PLJ 2020 Cr.C. (Quetta) 953
Present: A BDUL HAMEED BALOCH , J.
ABDUL WALI and 2 others --Petitioners
versus
STATE--Respondents
Crl. Rev. No. 70 of 2019, decided on 18.6.2019.
Pakistan Penal Code, 1860 (XLV of 1860) --
----Ss. 392/34--Conviction & sentence --Challenge to --Delay in FIR --Contradictory statement of
complainant --Jurisdiction --Non -availability of evidence --Identification without specific role --
Benefit of doubt --FIR was lodged after delay of twenty four hours, despite fact that distance of
police station was about 13 to 14 kilometers from place of occurrence --No plausible reason has
been assigned by complainant, which shows that no sincere effort was made by complainant’s
side to report matter to police with due promptitude, as such there is every possibility that
intervening period was consumed in concocting a story, which is giving rise to many doubts regarding correctness of story narrated in crime report --Statement of complainant is also
contradictory from FI R--Since in FIR distance of place of occurrence from police station has
been mentioned 13/14 kilometers, while complainant during cross examination stated that place
of occurrence is situated 24 kilometer away from police station--Even otherwise complainant in
his examination -in-chief also make improvement that one of accused told his accomplice to fire
upon them, while in Fard -e-Bayan he did not mention same --Such improvements on part of
complainant created doubt in prosecution story-- Complainant did not know name of convict/
appellant then question arises how he came to know about name of convict/appellant and who
told him name of convict/appellant --It means later on after deliberation and consultation, accused
has been implicated by complainant --If versio n of complainant that distance of place of
occurrence is 24 kilometer from police station, then police has no jurisdiction because police has
jurisdiction within 15 kilometer around police station, and beyond 15 kilometer police has no
jurisdiction to arre st any person and FIR should have been lodged in levies than-- Recovery of
bike has been made on pointation of convict/appellant from his house, but no private person has been associated during recovery process, and prosecution has failed to produce any do cumentary
or ocular evidence to prove nexus of appellant with house in question, wherefrom recovery of
bike was effected, even prosecution admitted that there were other inmates in house and same
was not solely in possession of appellant/accused-- Complaina nt produced documents in respect
of motorcycle and prosecution has taken into possession motorcycle through recovery memo, but it is astonishing prosecution has not bothered to verify documents competent authority whether same are genuine or otherwise--Judicial Magistrate showed his ignorance that how many days convict appellant remained in custody--Judicial magistrate during cross -examination also
admitted that a person is kept in police lock up, can easily be seen from outside --Complainant
did not ascribe any role to convict appellant, thus mere identification without specific role did
not have any legal sanctity --Prosecution has miserably failed to prove charge against appellants
beyond shadow of reasonable doubt --Petition accepted.
[Pp. 955, 956, 957, 958] A, B, C, D, E & F
1989 PCr.LJ 2227, PLD 2019 SC 488, 2019 MLD 162.
Mr. Jameel Shah, Advocate for Petitioners.
Mr. Abdul Kareem Malghani, State Counsel for State.
Date of hearing: 17.6.2019.
JUDGMENT
This criminal revision petition is directed against the judgment dated 31- 10-2018, (the
“impugned judgment” ) passed by the learned Judicial Magistrate, Sanjavi (the “trial Court” )
and the order dated 20.05.2019, passed by learned Sessions Judge, Loralai (the “appellate
Court” ) whereby the conviction and sentence recorded by the trial Court under Section 392/34,
PPC for a period of three years rigorous imprisonment (RI) with fine of Rs. 10,000/ -, in default
whereof further two months SI, was upheld by the appellate Court.
2. The relevant facts as narrated in the FIR are that on 10.08.2017, the complainant Zafarullah lodged an FIR No. 182/2017 with Police Station Saddar Loralai, alleging therein that on 9th August, 2017 he along with his cousin Wadood Khan were going to Killasaifullah by a motorcycle, when at a bout 5:00 pm they reached at Kohar Road near to Lorali University, where
four persons armed with weapon intercepted them, and snatched the motorcycle, mobile phone valuing Rs. 28000/ - and cash amount Rs,8000/ - from them. They identified one of the accused as
Abdul Wali son of Abdul Ghani alias Abdur Rehman while the other can be identified if brought
before them. Thus, the instant FIR was lodged.
3. After usual investigation, the challan of the case was submitted before the trial Court. The
convicts/petitio ners did not plead guilty to the charge and claimed trial. The prosecution, in order
to substantiate the charge, produced as many as (07) witnesses. Thereafter, the statements of the petitioners as envisaged under Section 342, Cr.P.C. were recorded, though they professed their
innocence, but did not opt to record their statements on oath nor produced any defence witness. On conclusion of trial, the learned trial Court convicted and sentenced them in the aforesaid
terms, while the appeal against the said conviction was also dismissed by the appellate Court.
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 place of occurrence. No reasons whatsoever
have been mentioned in the FIR by the complainant for such delay i n 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. In this regard the Hon’ble
Supreme Court in a judgment in case title Mst. Asia Bibi v. The State (PLD 2019 Supreme Court
64) held as under:
“There is no cavil to the proposition, however, it is to be noted that in absence of an
plausible explanation, this Court has always considered the delay in lodging of FIR to be fatal and castes a suspicious on the prosecution story, extending the benefit of doubt to the accused. It has been held by this Court that a FIR is always treated as a cornerstone of the prosecution case to establish guilt against thos e who involved in a crime; thus, it has a
significant role to play. If there is any delay in lodging of a FIR and commencement of
investigation, it gives rise to a doubt, which of course, cannot be extended to anyone else except to the accused.”
5. The s tatement of complainant/PW -1 Zafarullah is also contradictory from the FIR. Since in
the FIR distance of the place of occurrence from the police station has been mentioned 13/14
kilometers, while the complainant during cross -examination stated that the pla ce of occurrence is
situated 24 kilometer away from the police station. Even otherwise the complainant in his examination -in-chief also make improvement that one of the accused told his accomplice to fire
upon them, while in the Fard -e-Bayan Ex -P/1-A he di d not mention the same. Such
improvements on the part of complainant created doubt in the prosecution story. The PW -1
during cross -examination stated that:
"ﺟﺎﺋﮯ وﻗﻮﻋہ ﭘﻮﻟﯿﺲ ﺳﮣﯿﺸﻦ ﺳﮯ24 "ﮐﻠﻮ ﻣﯿﮣﺮ ﭘﺮ واﻗﻊ ﮨﮯ۔
While the PW- 7 in cross -examination stated that:
"ﭘﻮﻟﯿﺲ ﺗﮭﺎﻧہ ﮐﮯ ﭼﺎروں اطﺮاف 15/15 ﮐﻠﻮ ﻣﯿﮣﺮ ﺗﮏ ﮐﯽ ﺣﺪود ﮨﯿﮟ۔ اﺳﮑﮯ ﺑﻌﺪ ﻟﯿﻮﯾﺰ واﻟﻮں ﮐﯽ ﺣﺪود
ﺷﺮوع ﮨﻮﺗﯽ ﮨﮯ۔"
If both the above versions are accepted, then the police have no authority to arrest any person
beyond his jurisdiction, a nd the FIR should have been lodged in the levies Thana. The statement
of PW -1 is highly doubtful, on one hand he has nominated Abdul Wali in the FIR, while in
cross -examination he stated as under: -
ﻋﺒﺪاﻟﻐﻨﯽ ﮨﮯ۔" "ﻣﺠﮭﮯ ﺑﻌﺪ ﻣﯿﮟ ﮐﺴﯽ ﺷﺨﺺ ﻧﮯ ﺑﺘﺎﯾﺎ ﮐہ ﻋﺒﺪاﻟﻮﻟﯽ ﮐﮯ واﻟﺪ ﮐﺎ ﻧﺎم
"ﻣﯿﮟ اس ﺷﺨﺺ ﮐﺎ ﻧﺎم ﻧﮩﯿﮟ ﺑﺘﺎ ﺳﮑﺘﺎ ﮨﻮں ﺟﺲ ﻧﮯ ﻣﺠﮭﮯ ﻋﺒﺪاﻟﻮﻟﯽ ﮐﮯ واﻟﺪ ﮐﺎ ﻧﺎم ﺑﺘﺎﯾﺎ ﺗﮭﺎ۔"
"وﻗﻮﻋہ ﺳﮯ ﻗﺒﻞ ﻣﯿﺮی ﻣﻠﺰم ﻋﺒﺪاﻟﻮﻟﯽ ﺳﮯ واﻗﻔﯿﺖ ﻧہ ﺗﮭﯽ اور ﻧہ ﺟﺎﻧﺘﺎ ﺗﮭﺎ۔"
"ﻣﯿﮟ ﻧﮯ ﻣﻠﺰم ﻋﺒﺪاﻟﻮﻟﯽ ﮐﺎ ﻧﺎم ﺑﮭﯽ اﺳﯽ ﺳﮯ ﭘﻮﭼﮭﺎ ﺗﮭﺎ۔"
ﻟﯽ ﮐﮯ ﻧﺎم ﮐﮯ ﺑﺎﺑﺖ ﮐﯿﺎ ﻣﻌﻠﻮﻣﺎت ﮐﯽ۔" "ﻣﺠﮭﮯ ﯾﺎد ﻧہ ﮨﮯ ﮐہ ﻣﯿﮟ ﻧﮯ ﻣﻠﺰم ﻋﺒﺪاﻟﻮ
6. From the above mentioned cross -examination reveals that the complainant did not know the
name of convict/appellant Abdul Wali, then the question arises how he came to know about the
name of the convict/appellant and who told him the name of convict/appellant. It means later on after deliberation and consultation, the accused has been implicated by the complainant in the case in hand. Even otherwise the complainant during cross -examination stated that he went to
police station at 7:00 pm, but the question arises, whether on same date or on the next day. If
version of complainant that the distance of place of occurrence is 24 kilometer from the police
station, then the police has no jurisdiction because the police has the jurisdiction within 15 kilometer around the police station, and beyond 15 kilometer the police has no jurisdiction to arrest any person and the FIR should have been lodged in levies than. Even otherwise statement of PW -1 is not above the board. The PW -1 in Fard -e-Bayan Ex-P/1-A nominated the accused
Abdul Wali while in cross -examination he admitted the fact that at the time of occurrence he did
not know the name of the accused Abdul Wali, rather after two hours of the incident he came to know about the na me of accused Abdul Wali, meaning thereby that he after consultation and
deliberation nominated the accused Abdul Wali, as such contradicted his earlier version as incorporated in Fard -e-Bayan Ex.P1- A. The complainant in cross -examination stated that the
FIR has been written by the petition- writer on his own hand but on same breath admitted that the
application for lodging of FIR has been computerized. As per the prosecution the recovery of Motorcycle has been made on the pointation of convict/appellant Abdul Wali from his house, but no private person has been associated during recovery process, and the prosecution has failed to produce any documentary or ocular evidence to prove the nexus of the appellant Abdul Wali with the house in question, wherefrom the recovery of motorcycle was effected, even the
prosecution admitted that there were other inmates in the house and the same was not solely in possession of the appellant/accused Abdul Wali. The complainant produced documents in respect of motorcycle and th e prosecution has taken into possession the motorcycle through
recovery memo, but it is astonishing the prosecution has not bothered to verify the documents from the concerned competent authority whether the same are genuine or otherwise. This Court in an unreported judgment dated 16.11.2018, in Criminal Acquittal Appeal (T) No. 34 of 2018, title Beebagar v. The State, also discarded the disclosure and recovery of motorcycle on the same footing.
7. The statements of prosecution witnesses are contradictory to each other, which create
doubt in the prosecution story, and benefit of doubt always goes to accused. In this regard the Hon’ able Federal Shariat Court in case title Qutib v. The State (2019 MLD 162) observed as
under:
“It is not out of context to mention here that the concept of benefit of doubt to an accused person is dept routed in our country. The prosecution is duty bound to prove its case beyond the shadow of reasonable doubt and if any single or slightest doubt is created, benefit of same must go to the accused and it would be sufficient to disbelieve the prosecution story. Benefit of doubt would go to the accused, regardless of fact whether he
had taken such plea or not. If need arises, reliance my conveniently be placed on the case
of Tariq Pervaiz v. The State 1995 SCMR 1345; Muhammad Akram’s case 2009 SCMR 230 and Faryad Ali case 2008 SCMR 1086. Keeping in view the aforestated peculiar facts and circumstances; more particularly, the c ross-examination of prosecution
witnesses reproduced in paragraph- 5/ante creates reasonable doubts in a prudent mind
about the guilt of the accused. Moreso, the appellant being an injured person has been
convicted and sentenced for offences, ingredients of which are not attracting in the
circumstance of present case, therefore, it is a fit case in which the accused is entitled to
the benefit of doubt not as a matter of grace but as a matter of right as there being no satisfactory basis for upholding the conviction and sentence of the appellant.”
7-A. PW -6 Muhazullah (Judicial Magistrate) conducted the identification parade of the
accused/appellant Muhazullah. The learned Judicial Magistrate showed his ignorance that how many days the convict appellant rema ined in custody. The learned judicial magistrate during
cross -examination also admitted that a person is kept in police lock up, can easily be seen from
outside. The complainant did not ascribe any role to the convict appellant Muhazullah, thus mere identi fication without specific role did not have any legal sanctity, and in this regard the learned
Division Bench of the Lahore High Court Lahore in the case of Muhammad Yaqoob and another
v. The State (1989 PCr.LJ 2227) observed as under:
“(c) Identification parades should never be held at police station;
(d) the Magistrate, supervising the identification proceedings, must verify the period, if any, for which the accused persons have remained in police custody after their arrest and before the test identification and must incorporate this fact in his report about the proceedings;
It is to be noted that the referred to judgment of the Lahore High Court Lahore was further supported by the Hon’ able Supreme Court in an order reported in (PLD 2019 SC 488).
In vie w of above, I reached at the irresistible conclusion that the prosecution has miserably
failed to prove the charge against the appellants beyond the shadow of reasonable doubt. Thus, the petition is accepted and the impugned judgment dated 31st October, 20 18 and the order dated
20th May, 2019, respectively passed by learned Judicial Magistrate Sanjavi and learned Sessions Judge, Loralai are
set-aside. The appellants/convicts are acquitted of the charge in case FIR 182/2017, under
Section 392/34, PPC, registered with PS Saddar Loralai. The appellants are in judicial custody,
they be released forthwith if not required in any other case.
(S.A.Q.) Petition acceptedThis 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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