2010 P Cr. L J 1182
[Quetta]
Before Mrs. Syeda Tahira Safdar J
ABDUL WALI ---Appellant
Versus
THE STATE ---Respondent
Criminal Appeal No. 120 of 2009, decided on 3rd June, 2010.
Penal Code (XLV of 1860) ---
----S. 392---Robbery ---Appreciation of evidence ---Occurrence was reported to police on the
same day and F.I.R. was registered against unknown persons ---Complainant asserted that he
could recognize two of the assailants ---Accused was arrested after a year and a half of the
occurrence on the pointation of the complainant ---Accused contended that no identification
parade was held after his arrest ---Validity ---Accused was arrested on the pointation of
complainant, so there was no need of holding identification para de to identify the accused
who had failed to point out any specific piece of evidence which was not considered by the
Trial Court ---Three eye -witnesses had identified the accused as one of the culprits ---Trial
Court had properly appreciated the evidence an d committed no illegality or irregularity ---
Appeal was dismissed in circumstances.
Obaidullah Quresh for Appellant.
Miss Saima Jamal for the State.
Date of hearing: 22nd December, 2009.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J .---The appellant being aggrieved of his conviction
made through order dated 8 -10-2009 by Additional Sessions Judge -II, Quetta, whereby he
has been sentenced to suffer rigorous imprisonment for a period of seven years with fine of
Rs.10,000/ -, in default thereof to further undergo six months simple imprisonment, for
offence punishable under section 392 PPC. He preferred instant appeal on grounds that he has
committed no offence, rather initially the FIR was lodged against unknown persons, while
after one and. a half years he was arrested on 16 -1-2009 on pointation made by the
complainant, but no identification parade was held. Further, a culprit of the same name was
killed by police in an encounter on 17 -3-2009. Furthermore, the trial court erred in law while
admitting inadmi ssible evidence. Furthermore, there is misreading, non -reading and
misappreciation of evidence by the trial court. The contradictions arises in the evidence are
not considered, nor benefit of doubt arisen thereon, were given in his favour. He prayed for
setting aside of impugned judgment and his acquittal of the charge.
The perusal of record reveals that FIR No.185 of 2007 Police Station Satellite Town Quetta
dated 2 -9-2007 registered on report of one Abdul Rizwan pertaining to an incident occurred
on 2-9-2007 at 3 -45 a.m. when seven/eight armed persons with muffled faces entered their
house after breaking the locks, on his resistance beaten him with kicks and fists and hit him
on his head with something thereby injured him. They forcibly took cash, bonds and golden
ornaments after breaking the locks of cupboards and also snatched golden ornaments wearing
by his mother and sister and fled away. He further asserted that he can identify two of them
as during struggle their faces were unveiled. Matter was repo rted to police by the
complainant, whereby report was registered and on completion of investigation case was
initially challaned to the extent of accused Hizbullah while eight other persons were shown as
absconders. Thereafter, supplementary challan was fi led to the extent of accused Hazrat
Mughal on 14 -4-2008. While second supplementary challan was submitted in 2009 to the
extent of accused Abdul Wali (present appellant). Charge was framed to the extent of accused
Hizbullah and Hazrat on 19 -5-2008, while c harge was framed against accused Abdul Wali
(appellant) on 6 -3-2009. These charges were framed for offence punishable under section
17(3) of Offences Against Property (Enforcement of Hadood) Ordinance, 1979, read with
sections 392 and 34 PPC. Thirteen witn esses were produced by the prosecution to establish
the charge, while the accused persons including the appellant opted not to record their
statements on oath or produce any evidence in their defence. The trial court on completion of
trial decided the case through judgment made on 8 -10-2009 whereby convicted accused
Hizbullah and Abdul Wali (appellant) for offence punishable under section 392 PPC and
sentenced them to suffer RI for seven years with fine of Rs.10,000/ -, in default further suffer
six months' S.-I., while accused Hazrat Mughal was acquitted of the charge as case is not
established against him.
The main contention of the appellant is that the trial court misread, non read and
misappreciated the evidence produced before the court. Further, desp ite the fact that he has
not been nominated in F.I.R., rather after a period of one and a half years he was implicated
and thereby arrested and no identification parade was held, without considering the same the
trial court awarded him the sentence. The tr ial court without formulating the specific points
for determination decided the case. It is apparent from record that the matter was reported to
the Police Authorities on the same day of occurrence without any delay, but no one was
specifically nominated, rather report was made against unknown persons, who were seven or
eight in number. As per supplementary challan the appellant/ accused was arrested on 16 -1-
2009 from Bus Stand at Satellite Town Quetta on pointation made by the complainant. He
while appeari ng beforethe court has stated that at the time of incident the appellant/accused
hold him from back and strangle him, when he (complainant) pulled him (appellant) with
force his muffler was let down therefore he can identify the accused present in the Cour t. As
such when he saw the accused/appellant at Bus Adda he got him arrested by the police on his
own pointation. He also identified the accused/ present appellant while appearing before the
court. Though there is objection rather contention raised by the appellant that after his arrest
no identification parade was held as per requirement of law. It may be so, but it is an admitted
position that the appellant was not identified by the complainant during the course of
identification parade held by the author ities. But this fact has come on record, rather not
disputed from defence side that the appellant was arrested on pointation made by the
complainant. In such circumstances, there seems to be no occasion for process of holding
identification parade in order to get the accused Abdul Wali identified by the complainant.
There seems to be no illegality in decision of the trial court to this extent.
Though plea of misreading and non -reading of evidence has been specifically taken, but the,
appellant has failed to point out any specific piece of evidence which is not considered or
which part of evidence is used in other sense than the one for which it has been produced.
Three eye witnesses identified the appellant being one of the culprits. No material
contradict ion is pointed out in the statement of the witnesses. Though no recovery of stolen
articles were effected from the appellant, but this fact less favourable for him as the appellant
while cross -examining the witnesses neither disputed the occurrence of the incident, nor even
disputed the fact alleged stolen articles taken from the house of the complainant.
The trial court has rightly assessed the material present before it and come to the right.
conclusion. The witnesses narrated the facts corroborating th e presence of each other, with no
material contradiction, the benefit of which can be extended in favour of the
appellant/accused. No instance of misreading and non -reading of evidence is pointed out, nor
even the misappreciation of facts. The trial court properly appreciated the facts and gave
findings on basis of the same, thus arrived to the correct decision. The appellant has failed to
point out any such irregularity and illegality in the impugned order, on basis of which
impugned judgment is liable to be set aside.
In view of above discussion the appellant has failed to make out any case in his favour. No
interference is, required to be made in impugned judgment, which is hereby upheld. Appeal
is dismissed being without merits.
A.R.K./69/Q Appeal dismissed.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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