' This appeal is directed against the judgment, dated 28-9-1999 passed by the learned Additional Sessions Judge-III, Quetta whereby appellant has been convicted under section 392, P.P.C. And sentenced to undergo R.I. For 3 years alongwith a fine of Rs,10,000 or in default thereof to further suffer S.I. For 3 months. Benefit of section 382-B, Cr.P.C. Has, however, been extended to the appellant.
2. Facts of the case, in brief, are that on 3-10-1998 report Exh.E./1-A was lodged by one Noor Ali with Police Station Pashtoonabad, Quetta wherein, it was stated that he was resident of Satellite Town, Quetta and deals in old tyres. On the said date, in the morning, he had proceeded towards his shop on motorcycle bearing Registration No,QAF1763. At about 7-00 a.m. When he reached near the end of the street in which he resides, two persons intercepted him and they on gun point directed him to hand them over the motorcycle. On the resistance offered by the complainant they fired at him and a bullet hit the complainant on the right foot. In the meantime, one of the accused persons carried out personal search of the complainant and took out a sum of Rs,500/600 alongwith certain documents and thereafter both the culprits fled away. On the stated allegations formal F.I.R.
Bearing No,57 of 1998 was registered at the said police station under section 17(3), Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and investigation was carried out in pursuance thereof. On the completion of investigation the accused/appellant alongwith another person namely Allah Noor son of Haji Muhammad Rasool were challaned to the Court for trial.
3. Charge was accordingly framed to which the accused persons pleaded not guilty and claimed trial.
4. At the trial, the prosecution in order to prove the charge and substantiate the allegations levelled against the accused persons produced 6 witnesses in all. P.W.1 Noor Ali is the complainant. While reiterating the version contained in the F.I.R. He deposed that in the course of occurrence he had identified one of the accused persons namely Allah Noor as his face at that point of time was suddenly unveiled, however, he could not identify the other culprit. The complainant was declared hostile and was cross-examined by the A.D.A. In the course of his cross-examination the complainant refuted the suggestion as incorrect that he had also identified the other culprit but since he had entered into a compromise with him, therefore, he was intentionally avoiding to identify him. P.W.2 Muhammad Aslam, E.A.C.VIII, Quetta had supervised the identification parade of the co-convict Allah Noor. He produced identification parade memo. As Exh.P.2/A in the Court. He also produced pointation memo. As Exh.P.2/B and disclosure memo. Of accused Allah Noor as Exh.P.2/C. P.W.3 Abdul Salam is a marginal witness of recovery memo. Exh.P.3/A vide which motorcycle Article P.1 was taken into possession by the police. It was allegedly abandoned by the culprits. P.W.4 Muhammad Riaz is a marginal witness of the recovery memo. Exh.P.A./4 vide which two empties and a pair of Chappals were recovered from the place of occurrence. P.W.5 Bilal Ahmad is the Investigating Officer of the case. P.W.6 Ghulam Nabi, Inspector had produced complete challan i.e, Exh.P.6/1 of the case in Court. On the conclusion of the prosecution evidence the accused persons were examined under section 342, Cr.P.C. In their statements they denied the charge and pleaded innocence. They, however, failed to lead any evidence in their defence or to appear as their own witness in terms of section 340(2), Cr.P.C.
5. After hearing arguments of the learned counsel for the parties, the learned trial Court convicted the accused/appellant and sentenced him to the punishment as mentioned in the opening para. Hereof.
6. I have heard Mr. Naeem Akhtar, Advocate learned counsel for the appellant and Sardar Zara-e- Iman, Advocate learned counsel for the State and have also perused record of the case minutely, with their assistance.
7. Mr. Naeem Akhtar, Advocate learned counsel for the appellant has contended that an iota of evidence is not available to connect the appellant with the crime. As per contents of the F.I.R.
Offence was committed by two unknown persons. At the trial, one of them i.e, Allah Noor was identified by the complainant to be the culprit. However, the complainant did not identify the present appellant. He was also not involved by any of the other P. Ws. Further, neither the appellant was put to the identification test nor any recovery was effected from him. He has been merely convicted on the basis of the so-called disclosure allegedly made by the co-convict Allah Noor whereby he had stated that the appellant was accompanying him at the time of commission of the offence. The learned counsel of the appellant maintained that the disclosure made by co- convict Allah Noor in police custody was neither admissible in evidence nor could have it formed a base for appellant's conviction.
8. Sardar Zar-e-Iman, Advocate learned counsel for the State on the other hand, while controverting the contentions raised bDr the learned counsel for the appellant submitted that since guilt of the appellant was fully brought home at the trial through reliable and independent evidence, therefore, he was rightly convicted for the offence, however, candidly conceded that except the disclosure made by co-accused Allah Noor regarding appellant's involvement in the offence, no other incriminating piece of evidence was available to connect him with the crime.
9. Record reveals that in the instant ease F.I.R. Was lodged against unknown persons. Though in the F.I.R. Description/features of the culprits were given and it was claimed therein that the complainant, on seeing them again, would be in a position to identify them yet, at the trial, only one o the accused persons namely Allah Noor was identified by the complainant and he did not identify the present appellant. It is an admitted position that no other witness of the occurrence was either available or examined at the trial. Only incriminating piece of evidence produced by the prosecution at the trial against the present appellant is the disclosure memo. i.e, Exh.P.2/C whereby co-convict Allah Noor after his arrest, allegedly informed the police that the appellant was his companion and he too, was involved in the crime. But I am afraid, the disclosure in question cannot form a base for appellant's conviction for the reasons:--Firstly; that any information received from an accused person,. While he is in custody, cannot be proved at the trial unless any fact is deposed to as discovered in consequence thereof. And secondly that the disclosure in question being not a substantive piece of evidence cannot solely bring about appellant's conviction.
10. As regards the first reason it may be mentioned here that as provided by Articles 37 to 39 of the Qanun-e-Shahadat Order, 1984 a confession made by an accused person, while he is in police custody, is not admissible. However, if something related to the case is recovered or any fact is discovered in consequence of the information conveyed by the accused person, then the information so received would be admissible in evidence within the purview of Article 40 of the Qanun-e-Shahadat Order, 1984 because then the presumption would be towards its truthfulness. It would be advantageous to reproduce hereinbelow the said Article which reads as follows:-- "40. When any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."
' But if nothing in consequence of the disclosure is recovered or discovered then the information so received by itself would not be admissible. For instance, if in consequence of a statement made by the accused to the police a weapon used in the offence is recovered, than the fact so discovered would become relevant under Article 40. Needless to point out that in such an eventuality it would still be necessary for the prosecution to prove that the recovered weapon was actually used in the crime.
What to speak of a disclosure, even a confession made by co-accused person, though relevant under Article 43 of the Qanun-e-Shahadat Order, 1984, alone cannot warrant conviction of an accused unless it is corroborated by any other reliable piece of evidence. In this regard I am fortified by the following reported judgments:--
(i) Javed Masih and others v. The State PLD 1984 SC 314,
(ii) The State v. Asfand Yar Wali and 2 others 1982 SCM R 321 and
(iii) The State v. Minhun alias Gul Hassan PLD 1964 SC 813.
11. As to the second reason that; the disclosure in question being not a substantive piece of evidence cannot solely form a base for appellant's conviction. It may be mentioned here that by now it is well-settled that unless substanth or direct evidence is available, conviction cannot be based on any other type of evidence, howsoever, convincing it may be. Reliance in this regard may be placed on the case of Muhammad Noor v. Member-I, Board of Revenue, Balochistan and others reported as 1991 SCM R 643 wherein the Honourable Supreme Court of Pakistan has been pleased to lay down as under:-- ' "The answer obviously is in the negative. We say because none of the pieces of evidence relied upon is a substantive piece of evidence and so long a substantive or direct evidence is not available no other type of evidence, howsoever, convincing it may be, can be relied upon or can form the basis of conviction."
' In another judgment delivered in the case of Qalb Abbas alias Nahola v. The State reported as 1997 SCM R 290, the Honourable Supreme Court has reconffirmed the above view. Thus, in the circumstances of the case conviction and sentences recorded against the present appellant cannot be sustained.
12. The upshot of the above discussion is that appeal filed by the appellant is accepted and conviction and sentences recorded against him by the learned Additional Sessions Judge-III, Quetta vide impugned judgment, dated 28-9-1999 are set aside and he is acquitted of the charge.
He shall be released forthwith if not required in any other case.
13. These are the reasons of my short order of the even date.