2011 M L D 7 1 2
[Quetta]
Before Mrs. Syeda Tahira Safdar, J
ILYAS and another ---Appellants
Versus
THE STATE ---Respondent
Criminal Appeal No.59 of 2010, decided on 3rd January, 2011.
Penal Code (XLV of 1860) ---
----Ss. 392 & 34 ---Voluntarily causing hurt in committing robbery, acts done by several
persons in furtherance o f common intention ---Appreciation of evidence --Benefit of doubt ---
Contradiction in medical and ocular evidence created doubts ---Delay in recording statements
of witnesses and inspection of the site was not explained by the Investigating Officer ---No
recove ry of stolen motor -cycle or crime weapon was effected ---Prosecution failed to establish
that the acts of the accused constituted alleged offence ---Sequence of events narrated by
prosecution was not logical ---Complainant could not explain the reason for his efforts for
settlement after suffering injuries in robbery committed ---Contradictions and discrepancies in
prosecution evidence were not considered by Trial Court ---Ingredients of offence under
S.392 were not complete ---Contradictions in statements of pro secution witnesses made its
case doubtful ---Benefit of doubt had to be exercised in favour of accused persons ---Appeal
was accepted ---Accused were acquitted of the charge.
Muhammad Ayaz Swati for Appellant.
Haji Liaquat Ali for Respondent.
Date of hearing: 8th November, 2010.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J .----The appellants have preferred present appeal
feeling aggrieved of judgment dated 29 -3-2010 of Sessions Judge, Mekran at Turbat,
whereby they both have been convicted for the offe nce punishable under sections 392 and 34,
P.P.C., thereby sentenced to suffer rigorous imprisonment for a period of four years with fine
of Rs.15000 each and in case of default further suffer imprisonment for a period of three
months. It is their contentio n that though there is no evidence to connect them (appellants) in
commission of the offence, the trial Court awarded punishment to them. Further, contended
that the facts and circumstances are not considered by the trial Court. Though there was
considerab le delay in registration of F.I.R. and the medical examination of complainant was
also conducted after delay, but there was no explanation to this effect from side of the
prosecution, nor the trial court dilated upon these facts. It is also their (appellan ts') contention
that complainant Muhammad Naeem being employee of Police Department, who while
extracting his influence managed to got registered a false case against them, with mala fide
intention. Furthermore, there is clear conflict in ocular and medica l evidence, while there is
no recovery of any sort from them. The appellants contended that the trial court failed to
appreciate these facts, as such the impugned judgment is based on misreading and non -
reading of evidence, further, it is self conflicting and self contradictory. Thus all these facts
make the case of the prosecution highly doubtful, but the trial court failed to appreciate the
same, which resulted in grave miscarriage of justice. The appellants have prayed for setting
aside of impugned judgm ent thereby their acquittal of the charge.
As per record the alleged incident occurred on 7 -10-2009 at 9 -30 a.m. the matter was
reported by one Muhammad Naeem son of Lal Bakhsh on 10 -10-2009, whereupon F.I.R.
No.152 of 2009 Police Station City Turbat, Di strict Kech was registered. It has been reported
that on 7 -10-2009 at 9 -30 a.m. he (complainant Muhammad Naeem) along with his paternal
uncle namely Abdul Qadir, on his Iranian motorcycle Honda were proceedings towards
Karez for taking bath, when they reac hed near house of Master Altaf, two veiled persons
suddenly approached them and signaled them to stop, on doing so, the said persons asked
them (complainant) to hand over the motorcycle, on refusal miscreants started having scuffle
with them, during the sa me they, (assailants) were unveiled, whereupon they (complainant
and his uncle) recognized then as Ilyas son of Haji Khuda -e-Dad and Yaseen son of Yousaf.
It is further, reported that one of them hit him (complainant) on his forehead with butt of the
pisto l, and made him unconscious and both of them escaped from the site while taking his
motorcycle with them. The reason assigned by the complainant to the delay occurred in filing
of the report was that he intended to resolve the issue by effecting of comprom ise, but the
accused persons were not ready for the same.
After registration of F.I.R., case was investigated, on completion challan was submitted
before the trial court, whereby after framing of charge and on plea of not guilty by the
accused persons, e vidence was called. On completion of trial the court while deciding the
case arrived to the conclusion that as the prosecution has established its case, thus charge is
proved against the accused persons/appellants thereby convicted them for offence
punisha ble under sections 392 and 34 P.P.C. and awarded them sentence to suffer rigorous
imprisonment for a period of four years with fine of Rs.15000 each. Hence present appeal.
The learned counsel for the appellants while arguing the matter contended that the re is no
evidence to connect the accused persons/appellants the commission of the offence. Further,
there is delay in filing of F.I.R., that too without explanation. It is further contended that
there is also delay in recording of statements of witnesses u nder section 161, Cr.P.C, during
course of investigation, while there is clear contradiction in "medical evidence and there are
also improvements in statements of the witnesses. Even no recovery was effected from the
'accused persons/appellants, he relied on judgments made in cases and reported in 1993
SCMR 550 titled Syed Saeed Muhammad Shah and another v. The State, 1994 SCMR 995,
titled Naseer Ahmed alias PHUP v. The State and 1995 SCMR 127 titled Mahmood Ahmed
and 3 others v. The State and another. Lear ned State counsel while replying the arguments,
advanced by the learned counsel for the appellants, contended that co -accused Yasin son of
Khuda -e-Dad was implicated on basis of disclosure made by accused Ilyas/appellant No.1.
Further, contended that there is no contradiction in Medico Legal Certificate and in statement
of Medical Officer. The improvements as alleged are not established as alleged
improvements are not confronted to the witnesses at relevant time. Furthermore, the
defence witnesses also esta blish the case of the prosecution. As far as delay in lodging of
F.I.R. is concerned, it was his arguments that the delay has already been explained by the
complainant, as matter remained pending between the parties for effecting of compromise,
while on fa ilure the matter was reported, whereupon instant F.I.R. was registered.
The prosecution in order to establish its case produced six witnesses, while in rebuttal only
one witness appeared in defence. The complainant of the case namely Muhammad Naeem
appea red, as prosecution witness No.5. He re -affirmed his written report (ﻔﺮﺩﺒﻴﺎﻦ )which is
placed on record as Exh.P/5 -A and on basis of it F.I.R. No.152 of 2009 Police Station Turbat,
District Kech was registered. The only eye -witness of the occasion is Abdul Qadir, who
appeared before the court and got recorded his statement as P.W.1. He deposed that on 7 -10-
2009 at 9 -30 a.m. he along with his nephew Muhammad Naeem, while proceedings to Karez
on his motorcycle, when intercepted by two persons with muffled fac es, who demanded for
handing over of the motorcycle to then, on refusal, they (the miscreants) started to scuffle
with them, during the same he (P.W.1) recognized them as Ilyas and Yasin. He further stated
that Ilyas hit Naeem with handle of pistol on his forehead, who fell 'down and became
unconscious, whereupon he (witness) ran away towards his house for giving information,
when he returned Naeem was lying unconscious, while the accused persons after talking the
motorcycle, absconded from the site. Apart from P.W. there is no other witness of the
occasion. P.W.2 Dr. Babar Noor is the Medical Officer, who examined injured Muhammad
Naeem and provided him treatment. He produced Medico Legal Certificate as Exh.P/2 -A.
P.W.3 Saleh Muhammad Head Constable is witn ess of arrest of accused Ilyas. According to
him on 12 -10-2009 he along with Investigating Officer Muhammad Saleem proceeded for
Ormara and reached there on 13 -10-2009, where S.H.O. Police Station Ormara handed over
the custody of accused Ilyas along with memo of recovery to Investigating Officer, who
prepared seizure memo Exh.P/3 -A, which was signed by him and Riaz Ahmed as witness. He
produced the articles taken into custody as article No.1 to article No.6. P. W; 4 Riaz Hussain,
Sub-Inspector deposed that on 24 -10-2009 at 9 -30 p.m. both the accused persons Ilyas and
Yasin were brought into Investigation Room. In presence of Qasim IP/S.H.O., Muhammad
Saleem, S. -I. Investigating Officer and Abdul Sattar IP Incharge, accused Ilyas disclosed that
on 7 -10-2009 he along with co -accused Yasin, with intention to commit dacoity, were
standing in the lane near the house of Master Altaf, meanwhile Naeem and Qadir reached
there, on red coloured Honda Motorcycle, they (accused) asked them to hand over the
motorcycle to them, on their (complainant and injured) refusal they scuffled with each other,
while he (Ilyas) hit Naeem on his forehead with butt of pistol, due to which he (Naeem)
became unconscious, whereupon he snatched the motorcycle, while boarded on it along with
his companion, proceeded to their house. Accused Ilyas further disclosed that though
Naeem asked for settlement, but they did not agree, whereafter, Police arrested him,
whereupon his brother Yasin proceeded to unknown place along with motorcycle. He
(witness) produced memo of disclosure as Exh.P/4 -A, which was signed by him (the witness)
as witness. P.W.6 Muhammad Saleem S. -I. is the Investigating Officer, while recording his
statement deposed that after registration of case on 10 -10-2009 investigation wa s handed over
to-him, whereupon after preparing inventory of injuries he send the complainant, who was
injured, to hospital, while he along with his staff inspected the site and prepared map, which
is Exh.P/6 -B, recorded statements of witnesses. Further, s tated that on 12 -10-2009 after
receiving information about arrest of accused Ilyas, he proceeded to Ormara, meanwhile
accused Yasin was also got arrested at Turbat, custody of both the accused persons were
handed over to him. It is also his statement that during investigation both the accused persons
made disclosures, which were recorded, he produced disclosure memo as Exh /4 -A. After
completion of investigation to the extent of arrested accused persons, case was challaned,
till present co -accused Yasin son of Khuda -e-Dad has not been arrested.
In their defence the accused persons/ appellants only produced one person namely Yasin son
of Dad Muhammad, who got recorded his statement as DW.1. He stated that after occurrence
of incident on arrest of both the a ccused persons their family members approached him for
settlement of the matter. He further stated that he was told by family members of accused
persons that before occurrence of incident accused Ilyas was proceeding to Turbat on his
motorcycle, when he re ached near house of his uncle, he ran out of fuel, thus obtained the
same, when he (Ilyas) came out of the house 2 or 3 persons belonging to complainant's party
were standing there, have fight with him (accused Ilyas) thereby took a pistol, a mobile and
cash amounting to Rs.14000 from him (Ilyas). It was further told to him that thereafter, the
accused persons in reply took over custody of the motorcycle of the complainant. He
further deposed that on said request he approached complainant's party, who admit ted that no
incident of theft of motorcycle was ever occurred, rather as the video of sister of complainant
was in mobile chip of accused Ilyas all this happened. On the same he (witness) again
approached family of accused persons and handed over the memor y card/chip to the
complainant, but as precaution he retained a copy of said memory card/ chip with him, the
complainant refused to return the mentioned articles, on occasion that as the motorcycle
remained in use of accused persons, thus it has become old . In the circumstances the
motorcycle was given to one Jamadar Fazal for purpose of handing over its custody. But, the
complainant party refused to receive the motorcycle, rather demanded for money. He further
stated that the accused party paid an amount o f Rs.18000. to complainant's side through
Jamadar Fazal. It is further his statement that thereafter the complainant agreed to settle the
dispute with Yasin, but refused for effecting of settlement with accused Ilyas, for the reason
that he was in custody of photograph of their girl in his mobile phone. Further, to resolve the
issue -elders of the area along with persons from complainant side, remained present, but the
parties did not arrive to any settlement.
As far as both the accused persons are concern ed, though they did not record their statements
on oath, but during course of examination conducted under section 342, Cr.P.C. they tried to
explain the nature of dispute existed between the parties. As per accused Ilyas/appellant No.1
the sister of compla inant namely Anila wanted to marry hint, while her audio and video were
in memory chip of his mobile phone. He stated that on the day of incident the complainant
and Abdul Qadir, were chasing him, when he reached near his house they caught hold of him
and started beating hint, while Yasin came in between, he was also beaten by them. The
complainant and others took his mobile and cash, while their (accused persons) family in
reply hold custody of the motorcycle. Whereupon the settlement was arrived through e lders
of the area, in terms that the complainant shall return mobile and cash amount, while they
(accused) shall return the motorcycle and chip. In compliance thereof they (accused) handed
over copy of the chip to the complainant, but the other side refuse d to hand over cash amount
and mobile. On the same his (accused) family also refused to hand over the motorcycle. He
further stated that no incident of motorcycle snatching ever took place rather false case has
been registered against him.
As far as accu sed Yasin is concerned, during course of examination while claiming his
innocence, deposed that complainant Naeem and Abdul Qadir were chasing accused Ilyas,
when they came near his house they started beating hint (Ilyas), when he (Yasin) interfered
and tr ied for settlement of issue, he was also beaten by them (complainant). He further
deposed that the complainant took away the mobile and cash amount of accused Ilyas with
him, while the motorcycle of Naeem was held by residents of the vicinity. While disclo sing
the factual controversy the (Yasin) further stated that as audio and video of sister of
complainant was in memory chip mobile of accused Ilyas, thus it was agreed that on handing
over of said mobile chip, the articles of accused Ilyas and complainant would be returned.
But despite handing over of mobile chip, the articles of Ilyas were not returned, whereupon it
was decided by the elders that motorcycle should not be returned. He further deposed that in
actual no incident of motorcycle snatching ever t aken place. This is the whole set of evidence
came on record from both the sides.
It is case of the prosecution that at 9 -30 a.m. on 7 -10-2009 two veiled persons tried to
intercept complainant Muhammad Naeem and his paternal uncle Abdul Qadir made demand
for motorcycle, on refusal they scuffled with each other, meanwhile they were un -muffled
and recognized as Ilyas and Yasin, while one of them named as Ilyas hit complainant on his
forehead, who after sustaining injury became unconscious, whereupon the acc used persons
escaped from the site after taking the motorcycle. Admittedly the incident was reported on
10-10-2009 by the complainant, who is also the injured, whereupon F.I.R. No.152 of 2009
Police Station City Turbat District Kech was registered. There i s clear delay of three days in
reporting of the matter. The reason assigned is that (the complainant) wanted settlement
between the parties, but the other side did not agree. He deposed same reason in his statement
made before the trial court. The fact abo ut making efforts for settlement of dispute between
the parties is also asserted by the accused persons, but through some variations. According to
them in fact matter in dispute between the parties was of a family nature, relating to sister of
the complain ant and accused Ilyas, despite efforts matter was not resolved, in result they
(accused persons) were involved in false case. P.W.1 Abdul Qadir the only eye -witness of the
occasion, is completely silent about any such effort, in his statement recorded befo re the
court, rather during course of cross -examination he showed his complete ignorance about the
efforts made for effecting of` compromise or settlement of the dispute between the parties,
despite his admission that he remained in the area till filing of F.I.R. It shows that there is
concealment of facts on his part. In view of above mentioned facts the delay in reporting of
the matter is explained to some extent.
Though on basis of evidence a rough picture of existence of dispute between the parties ha ve
come on record, the effect of the same is required to be seen in connection to the commission
of the offence. It is the prosecution to establish free from all doubt the charge levelled against
the accused persons. It is case of the prosecution that accu sed persons/appellants while
snatching the motorcycle caused hurt to complainant and took away the motorcycle, as such
they are guilty for the offence punishable under section 394, P.P.C. read with section 34,
P.P.C. Section 394, P.P.C. states as under --
"394. Voluntarily causing hurt in committing robbery .---If any person, in committing
or in attempting to commit robbery, voluntarily causes hurt, such person, and any
other person jointly concerned in committing or attempting to commit such robbery,
shall be punished with imprisonment for life, or with rigorous imprisonment for a
term which shall not be less than four years or more than ten years, and shall also be
liable to fine."
The prosecution has to establish the presence of ingredients required to constitute the offence
against the accused persons. As per contents of F.I.R. the incident occurred at 9 -30 a.m. on 7 -
10-2009 near the house of Master Altaf. As per complainant P.W.5 he along with P.W.1
Abdul Qadir was going to Karez on motorcycle for purp ose of taking bath. The incident
occurred, as per their own showings, in front of house of Master Altaf. The prosecution has
not disclosed the area where house of Master Altaf is situated. The site map prepared by the
Investigating Officer, after registrat ion of F.I.R. is present on record as Exh.P/6 -B, it is silent
to same effect, but reveals that the house of accused Yasin son of Altaf (appellant No.2) is
situated near the house of Master Altaf. The complainant during cross -examination to his
statement ad mitted that he is resident of village Mairri, while the accused persons/ appellants
are residents of village Kullang, further admitted that both these places are separate villages.
The Investigating Officer (P.W.6) also during course of cross -examination a dmitted that
incident occurred in front of house of accused Yasin. He further admitted that Kullang and
Mairri are two separate villages, while complainant Muhammad Naeem is resident of village
Mairri. This admission shows that the incident occurred in are a of village Kullang, that too
near the house of accused Yasin son of Yousaf. In addition P.W. Abdul Qadir deposed that
when Ilyas hit Naeem on his forehead, who fell down and become unconscious, he ran
towards his house to inform the inmates and on his re turn he saw Naeem was lying
unconscious, the accused persons have taken away the motorcycle. There is no explanation
that where his (P.W.1) house was situated. Both P.W.1. and P.W.5. disclosed themselves as
residents of Mairri, Turbat, even the map of the site does not disclose the existence house of
either complainant or of P.W.I. Abdul Qadir, the eye witness in the area. Statements of both
these witnesses are not in conformity with the map of the site prepared by Investigating
Officer at the time when inv estigation was handed over to him. The mentioned facts also
showed misstatement and concealment of facts on part of prosecution witnesses, which lessen
their evidentiary value.
In order to establish, rather to constitute an offence punishable under secti on 394, P.P.C., it
has to be established that while committing offence of robbery hurt has been caused
voluntarily. The prosecution witnesses Nos.1 and 5 Abdul Qadir and Naeem being the eye -
witnesses land victim, both made statements to the effect that one of the accused persons,
recognized as Ilyas, hit Naeem, the complainant, on his forehead with butt of pistol, thereby
injured him and he became unconscious. P.W.1 Abdul Qadir did not disclose that any injury
was caused to Naeem the complainant. While Naee m appearing as P.W.5, only deposed that
he was hit on his forehead, thereby he was injured and fell down and become unconscious.
Both of them did not describe nature of the injury, caused in result of said hitting, nor
asserted that he (complainant) got an y medical treatment. Despite the same the Medical
Officer, District Headquarter Hospital Turbat Dr. Babar. Noor was produced before the court
and his statement was recorded as P.W.2. It was his statement that on 7 -10-200 at 1 -30 p.m.
in his presence an inj ured person namely Muhammad Naeem was brought at casualty Centre
of DHQ Hospital by one Wahid Bakhsh, whereupon he examined the injured and noted one
lacerated wound on forehead about one inch, four stitches were done, further there was fresh
bleeding from the wound, while the duration of wound is noted as fresh. Medico Legal
Certificate is placed on record as Exh.P/2 -A, date and time of arrival is mentioned as 7 -10-
2009 at 1 -30 p.m. Contrary to the same the Investigation Officer P.W.6 in his statement
depo sed that on 10 -10-2009 after registration of case investigation was handed over to him,
as the complainant was in injured condition, therefore, he was referred to hospital. But there
is no entry in Medical Certificate about said reference, rather it is men tioned that the injured
is brought by one Wahid Bakhsh. Furthermore, as per PW -6 the Investigation Officer the
injured was referred to the hospital for treatment after registration of F.I.R., which was
admittedly registered on 10 -10-2009, but contrary to t he same the contents of Medical
Certificate mentioned the date of arrival as 7 -10-2009. Furthermore, the wound is described
as fresh, while bleeding was noted, further the wound was described to be stitched. But the
statements of the complainant being the injured, and the eye -witness are silent to said effect.
Keeping in view the above mentioned facts the clear contradiction in medical and ocular
evidence is apparent, which create doubt in its genuineness.
As discussed above the delay in lodging of F.I.R. is explained, but this fact remains
unexplainable that after registration of F.I.R. on 10 -10-2009, the Investigating Officer visited
the place of incident on 11 -10-2009 and also recorded the statements of witnesses on 11 -10-
2009. The delay in recording of statements of witnesses and inspection of site are not
explained by P.W.6., the Investigating Officer.
As far as disclosure made by accused Ilyas is concerned, as there is no discovery of new
facts, rather is narration of facts already in knowledge of t he investigating authority, further
on basis of same no recovery of stolen motorcycle or crime weapon was effected. Apart from
the same as per P.W.4 only accused Ilyas made the disclosure, but contrary to the same as per
P.W.6, the investigating officer, b oth the accused persons made disclosure in front of Qasim
IP/S.H.O. and others. Both the statements are contrary to each other, thus looses their
reliability.
From whole set of evidence, existence of dispute, being of family nature, between the parties
is some how apparent and there seems to be possibility that both the parties are in possession
of the articles as alleged. Despite the same the burden was initially on the prosecution to
establish act of the accused persons that constituted offence as alleg ed against them. But the
prosecution has failed to establish the same. The sequence in which the facts are narrated and
commission of offence has been alleged are not logical. The efforts made for effecting of
compromise by the complainant after commission of offence of robbery seems to be some
how unnatural. Instead of filing report/F.I.R. the complainant started making efforts for
settlement of the matter between the parties. If robbery in actual was committed as alleged
and he (complainant) become injure d in the incident then what was the occasion of making
efforts for settlement, there is no explanation to said effect.
The trial court while making decision fully relied on statements of P.W.1. Abdul Qadir and
P.W.5. Muhammad Naeem, holding them to be na tural witnesses and on medical evidence
being supportive to the case of the prosecution. But the contradictions, variations and
discrepancies, as pointed out in preceding paras, are neither considered nor dilated upon by
the trial court. The presence of in gredients necessary to constitute offence under section
392, P.P.C. are not considered by the trial court, while misreading the evidence convicted the
accused persons and awarded sentence, which is not sustainable.
Keeping in view the above discussion an d in view of above mentioned contradictions and
variations in statements of prosecution witnesses the case of the prosecution become
doubtful, as such less reliance can be made on them. Further, in presence of reasonable doubt,
the benefit must be exercise d in favour of the accused persons. In the circumstances by giving
benefit of doubt, as the prosecution has failed to establish the charge free from all doubts
against the accused persons, therefore, the appeal is hereby accepted the impugned judgment
dated 29-3-2010 of Sessions Judge, Mekran at Turbat is hereby set aside. The appellants Ilyas
son of Khuda -e-Dad and Yasin son of Muhammad Yousaf are acquitted of the charge for the
offence punishable under sections 392 and 34 P.P.C., in case pursuant to F.I.R . No.152 of
2009 Police Station City Turbat, District Kech. The appellants Ilyas son of Khuda -e-Dad and
Yasin son of Muhammad Yousaf be released at once, if not required in any other case.
A.R.K./5/Q Appeal accepted.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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