2014 P Cr. L J 1087
[Balochistan]
Before Muhammad Ejaz Swati, J
ABDUL REHMAN---Appellant
Versus
The STATE---Respondent
Criminal Appeal No.53 of 2013, decided on 4th April, 2014.
(a) Penal Code (XLV of 1860) ---
----S. 412---Dishonestly receiving stolen property ---Appreciation of evidence ---Benefit of doubt -
--No evidence was produced by the prosecution that accused had knowledge that vehicle in
question was stolen in commission of dacoity, which was necessary ingr edient of S.412, P.P.C.--
-Prosecution itself brought on record certain documents which further negated the assertion of
prosecution---Prosecution itself verified vehicle in question from Excise and Taxation Officer,
and obtained verification letter ---Plea taken by accused to the effect that he was bona fide
purchaser of vehicle, was reflected from the evidence of the prosecution, as well ---Accused
though had not established the ownership of the vehicle, but through evidence, reasonable doubt
appeared in the prosecution case, which made a dent; benefit of which must be extended to the
accused ---Document, wherein it was informed about the non- registration of vehicle in question
in the computerized screen record of Excise and Taxation Office, could not be taken into
consideration, as same had not been put to accused in his examination under S.342, Cr.P.C.---
Prosecution had failed to prove its case against accused beyond reasonable doubt; and impugned
judgment reflected misreading and non -reading of evidence, whi ch in circumstances could not be
sustained ---Impugned judgment passed by the Trial Court was set aside; accused was acquitted
of the charge, and being on bail, his bail bonds stood discharged.
Ashiq Hussain v. The State 1993 SCMR 417 ref.
(b) Crimina l Procedure Code (V of 1898) ---
----S. 342 ---Examination of accused ---Section 342, Cr.P.C. mandate that all incriminating
evidence was to be put to accused in his statement under that section; and the evidence which
had not been confrontated to accused, conviction could not be based on such evidence.
Muhammad Shah v. The State 2010 SCMR 1009 ref.
Attaullah Langov for Appellant.
Sultan Mehmood, Special Prosecutor for the State.
Date of hearing: 28th March, 2014.
JUDGMENT
MUHAMMAD EJAZ SWATI, J.---The appellant has challenged the validity of
judgment dated 29th October, 2013 (hereinafter the "impugned judgment") passed by Additional
Sessions Judge -I, Quetta (hereinafter the "trial Court") whereby appellant has been convicted and
sentenced under section 412, P.P.C. to suffer R.I. for seven years and fine of Rs.10,000 in default
whereof to further suffer S.I. for six months' SI.
2. Facts of the case are that on the complaint of Syed Jahangir Shah IP/SHO an F.I.R.
No.44/2012 was registered by the City Police Station Quetta wherein it is alleged that on 10th
October, 2011 at about 8- 45 p.m. a vehicle bearing Registration No.WAA 282 Jaffarabad
bearing silver colour was taken into possession from appellant under section 550, Cr.P.C. and
incorporated the same in the Roznamcha. It is further alleged that vehicle documents were sent to
CPLC for verification of vehicle. On receipt of letter dated 5th March, 2012 the office of Capital
City Police Officer Quetta informed that vehicle in question is n ot found in the computerized
screen record of Excise and Taxation (MVR) Office, Karachi, therefore, directed to register case
against the appellant, on the basis whereof aforesaid F.I.R. was registered.
3. After submission of challan charge was framed on 13th August, 2012, to which appellant
pleaded not guilty. Whereafter prosecution examined four witnesses.
4. When examined under section 342, Cr.P.C. appellant has denied allegation of
prosecution. He recorded his statement under section 340(2), Cr.P.C. and produced two
witnesses in defence i.e. D.W.1 Muhammad Amir, D.W.2 Hashmatullah. After evaluating the
evidence on record the learned trial Court vide impugned judgment convicted and sentenced the
appellant as mentioned hereinabove.
5. Learned counsel for appellant contended that appellant is bona fide purchaser through
valid documents and from the inception of investigation, he informed the police about the factum
of its purchase; that during investigation to ascertain the authenticity of document the query has
been made through ETO Jaffarabad, who also affirmed the genuineness of the registered
documents of the vehicle; that no offence whatsoever nature is made out against the appellant as
prosecution has failed to establish the knowledge and intention of the appellant within the view
of section 412, P.P.C.; that the impugned judgment reflects misreading and non- reading of
evidence, in this respect learned defence counsel pointed out that the documents related to
verification of vehicle conducted by the ETO, Jaffarabad altogether have ignored, which resulted
grave prejudice to the appellant; that the documentary evidence in respect of purchase of vehicle
was produced and substantiated the same through D.W.1 and D.W.2 which has been unnoticed
by the lear ned Judge of the trial Court; that the case of prosecution on the strength of evidence
produced by them itself negates their assertion and this material aspect has also been escaped
from the notice of learned trial Court, therefore, impugned judgment is li able to be set aside.
As against this, Mr. Sultan Mehmood, Special Prosecutor controverted the arguments of
the counsel for the appellant and stated that admittedly the vehicle in question was intercepted
from appellant and after verification from the c oncerned authority it was found to be stolen from
Karachi regarding which an F.I.R. No.819/2010 was registered at Gulshan Town Karachi, which
further substantiate the prosecution version. The testimony of prosecution witnesses further
corroborated by the documentary evidence produced as Article P/1 to Article P/8; that the
impugned judgment neither reflect misreading nor non- reading of evidence and same is based by
sound reasonings which is liable to be sustained.
6. After hearing learned counsel for the parties and gone through the evidence on record, the
prosecution alleged that the appellant had received the vehicle, stolen in commission of dacoity
and in this respect evidence of prosecution is based on documentary evidence, to substantiate the
factum o f aforesaid offence. Prosecution has brought on record Article P/1 to Article P/8. It is
mainly stressed on behalf of learned State counsel that the Article P/8 clearly indicates that
vehicle in question was not found in the computerized screen record of E xcise and Taxation
(MVR) Office, Karachi. The letter dated 5th March, 2012 issued by office of Capital City Police
Officer, Quetta has also not been denied by the accused which clearly demonstrate that appellant
was in possession of vehicle and according t o Article P/18 an F.I.R. No.819/2010 under sections
384, 385 and 395, P.P.C. registered with Police Station, Gulshan Iqbal, which further affirmed
that the appellant has committed offence under section 412, P.P.C. The contentions of the
learned counsel for the State in the present circumstances of the case are not tenable on many
counts. Firstly there is no evidence of prosecution to establish knowledge of the appellant, which
is necessary ingredient of section 412, P.P.C. Secondly the prosecution itself br ought on record
certain documents which further negates the assertion of prosecution. Thirdly the prosecution
itself verified vehicle in question from ETO Jaffarabad and obtained verification letter Article
P/13. The relevant is reproduced hereinbelow: --
"It is certified that the Vehicle No. WAA -282 has been registered in this Office as
TOYOTA PRADO Ist Registered as JA- 5734 on 2- 7-2005 in District Jaffer Abad at Dera Allah
Yar, Balochistan. Last Owner Mr. GHOUS BUX SON OF GHULAM NABI CNIC No54400 -
0371517- 7 resident of Sariab Road Muhalla Pirkani Abad, Quetta. Because original office record
has been burnt in the strike of PPP died MUHTARMA BENAZIR BHUTTA SAHIBA and
reported in the Police Station Dera Allah Yar vide F.I.R. No.298/07 dated 28- 12-2007.
Particulars are as under: --
Class of Vehicle: L.T.V.
Maker Name: TOYOTA PRADO
Type of Body ST. WAGON
Chassis No. VZ195 -0094515
Engine No. 35VZ -1479933
Model: 2002"
The ETO office Jaffarabad also issued a certificate Article P/14 which further states as
under: --
"This is certified that the Vehicle No. WAA -282 has been registered in this office as
TOYOTA PRADO 1" registered as JA- 5734 on 26- 7-2005 in District Jafferabad at Dera Allah
Yar, B ALOCHISTAN.
His particulars are as under: -
Class of Vehicle: L.T.V.
Maker Name: PRADO
Type of Body ST WAGON
Chassis No. VZJ95 -0094515
Engine No. 5 VZ -1479933
Model: 2002
Last Owner Mr. GHOUS BUX SON OF GHULAM NABI CNIC No.54400 -0371517- 7
resident of Sariab Road Muhalla Pirkani Abad, Quetta.
The verification certificate issued on the request of owner/keeper of above said vehicle
for plying on road. Because original offic e record has been burnt in the strike of PPP died
MUHTARMA BENAZIR BHUTTO SAHIBA and reported in the POLICE STATION Dera
Allah Yar vide F.I.R. No. 298/07 dated 28- 12-2007."
7. The perusal of above documentary evidence produced by prosecution reflects tha t the
vehicle in question had been registered in the office of ETO Jaffarabad and keeping in view the
above documentary evidence. The plea taken by the appellant to the effect that he is bona fide
purchaser of the vehicle and in this respect he has produce d D.W.1 and D.W.2, who also
substantiated the agreement Exh.D/1- A arrived between appellant and one Ghulam Murtaza son
of Muhammad Arshad. Therefore, the plea of the appellant has been reflected from the evidence
of the prosecution and defence as well, though it cannot he taken that appellant has established
the ownership of the vehicle, however, through above evidence reasonable doubt appeared in the
prosecution case, which made a dent and this benefit of doubt must be extended in favour of the
appellant. It is settled principle of administration of criminal justice that if the accused has not
fully proved its plea, but he succeeded to make a dent in the prosecution case then benefit of
such doubt is to be extended to him. Reference in this respect is to be made in case titled Ashiq
Hussain v. The State reported in 1993 SCMR 417. The relevant is reproduced hereinbelow: --
"Burden of prosecution to prove its case beyond doubt remains the same. Of course,
defence plea is to be considered in juxtaposition wit h prosecution case and in the final analysis if
defence plea is proved or accepted then prosecution case would stand shattered and discredited.
It would be enough if plea is substantiated to the extent of creating doubt in the credibility of the
prosecution case."
8. The other aspect of the prosecution case is that though the document Article P/8 issued
by Capital City Police Officer, Quetta to Station House Officer City Quetta wherein it is
informed about the non- registration of vehicle in question in th e computerized screen record of
Excise and Taxation Office Karachi, but this document cannot be taken into consideration as the
same has not been put to appellant in his examination under section 342, Cr.P.C. It is the
mandate of section 342, Cr.P.C. that all incriminating evidence is to be put to accused in his
statement under section 342, Cr.P.C. and the evidence which has not been confronted to the
accused the conviction cannot be based on such evidence. Reference is to be made in case titled
Muhammad Shah v. The State reported in 2010 SCMR 1009. The relevant is reproduced herein
below: --
"It is important to note that all incriminating pieces of evidence, available on the record,
are required to be put to the accused, as provided under section 342, Cr.P.C. in which the words
used are "For the purpose of enabling the accused to explain any circumstances appearing in
evidence against him" which clearly demonstrate that not only the circumstances appearing in
the examination -in-chief are put to the accused but the circumstances appearing in cross -
examination or re -examination are also required to be put to the accused, if they are against him,
because the evidence means examination -in-chief, cross -examination and re -examination, as
provided under Article 132 read with Articles 2(c) and 71 of Qanun- e-Shahadat Order, 1984. The
perusal of statement of the appellant, under section 342, Cr.P.C., reveals that the portion of the
evidence which appeared in the cross -examination was not put to the accused in his stat ement
under section 342, Cr.P.C. enabling him to explain the circumstances particularly when the same
was abandoned by him. It is well -settled, that if any piece of evidence is not put to the accused in
his statement under section 342, Cr.P.C. then the sam e cannot be used against him for his
conviction. In this case both the Courts below without realizing the legal position not only used
the above portion of the evidence against him, but also convicted him on such piece of evidence,
which cannot be sustaine d."
9. After reappraisal of evidence on record, it is concluded that the prosecution has failed to
prove its case against the appellant beyond reasonable doubt and the impugned judgment reflects
misreading and non -reading of evidence which in the aforesa id circumstances cannot be
sustained.
In view of the above the appeal is accepted, the impugned judgment passed by the trial
Court dated 29th October, 2013 is set aside to the extent of appellant and appellant is acquitted of
the charge, he is on bail his bail bonds stand discharged. The impugned judgment to the extent of
case property is remained intact.
HBT/30/Bal. 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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