Criminal Appeal No. 304 of 2015
Muhammad Asim - - - - - - - - - - - - - - - - - - - - - - - - - - - Appellant
V E R S U S
The State - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Respondent
Cr. Jail Appeal No. 99 of 2016
Iftikhar @ Taaki & Another - - - - - - - - - - - - - - - - - - - - Appellant
V E R S U S
The State - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Respondent
J U D G M E N T
Date of hearing : 22nd September, 2016.
For Appellants : M/s Salahuddin Khan Gandapur and
Sabir Shah, Advocates.
For the State : Mr. Zahoor Shah, A.P.G., Sindh.
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Syed Muhammad Farooq Shah, J.:- By this common judgment captioned appeals arising from the same judgment are taken and decided together.
2. The appellants were convicted and sentenced for an offence under section 397/34 PPC vide judgment dated 27.10.2015 to suffer RI for seven years each so also to pay fine of Rs.10,000/- by learned Additional Sessions Judge-II, Malir Karachi.
3. The story of prosecution, in nutshell, is that on 20.11.2014 at 1430 hours complainant PW Fahad Abdullah was intercepted by three persons and signaled to stop his motorcycle, one of them drawn his pistol and asked him to hand over his belongings; one empty handed accused drawn cash of Rs.1000/- from his front packet and other empty handed accused drawn his Q-Mobile E-18 of black color so also took key of his motorcycle and started running. In the meantime a police mobile and a white color car came there to whom he narrated the facts. The culprits were chased, who were running and they were apprehended. An unlicensed TT pistol loaded with three bullets was recovered from accused Iftikhar alias Takki; co accused disclosed his name to be Zahid Shah and from his personal search snatched mobile phone was recovered; third accused disclosed his name as Muhammad Asif from whose possession two currency notes of Rs.500/- each were recovered. They were arrested under common Mashirnama. Subsequently, FIR No. 550/2014 under section 397/34 PPC was registered at Police Station Shah Latif Town, Karachi. On completion of usual investigation they were charge sheeted under section 173 Cr.P.C. and after taking cognizance, the concerned magistrate forwarded the case to the Sessions Court for trial. Charge was framed by the trial court, to which the appellants pleaded not guilty and claimed trial. The prosecution, in order to prove its case examined PW-1 Fahad Abdullah, who being complainant produced FIR, common memo of arrest and recovery and separate memo of Wardat, as well. After recording evidence of two police officials, the prosecution closed its side; subsequently statements of accused persons were recorded under section 342 Cr.P.C. to which they denied the allegations and claimed themselves to to be innocent.
4. Arguments heard. Record perused.
5. Mr. Salahuddin Khan Gandapur, Advocate representing the appellants argued that only star witness of the prosecution PW-1 Fahad Abdullah has not fully corroborated the story narrated in the FIR as well as the alleged recovery made from the appellants. He next submitted that as per evidence of complainant all three appellants participated in commission of snatching the mobile phone, cash amount of Rs.1000/- and they also took keys of his motorcycle. Counsel submits that memo of recovery contradicts the recovery of two currency notes of Rs.500/- from the accused Muhammad Asif as memo of recovery shows that one currency note of Rs.1000/- was recovered. It is next contended that section 397 PPC implies the word “uses any deadly weapon” though admittedly alleged recovered weapon has not been used in commission of crime. Learned counsel says that admittedly it was a day time incident and a white car was also stopped and chased the culprits but no other independent person to corroborate the version of complainant has been examined, as the conviction of appellant rests entirely on the ocular testimony of complainant. He further argued that it is settled principle of law that section 34 and 149 PPC have no application to the case of offence under this section as plain reading of section 397 PPC reveals that if at the time of committing robbery offender would use any deadly weapon, he would be punished for not less than seven years. Learned counsel contended that while recording statements of accused under section 342 Cr.P.C. all incriminating pieces of evidence available on the record are required to be put to the accused for the purpose of enabling the accused to explain any circumstance appearing in evidence against him which clearly demonstrate that not only the circumstances appearing in 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 as held by the Hon'ble Supreme Court of Pakistan in the case of MUHAMMAD SHAH V/S THE STATE (2010 SCMR 1009). Learned counsel, lastly, pleads acquittal of appellants.
6. Conversely learned Assistant Prosecutor General, Sindh without controverting the arguments advanced by the learned counsel for appellants, supported the impugned judgment and stated that even the evidence of complainant without any animosity and illwill is sufficient to award conviction.
7. A perusal of record transpires that as per prosecution story three culprits had participated in the alleged crime of robbery, therefore, the case cannot fall under the dacoity. More-so, in absence of applicability of sections 34 and 149 PPC to the case of an offence under section 397 PPC, the trial court while framing the charge held liable all the culprits duly armed with firearm weapons though as per prosecution version two accused were empty handed and third accused Iftikhar was possessing the illicit weapon. The star witness of prosecution Fahad Abdullah who is the only private witness stated in his examination-in-chief that on 20.11.2011 he was riding and going on his motorcycle to meet with his friend and when he reached on double road in front of Sector 22-A, Shal Latif Town three persons stopped him on showing pistol, asked him to hand over his belongings. They took out mobile phone and Rs.1000/- and key of his motorcycle as well. In the meantime, a police mobile and a car of white color stopped near him to whom complainant narrated the facts and pointed towards the accused persons who were running; the accused were chased and apprehended by the police; a TT pistol from one accused Iftikhar; mobile phone from another accused Zahir Shah and two currency notes of Rs.500/- from the front pocket of shirt of third accused Muhammad Asif were recovered. Such memo was prepared at the place of incident, he produced the FIR and memo of arrest and recovery. The case property was desealed in court, in which the robbed articles were identified by the complainant. In his cross-examination, he stated that during personal search only robbed property was recovered from the accused persons. He had denied the false implication of accused persons.
8. PW-2 ASI Anwar Ali who apprehended the accused persons with robbed property, when the accused persons were running after committing ‘wardat’ stated that robbed property was recovered from the accused including illicit weapon. In his cross-examination this witness has stated that he do not remember the registration number of private car which was driven by him and that he do not remember from where he hired the said car. He has further stated that they left the complainant at the place of incident and followed the accused for about ˝ kilometer. He apprehended the accused Iftikhar and rest of both the accused were apprehended collectively by rest of police party. He has further stated that some words were engraved on the recovered pistol but same is not mentioned in the Mashirnama, so also three stars engraved on the pistol have also not been mentioned in the Mashirnama of recovery. He stated that he took about 30 minutes in whole proceedings at the spot by calling the complainant at the spot of arrest. He further stated that Mashirnama was written by Munshi PC-Asghar Jamali on his dictation and accused Muhammad Aisf was searched by ASIP Roshan who was present in the mobile. He has also admitted that denomination numbers of notes were not mentioned in the Mashirnama, however, he has denied false implication of the accused in this case. The Investigating Officer ASIP Sohail was entrusted investigation as per examination-in-chief of PW-ASIP Anwar Ali, who stated that he did not examine any witness from the place of occurrence as same is abandoned area though flats were situated at 20-25 paces from the spot.
9. The points, which require consideration, are that as to whether the evidence in the case is sufficient to sustain the conviction of all the three accused under section 397/34 Cr.P.C. and whether the charge and statement of accused recorded by the trial court are defective or otherwise. It shall be advantageous to reproduce section 397 PPC herein below:-
“397. Robbery or dacoity, with attempt to cause death or grievous hurt. If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years.”
10. Trial commence from framing of charge under section 265-D Cr.P.C. which reads that “ if, after perusing the police report or, as the case may be, the complaint, and all other documents and statements filed by the prosecution, the Court is of opinion that there is ground for proceeding with the trial of the accused it shall frame in writing a charge against the accused.”
11. Plain reading of aforementioned provision of law reflects that not only report under section 173 Cr.P.C. or FIR but also the documents showing commission of offence to be seen which includes memos, statements of PWs, confessional statement of accused, if nay etc. as framing of charge means commencement of trial when the accused should be appraised about the allegations leveled against him. A charge under the law has to be framed on the basis of entire material placed before it by the prosecution. It appears that charge framed in the present case by the trial court does not show the gist of formal expression of prosecution case as story of prosecution shows that from three culprits only one was armed with deadly weapon, robbed the complainant but the reading of charge shows that all the culprits were armed with deadly weapon as no name of accused who was armed with weapon has specifically been mentioned; more particularly in a case punishable under section 397 PPC applicability of section 34 and 149 PPC has been ruled out. Likewise, statements of accused person under section 342 Cr.P.C. shows that identical six questions were put to the accused persons wherein no specific role of accused armed with weapon has been described. Identical questions were put to all accused under section 342 Cr.P.C. statement, reproduce as follows:-
“Q.1 It is alleged that on 20.11.2014 at 1330 hours, at double road Sector 22-A Shah Latif Town, you being duly armed with T.T.Pistols, committed robbery cash of Rs.1000/-, one mobile phone QE-18 and key of motorcycle from the pocket of complainant. What you have to say?
Ans: No Sir, it is false.
Q.2. It is evident that during robbery you have robbed cash of Rs.1000/- and one mobile phone QE-18 from the complainant of this case. What you have to say.
Ans: No Sir, it is foisted by police due to sudden quarrel between me and complainant and at Qazafi Town. But poice with ulterior motive and at the pressure of complainant lodged FIR at Shah Latif Town.
Q.3. Why the P.Ws have deposed agsint you.
Ans: Sir they deposed falsely.
Q.4. Do you want to examine yourself on oath U/S 340-(2) Cr.P.C.?
Ans: No, Sir.
Q.5. Do you want to examine any witness in your defense.
Ans: No, Sir.
Q. 6. Have you to say anything else.
Ans: Sir I am innocent and victimized by complainant due to sudden quarrel with him.”
12. The aforementioned statement of the accused reflects that only the name, father’s name, age, occupation and resident of accused have been changed. Learned counsel for the appellants has correctly argued that all incriminating pieces of available record are required to be put to the accused as provided under section 342 Cr.P.C.; the record reflects that trial court did not apply its mind by recording the statement of accused persons under section 342 Cr.P.C. as statement of three accused appears to be identical/ stereotyped which is having no legal sanctity in the eyes of law. Examination of accused under section 342 Cr.P.C. is not only a mandate to enable the accused to explain any circumstance appearing against him in the prosecution evidence. Reliance in this regard may be made to the case reported in 2010 SCMR 1009. Reliance has also been placed on the case of ABDUL GHAFFAR V/S THE STATE (2011 MLD 239), wherein a Single Judge of this Court held that recovery of case property not put to the accused while his statement under section 342 was recorded, cannot be used as evidence against the accused in the circumstances. Reliance can also be placed on SHIRAL ALIAS SHER ALI V/S THE STATE (1999 SCMR 697), wherein Hon'ble Supreme Court held that law requires that any circumstance appearing in the evidence must be put to the accused before it uses against him. There is absolutely no reason as to why same was not suggested to the appellants and their explanation obtained there to. The court should not and must not disturb its judicial mind with gruesome nature or heinousness of offence, rather to appreciate the evidence in a proper and legal rhythm, otherwise any such influence might lead the trial court to a patently wrong conclusion. Reference may be made to the case titled AZEEM KHAN AND ANOTHER VS. MUJAHID KHAN AND OTHERS (2016 SCMR 274). The court should not derail from the settled principle that in case of possibility of two interpretations of evidence, one favouring the prosecution and other favouring the accused, the latter one should be acted upon. Reference can be made to the case titled MUHAMMAD SHAH V/S THE STATE (2010 SCMR 1009).
13. From the combined study of material on record, it is established that the prosecution has failed to prove the guilt of the appellants beyond reasonable doubt. The lacunas pointed out in the prosecution version have not been taken into consideration by the learned trial court while convicting the appellants, rendering the impugned judgment nullity in law, which requires reversal.
14. For the aforementioned reasons, these appeals are allowed, conviction and sentence of the appellants recorded by learned trial court vide impugned judgment is set aside. They are acquitted of the charge/charges leveled against them and be set at liberty forthwith, if not required/wanted in any other case.
*Aamir/PS* J U D G E