2018 M L D 751
[Balochistan]
Before Zaheer- ud-Din Kakar, J
SAIFULLAH ---Petitioner
Versus
The STATE---Respondent
Crl. Revision No.109 of 2015, decided on 26th September, 2017.
(a) Criminal trial ---
----Circumstantial evidence ---Value ---Scope---Circumstantial evidence was to be considered
as a chain, and each piece of evidence, was link in the chain--- If any one link had broken, the
chain would fail ---Circumstantial evidence could only form basis for conviction, when it was
compatible with the innocence of accused or guilt of any other person and in no manner be
incapable of explaining upon any reasonable hypothesis except that of guilt of accused ---Every
link in circumstantial evidence had to be prove d by cogent evidence and if not then no
conviction could be maintained or awarded to accused.
(b) Penal Code (XLV of 1860) ---
----Ss.392 & 34---Qanun -e-Shahadat (10 of 1984), Art. 129(g) ---Robbery, common intention-
--Appreciation of evidence ---Benefit of doubt ---Circumstantial evidence ---Withholding
material witness ---Presumption ---Prosecution case was that accused persons had snatched
motorcycle, Computerized National Identity Card and mobile phone on gun point from
complainant ---Record showed that no ocular evidence was available except the admission and
identification of the accused in the case ---Prosecution had examined two witnesses with regard
to the admission/disclosure and identification of the accused---Record showed that accused had made confessio n and disclosure in police custody, no weight could be given to such disclosure
and confession--- Identification parade of the accused was conducted under the supervision of
Judicial Magistrate after eleven days of his arrest ---No explanation had been furni shed for
delayed identification parade ---Prosecution failed to examine the said Judicial Magistrate
before the Trial Court as prosecution witness to substantiate the version of the Investigating Officer---Complainant did not describe the role played by the accused at the time of
commission of offence, thus the same had lost its efficacy and could not be relied upon---Adverse inference under Art. 129(g), Qanun- e-Shahadat, 1984 that had the witness been
produced before the court, he would not have supported t he prosecution case, could safely be
drawn against the prosecution---Circumstances and facts of the case created doubt about the prosecution case, benefit of which would resolve in favour of accused ---Accused was acquitted
in circumstances by setting aside conviction and sentence recorded by the Trial Court.
Muhammad Rafiq and others v. The State and others 2010 SCMR 385; Lal Khan v. The
State 2006 SCMR 1846 and Riaz Ahmed v. The State 2010 SCMR 846 rel.
(c) Criminal trial ---
----Circumstantial evidence ---Scope ---Absence of occular evidence would not result in
acquittal of the accused ---Conviction could be awarded on circumstantial evidence, if the same
connected the accused with commission of offence. (d) Qanun- e-Shahadat (10 of 1984) ---
----Arts. 38 & 39---Confession/disclosure of accused in custody of police ---Effect ---
Confession of an accused during custody was inadmissible being hit by Arts. 38 & 39 of the
Qanun- e-Shahadat, 1984 ---Extra -judicial confession was a very weak type of evidence and
convicti on could not be awarded without strong corroboration.
Wazir Muhammad and another v. State 2005 SCMR 277; Liaquat Ali v. The State 1999
PCr.LJ 1469; Tahir Javed v. The State 2009 SCMR 166 and Zafar Iqbal and others v. The State 2006 SCMR 463 rel.
(e) Qanu n-e-Shahadat (10 of 1984) ---
----Art. 22---Delay in conducting identification parade ---Effect ---Delayed identification test
both with reference to the date of occurrence and the date when the accused was taken into
custody was to be looked upon with the ma ximum caution by the court.
Asghar Ali v. The State 1992 SCMR 2088 and The State v. Farman Hussain PLD 1995
SC 1 rel.
(f) Criminal trial ---
----Burden of proof ----Principle ---Prosecution had to prove its case against the accused by
standing on its own le gs and it could not take any benefit from the weaknesses of the case of
defence.
(g) Criminal trial ---
----Benefit of doubt ---Principles ---If there was a single circumstance, which created reasonable
doubt regarding the prosecution case, the same would be sufficient to give benefit to the
accused.
Ayub Masih v. The State PLD 2002 SC 1048 rel.
Naseebullah Tareen for Petitioner.
Naeem Kakar, Additional Prosecutor General for the State.
Date of hearing: 22nd September, 2017.
JUDGMENT
ZAHEER -UD-DIN KAKAR, J. ---Petitioner Saifullah, feeling aggrieved of the
judgments dated 23.4.2015 and 31.8.2015 (the impugned judgments), passed by the Judicial Magistrate- I (the trial Court) and Additional Sessions Judge, Pishin (the appellate Court),
respectively, has preferred the instant Criminal Revision Petition, whereby the trial Court has
convicted him Under Section 392/34, P.P.C. and sentenced for a period of three (03) years RI with fine of Rs.5000/ -. In case of default, he shall further undergo for three months SI. He has
further directed to pay Rs.6000/ - to the complainant as compensation under section 544- A,
Cr.P.C. Benefit of section 382- B, Cr.P.C. was also extended in his favour, whereas the appellate
Court upheld the judgment of the trial Court.
2. Precisely stated facts of the case are that, on 25.5.2016, complainant Abdul Khaliq was
going to his home on motorcycle and when reached at Charmari road near the mosque at about 9:15 p.m. an Indus Corolla Car white in colour crossed him in which f ive persons were boarded.
Out of them, two persons came out of the vehicle and one person on gun point snatched his motorcycle while the other one took his CNIC and Q -Mobile from his pocket and left towards
Burshore road. According to complainant; he went to his village and gathered the people to chase the culprits and when he along with his companion reached Darwaish Flour Mill, found a person, collided the snatched motorcycle with a vehicle and was lying in injured condition, who disclosed his name as Wal i Khan and thereafter, he was shifted to Civil Hospital Pishin.
Resultantly, on the report of complainant, FIR No.77 of 2014, under Section 392, P.P.C., dated 25.5.2014 was registered with Police Station, Pishin.
3. On completion of investigation, challan was submitted against the petitioner and co -
accused, who were summoned by the trial Court and charge sheeted, to which they pleaded not
guilty and claimed trial. The prosecution, in order to prove the accusation, produced six witnesses. PW -1 Abdul Ghaffar is complainant of the case, he produced his Fard -e-bayan (Ex-
P/1-A) on the basis whereof FIR (Ex -P/6-A) was registered. PW -2 Abdul Razzaq is an ocular
witness but did not state a single word against the petitioner. PW -3 Muhammad Ibrahim is a
Mechanic, who checked the damaged motorcycle and stated that the same needed repair against the cost of Rs.19950/ -. PW -4 Ain -ud-Din ASI is mushir of the recovery memo. of motorcycle
(Ex-P/4-A) and identified the same as Article P/1. PW -5 Abdul Rab ASI, is mushir of the
disclosure memo. of the petitioner Ex -P/5-B. PW -6 ASI Amanullah, conducted investigation,
recorded statements of witnesses, produced FIR Ex.P/6- A, site plan Ex -P/6-B and Ex -P/6-C,
memo. of identification parade of the petitioner Ex -P/6-D and challan Ex -P/6-E.
4. Thereafter, the petitioner was examined under section 342, Cr.P.C. wherein he denied
the prosecution accusation and claimed to be innocent. He did not opt to record his statement on oath as envisaged under Section 340(2), Cr.P.C. nor produced any evidence in his defence. The trial Court, after close of the prosecution evidence, vide impugned judgment dated 23rd
April, 2015, convicted and sentenced the petitioner, as mentioned herein above. Feeling
aggrieved, the petitioner preferred Appeal No.2 of 2015, before the appellate Court, which met with the same fate, hence this petition.
5. Learned counsel for the petitioner contended that the prosecution had failed to prove its
case against the petitioner beyond reasonable doubt; that the prosecution was not possessing sufficient evidence as instant case depends on disclosure memo, such disclosure before the police has no evidentiary value and cannot be considered; that so far as identification parade of the petitioner is concerned, the same was conducted af ter arrest of ten days of the petitioner,
which has no evidentiary value under the law, thus, this petition warrant acceptance with a result of acquittal of the petitioner.
6. On the other hand learned Additional Prosecutor General while controverting the
contentions, as agitated on behalf of convict/petitioner, argued that the impugned judgments passed by the Courts below are well reasoned and speaking and have been passed on proper appreciation of evidence, therefore, this petition is liable to be dismiss ed.
7. I have carefully examined the respective contentions, as agitated on behalf of the
petitioners as well as on behalf of the State, scrutinized the entire prosecution evidence and perused the judgments of the trial as well as the appellate Courts.
8. By looking into the merit of the case, it is admitted fact that instant case depends upon
circumstantial evidence. It is settled proposition of law that circumstantial evidence is to be considered as a chain, and each piece of evidence, is link in the chai n, if any one link breaks,
the claim would fail. The circumstantial evidence can only form basis for conviction, when it
is compatiable with the innocence of accused or guilt of any other person and in no manner be incapable of explaining upon any reasonable hypotheses except that of guilt of accused. Every link in circumstantial evidence should be proved by cogent evidence and if not then no conviction could be maintained or awarded to an accused.
9. While keeping in mind the above said principle, I scanne d the evidence available on
record. The perusal of available material shows that in the instant case no ocular evidence is available except the admission and identification of the petitioner and the prosecution has examined two witnesses (PWs -5. & 6) with regard to the admission/disclosure and
identification of the petitioner by the complainant. It is a settled proposition of law that absence of ocular evidence is not tantamount to acquit the accused persons, but conviction can be awarded on circumstantial evidence, if it is surfaced that the same is connecting with all the aspects with regard to the commission of the offence by the accused persons, which is lacking in the instant case.
10. As far as disclosure of the petitioner (Ex -P/5-B) before the police in which he confessed
his guilt is concerned, it is settled principle of law that disclosure of an accused during custody is inadmissible being hit by Articles 38 and 39 of the Qanun- e-Shahadat Order, 1984. There is
no cavil to the legal proposition that t he extra judicial confession is a very weak type of
evidence and no conviction could have been awarded without having strong corroboration which aspect of the matter hardly needs any comments. In this regard reliance is placed on the cases titled Wazir Muh ammad and another v. State (2005 SCMR 277), Liaquat Ali v. The State
(1999 PCr.LJ 1469 Lahore); Tahir Javed v. The State (2009 SCMR 166) and Zafar Iqbal and others v. The State (2006 SCMR 463). Hence, no weight can be given to such disclosure, while in pol ice custody. Even otherwise, in case, if such extra judicial confession was made by the
petitioner during the course of investigation, it was incumbent upon the Investigation Officer to get his confessional statement recorded before the Judicial Magistrate.
11. Another piece of evidence against the petitioner is identification parade (Ex -P/6-D),
which was conducted under supervision of the Judicial Magistrate -II, Pishin on 6.6.2014 i.e.
after eleven days of his arrest. No satisfactory explanation has been f urnished for delayed
conducting the identification parade. It is settled law that a delayed identification test both with reference to the date of occurrence and the date when the accused was taken into custody is always looked upon with the maximum caution by the Courts of law. For this principle, I fortified with the dictum laid down in the case Asghar Ali v. The State (1992 SCMR 2088) and The State v. Farman Hussain (PLD 1995 SC 1). In the instant case, the identification parade carried an inherent defec t that is that PW -1 Abdul Ghaffar, complainant, did not describe the
role played by the petitioner at the time of the commission of the offence. The same, therefore, has lost its efficacy and cannot be relied upon. Reliance in this respect is placed on the case of
Khadim Hussain v. The State (1985 SCMR 781). Furthermore, according , to PW -5
Investigating Officer, the test of identification parade of the petitioner was carried out under the supervision of Judicial Magistrate -II, Pishin, but the prosecution f ailed to examine the said
Magistrate before the trial Court as prosecution witness to substantiate the version of the
Investigating Officer and to authenticate the identification parade memo. Ex -P/6-D. Therefore,
in view of Article 129(g) of Qanun- e-Shahad at Order, 1984, adverse inference, that had this
witness been produced before the Court he would not have supported the prosecution case, can
safely be drawn against the prosecution. In this regard, guidance is sought from the cases titled Muhammad Rafiq a nd others v. The State and others (2010 SCMR 385), Lal Khan v. The State
(2006 SCMR 1846), Riaz Ahmed v. The State (2010 SCMR 846).
12. It is, by now, well established principle of law that it is the prosecution, which has to
prove its case against the accused by standing on its own legs and it cannot take any benefit from the weaknesses of the case of defence. In the instant case, the prosecution remained fail to discharge its responsibility of proving the case against the petitioner. There remains no cavi l
to the proposition that if there is a single circumstance which creates reasonable doubt regarding the prosecution case, the same is sufficient to give benefit of the same to the accused, whereas the instant case is replete with circumstances which have created serious doubt about the prosecution story. Even as per saying of the Holy Prophet (P.B.U.H), the mistake in releasing a criminal is better than punishing an innocent person. Same principle was also followed by the Hon'ble Supreme Court of Pakistan in the case of Ayub Masih v. The State (PLD 2002 SC 1048), wherein at page 1056, it was observed as under: --
"....It will not be out of place to mention here that this rule occupies a pivotal place in the Islamic Law and is enforced rigorously in view of t he saying of the Holy Prophet
(P.B.U.H) that the "mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent"
In supra mentioned case of Ayub Masih, the Hon'ble Supreme Court was also pleased to
observe as under: --
"...The rule of benefit of doubt, which is described as the golden rule, is essentially as rule of prudence which cannot be ignored while dispensing justice in accordance with the law. It is based on the maxim, "it is better that ten guilty persons be acqu itted rather
than one innocent person be convicted" "
13. In the light of above discussion, I accept this petition, set aside the impugned judgments
dated 23.4.2015 and 31.8.2015, passed by the Judicial Magistrate -I, Pishin and the Additional
Sessions Judg e, Pishin, respectively, to the extent of petitioner Saifullah son of Akhtar Jan and
acquit him of the charge by extending benefit of doubt. He is on bail his bail bond stands discharged.
JK/145/Bal. Petition 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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