2012 P Cr. L J 357
[Balochistan]
Before Abdul Qadir Mengal, J
SHAUKAT ---Appellant
Versus
THE S TATE ---Respondent
Criminal Appeal No. 110 of 2010, decided on 2nd August, 2011.
Penal Code (XLV of 1860) ---
----S. 394 ---Robbery ---Appreciation of evidence ---Investigating Officer had detained the
complainant at the Police Station for about two hours , till the complainant prepared a written
report implicating the accused in the case, on which the F.I.R. was lodged ---Investigating
Officer, thus, was interested in conviction of accused ---Prosecution had withheld and not
produced the important witness, b rother of the complainant, who had been deprived of his
cash and other valuables during the alleged incident of robbery ---No recovery of any robbed
article or weapon of offence had been effected from the accused to corroborate or support the
prosecution ve rsion ---Place of incident being already in the knowledge of the police,
disclosure memo also did not support the prosecution case ---Mere pointation of the place of
occurrence not leading to any recovery was nothing but a futile exercise ---Accused was
acqui tted in circumstances.
2007 YLR 924; PLD 1971 SC 541 and 2001 SCMR 1405 rel
Abdul Razzaque Shar for Appellant
Abdul Karim Malghani for the State
Date of hearing: 29th July, 2011.
JUDGMENT
ABDUL QADIR MENGAL, J. ---This criminal appeal under sec tion 410, Cr.P.C. has
been directed against the judgment dated 9 -12-2010, passed by the Sessions Judge,
Lasbella at Hub in case F.I.R. No.165 of 2010 registered with Police Station Hub, whereby
the appellant was convicted and sentenced under secti on 394, P.P.C., to suffer R.I. for four
years and to pay fine of Rs.5,000. In default of payment of fine, the appellant was ordered to
further undergo S.I. for three months. Benefit of section 382 -B, Cr.P.C. was also extended in
favour of the appellant/con vict.
2. Brief facts leading to file, the present criminal appeal are that on 24 -8-2010 at about 1 -20
a.m. (night), the complainant, Barkat Ali, lodged a report with Police Station Hub, alleging
therein that he is resident of Baloch Abad Charai, where he runs a shop for easy load of
mobiles. It was 11 -30 a.m., when he along with his nephew Sadar Hussain and brother Saman
Ali, after closing their shop, were going towards their house. When they reached near to their
house, two persons, out of whom, one havi ng a T.T pistol stopped them and his accomplice
tried to conduct their search, and on resistance of the complaint, the person having pistol,
gave him a butt blow of pistol on his head and also fired 2/3 shots, but they were saved
miraculously. The accused persons forcibly conducted their search and snatched a China
Mobile No.03433851483 and cash amount of Rs.600 from him, while snatched a Mobile
Phone LG No.03322986625 from his nephew Saddar Hussain and also snatched cash amount
Rs.20,000 and five mobile ph ones (Nokia 1100) from his brother Saman Ali. In the
meanwhile he, his nephew and brother Saman Ali, identified the accused, who having pistol,
was their neighbour Shoukat son of Akbar. The accused persons, after snatching mobile
phones and cash amount, fl ed away.
3. After registration of the F.I.R. vide written report Exh.P/3 -A, the IO/SI Sikandar recorded
the statements of the witnesses, prepared the sketch of 'Wardat' vide Exh.P/6 -B, Whereafter
on the next date arrested the accused, who on 6 -9-2010 dis closed about the place of incident
vide disclosure memo Exh.P/4 -A. The accused was taken to the place of incident and on his
pointation, memo Exh.P/4 -B was prepared. On completion of investigation, the accused was
challaned. The charge was read over to the accused, to which he pleaded not guilty and
claimed trial.
4. I have heard Mr. Abdul Razzaque Shar Advocate for the appellant, while Mr. Abdul
Karim Malghani Advocate was heard for the State.
5. Learned counsel for the appellant m ainly contended that, the appellant/convict is innocent,
he falsely was implicated by the Investigating Officer Sikandar, on account of previous
enmity. Learned counsel further argued that, prior to the instant case, the Investigating
Officer had also invo lved the father of the appellant in a false case. Learned counsel stated
that no recovery of any case property or weapon of offence has been effected from the
accused. The complainant, himself has clearly mentioned in his statement that, he had
nominated t he appellant/convict on the basis of suspicion, as the Investigating Officer/S.H.O.
was pressurizing him to give any name in the instant case. Learned counsel further stated
that, the trial Court neglected all the above acts and wrongly has convicted the
appellant for the alleged offence.
6. Mr. Abdul Karim Malghani, Advocate, the State counsel, strongly opposed the contention
of learned counsel for the appellant/convict and stated that, actually, the appellant after his
arrest disclose d about the place of incident, where he had snatched the mobile phones and
cash amount from the complainant and his brother. He further argued that, the statement
of Saddar Hussain (the nephew of the complainant) shows that, he has identified the
appellant/convict. Being so, the trial Court rightly has convicted the appellant for the alleged
offence.
7. After hearing both the parties and perusing the record, I am of the view that, there is a great
force in the contention of the learned counsel for the appellant/convict. Admittedly, the
complainant, Barkat Ali, in his statement has stated that, he was asked by the Investigating
Officer to nominate any person, therefore, he on the basis of suspicion nominated the
appellant/convict.
8. The above sta tement and contents of the F.I.R. suggests that, the complainant had
approached the police for lodging report at about 11 -30 p.m., but the Investigating
Officer did not lodge the F.I.R. until got a written report to implicate the appellant
convict and then on 24 -8-2010 at 1 -20 a.m. (night) lodged the F.I.R., after the delay of about
two hours, for which there is a no any plausible explanation. Thus, this delay of lodging
F.I.R., puts the Court on notice to make close scrutiny, especially, when the Investigating
Officer/S.H.O. was blamed of bias and enmity with the accused. The contents of the F.I.R.
and the statement of the complainant (P.W.3) does not show that after commission of the
offence, the complainant side went anywhere to get the report written and then handed over it
to S.H.O. for lodging of the F.I.R. Actually, the facts support the contention of the learned
counsel for the appellant/convict that, the complainant was kept waited at police station by
the Investigating Officer/S.H .O. from 11 -30 till preparation of the written report by
Investigating Officer Exh.P/3 -A, to implicate the appellant/convict.
9. Thus in the above background adverting to the statement of the nephew of the complainant
P.W.1 Sadar Hussain, who has stated that, his maternal uncle had identified the accused
Shoukat son of Akbar on the basis of his voice, because he is their neighbour.
10. Anyhow the interest of the Investigating Officer has come on record, as such, when the
Investigating Officer is interes ted to get conviction, and when the witnesses are not
corroborated, then, no conviction could be passed. In this respect reliance has been made on
PLJ(sic.) CRC, 196 Lahore.
11. Admittedly, Saman Ali the third person, who is brother of the complainant an d he was
deprived of his Rs.20,000 including five easy load mobiles, but amazingly the prosecution
has withheld him by not producing him as a witness. This fact gives a negative affect on the
prosecution case, either no any such incident has taken place or the P.W. was not supporting
the prosecution story. Again, when adverting to the other aspects of the case, it is admitted
position that, neither the robbed mobile phones nor any weapon of the alleged incident has
been recovered from the appellant/convict, which could support the prosecution. On this
score, the prosecution case seems doubtful, as such without any recovery of the stolen articles
or weapon of offence, the accused could not have been convicted. In this regard I have
benefited my view from YLR 2007 Karachi 924.
12. Again, there is no any corroboration or corroboratory material to support the prosecution
version. Normally the corroborative and ocular evidence always to be read together and on
the basis of their cumulative effect, a valid order of conviction could be passed. In this
respect I have fortified my view from PLD 1971 SC 541.
13. Furthermore, there is no any importance of disclosure memo, as the place of incident
already was in the knowledge of the police, as he, before the arrest of the appellant/convict,
had visited the site, prepared the sketch of 'Wardat', hence the disclosure memo in such
circumstances gives no support to the prosecution case. Even otherwise, mere pointation of
the place of incident does not give any support to t he prosecution case, especially when it
does not lead to recovery of any weapon of offence or stolen articles, as such preparation
of memo of pointation of place of incident by the prosecution is nothing, but a futile
exercise. In this respect reliance has been made on 2001 SCMR 1405.
14. As the prosecution has failed to establish its case against the appellant/convict beyond
any reasonable doubt. Therefore, the appeal is allowed and the impugned judgment dated 9 -
12-2010, p assed by the learned Sessions Judge, Lasbella at Hub is set aside. Consequently the
appellant/convict is acquitted of the charge, he be released forthwith, if not required in any
other case.
These are the reasons of my short order dated 29 -7-2011.
N.H. Q./112/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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