IN THE HIGH COURT OF SINDH KARACHI

Cr. Appeal No. 199 of 2016

Muhammad Muqeem……...…………………………………….…...Appellant

Versus

The State.…..........................................................................…Respondent

Mr. Habib-ur-Rehman Jiskani, advocate appellant

Mr. Talib Ali Memon, APG for the State

Date of hearing & Short Order : 24.09.2018

J U D G M E N T

Fahim Ahmed Siddiqui, J- The appellant through the instant criminal application has challenged the impugned judgment dated 04-03-2016 pronounced by Additional Sessions Judge-V, Karachi East in Sessions Case No. 218/2015 (FIR No. 169/2014 registered under Section 397 PPC of PS Khokhrapar), whereby the appellant was convicted and sentenced under Section 397 PPC for imprisonment of seven years R.I. with benefit of Section 382-B CrPC.

2. The facts of the case in a nutshell are that on 28-11-2014, complainant Syed Anwar Ali reported at PS Khokhrapar that he is an officer of Pakistan Television and on that date, he was returning from his office on his motorbike. At about 15:30 hours, when he reached in Superior School's street an unknown person, armed with a pistol, stopped him and issued threats of causing death. After extending threats, he is snatched his Motorola mobile phone and motorbike. Thereafter he decamped from the enough offence.

3. The learned counsel for the appellant in support of the instant appeal submits that the appellant is innocent and have been falsely implicated in this case. After going through different passage of deposition recorded by trial court, he submits that the statement of witnesses is full of contradictions but he could not specify the fatal contradictions. According to him features are not given in the FIR. Although, it is mentioned in the body of FIR that there was only one culprit but the charge was framed against two persons. He submits that no identification test was held besides no pistol was produced before the trial Court as case property. He further submitted that there was no private witness to support the contention of the complainant. He points out that the mobile phone is not shown as case property in the Final Report. According to him the description of mobile phone is also not mentioned by the complainant in FIR. He submits that the recovered mobile phones and pistol were not produced before the complainant as case property to identify as the same. He relies upon 2015 PCrLJ 459, 1988 SCMR 557, 2017 YLR 270 & 2017 YLR 135.

4. On the other hand, the learned prosecutor supports the impugned judgment. He submits that the defence had not taken a specific plea of animosity besides, the learned consul for the defence could not point out or described enmity of applicants with police personals. He submits that the fairness and trustworthiness of the complainant is evident from the fact that the complainant have not nominated anyone in his FIR, which indicates that he has no intention to involve present appellant in false cases, which otherwise he can do.

5. I have heard the arguments and have gone through the relevant record. It is the contention of the learned counsel for the appellant that there are contradictions in the deposition but he could hardly point out 3 or 4 alleged contradictions. I am of the view that the said contradictions cannot be termed as fatal contradictions. It will make no difference that in FIR only one accused is mentioned while as per the charge, it appears that there are two accused persons. It is not fatal when it comes on the record that from the accused persons one has succeeded in escaping from the scene of offence. Besides it should be borne in mind that the purpose of FIR is to move the wheel of law in motion and it cannot be substitute the evidence. It is also not necessary to give complete details and features of accused persons in FIR.

6. As far as contradictory view of complainant and witness regarding the name of absconding accused is concerned, the same is also not fatal, as after a lapse of time, names do not remain fresh in the mind of a person. In the same way, it is also not fatal for the prosecution case if after such a long time, the complainant and witness were found not in agreement regarding the FIR number. As far as, not showing the recovered pistol to compliment after such a long time, it does not create a ground for acquittal. The complainant and witness remained in agreement regarding vital points of the prosecution case. There is no contradiction regarding happening of the incident, recovery of motorcycle of the complainant and recovery of mobile phone of the complainant. However, I am of the view that a sentence of seven years rigorous imprisonment appears to be excessive. The appellant is continuously in jail since his arrest and he has already passed more than four and half years of his life in jail. In my view, the appellant is considerably punished as such after maintaining the conviction; I altered the sentence, which is hereby directed to be a sentence already undergone.

7. The above are the reasons for my short order dated 24.09.2018.

J U D G E