2025 M L D 1601
[Balochistan]
Before Muhammad Najam -ud-Din Mengal, J
MUHAMMAD IRFAN and another ---Appellants
Versus
The STATE--- Respondent
Criminal Appeal No. 21 of 2024, decided on 21st May, 2025.
(a) Penal Code (XLV of 1860) ---
----Ss. 395 & 34--- Dacoity, common intention---Appreciation of evidence ---Ocular
account proved---Accused were charged for committing dacoity with the complainant and
his cousin and snatching an amount of Rs. 30,00,000/ - with a mobile ---Ocular account of
the incident had been furnished by three witnesses ---Statements of said witnesses were in
consonance with each other, as they fully corroborated the statements of each other ---
Cousin of the complainant confirmed the statement of complainant that on the day of occurrence he was accompanying the complainant and he also confirmed that Rs.20,00,000/ - was handed over to them by friend of complainant/witness and even said
witness confirmed the arrival of both the witnesses in Bank Islami and after withdrawal of
Rs.20,00,000/ - he handed over the said amount to complainant and his cousin---
Complainant and his cousin identified the appellant in the Trial Court ---All the witnesses
correctly stated the date, the time, the place of occurrence and the manner in which the occurrence had taken place---All the witnesses were cross -examined at sufficient length,
but nothing incriminatory had come on record favouring the appellant ---Appeal against
conviction was dismissed, in circumstances.
(b) Penal Code (XLV of 1860)---
----Ss. 395 & 34---Dacoity, common intention ---Appreciation of evidence ---Extra -judicial
confession made by accused ---Scope ---Accused were charged for committing dacoity with
the complainant and his cousin and snatching an amount of Rs. 30,00,000/ - with a mobile -
--Appellant stated that on the day of occurrence, after consultation, he along with other
accused came to Bank Islami, while one of the accused persons was present inside the bank---At about 12.30 p.m. two persons having a black colour bag came out of Bank and in the meantime the accused in the bank also came out of Bank and signaled them towards the witnesses ---Hence, both the persons seated in an Alto Car and proceeded towards "S"
Complex, while the accused persons also chased them and stopped the said vehicle of complainant party near Children Hospital and on gun point snatched Rs.30,00,000/ - from
them ---Hence after looting the amount, the accused persons distributed the same amongst
them and Rs.400,000/ - had come towards his share, out of which he spent Rs.100,000/ -,
whereas the remaining amount as well as the share of accused were lying with him and he could recover the same ---After recording disclosure of the appellant, he was taken to his
house, where on the pointation of appellant from his residential room recovered Rs.740,000/ ----Appellant also pointed out the place of occurrence ---For awarding
conviction on the basis of extra -judicial confession, three -fold proof was required---
Firstly, it was in fact made; secondly that it was voluntarily made; and thirdly that it was truly made ---Extra -judicial confession indicated that all the ingredients were available in
the case in hand, as the same was supported by attending circumstances ---Appeal against
conviction was dismissed, in circumstances.
(c) Criminal trial ---
----Extra judicial confession---Scope ---Judicial or extra judicial confession canbe made
sole basis for conviction of an accused, if the Court is satisfied and believes that it is true
and voluntary and is not obtained by torture or coercion or inducement.
(d) Penal Code (XLV of 1860)---
----Ss. 395 & 34---Dacoity, common intention ---Appreciation of evidence---Extra -judicial
confession made by accused--- Admissibility ---Accused were charged for committing
dacoity with the complainant and his cousin and snatching an amount of Rs. 30,00,000/ -
with a mobile ---Admittedly, in the case in hand the disclosure of the appellant was
followed by the discovery of new facts i.e. the names of his accomplices, earlier not
known to the Investigating Agency, as well as the role of each accused played during the crime coupled with the recovery of looted money on his pointation from his house ---If any
incriminatory material related to the case was recovered or any fact was 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 Art.40 of the Qanun- e-
Shahadat Order, 1984, because then the presumption would be towards its truthfulness ---
Since, the disclosures of the appellant was followed by the recovery of looted money as well as the discovery of new facts which earlier were not known, therefore, the same was an admissible piece of evidence---Appeal against conviction was dismissed, in circumstances.
The State v. Minhun alias Gul Hassan PLD 1964 SC 813 and Muhammad Amjad v.
The State PLD 2003 SC 704 rel.
(e) Penal Code (XLV of 1860)---
----Ss. 395 & 34--- Qanun -e-Shahadat (10 of 1984), Art. 22---Dacoity, common intention--
-Appreciation of evidence ---Test identification parade --- All legal formalities observed ---
Accused were charged for committing dacoity with the complainant and his cousin and snatching an amount of Rs. 30,00,000/ - with a mobile ---In the present case, identification
parade of the accused was conducted under the supervision of Judicial Magistrate ---
Perusal of identification parade confirmed that all the process was conducted in
accordance with law and both the witnesses correctly identified the appellant and others,
as the culprits, who snatched their cash amount and mobile phone as well as the witnesses also described the role of each accused ---Since, the identification parade of the appellant
was conducted in police station by observing all the legal formalities as provided under the law by the Judicial Magistrate, thus the same was admissible under the law and in fact had given strength to the case of prosecution---Concept of identification parade was twofold, one to establish identification of culprit and second to pin point the role of accused in commission of offence ---In the present case, the appellant was not personally
known to the witnesses ---In such circumstances, the identification parade was mandatory,
which was done in accordance with law ---Appeal against conviction was dismissed, in
circumstances.
Habib -ur-Rehman, Muhammad Rashid Ayub and Najeeb Elum for Appellants.
Wajahat Khan Ghaznavi, State Counsel for the State.
Habibullah Nasar and Ainullah Tareen for the Complainant.
Date of hearing: 28th April, 2025.
JUDGMENT
MUHAMMAD NAJAM -UD-DIN MENGAL, J .---This judgment disposes of
Criminal Appeal No.21 of 2024 filed by the appellant (convict) Muhammad Irfan son of Ghulam Mustafa, against the judgment dated 13th June 2024 (hereinafter referred as, "the impugned judgment") passed by learned Additional Sessions Judge -VII, Quetta (hereinafter
referred as, "the trial Court"), whereby the appellant was convicted under Sections 395, 34, P.P.C and sentenced to suffer seven (07) years R.I., with fine of Rs.500,000/ - or in default
thereof to further suffer S.I. for six (06) months, with the benefit of Section 382- B, Cr.P.C.,
while co -accused Ali Ahmed alias Zafar was acquitted of the charge.
2. Facts of the case are that on 25th August 2021, the complainant Abdul Wakeel son of
Haji Abdul Rahim, lodged FIR No.125/2021 at Police Station Gwalmandi, under Sections
395, 34, P.P.C, against unknown culprits, with the averments that he is Professor by
profession in Government Science College Quetta and resides at Zarghoon Road near Ashraf X-Ray Quetta. On the day of occurrence, he took Pakistan Housing Society Application
Forms and went to Bank Islami Limited Jinnah Road Branch Quetta, where his friend Dr. Khaliq Dad drawn cash amount of Rs.20,00,000/ - (Rupees two million) and handed over him
to deposit the same in UBL Kawari Road Branch, Quetta. Accordingly, he along with Dr.
Khaliq Dad and cousin Ahmedullah proceeded towards Kawari Road and dropped Dr. Khaliq
Dad near Civil Hospital Quetta, and when at about 12.45 p.m. they reached in front of Children Hospital Quetta, suddenly four persons came over there on two motorcycles, out of whom, two were armed with pistols, intercepted their vehicle and on gunpoint snatched cash amount of Rs.20,00,000/ - from him and Rs.10,00,000/ - from his cousin Ahmedullah. They
also snatched away his mobile phone Vivo- Y51S having Sims No.0302- 3880723 and 0310-
1543419 and after committing the crime, the accused persons flee away from the place of occurrence. The accused persons seemed to be Baloch by their appearance and can be identified if brought before.
3. Pursuant to above FIR, investigation was carried out and in the meantime the
appellant along with acquitted and absconding accused were arrested in another criminal case
of dacoity, who during investigation of the said case disclosed that they have also committed
dacoity in the present case, thus they were also arrested in the present case, subjected to
investigation and on completion thereof they were challaned in the trial Court. Accused
Zaman was not arrested, thus he was declared as proclaimed offender.
4. During trial, the trial Court indicted the charge to appellant, acquitted and absconding
accused, who refuted the same, thus the prosecution in order to establish the charge has
produced the evidence of Nine (09) witnesses. During examination of the witnesses, the
accused Abdul Aziz son of Abdul Majeed, Muhammad Ali alias Mehboob and Abdul Rasheed son of Abdul Majeed, jumped bail, thus they were declared as proclaimed offenders by the learned trial Court by initiating proceedings under Sections 87 and 88, Cr.P.C. against them. Whereafter both the appellant and the acquitted accused were examined under Section 342, Cr.P.C. However, neither they recorded their statements on oath under Section 340(2), Cr.P.C. nor produced any witness in their defence. On conclusion of trial and after hearing arguments, the appellant was convicted and sentenced as mentioned above, while the accused Ali Ahmed alias Zafar was acquitted of the charge. Whereafter, the appellant has filed the instant appeal.
5. Learned counsel for appellant contended that the impugned judgement of the Court
below is perverse and contrary to available record; that on the same set of evidence accused Ali Ahmed was acquitted of the charge, but wrongly the appellant was awarded conviction; that the identification parade was not conducted in accordance with law and even was conducted after delay of considerable long period, thus not permissible in the evidence; that the alleged disclosure of the appellant being recorded in police custody is not admissible in the evidence, thus the alleged recovery of currency notes on the pointation of appellant is also doubtful as it cannot be said with the certanity that the recovered currency notes are the same that were allegedly looted; that the learned trial Court without appreciating the law and facts of the case has arrived on conclusion by drawing conviction, is against the norms of natural justice, thus deserves dismissal.
6. Learned State Counsel assisted by the learned counsel for the complainant whilst
supporting the impugned judgement of trial Court contended that the prosecution has succeeded in establishing the charge against the appellant; that the witnesses not only identified the appellant at the time of occurrence, but also during identification parade as well as before the learned trial Court; that no ill -will and mala fide intention has been
brought on record against the PWs for their false implication by the appellant, thus the impugned judgement is not open for any interference of this Court.
7. Heard the learned counsel for parties and perused the available record minutely. The
perusal of record reflects that the prosecution in order to establish the charge has produced the evidence of Nine (09) witnesses. The complainant namely Abdul Wakeel appeared as PW-1, who mostly reiterated the contents of his fard- e-bayan Ex.P/1- A and narrated the story
with regard to his departure from his house accompanied by his cousin PW -2 Ahmedullah
towards the Islami Bank Jinnah Road Quetta, where he met with PW -3 Dr. Khaliq Dad, who
drew cash amount of Rs.2 Million and handed over the same to the complainant for
depositing at UBL Kawari Road Branch, Quetta, hence he along with PW -2 and PW -3 in an
Alto Car proceeded towards Kawari Road and in the way dropped PW -3 Dr. Khaliq Dad near
Civil Hospital Quetta and thereafter he along with PW -2 proceeded towards UBL Kawari
Road, when in the way near Children Hospital, four motorcyclist intercepted their way and
on gun point snatched Rs.20,00,000/ - and mobile phone from the possession of PW -1, while
Rs.10,00,000/ - from the possession of PW -2. According to PW -1, the accused persons from
appearance were identified as Baloch. PW- 1 identified the appellant in the trial Court as one
of the culprits, who committed dacoity and snatched their cash amount and mobile phone.
8. The statement of PW -1 was fully corroborated by PW -2 Ahmed Ullah, who was
accompanying the complainant at the relevant time. According to this witness, in the
morning of day of occurrence, he went to the house of PW -1 and thereafter he along with
PW-1 went to Bank Islami Jinnah Road, where they met with Dr. Khaliq Dad, who handed
over them Rs.20,00,000/ - for deposit in UBL Kawari Road, whereas they (PWs) were already
having Rs.10,00,000/ -, thereafter he along with PW -1 and PW -3 in an Alto Car proceeded
towards the UBL Kawari Road Quetta and in the way dropped PW -3 near Civil Hospital and
when they reached near Children hospital; four persons on two motorcycles arrived over
there, who intercepted the vehicle and on gun point amount snatched Rs.30,00,000/ - and a
mobile phone. This witness identified the appellant and other accused persons in the trial
Court.
9. The statement of PW -1 and PW -2 was fully corroborated by the statement of PW -3
Dr. Khaliq Dad, who stated in the Court that in order to purchase a plot in QDA Sasti Basti
Scheme he withdrew Rs.20,00,000/ - from Bank Islami and handed over the same to PW -1
and his cousin PW -2 Ahmed Ullah, whereafter they dropped him near Civil Hospital and
subsequently this witness was informed that the said amount along with another amount of Rs.10,00,000/ - were snatched from them by the unknown culprits near Children Hospital.
10. I with utmost care and caution analyzed the statements of PW -1, PW -2 and PW -3 and
observed that the statements of all the three witnesses are in consonance with each other, as they fully corroborated the statements of each other. PW- 2 confirmed the statement of PW- 1
that on the day of occurrence he was accompanying the PW -1 and he also confirmed that
Rs.20,00,000/ - was handed over to them by PW -3 and even PW -3 confirmed the arrival of
both the witnesses in Bank Islami Jinnah Road Quetta and after withdrawal of Rs.20,00,000/ -
he handed over the said amount to PW -1 and PW -2. The PW -1 and PW -2 identified the
appellant in the trial Court. All the witnesses correctly stated the date, the time, the place of occurrence and the manner in which the occurrence had taken place. All the witnesses were cross -examined at sufficient length, but nothing incriminatory has come on record favouring
the appellant. The learned counsel for appellant has made an unsuccessful attempt to discredit the evidence of PWs on minor discrepancies, but in our view the same are not enough to discredit the entire evidence of the prosecution.
11. Now adverting to the extra -judicial confession of the appellant, suffice to observe
here that the appellant recorded his disclosure by disclosing his guilt that he along with acquitted and absconding accused committed dacoity at different areas. On the day of occurrence, after consultation, he along with accused Abdul Aziz, Abdul Rasheed and Ali Ahmed came to Bank Islami Jinnah Road Branch, while the accused Muhammad Ali alias Mehboob was present inside the bank. At about 12.30 p.m. two persons having a bla ck
colour bag came out of Bank and in the meantime the accused Mehboob also came out of Bank and signaled them towards the witnesses. Hence, both the persons seated in an Alto Car and proceeded towards Saleem Complex, while the accused persons also chased them and stopped the said vehicle of complainant party near Children Hospital and on gun point snatched Rs.30,00,000/ - from them, hence after looting the amount, the accused persons
distributed the same amongst them and Rs.400,000/ - has come towards his sh are, out of
which he spent Rs.100,000/ -, whereas the remaining amount as well as the share of accused
Mehboob and Abdul Rasheed are lying with him and he can recover the same. After recording disclosure of the appellant, he was taken to his house at Killi Kiyazai Brewery Road Quetta, where on the pointation of appellant from his residential room recovered Rs.740,000/ -. The appellant also pointed out the place of occurrence. According to settled
norms of justice for awarding conviction on the basis of extra -judicial confession, three -fold
proof is required i.e. firstly it was in fact made; secondly that it was voluntarily made; and
thirdly that it was truly made. A minute scrutiny of extra -judicial confession Ex.P/6 -D
indicates that all the ingredients are available in the case in hand, as the same is supported by
attending circumstances. It is well settled principle of law that a judicial or extra judicial confession can be made sole basis for conviction of an accused, if the Court is satisfied and believes that it was true and voluntary and was not obtained by torture or coercion or
inducement. Admittedly, in the case in hand the disclosure of the appellant was followed by
the discovery of new facts i.e. the names of his accomplices, earlier not known to the
Investigating Agency, as well as the role of each accused played during the crime coupled with the recovery of looted money on his pointation from his house, thus the disclosure of the appellant is admissible under the law. Reliance in this regard is placed on the case of The State v. Minhun alias Gul Hassan PLD 1964 SC 813, wherein, it was held as under:
"As far the confessions the High Court, it appears, was duly conscious of the fact that retracted confessions, whether judicial or extra- judicial, could legally be taken into
consideration against the maker of those confessions himself, and if the confessions were found to be true and voluntary, then there was no need at all to look for further corroboration. It is now well settled that as against the maker himself his confession, judicial or extra -judicial, whether retracted or not retracted, can in law validly form
the sole basis of his conviction, if the Court is satisfied and believes that it was true and voluntary and was not obtained by torture or coercion or inducement."
12. So far as the objection taken by the defence that since the extra -judicial confession
has been recorded in police custody, thus not admissible under Articles 38 and 39 of the Qanun- e-Shahadat Order, 1984, is concerned, suffice to observe here that if any
incriminatory material 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 herein below 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."
13. Since, the disclosures of the appellant was followed by the recovery of looted money
as well as the discovery of new facts which earlier were not known, therefore, the same is an admissible piece of evidence. In the case titled Muhammad Amjad v. the State, PLD 2003 SC 704, the Hon'ble Supreme Court held as under:
"Further it is noted that as per Article 40, corresponding to Section 27 of the Evidence Act, when any fact is revealed in consequence of information received from any accused in custody of a police officer, such information whether it amounts to a confession or not as it relates distinctly to the fact thereby discovered, may be proved. The information supplied by the appellant under Article 40 ibid relating to incriminating articles is admissible."
14. It has also been observed that since earlier the accused persons were not known by the
PWs, thus legally their identification parade was necessary to have been conducted during investigation so that proper investigation may be conducted from them. Hence, the I.O. filed an application before PW- 5 Muhammad Waris, Judicial Magistrate- IX Quetta, who allowed the
application and under his supervision the identification parade of the accused was conducted from the PWs and thereafter he issued identification parade reports as Ex.P/5- A and Ex.P/5- F.
The perusal of said identification parade confirms that all the process was conducted in accordance with law and both the witnesses correctly identified the appellant and others, as the culprits, who snatched their cash amount and mobile phone as well as the witnesses also described the role of each accused. Since, the identification parade of the appellant was
conducted in police station by observing all the legal formalities as provided under the law by
the Judicial Magistrate, thus the same is admissible under the law and in fact has given strength to the case of prosecution. The concept of identification parade is twofold, one to establish identification of culprit and second to pin point the role of accused in commission of offence. It appears that the appellant was not personally known to the witnesses. In such circumstances the identification parade was mandatory, which was done in accordance with law.
15. Adverting to the defence plea of the appellant, suffice to observe here that the appellant
throughout the case has not taken any specific plea with regard to his false implication by the
PWs rather simply denied the commission of crime. Mere denial of the appellant is not enough to brush- aside the entire prosecution evidence, which is based upon solid and concrete grounds. No
major contradiction or dishonest improvement has been pointed out by the learned defence
counsel in the statements of prosecution witnesses to discredit the statements of PWs. Even
otherwise, the complainant of the case has not nominated the appellant in the crime, while the
arrest and nomination of the appellant in the crime is the sole result of the investigation carried out by the police in another similar type of case, while the appellant has failed to bring on record any single iota of evidence showing or suggesting the mala fide of the police for his false implication. I have also perused the impugned judgement delivered by the learned trial Court and observed that the appellant was rightly found guilty of the charge. The learned trial Court has rightly appreciated the evidence so brought before him and each and every aspect of the case was discussed in detail, which otherwise is not open for interference by this Court.
For the above reasons, the appeal being devoid of merits is hereby dismissed.
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