2025 P Cr. L J 1934
[Balochistan]
Before Muhammad Najam -ud-Din Mengal, J
MUHAMMAD IRFAN ---Petitioner
Versus
The STATE--- Respondent
Criminal Revision Petition No. 03 of 2025, decided on 26th June, 2025.
(a) Penal Code (XLV of 1860) ---
----S. 380 ---Theft in a dwelling house, tent, or vessel ---Appreciation of evidence ---
Benefit of doubt ---Contradictions in the statements of witnesses ---Accused was charged
for taking away the mobile of complainant from his shop ---Complainant mostly reiterated
the contents of his fard- e-bayan, however, to some extent he derailed from his earlier
statement ---During the course of cross -examination, complainant admitted that the FIR
was not promptly lodged on the day of occurrence rather the same was registered on 1st
August 2024--- Complainant deposed that he by himself did not witness the stealing of
mobile, voluntarily stated that through CCTV footage he came to know that his mobile phone was stolen ---Complainant deposed that the Police Officials did not come to his
shop, while contrary to the same, Investigating Officer in cross -examination stated that
during the investigation first of all he met with complainant on the place of occurrence ---
Evidence of recovery witness was also contradictory to the other witnesses ---Recovery
witness in his cross -examination admitted that the face of person in the alleged footage
was not clear to assume about his identity--- Eye-witness of the occurrence, who was
present in the shop in whose presence the accused took away the mobile ---Statement of
that witness did not corroborate the statements of rest of the witnesses ---Eye-witness
deposed in his cross -examination that the police officials came to their shop, while
contrary to the same, the depositions of the rest of the witnesses were silent with to arrival/visit of police personnel--- Said witness admitted that he did not mention in his
statement under S.161,Cr.P.C., that earlier he watched the video in which the accused had stolen the mobile phone ---Besides, said witness showed his ignorance with regard to the
time and place of arrest of accused ---Thus, such glaring admissions and contradictions
created serious dent in the case of prosecution ---Appeal against conviction was allowed,
in circumstances.
(b) Penal Code (XLV of 1860) ---
----S. 380 ---Theft in a dwelling house, tent, or vessel ---Appreciation of evidence ---
Benefit of doubt ---Defective investigation ---Accused was charged for taking away the
mobile of complainant from his shop ---Investigating Officer of the case admitted in his
cross -examination that he transmitted the USB for Forensic Science Laboratory, but the
analysis report whereof had not been received yet ---Investigating Officer also admitted
that the place of occurrence was thickly populated area, but he did not associate any
independent witness in the recovery proceedings ---Furthermore, Investigating Officer
admitted that the parcel of recovered mobile phone was prepared in the Police Station---Investigating Officer also admitted that he did not record the statement of operator, who traced out the stolen mobile ---Even otherwise, the Investigating Officer had not taken
into possession the DVR of the CCTV Camera ---Prima facie, the Investigating Officer of
the case had failed to conduct a proper investigation to strengthen the case of prosecution ---Appeal against conviction was allowed, in circumstances.
(c) Penal Code (XLV of 1860) ---
----S. 380 ---Theft in a dwelling house, tent, or vessel ---Appreciation of evidence ---
Benefit of doubt ---CCTV footage ---Lack of forensic report ---Accused was charged for
taking away the mobile of complainant from his shop ---Prosecution had failed to produce
the report of Forensic Science Laboratory with regard to the CCTV footage ---Thus, in
absence of any Forensic Science Laboratory Report with regard to CCTV footage, the
genuineness or otherwise of the said video shots could not be determined and no reliance could be placed on such piece of evidence ---Appeal against conviction was allowed, in
circumstances.
Asfandyar and another v. Kamran and another 2016 SCMR 2084 and Ishtiaq Ahmed
Mirza and others v. Federation of Pakistan PLD 2019 SC 675 rel.
(d) Penal Code (XLV of 1860) ---
----S. 380 ---Theft in a dwelling house, tent, or vessel ---Appreciation of evidence ---
Benefit of doubt ---Delay of about 17hours in lodging the FIR ---Accused was charged for
taking away the mobile of complainant from his shop ---Alleged incident took place on
31st July 2024 at about 07.35 p.m., but complainant did not lodge the FIR promptly rather the same was lodged on 1st August 2024 at about 02:40 p.m. ---Main purpose of
lodging FIR was to set criminal law inmotion and to bring on record firsthand information about the occurrence of a crime---Thus, the main object of recording FIR
promptly was to provide a sound basis for carrying out investigation in the right direction
excluding the possibility of fabrication of any false story ---Whereas in the case in hand as
per the case of prosecution, the incident allegedly accrued on 31st July 2024 at about
07:35 p.m., but the FIR was lodged on 1st August 2024 i.e. after delay of 17 hours of alleged crime with no explanation ---In view of the circumstances of present case, delay in
lodging FIR could not be taken lightly and it casted serious doubt in the case of the
prosecution ---Delay in lodging the FIR could only be condoned, when such delay had
been adequately explained but in the instant case, there was no explanation for inordinate
delay in lodging FIR ---Appeal against conviction was allowed, in circumstances.
Abdul Wali and 2 others v. The State 2020 YLR 256 rel.
(e) Criminal trial ---
----Benefit of doubt ---Principle ---Accused cannot be deprived of benefit of doubt, merely
because there is only one circumstance, which created doubts in the prosecution story.
Khial Muhammad v. The State 2024 SCMR 1490 rel.
Mir Fahad Mengal for Pettioner.
Habibullah Gul, Additional PG for the State.
Date of hearing: 18th June, 2025.
JUDGMENT
MUHAMMAD NAJAM -UD-DIN MENGAL, J .---This judgment disposes of
Criminal Revision Petition No.03 of 2025 filed by the petitioner namely Muhammad Irfan
son of Haji Hashim, against the judgment dated 3rd March 2025 ("impugned judgment") passed by learned Additional Sessions Judge -IV, Quetta ("the appellate Court"), whereby the
appeal filed by the petitioner was dismissed, while maintaining the judgment dated 7th February 2025 passed by learned Judicial Magistrate -I/MFC, Quetta ("the trial Court"),
whereby the petitioner was convicted under Section 380 P.P.C and sentenced to suffer R.I. for a period of 2 (two) years with fine of Rs.20,000/ - (Rupees Twenty thousand only) or in
default thereof, to further undergo Three (03) months S.I. with the benefit of Section 382- B
Cr.P.C.
2. Relevant facts of the instant petition are that on 1st August 2024 at about 02.40 p.m.,
the complainant namely Hayatullah son of Abdul Ghafoor lodged FIR No.115 of 2024 at Police Station City, District Quetta under Section 380 P.P.C with the averments that on 31st July 2024 at about 07:30 p.m. he went to Masjid in order to pray the Maghrib prayer, while his servant Sharafuddin was present in his shop and his mobile phone i.e. iPhone 12 Pro Max, black in colour bearing IMEI Nos.35624113941400/ 35672411405 7982, which was
plugged into the charge in the shop. In the meanwhile, at about 07:35 p.m. his servant also
started prayer inside the shop, during the course whereof an unknow person entered into the shop and taken away the mobile phone. The CCTV Footage of the occurrence is available.
3. Pursuant to above FIR, the petitioner (convict) was arrested and subjected to
investigation and on completion thereof, he was challaned in the trial Court for facing trial under Section 380 P.P.C. The trial Court indicted the charge, which was denied and the prosecution in order to substantiate the allegations has produced the evidence of five (05) witnesses. Whereafter, the petitioner was examined under Section 342 Cr.P.C. However, neither he recorded his statement on oath under Section 340(2) Cr.P.C. nor produced any witness in his defence. On conclusion of trial and after hearing arguments, the learned trial Court convicted and sentenced the petitioner (convict) under Section 380 P.P.C as mentioned above in Para No.1. Being aggrieved, the petitioner (convict) filed a Criminal Appeal, which was also dismissed, vide impugned judgment as mentioned hereinabove in Para No.1. Whereafter the petitioner, preferred the instant revision petition before this Court.
4. Heard the learned counsel for the parties and have gone through the available
record. The prosecution in order to establish the charge has produced the evidence of Five witnesses. The minute scrutiny of the statements of PWs transpire that the same are neither consistent, confidence inspiring nor corroborating rather contradictory to each other on material counts. The complainant Hayatullah appeared as PW -1, who mostly reiterated the
contents of his fard -e-bayan Ex.P/1- A, but however, to some extent he derailed from his
earlier statement. During the course of cross -examination he admitted that the FIR was not
promptly lodged on the day of occurrence rather the same was registered on 1st August
2024. In reply of question No.14 PW -1 deposed that he by himself did not witness the
stealing of mobile, voluntarily stated that through CCTV footage he came to know that his mobile phone was stolen. In reply of cross No.18 he deposed that the police officials did not come to his shop, while contrary to the same PW -5/Investigating Officer in cross -
examination No.3 replied that during the investigation first of all he met with complainant on the place of occurrence. PW -2 Ajmal Khan, Constable is the witness of recovery memo.
Ex.P/2- A, the statement of this witness is also contradictory to the other PWs. He in his
cross -examination admitted that the face of person in the alleged footage is not clear to
assume about his identity. PW -3 Sharafuddin is the eye -witness of the occurrence, who was
present in the shop in whose presence the petitioner (convict) taken away the mobile. The statement of this witness does not corroborate the statements of rest of the witnesses. He in his cross -examination admitted that his statement under Section 161 Cr.P.C. is silent with
regard to watching of video. In reply of question No.9 PW -3 stated that he proceeded to
Police Station on 1st August 2024 so as to get record his statement. He further deposed in his cross -examination that the police officials came to their shop, while contrary to the
same, the depositions of the rest of the PWs are silent with to arrival/visit of police personnel. In response to cross No.13 he admitted that he did not mention in his statement under Section 161 Cr.P.C. that earlier he watched the video in which the petitioner (convict) has stolen the mobile phone. Besides he showed his ignorance with regard to the time and place of arrest of petitioner. Thus, such glaring admissions and contradictions created serious dents in the case of prosecution.
5. PW-5 Fawad Fazil, ASI is the Investigating Officer of the case, who counted the steps
taken by him during the course of investigation. The I.O. admitted in his cross -examination
that he transmitted the USB for FSL, but the analysis report whereof has not been received yet. He also admitted that the place of occurrence was thickly populated area, but he did not associate any independent witness in the recovery proceedings. Furthermore, he also admitted that the parcel No.1 of recovered mobile phone was prepared in the Police Station. He also admitted that he did not record the statement of Operator, who traced out the stolen
mobile. Even otherwise, the I.O. has not taken into possession the DVR of the CCTV
Camera. Prima facie, the Investigating officer of the case has failed to conduct a proper investigation to strengthen the case of prosecution.
6. The perusal of record transpires that the prosecution has failed to produce the report
of Forensic Science Laboratory with regard to the CCTV footage. Thus, in absence of any FSL report with regard to CCTV footage, the genuineness or otherwise of the said video shots cannot be determined and no reliance could be placed on such piece of evidence.
Reliance in this regard is placed on the case titled as "Asfandyar and another v. Kamran and
another (2016 SCMR 2084)", whereby the Hon'ble Supreme Court of Pakistan has held as under:
"Mere producing any footage of C.C.T.V. as a piece of evidence in the Court is not sufficient to be relied upon unless and until the same is proved to be genuine. In order to prove the genuineness of such footage it is incumbent upon the defence or prosecution to examine the person who prepared such footage from the C.C.T.V. system."
7. Similarly, the Hon'ble August Court has further provided detailed guidelines in order
to prove an audio or video in the Court in its reported judgment in the case of "Ishtiaq Ahmed Mirza and others v. Federation of Pakistan" (PLD 2019 SC 675), wherein the Hon'ble apex Court referred certain points with regard to authenticity of the audio or video, the relevant portion whereof is reproduced hereinbelow:
"11. The precedent cases mentioned above show that in the matter of proving an audio
tape or video before a court of law the following requirements are insisted upon:
* No audio tape or video can be relied upon by a court until the same is proved to be genuine and not tampered with or doctored.
* A forensic report prepared by an analyst of the Punjab Forensic Science Agency in respect of an audio tape or video is per se admissible in evidence in view of the provisions of section 9(3) of the Punjab Forensic Science Agency Act, 2007.
* Under Article 164 of the Qanun- e-Shahadat Order, 1984 it lies in the discretion of a
court to allow any evidence becoming available through an audio tape or video to be
produced.
* Even where a court allows an audio or video to be produced in evidence such audio tape or video has to be proved in accordance with the law and evidence.
* Accuracy of the recording must be proved and satisfactory evidence, direct or circumstantial, has to be produced so as to rule out any possibility of tampering with the record.
* An audio tape or video sought to be produced in evidence must be the actual record of the conversation as and when it was made or of the event as and when it took place.
* The person recording the conversation or event must produce the audio tape or video itself.
* The audio tape or video must be played in the court.
* An audio tape or video produced before a court as evidence ought to be clearly audible or viewable.
* The person record the conversation or event must identify the voice of the person speaking or the person seen or the voice or person seen may be identified by any other person who recognizes such voice or person.
* Any other person present at the time of making of the conversation or taking place of the event may also testify in support of the conversation heard in the audio tape or the event shown in the video.
* The voices recorded or the persons shown must be properly indentified.
* The evidence sought to be produced through an audio tape or video has to be relevant to the controversy and otherwise admissible.
* Safe custody of the audio tape or video after its preparation till producing before the court must be proved.
* The transcript of the audio tape or video must have been prepared under independent supervision and control.
* The person recording an audio tape or video may be a person whose part of routine duties is recording of an audio tape or video and he should not be a person who has recorded the audio tape or video for the purpose of laying a trap to procure evidence.
* The source of an audio tape or video becoming available has to be disclosed.
* The date of acquiring the audio tape or video by the person producing it before the
court ought to be disclosed by such person.
* An audio tape or video produced at a late stage of a judicial proceeding may be looked at with suspicion.
* A formal application has to be filed before the court by the person desiring an audio tape or video to be brought to the record of the case as evidence."
8. Another important aspect of the case is that the alleged incident took place on 31st
July 2024 at about 07.35 p.m., but complainant did not lodge the FIR promptly rather the same was lodged on 1st August 2024 at about 02:40 p.m. The main purpose of lodging FIR is to set criminal law in motion and to bring on record firsthand information about the occurrence of a crime. Thus the main object of recording FIR promptly is to provide a sound basis for carrying out investigation in the right direction excluding the possibility of fabrication of any false story, whereas in the case in hand as per the case of prosecution, the incident allegedly accrued on 31st July 2024 at about 07:35 p.m, but the FIR was lodged on 1st August 2024 i.e. after delay of 17 hours of alleged crime with no explanation. In view of the circumstances of present case, delay in lodging FIR cannot be taken lightly and it casts
serious doubt in the case of the prosecution. It is a settled principle of law that delay in
lodging the FIR can only be condoned, when such delay has been adequately explained but in
the instant case, there is no explanation for inordinate delay in lodging FIR. Reliance in this regard is placed on the case titled as "Abdul Wali and 2 others v. The State, (2020 YLR 256), the relevant portion whereof is reproduced as under:
"4. I have heard the learned counsel for the petitioners, learned APG and have gone through the record of the case with their able assistance. The prosecution case rest upon
three ocular accounts, i.e. recovery of alleged snatched motorcycle, identification parade and disclosure memo, allegedly disclosed by the convict/appellant Abdul Wali. Perusal of the record reveals that the occurrence took place on 09.08.2017 at 5:00 p.m., while the FIR was lodged on 10.08.2017 at 6:30 pm after delay of twenty four hours, despite the
fact that the distance of the police station was about 13 to 14 kilometers from the place of
occurrence. No reasons whatsoever have been mentioned in the FIR by the complainant
for such delay in reporting the crime to the police. Even before the learned trial court no plausible reason has been assigned by the complainant, which shows that no sincere effort was made by the complainant's side to report the matter to the police with due promptitude, as such there is every possibility that the intervening period was consumed in concocting a story, which is giving rise to many doubts regarding the correctness of the story narrated in the crime report.
9. The reappraisal of statements of prosecution witnesses would divulge the fact that not
only the same are contradictory with each other, but in order to cover up the lacunas certain dishonest improvements have also been made. Thus, the prosecution has miserably failed to substantiate the charge against the petitioner (convict) beyond the shadow of reasonable doubt. The perusal of impugned judgments reveal that the same are suffering from misreading, non-reading and mis -appreciation of material available on record. The above defects in the
prosecution case were not considered by the learned Courts below, while passing the impugned judgments. It is well settled principle of law that a wrongful conviction results into injustice, the first tragedy is to the innocent person; the second is to the victim of the offence and to society, because the real offender is not brought to justice, wrong conviction undermine the credibility of the legal system, whenever witnesses are mistaken, it is rarely because they lie or misrepresent the facts. Needless to emphasize that petitioner was entitled to be extended benefits of doubt as a matter of right, but the same was withheld. Even an accused cannot be deprived of benefit of doubt, merely because there is only one circumstance, which creates doubts in the prosecution story, whereas in the case in hand there are series of doubts apparent from the statements of so -called witnesses. Reliance in this regard can be placed on the
reported judgment of the Hon'ble Supreme Court of Pakistan passed in case of titled as "Khial Muhammad v. The State" (2024 SCMR 1490), whereby it has been held as below:
"It is a well settled principle of law that for the accused to be afforded this right of benefit of doubt, it is not necessary that there should be many circumstances creating uncertainty and if there is only one doubt, the benefit of the same must go to the accused. In the case reported as Mst. Asia Bibi v. The State (PLD 2019 SC 64) this Court has held that if a single circumstance creates reasonable doubt in a prudent
mind about the apprehension of guilt of an accused, then he/she shall be entitled to
such benefit not as a matter of grace and concession, but as of right. Reference in this regard may be made to the cases reported as Tariq Pervez v. The State (1995 SCMR 1345) and Ayub Masih v. The State (PLD 2002 SC 1048). The same view was reiterated in the case reported as Abdul Jabbar v. State (2019 SCMR 129) wherein it
was held that once a single loophole is observed in a case presented by the
prosecution, such as conflict in the ocular account and medical evidence or
presence of eye- witnesses being doubtful, the benefit of such loophole/lacuna
in the prosecution's case automatically goes in favour of an accused. The conviction must be based on unimpeachable, trustworthy and reliable evidence. Any doubt arising in prosecution case is to be resolved in favour of the accused. However, as discussed above, the prosecution has failed to prove its case beyond any reasonable doubt.
Thus, in view of the above reasons, the petition is accepted. The impugned judgments
dated 7th February 2025 passed by learned Judicial Magistrate -I/MFC, Quetta and 3rd March
2025 passed learned Additional Sessions Judge -IV, Quetta are set -aside and while extending
the benefit of doubt, the petitioner Muhammad Irfan son of Haji Hashim is acquitted of the
charge under Section 380 P.P.C in case FIR No.115 of 2024 of Police Station City, Quetta.
The petitioner is on bail; his bail bond stand discharged after lapse of appeal period.
JK/75/Bal. Revision allowed.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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