' Both the Criminal Appeals Nos.45 and 91 of 1999 have emanated from the same judgment, hence I intend to dispose of both the appeals, by one judgment.
2. The appellants have called in question the impugned judgment, dated 12-3-1999 passed by learned IVth Additional Sessions Judge, Karachi South in Sessions Case No,172 of 1998. Whereby they have been convicted and sentenced alongwith Mst. Sabira Bano alias Zareena to undergo R.I.
For four years each and to pay fine of Rs,1,000 each for an offence under section 392/34, P.P.C. In case of default in payment of fine, they will undergo three months more R.I. Each. While accused Muhammad Rashid and Nadeem alias Bhola were also further convicted and sentenced to undergo R.I. For two years and fine of Rs,500 each for an offence under section 353, P.P.C. In case of default in payment of fine they will undergo one month's R.I. Each. Both the sentences to accused Muhammad Rashid and Nadeem alias Bhola will run concurrently. They have been also extended benefit of section 382-B, Cr.P.C. Hence this appeal under section 410, Cr.P.C. By the aforenamed appellants.
3. The brief facts of the case are that on 17-3-1998 at about 2-30 p.m. When the complainant Mahmood Ahmed was available in his house, the door was knocked and when he opened the door, he saw one woman alongwith two boys whose names later on were known as Muhammad Rashid and Nadeem alias Bhola. The woman asked for a glass of water and as he went to bring the water.
Accused Muhammad Rashid entered the house and pulled out T.T. Pistol and lady accused went out of the house. Meanwhile both the accused snatched wrist-watch and radio transistor of the complainant. They had also taken away two wrist watches (Citizen) from dressing table and two golden bangles weighing 15 grams and two gold ear-rings weighing 3.50 grams from the sister of complainant and tried to run away from the staircase towards Karachi Haleem. The complainant ran behind the culprits, in the meantime a police mobile came there. The culprits started firing upon the police party with TT pistols. Police also fired in their self-defence. Thereafter the police apprehended the accused and recovered one .30 bore pistol with two bullets loaded in the magazine from right hand of Rashid and also recovered two pieces of Citizen wrist-watches and one pair gold earrings from the right pocket of his shirt and from other accused Nadeem one TT pistol of .30 bore with two live bullets loaded in the magazine so also two golden bangles weighing 15 grams. The apprehended accused disclosed the name of lady accused as Sabira Bano alias Zareena. After usual investigation the accused were challaned.
4. Charge was framed against the accused as Exh.6 and their pleas recorded as Exh.6/1 to 6/3.
They have pleaded not guilty and claimed to be tried.
5. During the trial prosecution examined P.W.1 complainant Mahboob as Exh.8, he has produced Mashirnama of arrest and recovery, F.I.R. And Mashirnama of Wardat as Exhs.8/1 to 8/3 respectively, P.S. 2 SIP Muhammad Rashid as Exh.9 and P.W.3 SIP Abdul Khaliq as Exh.10 and he has produced Mashirnama of arrest of accused Sabira Bano alias Zareena as Exh.10/1. The learned DDA gave up P.W. Muhammad Ameen and Shamim Begum vide statements as Exhs.11 and 12 P.W.4. I/O Qamar Zaman has been examined as Exhs.13 who has produced the letter addressed to Magistrate notice to the accused Exhs.13/1 and 13/2 respectively. The learned D.D.A. Closed the side of prosecution vide statement Exh.14.
6. The statements of accused under section 342, Cr.P.C. Were recorded as Exhs.15 to 17 wherein they have denied the allegations of the prosecution and have claimed their innocence. Accused Mst.
Sabira Bano in her statement as Exh.15 has stated that the police arrested her from her house at about 2-30 a.m. She stated that she was tortured by the police and no lady constable had accompanied the police at the time of her arrest. In her defence she has examined her father Haider Ali as Exh.20. Accused Muhammad Rashid has stated that on 15-3-1998 he was locked up from his house by Baghdadi Police and has been falsely implicated in this case. Police inquired from him regarding some activist of M.Q.M. To which he stated that he does not know their whereabouts. Police insisted him for furnishing him for whereabouts of those activists but as he was unaware of the same hence police falsely implicated him in this case. Accused Nadeem in his statement Exh.17 has stated that he was working since four years at Nayabad Gali No,2. He was coming from his duty at about 5-30 p.m. When police in mobile asked him as to why he was going at 5-00 p.m. While the situation in the city was abnormal. He gave them explanation but they did not accept it and took him to police station where his parents also reached and asked the police to release him but police falsely implicated him in this case. In his defence he has examined one Tariq Ahmed. None of the accused have examined themselves on oath.
7. Learned Trial Court formulated the following points for determination:--
(1) Whether on the alleged date and time accused in furtherance of their common intention duly armed with deadly weapon committed robbery by putting the complainant Mahboob Ahmed and his sister in fear of death?
(2) Whether on the alleged date and time the accused Rashid and Nadeem fired at police party with intention to commit their Qatl-i-Amd?
(3) Whether on the alleged date and time the accused Muhammad Rashid and Nadeem obstructed the police party from discharging their official duties as public servant?
(4) Result.
8. The learned trial Court after having gone through the evidence adduced by the prosecution and other material available on record passed the impugned judgment in terms as stated above.
9. It will be pertinent to mention that one of the accused Mst. Sabira Bano alias Zareena has not preferred any appeal against her conviction and sentence. The above named two appellants have preferred this appeal.
10. Messrs Abdul Majeed and Mahmood Akhtar Qureshi, Advocates for the appellants, have argued that only complainant has been examined by the prosecution whereas her sister namely Shamim Begum has not been examined by the prosecution which renders doubts in the version of the prosecution story. According to them there is no corroboration to the version of the complainant.
They have further argued that it is a claim of the prosecution that there was an encounter between accused and police party and three empties were recovered from the place of Wardat but the same empties have not been produced before the Court and this very fact has falsified the claim of the prosecution with regard to the incident. According 'to them the accused were arrested in day time from public place yet no independent witnesses have been associated by the police on the factum of their arrest and incident. They have further argued that the property was not sealed at the spot and they have drawn my attention on the deposition of Inspector which is available at page 51 of the paper book. They have finally prayed for the acquittal of appellants from the charge being faced by them.
11. On the other hand, Mr. Habib-ur-Rasheed, Advocate for A.-G, for the State, has supported the impugned judgment and has argued that the recovery has been effected from their possession and they have been apprehended from the spot and the appeal be dismissed.
12. I have considered the arguments advanced by the learned counsel for the parties and with their assistance I have gone through the evidence adduced by the prosecution and other material available on record.
13. The complainant in F.I.R. Has very categorically stated that on the day of incident on opening the door, he found a woman standing there alongwith two boys whose names later on were learnt- as Muhammad Rashid son of Ibrahim and Nadeem alias Bhola son of Abdullah alias Abdul Wohra.
Since the complainant has specifically named the accused in F.I.R. With their parentage. Yet it is not known with regard to the source of information on the part of the complainant with regard to names of the aforenamed accused which goes unexplained in the contents of the F.I.R. By the complainant and nowhere he has stated in F.I.R. That he knew both the accused intimately. Before the learned trial Court complainant who is the material witness in the case has stated that he found at 3-00 p.m. One lady who knocked the door of his house and asked for a glass of water, two boys were standing behind her. He went to bring the glass of water and brought the same and meanwhile two boys who were standing behind the lady entered the house and the .Lady disappeared from the place of Wardat. Both the boys were armed with TT pistols. They threatened the complainant party and removed the Rado Wrist-Watch which was being worn by the complainant, and also they committed robbery of two wrist-watches from the Almirah and they also removed the golden bangles from the hands of his sister and also a golden pair 9f ear-rings from the ears of his sister and after committing the robbery accused ran away from the house and he came out from the house and started raising cries of thief thief. I have very carefully examined the examination-in-chief of the complainant. Nowhere he has stated that their names were later on learnt as Muhammad Rashid son of Ibrahim and Nadeem alias Bhola son of Abdullah alias Abdul Wohra. This shows that either the contents of the F.I.R. Have been written wrongly by police or complainant wrongly narrated to the police officer the names of the aforenamed appellants while recording the F.I.R. Or the complainant never knew the names of the accused as it is not being deposed by him before the learned trial Court that their names were Muhammad Rashid son of Ibrahim and Nadeem alias Bhola son of Abdullah alias Abdul. Moreover the source of information of names of the accused incorporated in F.I.R. Are also lacking on the part of the complainant. In both the cases the complainant is not narrating clear episode of the incident and thus has caused a dent in its own version.
14. Since complainant in F.I.R. Has not only named accused-appellants but also has stated in the F.I.R. That the accused on his cries were apprehended by mobile police. Yet the accused were put to the identification alongwith 20/25 other persons and both the appellants were picked up by the complainant from the aforementioned 20/25 other persons. The complainant nowhere has stated in his deposition as to where the identification parade was held and before which Magistrate or Court. He only says that he was called at the City Court for identification of the accused. In these circumstances the prosecution is not putting forward its genuine justification towards apprehension of the accused from the spot and thereafter holding identification parade when the accused were already apprehended by mobile police in presence of the complainant. It is also very startling that nowhere it appears that the identification of the accused was held before which Court or before which Magistrate. Prosecution has miserably failed even to examine any Magistrate on this factum before the learned Trial Court and this aspect of the case has not been considered by the learned trial Court while delivering the judgment. Besides the sister of the complainant who has not been examined by the prosecution is also an eye-witness on the factum of incident, strange enough that she was not called for the purpose of identification of the aforenamed appellants and co-accused Sabira Bano.
15. As far as the recovery and arrest of accused from the place of Wardat is concerned, the Mashirnama of arrest .And seizure of articles have been prepared in presence of complainant and another witness Muhammad Amin son of Muhammad Ahmad. It has also been noted that this witness Muhammad Amin has not been examined by the prosecution when he is also one of the witnesses on the factum of recovery and arrest and only complainant who is not only complainant but also Mashir on the factum of recovery and arrest has been examined and there is no explanation whatsoever from the side of the prosecution as to why Muhammad Amin has not been examined by the prosecution.
16. Moreover, the robbed articles which have been recovered from the appellants Muhammad Rashid son of Ibrahim and Nadeem alias Bhola son of Abdullah alias Abdul Wohra have not been subjected to identification test in presence of the Magistrate complainant and his sister who could have said at the time of identification test of the robbed articles that these are the articles which were removed forcibly by the appellants and co-accused lady from their house. Even nowhere it 'appears that during the identification parade of the accused persons as being narrated by the complainant before the learned Trial Court and he had also pointed out to accused Muhammad Arshad son of Ibrahim and Nadeem alias Bhola son of Abdullah alias Abdul Wohra that what articles were robbed by them from the house of the complainant and nowhere it has been stated by the complainant in his examination-in-chief that what role was played by the aforenamed appellants during the commission of the offence. This is not being narrated by the complainant in his examination-in-chief absolutely and for the recovery whatsoever has been effected cannot be thrown on the shoulders of the aforenamed appellants when the persons from the locality have not been associated in daytime particularly, Muhammad Amin has not been examined by the prosecution and so also the sister of the complainant. Since it has been disclosed by the complainant that the culprits also removed the ear-rings and other articles from the hands of his sister yet his sister has not been examined by the prosecution as discussed supra. Adverse inference can be drawn upon the prosecution in that event as non-examination of such material witness by the prosecution cuts the root of the case of the prosecution and it can be presumed that had she been examined, she would have not supported the case of the prosecution in a manner as being narrated by the complainant in his F.I.R. And deposition.
17. I have also very carefully examined the statements of the accused under section 342, Cr.P.C. By the learned trial Court. I have also examined the Mashirnama of arrest and seizure which reveals as under:-- "(1) Accused Muhammad Rashid----One TT Pistol without numbered alongwith magazine loaded with two live bullets from his right hand while one pair of gold ear-rings weighing about 3.5 grams.
One Citizen Wrist-watch with golden dial and chain and one Sehar Wrist-watch with white chain from right side pocket of his wearing Qameez were recovered.
(2) Accused Nadeem alias Bhola:---One TT pistol without number alongwith magazine loaded with two live bullets from his right hand while one Rado Dister Wrist-watch bearing serial number and two gold bangles weighing about 15 grams from right pocket of his wearing pant were recovered.
From further search of person one black purse containing different documents and cash Rs,30 were also recovered from his pocket of the same pant."
' The aforenamed complainant as per Mashirnama of recovery has stated that the recovered gold jewellery and wrist-watches to be his own property pointed out that the same were stolen away from his house by the accused prior to this incident.
18. The statements under section 342, Cr.P.C. Revealed that no specific question has been put to the nature of recovery of the articles in the light of the Mashirnama of recovery as discussed supra and this is the adverse evidence which is existing against the appellants, strange enough that no such specific question with regard to recovery has been put to the accused by the prosecution. This shows that the learned trial Judge has not taken into consideration the entire evidence as the only question put by the learned trial Court under section 342, Cr.P.C. To the accused is:-- ##TE# "It has also come in evidence that after commission of robbery while you were running, police party chased you and after exchange of firing apprehended you and robbed property alongwith TT pistol with cartridges recovered from your possession?
Nowhere it appears that when they were apprehended by police and when such robbed property was recovered from their possession is lacking in the statements under section 342, Cr.P.C. Even as discussed supra no specific question with regard to recovery from both the appellants has been put by the learned trial Court in view of Mashirnama of recovery of the robbed articles.
19. In view of above discussion failure on the part of the prosecution, non-examination of the sister of the complainant, no identification test of the robbed articles, no independent witness on the factum , of recovery and arrest of the accused, non-examination of Muhammad Amin' co-Mashir and the statement of the complainant before E the learned Trial Court who has deviated from his earlier statement which he narrated before police in F.I.R. Have riddled the case of the prosecution with material contradictions. Identification of the accused has not been held in manner as held by the superior Courts. Non-examination of the Magistrate on the factum of identification parade. All these factors have shattered the case of the prosecution.
20. Although such kinds of incident are happening in the country and such elements enter the house of the people for want of glass of water or foods and they enter forcibly the houses of the innocent people and they commit such offence but it is regretted to say that the investigation conducted by the police has always given crushing blow to the case of the prosecution and they do not investigate the case properly and do not conduct the investigation in accordance with the mandatory provisions of requirement of law and the parameters laid down by the Hon'ble superior Courts. Which ultimately results in failure on the part of the prosecution to prove its case beyond reasonable doubt?
21. Upshot of above discussion is that the prosecution itself has injected the elements of doubts in the case. It has been held by the Hon'ble Supreme Court in 1995 SCM R 1345 that if a single circumstance creates a doubt in the prudent mind, benefit of doubt goes to the accused not as a matter of grace but as a matter of right. In the instant case the prosecution itself has created so many doubts and in that event the benefit of doubt goes to the appellants/accused. I give benefit of doubt to the appellants. Their conviction and sentence are set aside. In result both the appeals are allowed. Both the appellants are on bail, their F bail bond and surety stand discharged.