2023 Y L R 680
[Balochistan]
Before Abdullah Baloch, J
MUHAMMAD IBRAHIM ---Appellant
Versus
The STATE--- Respondent
Criminal Jail Appeal No. 9 of 2021, decided on 25th March, 2022.
(a) Penal Code (XLV of 1860) ---
----Ss. 392 & 34---Robbery, common intention---Appreciation of evidence ---Benefit of
doubt ---Accused were charged for snatching tractor, cash amount, a Mobile Phone and one
wrist watch from the complainant--- Complainant of the case while appearing as witness
mostly reiterated the contents of his fard -e-bayan ---Statement of complainant transpired that
he was intercepted by five unknown muffled face persons who snatched his tractor, cash
amount, a Mobile Phone and one wrist watch--- Fact remained that the contents of fard -e-
bayan and the statement of complainant recorded by the Trial Court were silent with regard to physique, structure and complexion of the culprits ---Both the statements were silent with
regard to role played by each accused individually or severally ---Complainant stated nothing
in the Trial Court that either he identified the accused as one of the culprits or otherwise ---
Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt ---Appeal against conviction was allowed, in circumstances .
(b) Penal Code (XLV of 1860)---
----Ss. 392 & 34 ---Qanun -e-Shahadat (10 of 1984), Art. 22---Robbery, common intention---
Appreciation of evidence ---Benefit of doubt ---Test identification parade ---Scope ---Accused
were charged for snatching tractor, cash amount, a Mobile Phone and one wrist watch from the complainant--- Record transpired that during investigation the identification parade of the
accused was carried out under the supervision of Judicial Magistrate--- Complainant
identified the accused during identification parade as one of the culprits, who had snatched his tractor and other valuables ---Record showed that at the time of commission of crime, all
the accused persons had masked their faces ---Question arose that if all the culprits were
muffled faces and more particularly the occurrence had taken place in the dark of night then as to how the complainant could identify the accused as one of the culprits ---Identification of
the accused during the Trial Court and keeping mum whilst recording his Court statement created sufficient doubts in a prudent mind---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt ---Appeal against
conviction was allowed, in circumstances.
(c) Penal Code (XLV of 1860)---
----Ss. 392 & 34---Robbery, common intention---Appreciation of evidence ---Benefit of
doubt ---Accused was caught red handed ---Scope ---Accused were charged for snatching
tractor, cash amount, a Mobile Phone and one wrist watch from the complainant ---In the
present case, the only evidence remained in the field against the accused was that he was
caught red handed whilst driving the snatched tractor, however, the fact remained that the prosecution had failed to bring any evidence to connect the accused with the commission of committing robbery or snatching the tractor of complainant ---Even otherwise, the statement
of sole eye -witness i.e. complainant was not confidence inspiring, thus the ocular account
furnished was ruled out of consideration- --After ruling out the ocular account the other
circumstances of the case providing corroboration or support to the ocular account had automatically collapsed ---Circumstances established that the prosecution had failed to prove
its case against the accused beyond shadow of doubt ---Appeal against conviction was
allowed, in circumstances.
Faqeer Muhammad v. Shehbaz Ali 2016 SCMR 1441 rel.
Muhammad Khair Mengal for Appellant.
Fazal ur Rehman, State Counsel the State.
Date of hearing: 21st March, 2022.
JUDGMENT
ABDULLAH BALOCH, J. ---This judgment disposes of Criminal (Jail) Appeal
No.09 of 2021 filed by the appellant Muhammad Ibrahim son of Bari Dad through Superintendent Central Prison Mach, against the judgment dated 23rd October 2021 ("the impugned judgment") passed by learned Additional Sessions Judge, Pishin ("the trial Court"),
whereby the appellant was convicted under section 395, P.P.C. and sentenced to suffer four (04) years R.I. with fine of Rs. 10,000/ - or in default thereof to further suffer S.I. one (01)
month with the benefit of section 382- B, Cr.P.C.
2. Facts of the case are that on 4th February 2021, the complainant Hakeemullah son of
Badam Khan lodged FIR No.06/2021 at Levies Headquarter, District Pishin, under sections 392, 34, P.P.C., with the averments that on the day of occurrence at about 07.30 p.m. he on his tractor was going from Pishin Bazar towards his house situated at Killi Malezai and when at about 08:00 p.m. he reached to Batte Nika Killi Malezai Road, a silver colour fielder Car came over there, from which five muffled face armed persons were alighted, who forcibly stopped him and boarded him in the Fielder Car and taken him towards unknown place and in the meantime, the accused persons also snatched his Tractor, cash amount of Rs.22,000/ -,
a Nokia Mobile Phone and one wrist watch, while after twenty minutes the culprits again brought and left him at the place of occurrence, thereafter he informed the Levies Chowki Malezai.
3. After registration of FIR, the appellant was arrested, who was investigated and on
completion thereof, he was challaned before the trial Court i.e. Additional Sessions Judge,
Pishin, which indicated the charge and after denial, the prosecution produced Six witnesses. Thereafter, the appellant was examined under section 342, Cr.P.C. However, he neither recorded his statement on oath nor produced any witness in his defence. On conclusion of
trial and after hearing arguments, the trial Court convicted and sentenced the appellant as
mentioned above, whereafter he filed the instant jail appeal through Superintendent Central
Prison Mach.
4. Heard learned counsel for parties and perused the available record. The prosecution in
order to establish the charge has produced the evidence of Six (06) witnesses, but the same
are not solid and concrete to make basis for awarding conviction to the appellant. The complainant of the case Hakeemullah appeared as PW- 1, who mostly reiterated the contents
of his fard -e-bayan Ex.P/1- A. The statement of PW -1 transpires that he was intercepted by
five unknown muffled face persons and snatched his Tractor, cash amount, mobile phone and
a wrist watch, but however, the fact remains that the contents of fard- e-bayan and the
statement of this witness recorded by the trial Court are silent with regard to physique,
structure and complexion of the culprits. Both the statements are silent with regard to role played by each accused individually or severally. PW -1 stated nothing in the trial Court that
either he identifies the appellant as one of the culprits or otherwise.
5. The perusal of record further transpires that during investigation the identification
parade of the appellant was carried out under the supervision of PW -5 Muhammad Asad
Khan, Judicial Magistrate -IV Pishin and astonishingly the complainant/PW -1 also identified
the appellant during identification parade as one of the culprits, who had snatched his tractor and other valuables, while to the contrary it has already been discussed and even is also evident from the record that at the time of commission of crime, all the accused persons were masked their faces, thus question arises in a prudent mind that if all the culprits were muffled faces and more particularly the occurrence had taken place in the dark of night then as to
how the complainant could identify the appellant as one of the culprits. The identification of
the appellant during the trial Court and keeping mum whilst recording his Court statement
creates sufficient doubts in a prudent mind.
6. The only evidence remains in the field against the appellant is that he was caught red
handed whilst driving the snatched Tractor, but however, the fact remains that the
prosecution had failed to bring any single iota of evidence to connect the appellant with the commission of committing robbery or snatching the Tractor of complainant. Even otherwise, the statement of sole eye -witness i.e. PW -1 is not confidence inspiring, thus the ocular
account furnished by him was ruled out of consideration. After ruling out of the ocular account the other circumstances of the case providing corroboration or support to the ocular
account had automatically collapsed. Reliance, in this regard is placed to the case of Faqeer
Muhammad v. Shehbaz Ali 2016 SCMR 1441, whereby the Hon'ble Supreme Court has upheld the acquittal order of the High Court by holding that after ruling out the ocular account the other circumstances of the case providing corroboration or support to the ocular account had automatically collapsed. The relevant portion of above referred judgment is reproduced herein below:
"...the eye -witnesses produced by the prosecution before the trial court were actually
not present with the deceased at the time of occurrence and, thus, the ocular account furnished by them was ruled out of consideration. After ruling out of the ocular
account the other circumstances of the case providing corroboration or support to the
ocular account had automatically collapsed. In these circumstances the High Court had extended the benefit of doubt to respondent No. 1 and had acquitted him of the charge. Upon our own independent evaluation of the evidence we have not been able to take any legitimate exception to the said conclusion reached by the High Court.
This petition is, therefore, dismissed and leave to appeal is refused."
7. The reappraisal of entire evidence establishes that the prosecution has absolutely
failed to establish the charge through consistent and confidence inspiring evidence. Even
otherwise, under the peculiar facts and circumstances of the case, the charged offences are
not attracting against the appellant, but while delivering the impugned judgment the learned
trial Court has failed to consider this important aspect of the case and has come to a
conclusion, which is perverse and contrary to material available on record.
For the above reasons, the appeal is allowed. The impugned judgment dated 23rd
October 2021 passed by learned Additional Sessions Judge, Pishin is set aside and while extending the benefit of doubt, the appellant Muhammad Ibrahim son of Bari Dad is acquitted of the charge. The appellant, being in custody, shall be released forthwith if not required in any other case.
JK/19/Bal. Appeal 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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