SHAUKAT ALI RAKHSHANI, J. Through this judgment, I aim to dispose of the captioned Criminal Revision Petition brought by the petitioner, seeking annulment of judgment dated 31st August, 2023 penned by learned Judicial Magistrate-H/FCM, Sariab, Quetta ("Trial Court"), arising out of FIR No.89 of 2020 (Ex.P/6-A) registered with Police Station Sariab, Quetta. whereby the petitioner was convicted and sentenced under section 392 of the Pakistan Penal Code, 1860 ("P.P.C") to suffer R.I for three (3) years with a fine of Rs.45000/- (Forty five thousand) and in default thereof, to further undergo three (3) months S.I as well as against the common judgment dated 30th October, 2023 handed down by learned Sessions Judge. Sariab Division ("Appellate Court"), whereby appeal filed by the petitioner against his conviction and the petition for enhancement of sentence filed by complainant Wakeel Ahmed (PW-1) were dismissed and the impugned judgment of Trial Court was upheld.
2. Condensed but relevant facts of the case in hand are that complainant Wakeel Ahmed (PW-1) got lodged the FIR ibid on basis of report (Ex.P/1-A) with the averments that on 09.07.2020, he along with his driver Abdullah (PW-5) were on their back home, having Rs.2300,000/- (Two million three hundred thousand) and twenty five (25) cheque books in a bag on his vehicle bearing Registration No.CV-8827 and that at about 04:35 pm, when he reached near Shiraz Abad, two unknown accused persons on a 125cc motorbike armed with weapons stopped them, snatched Rs.2,300,000/- along with cheque books and thereafter made their escape good.
3. After necessary investigation, the petitioner along with co-accused Allau-ud-Din were arrested and put on trial to face the deeds of their crime. The prosecution in order to bring home the charge to the extent of the petitioner produced six (6) witnesses. During trial, co-accused Allau-ud-Din jumped, who was later declared proclaimed offender. The petitioner was examined under section 342 of Cr.P.C, who denied the allegations and professed innocence. He neither opted to record his statement on oath nor produced any defence, thus the Trial Court convicted and sentenced the petitioner vide judgment impugned herein in the terms mentioned in para supra.
4. Learned counsel for the petitioner inter alia contended that the complainant did not give description of the convict-petitioner, thus the identification parade has no evidentiary value, more particularly, when during the Test of Identification Parade ("TIP") no role was assigned to him. He further maintained that though recovery of the plundered amount has been shown to have been got recovered by the petitioner pursuant to his disclosure, but the same being a joint recovery has no evidentiary value. According to him, the prosecution has miserably failed to establish the charge, but both the courts below have misread the evidence, making the impugned judgments perverse and illegal, which merits to be set-aside. He relied upon the judgments reported as 2007 SCMR 670, 2014 PCr.LJ 139, 201 7 MLD 1 73 7, 201 7 YLR Note 269 and 2018 MLD 43.
On the other hand, learned state counsel and learned counsel for the complainant strenuously opposed the contentions advanced by the learned counsel for the petitioner and urged that there are concurrent findings of guilt against the petitioner, which cannot be interfered with. They further stated that the prosecution has proved the indictment to the hilt by identifying the petitioner during the crime, who was also picked up during the TIP, which has been corroborated by recovery of Rs.7,36,000/- (Seven hundred thirty six thousand) being the plundered amount on his disclosure, therefore, the petition being meritless requires to be dismissed. Counsel for the complainant relied upon the judgments reported as 2018 YLR 2184, 2021 YLR 969, 2023 SCMR 929 and 2024 MLD 907.
5. Heard. Record scanned wall to wall with the able assistance of learned counsel for the parties.
The case of prosecution hinges upon the testimony of complainant Wakeel Ahmed (PW-1) and Abdullah (PW-5), test of identification parade of petitioner held under the supervision of Muhammad Haroon Mengal, Judicial Magistrate ("JM") (PW-2) and recovery of alleged plundered amount of Rs.7,36,000/- (Seven hundred thirty six thousand), pursuant to the disclosure of the petitioner. Complainant Wakeel Ahmed (PW-1), while making statement before the court reiterated what he had incorporated his report (Ex.P/1-A) by revealing that on 09.07.2020, at about 04:35 pm, while he was coming back home on his vehicle bearing Registration No.CV-8827, he was stopped by two culprits on a 125cc motorbike on gunpoint, who snatched Rs.2300,000/- (Two million three hundred thousand) and twenty five (25) cheque books. He categorically stated that he can identify them, if they appear before him. Similarly, Abdullah (PW-5) testified in line with the deposition of complainant Wakeel Ahmed (PW-1) and identified the petitioner in the court to be the culprit.
Needless to add here that albeit name of Abdullah (PW-5) does appear in calendar list of the witnesses, but his statement was not available on record, thus the Trial Court, while allowing the application filed under section 540 of Cr.P.C, permitted him and recorded his statement on 03.06.2023. Abdullah (PW-5) had also not given any description of the culprits.
6. Admittedly, for the safe administration of justice and to rule out false implication and misidentification, it was obligatory upon complainant Wakeel Ahmed (PW-1) and Abdullah (PW-5) to have had given the description in order to subsequently identify the culprits during formal TIP. I am conscious of the fact that during the TIP held under the supervision of JM (PW-2), complainant Wakeel Ahmed (PW-1) and Abdullah (PW-5) had picked up the petitioner and identified him, but neither of them attributed any specific role nor identified him as a culprit, thus mere picking him up during the TIP shall not incriminate the petitioner, more particularly, when they in their statements before the police had not given the description of the culprits, henceforth, no reliance can be placed upon such statement and TIP for holding the petitioner guilty of the indictment. The Trial and Appellate Courts have misread the evidence and misconstrued the application of Article 22 of Qanun-e-Shahadat Order, 1984, making the entire process of identification parade unworthy of credence. SEE; ["The State v. Farman Hussain (PLD 1995 SC 1), "Shafqat Mehmood v. The State"
(2011 SCMR 537) and "Sabir Ali alias Fauji v. The State" (2011 SCMR 563)"].
7. As far as alleged recovery of plundered amount of Rs.7,36,000/- (Seven hundred thirty six thousand) is concerned, it is also not worth of consideration. According to Abdullah Shah SI (PW-5) on 04.08.2020, the petitioner made disclosure and led the police contingent to the house of co- accused Allau-ud-Din situated at A-1 City, Brewery Road, Quetta, where during search, the police officials recovered a 9mm pistol bearing Registration No.88081 along with five live rounds from a room, whereas co-accused Allau-ud-Din got recovered Rs.3,36,000/- from closet of his room. He further testified that the petitioner got recovered his TT pistol with three live rounds and his share out of the plundered money i.e., Rs.400,000/- from the guest room of the house of co-accused Allau-ud-Din. He produced recovery memo. (Ex.P/4-A).
8. Investigation Officer, Abdul Sattar SI (PW-6) allegedly secured Rs.3,36,000/- from proclaimed offender Allau-ud-Din and Rs.400,000/- from petitioner, pursuant to his disclosure, 'whereof a joint recovery memo. (Ex.P/4-A) was prepared. Complainant Wakeet Ahmed (PW-1) neither has given the numbers nor the denominations of the plundered notes, thus it would be difficult to ascertain that as to whether the recovered cash was the same amount which was plundered or otherwise. In this regard, I am fortified with the view expounded by the apex court in the case of "Imtiaz Latif v.
The State" (2024 SCMR 1169). Moreso, the prosecution has also not secured the cheque books, which could have been material and incriminating evidence, but the prosecution is absolutely mum about the said cheque books. Even otherwise, the recovery is a corroborative piece of evidence, which in absence of substantive evidence, is of no help to the case of the prosecution.
9. After critical analysis of the evidence on record, I have arrived at a firm conclusion that the reasons drawn by the Trial and Appellate Courts are not based on proper appraisal of evidence, thus the conviction and sentence recorded by the Trial Court and subsequently upheld by the Appellate Court vide judgments impugned herein are unsustainable, which requires to be set at naught.
10. For the foregoing reasons, the instant petition is allowed and consequent thereto, both the impugned judgments dated 31.08.2023 and 30.10.2023 passed by learned Judicial Magistrate- II/FCM, Sariab, Quetta and learned Sessions Judge, Sariab Division, Quetta respectively, are set aside and the petitioner is acquitted of the charge.
The petitioner is on bail, whose bail bonds stand discharged.