2011 P Cr. L J 1076
[Quetta]
Before Mrs. Syeda Tahira Safdar, J
MUHAMMAD ASIF ---Petitioner
Versus
THE STATE ---Respondent
Criminal Revision No. 5 of 2010, decided on 4th January, 2011.
Penal Code (XLV of 1860) ---
---Ss. 380 & 457 ---Qanun -e-Shahadat (10 of 1984), Art.117 ---Theft in dwelling house,
lurking house trespass or house breaking by night ---Appreciation of evidence ---Benefit of
doubt ---Accused contended that glaring contradictions in prosecution witnesses were not
considered by the courts below ---Trial Court instead of considering the evidence produced by
prosecution, made assessment on the basis of state ment of the accused which was neither
proper nor legal ---Apart from any plea taken by the other side, the defence, prosecution had
to prove the case beyond doubt and such burden did not shift from the prosecution to the
other side even in a case where accu sed had failed to establish a specific plea in his defence --
-Initial burden lay on the prosecution to establish its case from all doubts ---Prosecution had to
establish the act of commission of theft by the accused ---Prosecution witness was merely
chance wi tness; his evidence had to be assessed with caution and care as his presence at the
place of occurrence could not be explained ---Complainant reported the matter after
apprehension of the accused ---Possibility of involvement of both the complainant and the
witness in the alleged offence could not be ruled out ---Witnesses failed to corroborate the
statements of each other ---Trial Court and the Appellate Court failed to appreciate the facts of
the case and exercise jurisdiction vested in them by not giving ben efit of doubt to the
accused ---Impugned orders were set aside and accused was acquitted of the offence.
Malik Sikandar Khan for Petitioner.
Miss Noor Jehan for the State.
Date of hearing: 3rd December; 2010.
JUDGMENT
MRS. SYEDA TAHIRA SAFDA R, J. ---The petitioner preferred instant petition seeking
revision of order of trial Court i.e. Judicial Magistrate, Naushki, dated 19 -11-2009, whereby
he being found guilty of the offences under sections 380 and 45, P.P.C., thus convicted him
to suffer im prisonment for three years with fine of Rs. 2,000 for two counts in default further
imprisonment for one month each while both the sentences shall run concurrently and order
of appellate court i.e. Sessions Judge, Naushki, dated 16 -12-2009, whereby convict ion order
was upheld, with averments that he has been falsely involved in instant case with ulterior
motives, only to harass and humiliate him. Further, the necessary ingredients to constitute
offences punishable under sections 380 and 357, P.P.C. were not available; despite the same
the trial Court convicted him. Furthermore, the courts below failed to evaluate the evidence
properly. He prayed for setting aside of impugned orders, and his acquittal of the charge.
Learned counsel for the petitioner and le arned State Counsel are heard and record is perused.
During course of arguments it was the main contention of learned counsel for the petitioner
that there are glaring contradictions in statements of prosecution witnesses, which are not
considered" by the trial, as well as by appellate courts. Further, contended that the case is of
no evidence. In rebuttal it is argued, by learned State counsel that F.I.R. has been promptly
lodged, there is sufficient evidence available on record, which connects the accused
person/petitioner in commission of the offence.
The perusal of record reveals that as per contents of F.I.R. No.66 of 2009, Police Station
Naushki, District Naushki, the matter was reported on 18 -9-2009 at 8 -20 p.m. by one
Saadullah specifically nominat ing Muhammad Asif, present petitioner. It is alleged therein
that he (the complainant) being watchman at office of B&R, while at time of Iftari he asked
one Muhammad Yaqoob to take care of the office, till his return. Whereupon Yaqoob sat
outside the offic e near residential quarter of B&R, while he (complainant) proceeded to his
home. After ten minutes of Iftari, Yaqoob came to his house, in hurry and told him that two
persons after stealing carpet from house of SDO Muhammad Yousai, placed it in front of
outer door and on having glance of hint (Yaqoob) while throwing the carpet, started running
towards Killi Gharib Abad, while he (Yaqoob) chased them and apprehended one of them in
lane, the co -accused made efforts to get him free, but due to noises and distu rbance an
employee of B&R namely Nazar Muhammad came out of his house, and assisted in
apprehending the thief. It was further told to him (complainant) by Muhammad Yaqoob that
the Police Mobile reached at site of incident and apprehended the thief, who tol d his name as
Muhammad Asif son of Abdul Sattar. The matter was reported against the petitioner and his
accomplice being unknown. On registration of F.I.R., the matter was investigated, on
completion; challan was submitted against petitioner, while one Muh ammad Asif son of
Ghous Bakhsh has been challaned as absconding accused person. The prosecution produced
six witnesses in order to establish charge against the accused person/petitioner. While in
defence the petitioner only got recorded his own statement o n oath.
It is case of the prosecution that the petitioner along with one unknown person tried to steal
carpet from quarter in occupation of one Muhammad Yousaf SDO, but due to intervention
of Muhammad Yaqoob, did not succeed in their attempt, while the p etitioner was
apprehended from the site by said Yaqoob with help of Nazar Muhammad, the other one
succeeded to escape. Thus as per contents of F.I.R. complainant Saadullah has not witnessed
the occasion, rather his source of knowledge is Muhammad Yaqoob, b eing eye -witness of
the occasion, who appeared as prosecution witness No. 4. The other witness Nazar
Muhammad is also claimed to be an eye -witness, appeared before the court and got recorded
his statement as P.W.3. Muhammad Yaqoob P.W.4 in his statement de posed that on 18 -9-
2009 at 7 -30 p.m. at the time of Iftari accused Muhammad Asif along with his accomplice
reached at quarter of SDO Muhammad Yousaf, which is situated in B&R Colony. The
accused present in court/petitioner broke the lock of quarter and the y took out the carpet,
meanwhile he called them, whereupon they (accused persons) tried to escape from the site,
whereupon he chased them and got hold of one of the culprits, the accused present in
court/petitioner, while the co -accused made efforts to get him free thereby hit him (witness)
with clip. He further stated that on hearing noises of hue and cry the residents of Mohallah
came out, whereupon co -accused succeeded to escape. While the accused/petitioner was
handed over to police when reached at site . It is further his statement that he called the
watchman who afterwards reported the matter. The witness further deposed that the
accused/petitioner made disclosure in front of police and told name of his accomplice. He
produced disclosure memo Exh. P/2 -B, which bears his signatures as witness. He is also
witness of memo of recovery Exh.P/2 -A in respect of a carpet, china locks two in number,
out of which one is broken and an iron rod, these articles are produced in the court as Art. P/1
to Art.P/6. Nazar Muhammad though asserted to be an eye -witness, while appearing
before the court as P.W.3, only deposed that after Maghrib prayers' call he was having Iftari,
on hearing noises outside his house, he came out and saw that Yaqoob has apprehended
accused perso n present in court/petitioner, along with another boy. He (witness) asked about
the occasion, whereupon Yaqoob told him that the persons have been apprehended, as they
have committed theft, while at said moment accused/petitioner was denying the allegation .
He further deposed that the other person succeeded to escape, while the accused/petitioner
was taken to Masjid by Muhammad Yaqoob in order to administer oath, whereupon he
(witness) returned to his house. This witness did not confirm his role as assigned to him in
F.I.R. and by P.W.I.
As far as complainant Saadullah, who appeared as P.W.1, is concerned, he deposed altogether
a different story as narrated in contents of F.I.R. It is his statement that one day before Eid he
went to Bazar for purchasing it ems for Iftari, on his return he saw that locks of house of SDO
and his own room were broken. Meanwhile, his one mate namely Yaqoob reached there, he
asked him to sit there and he himself went to home for having Iftari. He further deposed that
the thieves had taken all the items except carpet. It is further his statement that after a while
Yaqoob visited him at home and told him that two thieves came back for taking the carpet,
one of them ran away, while the other one is apprehended by him and Nazar Muhamm ad. He
(Yaqoob) further told him (witness) that SDO and Zahoor Ahmed called the police,
whereupon Police Mobile reached at the spot. The arrested person told his name as
Muhammad Asif son of Abdul Sattar. His statement is not only contrary to the contents of
F.I.R., but also contrary to the statement of said person, who apprehended the accused,
namely Muhammad Yaqoob (P.W.4).
The remaining witnesses P.W.2 Abdul Rahim is son of complainant, he is attesting witness of
memo of recovery Exh.P/2 -A and disclosu re memo Exh.P/2 -B. While P.W.5 Muhammad
Yousaf is the person, in whose residential quarter alleged theft as committed. P.W.6 Sharif
Ahmed is Investigating Officer.
In defence the accused/ petitioner did not produce any witness, rather recorded his own
statement on oath. He stated that on 18 -9-2009 ten minutes to call for prayer he went to the
house of his friend Zahoor Ahmed, at Killi Gharib Abad, as his friend was not at home,
therefore, he returned and started proceeding to his home at Ahmed Wal. During the way he
met with his another friend namely Muhammad Asif, meanwhile call for the prayer started.
As he was thirsty, he went into the Masjid to drink water, when they came out and were on
their way, and reached in lane of B&R, a person namely Yaqoob ask ed them, whether they
have wrapped the carpet and now came to take it away. Despite their denial Yaqoob followed
them and called the residents of the area, alleging him (accused) to be thief, he (accused)
denied the allegation and showed his willingness to take oath on Holy Quran. But Yaqoob did
not agree, rather let his friend to go away and took him to the officer, who did not believe his
deposition and informed the police, thus he was arrested.
The trial Court while discussing the evidence and drawing the conclusion simply relied on the
evidence produced by the prosecution, without dilating on the contradictions pointed out
hereinabove. The learned trial Court instead of considering the evidence produced by
prosecution, make assessment on basis of state ment of the accused person/petition which is
neither legal, nor proper Article -117 of Qanun -e-Shahadat Order 1984 describes the general
principle about burden of proof lied on which of the parties. Article -117 of Order 1984 states
as under: --
"Burden of proof . (1) Whoever desires any court to give judgment as to any legal
right or liability dependent on the existence of facts which he asserts, must prove that
those facts exist.
(2) When a person is bound to prove the existence of any fact, it is said t hat the
burden of proof lies on that person."
Keeping in view this principle of law apart from any plea taken by the other side in defence
the prosecution has to prove the case beyond doubt and this burden, in no case, shifted from
the prosecution to the other side, even in case a specific plea in defence has been taken by the
accused person and he failed to establish the same, until and unless the prosecution establish
its case. The initial burden always lies on the prosecution to establish its case free from all
doubt.
But contrary to the same the trial Court simply relied on statements of the witnesses without
considering the contradictions as pointed out hereinabove. The trial Court while discussing
the statement of the accused person/ petitioner tri ed to establish the case of the prosecution,
which is in no way proper or legal.
From whole set of evidence it is apparent that accused person/ petitioner was present at the
site, from where he was arrested. Apart from the plea taken by the petitioner/ac cused, the
prosecution has to establish the act of commission of theft by the petitioner/accused, thereby
constituting offence punishable under sections 380 and 457, P.P.C. The two eye -witnesses
P.W.4 Nazar Muhammad and P.W.5 Muhammad Yaqoob appeared and g ot recorded their
statements. The presence of P.W.5 Yaqoob at site is of a chance, as he is neither resident of
the area, nor have any relation with the complainant, even he was not on duty, as admittedly
he is not an employee of B&R. He can be treated as a person present at site by chance, thus in
the circumstances assessment of his statement is to be made with care and caution. There is
no explanation either by the witness nor by the complainant that what was the occasion of his
presence at relevant time. Though the complainant P.W. and this witness Muhammad
Yaqoob are the most important witnesses of the occasion, therefore, they were required to
corroborate the statements of each other, but they failed. As per contents of F.I.R. the matter
was reported by the complainant Saadullah on basis of information provided to him by
Muhammad Yaqoob, being the sole eye -witness of the occasion. But contrary to the same
while recording his statement before the court the complainant deposed that on his return
from bazar , he saw the locks of his room and room of SDO were broken, while the alleged
thieves had taken away all the articles except carpet, whereupon he leaving behind
Muhammad Yaqoob, went to his home for having Iftari, and after ten minutes. Muhammad
Yaqoob inf ormed hum that two persons came back to took the carpet, who had been
apprehended by him. Conduct of the complainant seems to be unnatural, as he being
watchman required to watch the premises, instead of informing the Authorities he left the site
for havin g Iftari, leaving behind Yaqoob, who had no concern with the office. The
complainant waited for apprehension of the accused whereafter, he reported the matter. In the
above mentioned circumstances and narrated facts the possibility of involvement of both t he
complainant Saadullah P.W. and Muhammad Yaqoob P.W.4 in the incident and in
commission of the offence cannot be ruled out. Rather in giving circumstances there is a
possibility of false implication of the accused/petitioner in the matter.
Another, imp ortant piece of evidence is statement of the person, in whose residential
premises the alleged theft has been committed, who is Muhammad Yousaf P.W.5. His
statement is only to the extent that he was informed about occurrence of incident on
telephone by Saa dullah P.W.1, the chowkidar, who also told him about number of thieves and
also that one of them is apprehended by Nazar Muhammad and Yaqoob. His further
statement is only to the extent of identification of case property i.e. carpet, that too after lapse
of considerable time. He did not disclose missing of any other thing from the site, as narrated
by the complainant, rather he only deposed about identification of the carpet. This witness is
silent to the effect that after theft he ever reached to the site, observed -breaking of the locks,
checked his articles. He completely remained out of the scene. The conduct of this witness is
also not natural, which creates doubt.
Keeping in view the above discussion, the evidence produced by the prosecution is full o f
contradictions, the witnesses failed to corroborate the statements of each other, which not
only lessen their evidentiary value, rather creates reasonable doubt in their genuineness, as
such less reliance can be made on the same. The trial as well as the appellate courts failed to
appreciate these facts and considered the doubts arising therefrom. Thus failed to exercise the
jurisdiction vested in them by not, giving benefit of doubt to the accused persons.
Thus in view of the same, the petition is here by accepted. The impugned orders dated 19 -11-
2009 of Judicial Magistrate, Naushki and 16 -12-2009 of Sessions Judge, Naushki are hereby
set aside. The petitioner/convict Muhammad Asif son of Haji Abdul Sattar is acquitted of the
charge for the offence under sections 380, 457, P.P.C., in case pursuant to F.I.R. No. 66 of
2009 Police Station Naushki, District Naushki. He be released at once, if not required in any
other case.
A.R.K./17/Q 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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