIR (Ex.P.8) was lodged on 28th of December, 2004.
There is bald statement of the appellant in this regard. We are not unmindful that same story was narrated by Ali Gohar (P.W.2) but his statement clearly reveals that he never associated himself with the appellant and others when statedly appellant approached respondent No. 1.
Reason assigned by the appellant cannot be believed and acted upon in view of non-disclosure of time and date of stated meetings with respondent No. 1, making demand for return of car. Omission in our considered view is fatal because in case of disclosure of dates, question of delay could have been decided in more appropriate mode. Even otherwise, it does not appeal to the prudence that if someone has committed dacoity, he will return the looted articles while undoing his act committed earlier. It appears that story was coined by the appellant but it remained an unsuccessful attempt.
14. There is little cavil with the settled proposition of law that possibility cannot be ruled out qua false implication of the accused when there is a delay in lodging FIR with inability of the complainant to justify it. Spontaneity of the FIR is the guarantee of truth to a greater extent. Reference may be made to "Farman Ahmed v. Muhammad Inayat and others" (2007 SCMR 1825) and "Mushtaq Hussain and another v. The State" (2011 SCMR 45).
Since the explanation offered on behalf of appellant does not appeal to a man of ordinary prudence, therefore, question of deliberation, consultation and false implication qua the respondents before us cannot be ruled out putting a serious dent to the case of prosecution.
15. In such eventuality in order to bank upon the evidence of the witnesses (P.W.1 and P.W.2), corroboration is required even to connect the name accused, i.e., respondent No. 1 but admittedly, there is no such corroboration available on record. On our query, there was no option with the learned counsel for the appellant but to admit that no recovery, whatsoever, was ever effected either on the pointation or from the custody of respondent No. 1. Though, we are conscious that direct statements of appellant (P.W.1) and Ali Gohar (P.W.2) implicating the respondent No. 1 are in line with the case of prosecution setup in the FIR (Ex.P.8) but this fact would not be sufficient to prove the charge against respondent No. 1 in view of delay in Lodging FIR, non-availability of corroborative piece of evidence and other circumstances going to be dealt with while reappraising the evidence with reference to respondents Nos. 2 to 4.
16. Admittedly, the respondents Nos.2 to 4 were not named in the FIR. Perusal the contents of FIR (Ex.P.8) clearly reveals that description of the accused who committed the occurrence does not find mentioned in the Crime-Report, which fact was frankly admittedly by the learned counsel for the appellant on our query. Omission on the part of the appellant goes to the root of the case, sufficient to brush aside the evidence of identification parade. Reliance is placed upon the dictum laid down in "Maula Dad alias and others v. Emperor" (AIR 1925 Lahore 426), "State/Government of Sindh through Advocate-General Sindh, Karachi v. Sobharo" (1993 SCMR 585), "Sabir Ali alias Fauji v. The State" (2011 SCMR 563) and "Mansoor Ahmad alias Shahzad alids sheeri and others v. The State" (2012 YLR 2481).
Even otherwise, evidence of appellant and Ali Gohar (P.W.1 and P.W.2) does not inspire confidence on this aspect. It is to be noted that appellant (P.W.1) though in his direct statement maintained that he was called by Judicial Magistrate, Faiz Ganj and accused were standing in line along with dummies. He, however, did not utter even a single word in his said statement that he identified the respondents Nos. 2 to 4, though he stated that after identification parade his signatures were obtained on the memos of identification (Ex.P.9 and Ex.P.10).
Evidence regarding putting of signatures as deposed would not be sufficient to prove that the appellant identified the respondents Nos. 2 to 4 in the identification test.
Evidence of Ali Gohar (P.W.2) though on similar lines did not suggest his participation in identification parade, just deposing in his direct statement that the respondents Nos. 1 to 4 are the same accused.
Matter can be examined from another angle as well. The appellant (P.W.1) in his cross-examination maintained that after six days of arrest of respondent No. 1, one Buland Ali Hisbani came in his Otaq along with Bahadur Lashari, Anwar Dakhan and three other unknown persons who were same unknown accused involved in the robbery of his car and immediately he identified those three persons because their features were in his mind as he saw them in the light of car and Buland Ali disclosed their names.
Evidence of Ali Gohar (P.W.2) in view of his statement would not put the case of prosecution on a better pedestal stating in the end of his examination-inchief that he had seen the accused in the Otaq and thereafter he also saw the accused Nek Muhammad, Meharban and Moula Bux (respondent: Nos. 2 to 4) for few times while passing. In the circumstances, one can well imagine the evidentiary value of the identification parade held under the supervision of Judicial Magistrate in order to identify the respondents Nos. 2 to 4 as culprits. It is to be noted that the witness did not point out the date when he saw the respondents Nos. 2 to 4 but it cannot be presumed by any stretch of imagination that they were seen after holding of identification test.
18. Non-appearance of supervising Magistrate is another important fact putting serious cloud upon the evidentiary value of identification parade.
19. Admittedly, non recovery was effected from respondents Nos. 2 to 4. The car which according to the prosecution version was looted as taken into custody by the police party at Deparaja Link Road as deposed by Akbar, S.I.P (P.W.5) and Atta Muhammad, Head Constable (P.W.6), according to whom, two unknown persons in the car came there and after seeing the police party managed to escape while leaving the vehicle at the said place. Reliance in the circumstances upon Mashirnama (Ex.P 20) cannot improve the case of prosecution.
20. Ali Gohar (P.W.2) introduced a new story in his deposition stating that after two months of the incident one Buland Ali Hisbani came at Otaq along with respondents Nos. 2 to 4 and he saw those three person who could not be identified at the time of occurrence: Said Buland Ali Hisbani was not produced by the prosecution.
21. Statement of appellant suggesting arrival of one Buland Ali Hisbani along with unknown person in Otaq after six days of arrest of respondent No. 1 and identification of said un-known persons by him remembering their features also put a serious doubt about the evidentiary value of identification test. It is to be noted that respondent No. 1 was arrested on 14th of January, 2005.
Identification parade of Meharban and Maula Bux (respondents Nos. 3 and 4) was held on 14th of February, 2005, while Neck Muhammad (respondent No.2) was subject to identification on 9th of February, 2005. In the circumstances, appellant also had on opportunity to see the said respondents prior to identification test.
22. Appellant in his statement also maintained that Nek Muhammad in the presence of respondents Nos. 2 to 4 admitted that the occurrence was committed by the respondents which aspect was also heavily relied upon by learned counsel for the appellant suggesting it as "corroboration" even to connect the respondent No. 1. We regret to share and endorse the, opinion for twofold reasons. The said Nek Muhammad did not appear in the witness box and second, it is not an admission of guilt on the part of respondents Nos. 2 to 4. It also cannot be acted upon against respondent No. 1 who was not present at that time.
23. Viewed from whichever angle, the prosecution miserably failed to prove its case against the respondents beyond shadow of doubt as concluded by the learned Trial Court.
24. Though, our attention was drawn to the evidence of Bashir Ahmed (D.W.1) by learned counsel for respondent No. 1 contending that he was arrested one day prior to lodging FIR but there is no compulsion to deal with the evidence of said evidence in view of failure of the prosecution to prove the guilt of said respondent beyond shadow of doubt. Even otherwise, it is a bald statement.
25. Re-appraisal of evidence clearly demonstrates that one cannot point out any illegality or infirmity in the judgment assailed as such no interference is called for, resulting in dismissal of appeal.