1. This appeal is directed against the judgment passed by the learned V-Additional Sessions Judge, Hyderabad in Sessions Case No.22 of 1991 whereby the present appellants were convicted under section 392/34 o Pakistan Penal Code and were sentenced to undergo R.I. For 5 years and to pay fine of Rs.2,000 or in default thereof, to suffer further imprisonment for one year.
2. Briefly the facts of the prosecution case are that - on 16th December, 1990 at about mid-night time, the complainant Ashfaq Ahmed, who was present in his house along with P.Ws. Ahsan Ahmed, Altaf and his father Shah Muhammad when there was a knock at the door on which he opened the door and saw on electric light four persons in a Suzuki Pick-up of whom two were armed with pistols. It is also in the prosecution case that pointing the pistols at the complianant, three of the accused entered the house from Otaq side and took away the T.V. Set and Tape Recorder in their Suzuki Van.
3. The accused are said to have gone towards Hur Camp while the complainant party went to Filter Plant Check Post and informed the police posted there and then they had chased the culprits.
4. When the chasing party reached near Memon Colony, they heard gun reports and going in that direction found a police vehicle with Head Constable Miandad, Shah Murad and other Constables standing near a red colour Suzuki in which the stolen T.V. And Tape~ Recorder were lying and two culprits were duly apprehended by the police party. On enquiry the culprits disclosed their names to be Nazar Ali and Asghar Ali~ the present appellants.The Registration number of the Suzuki was 959-182. The Police party secured the stolen property and arrested the. Two culprits and then all of them came to the police station where the complainant lodged the F.I.R. It is also in the F.I.R. That the arrested culprits gave the names of Imdad Ali and Imran as their two accomplices who had escaped. After usual investigation, the police put up, the challan against all the four accused and the charge was framed under section 392/34, P.P.C. Read with section 17(3), Offences Against Property (Enforcement of Hudood) Ordinance, 1979.
5. The prosecution examined complainant Ashfaq Ahmed, as Ex.7, who produced the F.I.R. As Ex. 7/A.
6. P.W. Altaf was examined as Ex.8, who produced the Mashirnama and sketch of Wardat as Exs.8/A, and 8/B. The next witness examined was Ahsan as Ex.9 The Investigating Officer A.S.I.P. Behram Khan was examined as Ex.10, who produced Mashirnama of arrest and recovery as Ex.10/A. The prosecution then examined Head Constable Shah Murad as Ex.11 and Shah Mohammed as Ex.12 and closed their side.
7. The accused were examined under section 342, Cr.P.C. Who denied the allegations. No defence evidence was led by the accused nor they examined themselves on Oath. The trial Court framed the following points for. Determination: i)Whether the above accused committed Harabah by robbing away the T.V. And Tape-Recorder of complainant?
8. (ii)What offence, if any, is proved against the accused?
9. The trial Court finding the present two appellants guilty under section 392/34 of Pakistan Penal Code convicted and sentenced them as above while co-accused lmdad Ali and Imran were acquitted.
10. I have heard the learned counsel for the parties. The learned counsel for the appellants has assailed the judgment of the trial Court on various grounds. He has pointed out that the four eye- witnesses i.e. Complainant Ashfaq Ahmed, P.W. Altaf, P.W. Ahsan and P.W. Shah Mohammed have specifically stated in their evidence in Court that the accused produced in Court are not the ones who had committed the robbery. The F.I.R. Shows that the complainant had stated that he had seen * the four persons on electric light and, therefore, it can be assumed that he will be able to identify the culprits but the very fact that he has denied that the accused present in Court were the same itself goes to exhonerate the present appellants and the two co-accused of the charge alleged against them. Even otherwise, the evidence which has been brought on record itself renders the identity of the accused doubtful. The F.I.R. Shows that the complainant party consisting of the abovesaid four' witnesses and the police had chased the accused; and that the said four witnesses had also reached at the place where the two accused were apprehended by police and recovery effected. The same fact is also stated in Mashirnama of arrest and recovery Ex.10/A but in the Court the complainant has stated that he was summoned to the police station where the police brought before him two persons whom he identified as culprits; and that those two persons disclosed their names as Nazar and Asghar. The other witness Altaf Hussain states that police did not arrest accused lmdad Ali in his presence. He does not say that the present two appellants were arrested in his presence. The other two witnesses Ahsan and Muhammad Hashim also do not say that these appellants were arrested in their presence. It may'further be observed that there is nothing on record to show if the two co-accused lmdad Ali and Imran were ever put to identification test after their arrest. These two co-accused are of course acquited but this flaw in prosecution reflects on the conduct of the prosecution. Even if the statement of the abovesaid witnesses is taken true with regard to their being summoned to police station for identification of the accused then also this would not be a proper identification as required under law for the reasons that only two persons were produced before them. One more important aspect with regard to identification of the present appellants in the case is that on one hand the case of the prosecution is that the two apprehended culprits gave their names as Nazar Ali and Asghar Ali while on the other hand the A.S.I.P. Behram Khan (Ex. 10) in his deposition states that when he interrogated the apprehended persons, they gave their names as lmdad Ali and Imran, the.Two, co-accused who were admittedly arrested subsequently on 19th December, 1990 and 30th December, 1990. It may also be observed that the record of the case does not show if the Mashirnama of arrest of Imran was prepared and produced. The A.S.I.P.
11. Behram Khan, who is Investigating Officer of the case does not state in his. Statement in Court if he had arrested the co-accused lmdad Ali and Imran under any mashirnama. He does not even say if the two co-accused were at all arrested by him.
12. From the above discussion it appears that the prosecution has not failed to prove the identity of the accused but the case has been mishandled and the very investigation on the face of it smacks of dishonesty and manipulation.
13. As regards the conduct of the trial of the case, it may be observed that the prosecution did not examine any of the two Mashirs of recovery and arrest. The F.I.R. As well as Mashirnama (Ex. 10/A).
14. Show that the present appellant were apprehended and the robbed property was recovered and Mashirnama was prepared which is signed by Head Constable Miandad Khan and Constable Palice Khan, but both of them are not examined nor any reason has been assigned for their non- examination. This renders the very recovery of the B robbed property as doubtful. Morcso when the said property consisting of T.V. And Tape-Recorder has not been produced in Court. Not only the property has not been produced but neither the make, number or any mark of identification has been mentioned in Court nor any witness deposed to that effect. This flaw C in prosecution amounts to material irregularity which vitiates the proceedings in the trial. Reliance may be placed on the case of Ghulam. Shabbir v. The State 1989 PCr.U 1738. It may be observed that in such case where the --recovery of robbed property is claimed, it was necessary for prosecution to have produced the property in Court for the purpose of identification that it was the same.
15. For the above reasons, I am of the view that the prosecution has miserably failed to prove the case against the present appellants beyond any D reasonable doubt. I 'accordingly set aside the judgment, conviction and sentence passed by the trial Court. The appellants stand acquitted and shall be released forthwith, if not required in any other case.
16. Above are the reasons for the short order announced in Court on 1st January, 1992.
17. N.H.Q./N-399/K