2020 P Cr. L J 923
[Balochistan (Sibi Bench)]
Before Rozi Khan Barrech, J
MUHAMMAD SIDDIQUE alias QURBAN ALI ---Petitioner
Versus
The STATE through Prosecutor General, Balochistan ---Respondent
Criminal Revision Petition No. (s) 28 of 2019, decided on 10th October, 2019.
(a) Penal Code (XLV of 1860) ---
----Ss. 392 & 34--- Robbery, common intention--- Appreciation of evidence ---Confidence
inspiring evidence ---Scope ---Prosecution case was that complainant along with his relativ e
was going towards his house on a motorbike when the accused along with another duly
armed with lethal weapon snatched the motorbike on gun point and fled away from the spot --
-Complainant reported the matter to the police, upon which he and police party c hased the
accused persons and overpowered one of them along with stolen motorbike and unlicensed weapon ---First Information Report was lodged without any delay and the accused was duly
nominated--- Complainant and his relative had recorded their statements on oath wherein they
had fully involved the accused as one of the culprits who was apprehended on the spot ---
Snatched motorbike and pistol were recovered from the accused in the presence of eye -
witnesses---Complainant party prima facie had no motive or rea son to falsely involve the
petitioner who was neither resident of the area of complainant nor the accused had pleaded any direct enmity against the complainant party---High Court held that judgment of conviction recorded by Trial Court and subsequently upheld by the appellate court was well reasoned and proper, hence did not warrant any interference by the High Court --- Revision
petition was dismissed.
(b) Criminal trial ---
----Evidence --- Ocular evidence--- Corroboration--- Scope --- Ocular account must su stain
beyond shadow of doubt, which for abundant caution must have corroboration to eliminate
chance of doubt ---Where ocular account fails the corroborative pieces of evidence become
immaterial as they alone cannot sustain conviction.
Dr. Israr- ul-Haq v. Muhammad Fayyaz and another 2007 SCMR 1427 rel.
(c) Criminal trial ---
----Evidence ---Ocular evidence--- Duty of prosecution--- Scope --- Ocular account brings the
prosecution under a heavy duty to safely establish presence of the witness on the spot ---Mere
presence of witness at the spot is not sufficient to believe whatever the witness says but his
evidence being natural, direct and confidence inspiring are sine qua non.
Abid Ali and 2 others v. The State 2011 SCMR 208 rel.
Ahsan Rafiq Rana for Petitioner .
Abdul Mateen, DPG for the State.
Date of hearing: 26th September, 2019.
JUDGMENT
ROZI KHAN BARRECH, J. ---This petition is filed against the judgment dated 12th
June 2019 passed by the learned Judicial Magistrate, Sohbat Pur ("trial Court") in P.P.C. No.
51 of 2018, FIR No. 179 of 2018 for the offence punishable under sections 392, 34, P.P.C., registered at Po lice Station Dera Allah Yar, whereby the petitioner was convicted under
sections 392, 34, P.P.C. and sentenced to suffer rigorous imprisonment for a period of three years with fine of Rs.20,000/ -. In default in payment of fine further imprisonment for a
period of three months with benefit of section 382- B, Cr.P.C. Aggrieved from the judgment
passed by the trial Court, petitioner assailed the same before the learned Sessions Judge, Jaffarabad at Dera Allah Yar ("appellate Court") whereby the appeal filed by the accused/petitioner was dismissed vide order dated 20th August 2019. (both the judgments are hereinafter called "impugned judgments")
2. Brief facts of the case are that on 17th August 2018 complainant Abdul Jabbar lodged
an FIR bearing No. 179 of 2018 at Police Station, Dera Allah Yar with the averments that on the day of incident, he along with his relative namely Muhammad Alim departed from Dera Allah Yar towards his house on his motorcycle CD -70, model 2018, engine No.297425,
chasis No. JH -943034 at about 1:30 p.m., when they reached near Goth Chandia, they found
two persons on motorcycle duly armed with lethal weapons, who snatched the motorcycle on gun point and fled away from the spot. That the complainant reported the matter to the police, upon which he and police party chased the accused persons and reached near Goth Kamran Khan Kanrani, where they found two persons on motorcycle; that on seeing the police party they started firing. Police party overpowered the accused Muhammad Siddique alias Qurb an along with stolen motorcycle and unlicensed T.T Pistol.
On completion of investigation challan was submitted before the trial Court. Charge
was framed and read over to the accused person to which he pleaded not guilty and claimed justice through trial. The prosecution in order to establish its case produced as many as six
(06) witnesses. On examination under section 342, Cr.P.C., the accused disputed the case of the prosecution and pleaded his innocence with the submission that he is innocent and has no
concern or connection with the commission of the alleged offence. He did not opt to appear as his own witness as envisaged under section 340(2), Cr.P.C. nor produced any witness in his defense.
The trial Court after hearing the parties and evaluating evi dence found the accused
guilty, convicted and sentenced the petitioner in the above terms. The petitioner preferred the
appeal before the appellate Court, which was dismissed vide judgment dated 20th August 2019. Whereafter the instant petition has been fi led.
3. Learned counsel for the petitioner argued that the judgments passed by the trial Court
as well as appellate Court are based on non- appreciation and mis -appreciation of evidence
based on surmises and conjunctures and non- speaking ones, hence are not sustainable under
the law and are liable to be reversed. He criticized the impugned judgments passed by the Courts below by submitting that both the Courts below erred in law by holding that the prosecution has not been able to prove its case against the petitioner beyond the shadow of any reasonable doubt.
4. On the other hand, learned DPG strongly opposed the petition by submitting that the
judgments impugned passed by the Courts below are based on proper appreciation of evidence and no illegality or irr egularity, misreading and non- reading in the judgments
impugned are available to the defense. He maintained that even the learned counsel for the petitioner has failed to point out any specific illegality or inherent defects in the impugned judgments, ther efore, revision petition filed by the petitioner merits dismissal.
5. I have heard the learned counsel for the parties and gone through the record with their
assistance which reflects that the instant case was registered on 17th August 2018 with the allega tion of committing robbery. The prosecution in order to prove its case produced PW -1
Abdul Jabbar complainant and victim of the incident, who submitted an application Ex.P/1- A
in pursuance whereof the aforesaid FIR was. registered. He appeared before the t rial Court
and reiterated the contents of application wherein he involved the accused as one of the
culprits. PW -2 Muhammad Alim is an important witness and one of the victims of the
incident, who recorded his statement before the trial Court wherein he supported the version narrated by PW- 1 and also identified the accused present in the Court. PW -3 Muhammad
Aslam, Constable, is marginal witness of proceedings of site inspection memo as well as witness to recovery of snatched motorcycle and pistol in the instant case. He produced site inspection memo (Ex.P/3 -A) and recovery memos (Ex.P/3 -B to Ex.P/3 -G). PW -4
Muhammad Hanif, Head Constable produced disclosure memo of the accused/petitioner (Ex.P/4 -A), whereas PW- 5 is also the signatory of the disclosure of the deceased/petitioner.
PW-6 Bashir Ahmed, SI is investigating officer of the case. After registration of FIR
(Ex.P/6 -A), he visited the place of incident, prepared site map (Ex.P/6- B) identification
parade memo of accused persons (Ex.P/6 -C to Ex.P/6- F) inc omplete Challan (Ex.P/6 -G to
Ex.P/6- 11) and FSL report (Ex.P/6- J).
6. Now I would take up the ocular account which is of most importance because it is
always necessary for ocular account to sustain beyond shadow of doubt which for abandon caution may have corroboration to eliminate chances of any doubt however where ocular
account fails the corroborative pieces of evidences becomes immaterial as the same alone cannot hold conviction. Reference may be made to the case of Dr. Israr -ul-Haq v.
Muhammad Fayyaz a nd another 2007 SCMR 1427 wherein it is held as:
"4.....It is also a settled law when ocular evidence is disbelieved in a criminal case
then the recovery of an incriminating article in the nature of weapon of offence does
not by itself prove the prosecuti on case."
7. The ocular account consists of evidence of complainant PW -1 Abdul Jabbar and PW -
2 Muhammad Alam. I would add that the ocular account first brings the prosecution under a heavy duty to safely establish presence of the witness because ocular acc ount would only be
that which the witness claims to have seen or heard directly and then credibility of statement of such witnesses which should satisfy the conscious of the Court. In law mere presence at spot is not sufficient to believe whatever the witness says but it is being natural, direct and confidence inspiring are sine qua non. Reference may be made to the case of Abid Ali and 2
others v. The State 2011 SCMR 208 wherein it is held as:
"21. To believe or disbelieve a witness all depends upon intrinsic value of the
statement made by him. Even otherwise, there cannot be a universal principle that in every case interested witness shall be disbelieved or disinterested witness shall be believ ed. It all depends upon the rule of prudence and reasonableness to hold that a
particular witness was present on the scene of crime and that he is making true statement. A person who reported otherwise to be very honest above board and very respectable in society if gives a statement which is illogical and unbelievable, no prudent man despite his nobility would accept such statement.
22. As a rule of criminal jurisprudence, prosecution evidence is not tested on the basis of quantity but quality of the evidence. It is not that who is giving the evidence and making statement; what is relevant is what statement has been given. It is not the person but the statement of that person which is to be seen and adjudged."
8. The perusal of record shows that the occurr ence took place on 17th August 2018 at
1:30 p.m. and FIR was lodged on the same day at 2:50 p.m. without any delay and the accused was nominated in the FIR. The above named witnesses did appear before the trial Court and recorded their statements in a stra ightforward and confidence inspiring way, both
the eye- witnesses namely PW- 1 Abdul Jabbar and PW -2 Muhammad Alim recorded their
statements on oath wherein they fully involved the accused as one of the culprit, apprehended on the spot, therefore no room lef t to doubt that the accused has falsely been
involved. Recovery of snatched motorcycle and pistol were also effected from the petitioner in the presence of witnesses produced an Article in the Court. The witnesses named above were subjected to lengthy and searching cross -examination but nothing could be extracted in
favour of defence showing that either the offence not happened in the manner narrated in the FIR, or deposed by the PWs named above, similarly no mala fide, ill -will previous enmity or
personal grudge could be brought on record showing that evidence furnished by the
prosecution was based on malice or ill -will rightly believed by the trial Court as well as
appellate Court. The perusal of the record shows that the complainant party prima facie had no motive or reason to falsely involve the petitioner who was neither resident of the Illaqa of complainant nor the petitioner pleaded any direct enmity against the complainant party.
In view of above discussion. I have come to the conclusion that the judgment of
conviction so recorded by the trial Court and subsequently upheld by the appellate Court are well reasoned and proper, hence do not warrant any interference by this Court. Therefore, the
petition being devoid of merits is dismissed accordingly.
SA/132/Bal. Petition 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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