Full Judgment Text & Judicial Ruling

2025 P Cr. L J 1062 [Sindh (Mirpurkhas Bench)] Before Muhammad Saleem Jesssar, J Munawar alias Munni and others---Appellants Versus The State and others---Respondents Criminal Appeals Nos. S-45 (Old No. 08 of 2023) and S-46 of 2024 (Old No. 10 of 2023), decided on 6th June, 2024. (a) Penal Code (XLV of 1860)--- ----Ss. 394, 397 & 34---Robbery, robbery or dacoity with attempt to cause death or grievous hurt, common intention---Appreciation of evidence---Discrepancies in the statements of witnesses---Accused were charged for committing robbery with the complainant party and also causing injuries to three persons---Complainant in his cross-examination had admitted that though it was mentioned in the FIR that accused had made straight firing but it was not mentioned as to who and how many fires were made---Though the place of incident (shop) was surrounded by many houses as well as shops yet none from the surrounding was arrayed as a witness---No blood stained clothes of the injured were produced by the Investigating Officer---One accused "SC" was arrested but later was released by the police being suspicious---Injured witness/watchman had deposed in his examination-in-chief that on 03.12.2020 he came to the town for his personal work, meanwhile he found three accused in the shop, who after committing robbery, rushed out; upon resistance, one of the accused caused firearm shots on him which hit him on his chest, after which, he fell down---Said witness further admitted that he was not examined by the police---However, injured witness had identified the accused "D" before the Trial Court, however, he could not identify the remaining accused---In his cross-examination, said witness admitted that before the incident, accused "D" was not known to him and his name was disclosed to him by a shop owner---Injured witness admitted in his cross that he inflicted lathi blows to accused "D"; however, same lathi was not secured by the police nor he produced same as case property, in contravention of his evidence---In his cross-examination, shop owner deposed that names of accused were disclosed to him by the police---Said witness further admitted in his cross that on 16.12.2020 he along with complainant went to District "MK" and when they reached at Police Station, accused "D" was found in the lock up of that Police Station---On 21.12.2020, accused "D" was brought to Police Station from jail, and at that time he along with complainant and other witness went to see accused "D" at the Police Station before the identification parade---After incident 15/20 persons gathered at the spot and name of accused "D" was disclosed to him by the police---Another witness had deposed in his examination-in-chief almost same facts as were deposed by witnesses---Police witness admitted in his cross-examination that he did not produce daily diary entry dated 23.01.2021 nor he verified the ownership of alleged recovered motorcycle from Excise Department---He even did not produce such entry showing his departure from Police Station to Civil Hospital for collecting final medical certificate---Investigating Officer admitted in his cross-examination that contents of the memo showed that the cash amount recovered on the pointation of accused "M" was kept by him in a plastic shopper but the colour of said shopper was not mentioned in the memo and said plastic shopper was not available before the Court---Motorcycle was recovered from the land of one "YQ"; however, said "YQ" was not made as witness in instant case nor he had been arrayed as an accused in the crime---Admittedly, Investigating Officer had not recorded the statement of owner of the motorcycle---Admittedly, witnesses did not disclose name of accused "M" in their statements under S.161, Cr.P.C; however, at belated stage they were examined under S.162 Cr.P.C whereby they disclosed name of accused "M"---Said accused was not subjected to identification test, though Investigating Officer made entry into Roznamcha/daily diary, however, he did not produce such copy before the Court---Appeal against conviction was allowed, in circumstances. Sabir Ali alias Fauji v. The State 2011 SCMR 563 ref. (b) Penal Code (XLV of 1860)--- ----Ss. 394, 397 & 34---Qanun-e-Shahadat (10 of 1984), Art. 22---Robbery, robbery or dacoity with attempt to cause death or grievous hurt, common intention---Appreciation of evidence---Test identification parade---Infirmities---Accused were charged for committing robbery with the complainant party and also causing injuries to two persons---Record showed that the witnesses who had picked out accused "D" in the identification parade had already seen him in the police lock-up---No features of the accused were given, and no specific role was assigned to each accused in the commission of alleged offence by the witnesses who allegedly picked out the accused in the identification parade---There was also delay in holding of identification parade---Admittedly position no identification parade was held in respect of accused "M" although he was also not previously known to the complainant and other alleged eye-witnesses of the incident---In case it was disclosed in the FIR that the accused were not known to the alleged eye-witnesses, it was incumbent upon the Investigating Officer to get the arrested accused identified through said eye-witnesses in a proper identification parade---In such situation identification parade would become essential which was to be conducted strictly in accordance with law after completing legal requirements---Appeal against conviction was allowed, in circumstances. Mehboob Hassan v. Akhtar Islam and others 2024 SCMR 757; Sabir Ali alias Fauji v. The State 2011 SCMR 563; Farman Hussain's case PLD 1995 SC 1; Ismail's case 1974 SCMR 175 and Farman's case 1997 SCMR 971 rel. (c) Penal Code (XLV of 1860)--- ----Ss. 394, 397 & 34---Robbery, robbery or dacoity with attempt to cause death or grievous hurt, common intention---Appreciation of evidence---Non-production of daily diaries---Fatal to the prosecution case---Accused were charged for committing robbery with the complainant party and also causing injuries to two persons---Investigating Officer as well as other Police Officials in their respective evidence had admitted that relevant roznamcha entries/daily diaries were not produced before the Trial Court during course of evidence---Such lapse put dent in the prosecution case---Such facts were fatal to the prosecution case---In absence of any roznamcha entry, it becomes suspicious as to whether, Investigating Officer or police party, as the case may be, had in fact left the police station for the place of arrest, incident and/or recovery or not---Appeal against conviction was allowed, in circumstances. Muhammad Akram v. State 2020 YLR Note 94 rel. (d) Penal Code (XLV of 1860)--- ----Ss. 394, 397 & 34---Robbery, robbery or dacoity with attempt to cause death or grievous hurt, common intention---Appreciation of evidence---Supplementary statement---Scope---Accused were charged for committing robbery with the complainant party and also causing injuries to two persons---In the FIR as well as in his evidence the complainant, and three alleged eye-witnesses in their respective evidence, had categorically stated that in all three accused had committed the alleged offence; however, in their supplementary statements recorded subsequently under S.162, Cr.P.C they had also involved accused "M" and others---Investigating Officer in his cross-examination categorically admitted that the witnesses did not disclose the name of accused "M" in their statement under S.161, Cr.P.C, however, at later stage, their statements were recorded under S.162, Cr.P.C. in which they disclosed the name of accused---As admitted by the Investigating Officer, the supplementary statements were not produced by him before the Trial Court, nor had he deposed the date such statements were recorded, thus no legal sanctity could be attached to such supplementary statements---Appeal against conviction was allowed, in circumstances. Faisal Ahmad v. The State 2018 YLR 1269 rel. (e) Criminal Procedure Code (V of 1898)--- ----S. 103---Association of private witnesses at the time of recovery and arrest---Object and purpose---In view of provisions of S.103, Cr.P.C. the officials making searches, recoveries and arrests were reasonably required to associate private persons, more particularly in those cases in which presence of private persons was admitted, so as to lend credence to such actions, and to restore public confidence---Such aspect of the matter must not be lost sight of indiscriminately and without exception---Only cursory efforts were not enough merely in order to fulfill casual formality, rather serious and genuine attempts should be made to associate private mashirs of the locality. State v. Bashir and others PLD 1997 SC 408; Sarmad Ali v. the State 2019 MLD 670 and Yameen Kumhar v. The State PLD 1990 Kar. 275 rel. (f) Penal Code (XLV of 1860)--- ----Ss. 394, 397 & 34---Robbery, robbery or dacoity with attempt to cause death or grievous hurt, common intention---Appreciation of evidence---Non-recording of statement of injured witness/star witness---Accused were charged for committing robbery with the complainant party and also causing injuries to two persons---Admittedly, the blood stained clothes of a injured were not secured nor were produced by the Investigating Officer before the Trial Court---Injured witness had also admitted in his examination-in-chief that police did not record his statement---Non-recording of statement of a witness particularly who is injured and is a star witness of the prosecution for a considerable time, shatters the entire prosecution version---Appeal against conviction was allowed, in circumstances. Mst. Mir Zalai v. Ghazi Khan and others 2020 SCMR 319 and Yasir Parvez and others v. The State and others 2023 YLR 2164 rel. (g) Criminal trial--- ----Benefit of doubt---Principle---Conviction must be based and founded on unimpeachable evidence and certainty of guilt, and any doubt arising in the prosecution case must be resolved in favour of the accused. Wazir Mohammad v. The State 1992 SCMR 1134 and Shamoon alias Shamma v. The State 1995 SCMR 1377 rel. (h) Criminal trial--- ----Benefit of doubt---Principle---Accused could not be deprived of benefit of doubt merely because there was only one circumstance which created doubt in the prosecution story. Tariq Pervaiz v. The State 1995 SCMR 1345 rel. Mian Taj Muhammad Keerio for Appellants (in Criminal Appeal No. S-45 of 2024). Ghulamullah Chang for Appellants (in Criminal Appeal No. S-45 of 2024). Abdul Hafeez Mari for Appellant (in Criminal Appeal No. S-46 of 2024). Dhani Bakhsh Mari, Assistant Prosecutor General, Sindh for the State. OM Parkash and Afzal Karim Virk for the Complainant. Date of hearing: 6th June, 2024. Judgment Muhammad Saleem Jessar, J.---By means of this single judgment, I propose to dispose of captioned criminal appeals, as same have arisen out of one and same judgment passed by learned Addl. Sessions Judge-I/MCTC, Umarkot (trial Court). 2. Through these Criminal Appeals, appellants / accused Dilbar alias Allah Bachayo Mari, Munawar alias Munni Khaskheli, Hyder Lanjo and Shah Nawaz Lanjo have assailed judgment dated 05.01.2023 whereby the appellants were convicted for the offence under Section 394 P.P.C and sentenced to undergo rigorous imprisonment for 10 years and to pay fine of Rs. 50,000/- each and in case of default they were ordered to suffer simple imprisonment for six months more. However, benefit of Section 382-B Cr. P.C. was extended to all the accused. By the same judgment, absconding accused namely Mithal alias Dado Shar and Sadam Birohi were declared as proclaimed offender and the case against them was ordered to be kept on the dormant file till their arrest. 3. Brief facts of the prosecution case, as per FIR lodged by complainant Ahmed Saand, are that he and PWs Abdul Khalique Kalar and Qazi Muhammad Nooh Saand are employed at Kiryana Shop of Seth Ghulam Fareed Memon. On 03.12.2020 all employees and seth Ghulam Fareed Memon along with others was sitting at the shop, when at about 1620 hours, one 125 Motorcycle stopped in front of their shop, wherefrom three persons alighted and took out pistols. Out of them, two persons entered in the shop, while one person stood outside the shop. All the accused could be identified if seen again. The accused who entered into the shop, kept all the PWs hostage on the force of weapons and threat of murder. Then, they robbed Rs. 7000/- from complainant Ahmed, one Mobile phone from Qazi Muhammad Nooh, while another accused caused pistol butt blows at the head of Ghulam Fareed Memon and Abdul Khalique Kalar and robbed Rs. 800,000/- already counted by Seth Ghulam Fareed, so also robbed a Mobile Phone kept there by Haji Abdul Rehman Memon, father of seth Ghulam Fareed Memon. Meanwhile, watchman Muhammad Niaz Gishkori came there, who tried to catch the accused standing outside the shop, whereupon the accused who were inside the shop, walked out and made straight fire upon Muhammad Niaz Gishkori, who sustained fire arm injury and fell down. Then, all accused boarded on their 125 motorcycle and fled away towards Gu'r Mandi alongwith robbed property. Thereafter, the injured PWs were shifted to Kunri Hospital, where doctors referred injured Muhammad Niaz Gishkori to Hyderabad Hospital. After leaving injured Muhammad Niaz at Hyderabad Hospital, the complainant went to police station and lodged FIR, in above terms. 4. After registration of FIR, the case was investigated by Inspector Atif Hussain Shah, who visited place of incident, got prepared sketch of dacoits, secured 125 Motorcycle abandoned by the accused. Then upon receiving information of accused Dilbar Mari's involvement in the alleged offence through SSP Mirpurkhas, he went to Mirpurkhas and formally arrested accused Dilbar Mari, interrogated him who disclosed names of co-accused Munawar alias Munni, Hyder Lanjo, Shah Nawaz Lanjo, Sadam Brohi and Mithal alias Dodo Shar. He then got conducted identification parade of the accused under the supervision of concerned Judicial Magistrate. The police got recovered part of robbed amount at the pointation of arrested accused Munwar alias Munni, so also got recovered a part of robbed amount and mobile phone on the pointation of accused Dilbar Mari. He interrogated arrested accused Hyder Lanjo and Shah Nawaz Lanjo and got recovered a part of robbed amount on their pointation, so also recovered a motorcycle on the pointation of accused Shah Nawaz Lanjo, collected call data reports of accused; besides, collected criminal record of accused Dilbar Mari and Munawar alias Munni Khaskheli. After completing investigation, submitted final challan before the concerned Court showing accused Dilbar alias Allah Bachayo Mari, Munawar alias Munni Khaskheli, Hyder Lanjo and Shah Nawaz Lanjo in judicial custody, while accused Sadam Hussain Birohi and Mithal alias Dado Shar as absconders. 5. The concerned Magistrate after completing legal formalities, supplied copies of case papers to accused vide receipt Ex.04. Thereafter, case was sent-up to the Court of Sessions Judge, Umerkot who assigned the same to the trial Court for disposal according to law. 6. A formal charge was framed against accused at Ex .05, to which they pleaded not guilty and claimed trial vide their pleas recorded at Ex 5-A to 05-D respectively. 7. The prosecution examined Dr. Abdul Khalique at Ex .06, who produced police letter and medical certificates of injured PWs as Ex .06-A to 06-E respectively. PW-2 complainant Ahmed Saand was examined at Ex ..07, who produced FIR as Ex 07-A and memo of identification parade as Ex .7-B. PW-3 injured Niaz Muhammad was examined at Ex .08. PW-04 Ghulam Fareed was examined at Ex .09, who produced memo of identification as Ex ..09-A. PW-05 Abdul Khalique was examined at Ex ..10, who produced memo of identification parade as Ex 10-A. PW-6 Qazi Muhammad Nooh was examined at Ex 11, who produced memo of identification parade as Ex .11-A. PW-07 ASI Umed Ali was examined at Ex...12, who produced memo of injuries and three daily diary entries as Ex .12-A to 12-D respectively. PW-8 DSP Abdul Sattar was examined at Ex ..13, who produced a daily diary entry as Ex ..13-A. PW-09 Inspector Tufail Ahmed was examined at Ex .14, while PW-10 mashir PC Aamir Farooque was examined at Ex 15, who produced memo of arrest of accused Dilbar Mari, memo of arrest of accused Munawar alias Munni, memo of recovery on pointation of accused Dilbar alias Allah Bachayo and memo of recovery on pointation of accused Shah Nawaz alias Mullah as Ex .15-A to 15-D respectively. PW-11 mashir Ahmed Khan was examined at Ex .. 16, who produced memo of site inspection, memo of securing boxes of looted mobile phones, memo of recovery of motorcycle and memo of recovery on pointation of accused Hyder Lanjo as Ex ..16-A to 16-D respectively. PW-12 mashir PC Allah Bux was examined at Ex ..17, who produced memo of arrest of accused Shah Nawaz alias Mullan as EX ..17-A. PW-13 mashir PC Muhammad Hanif was examined at Ex .18, who produced memo of recovery on pointation of accused Munawar alias Munni as Ex ..18-A. PW-14, I.O. / Inspector Atif Hussain Shah was examined at Ex 19, who produced letter addressed to CPLC, sketch of accused, letter addressed to Excise and Taxation Department, Mirpurkhas, Verification of Motorcycle, Information Note received from SSP Mirpurkhas, permission letter of SSP Umerkot, No Objection Certificate by Judicial Magistrate / Family Judge Mirpurkhas, Interrogation Report, letter of receiving custody of accused Dilbar Mari, Application addressed to Judicial Magistrate-II, Kunri for identification parade, Notice and Order of Judicial Magistrate-II, Kunri, Call Data Record, Criminal Record of accused Dilbar Mari as Ex ..19-A to 19-P and 13 daily diary entries of different dates as Ex 19-Q to 19-DD respectively. PW-15 Mr.Allah Bachayo, the Judicial Magistrate Samaro, was examined at Ex ..20. 8. Learned Public Prosecutor then closed prosecution side through statement at Ex .21. 9. Statements of all accused under Section 342 Cr.P.C. were recorded at Ex 22 to Ex ..25 in which they denied the allegations of prosecution and claimed to be innocent. However, they did not examine themselves on oath, nor opted to lead any evidence in their defence. 10. After formulating the points for determination in the case, recording evidence of the prosecution witnesses and hearing counsel for the parties, learned trial Court convicted and sentenced the accused / appellants vide impugned judgments, as stated above. Against said judgment, instant appeals have been preferred by the convicts / appellants. 11. I have heard learned counsel for the appellants, learned counsel for the complainant as well as learned Assistant P.G. appearing for the State and perused the material made available before me on the record with their able assistance. 12. Learned counsel for the appellants submitted that names of the appellants do not transpire in the FIR and though they were subjected to identification Parade, yet no specific role was assigned to them by PW / victim Ghulam Fareed (Page No.89 Ex.9 of paper book). They further submitted that appellant Munawar alias Munni was arrested by the police on 24.12.2020, Hyder was arrested by the police on 26.12.2020, Shahnawaz was arrested on 18.01.2021 whereas the appellant Dilber alias Allah Bachayo was arrested by the police of PS Old Mirpur in connection with Crimes Nos.87, 88 and 90 of 2020; however, he was shown to have been arrested in this case on 21.12.2020. It is their contention that it was the accused Dilber alias Allah Bachayo, who disclosed names of other accused and on his pointation remaining appellants were arrested. They further submitted that despite such fact, the appellants were subjected to Identification Parade on 26.12.2020 i.e. much later after their arrest, hence no sanctity could be attached to the identification Parade, more particularly when PW who allegedly picked up the accused in the Identification Parade had not assigned any specific role to any of the accused in the commission of alleged offence. They further submitted that though some of robbed amount is shown to have been recovered from their possession on 25.12.2020, but that too is delayed by about 04 days of their respective arrest and according to their contention, it was foisted upon them by the police in collusion with the complainant only in order to strengthen the rope of their false case. Learned counsel drew attention of the court towards evidence of PW Ahmed (page No.59 Exh.7 relevant page No.63) where in his cross-examination he had admitted that accused Shahnawaz and Hyder were not present at the time of incident and their names were disclosed to them by the police. As far as alleged motorcycle is concerned, learned counsel while referring to evidence of Inspector / I.O. Atif Hussain (Ex.19 page No.136 at relevant page No.137), submitted that it was recovered on 05.12.2020 from the land of one Yahya Qadiani and said Yahya Qadiani was not examined by the I.O. during investigation. Learned counsel further submitted that since Identification Parade was defective, hence it created doubt to the veracity of prosecution evidence which goes in favour of the appellants. In support of their contentions, they relied upon the case law viz: Sabir Ali alias Fauji v. The State (2011 SCMR 563) [Supreme Court of Pakistan]. They further referred to evidence of PW Ghulanm Fareed (page No.89 Exh.9 at relevant page No.91), whereby he had admitted in his cross-examination that on 21.12.2020 accused Dilber was brought at PS Kunri from Mirpurkhas Jail where the witnesses alongwith complainant and PW Abdul Khalique went to see the accused at PS Kunri before holding of Identification parade. Mr. Mian Taj Muhammad, advocate for appellant Munawar alias Munni, submitted that the said appellant was arrested on 25.12.2020, despite that he was not subjected to Identification Parade and mere recovery of Rs.9,000/ - is no ground to convict him, more particularly when in the FIR nothing had been mentioned as to which of the accused had robbed amount from the victim and even at the time of Identification Parade, it was not pointed out that who allegedly robbed the amount from the victim, hence no specific role was assigned to him as well as to co-accused. 13. Learned counsel, therefore, submitted that in the light of above discrepancies and flaws in the prosecution case, the veracity of the prosecution evidence does not come to the required level in order to maintain the conviction against the appellants, hence they prayed for allowing the appeals and acquittal of the appellants. 14. Learned Assistant P.G. appearing on behalf of the State vehemently opposed grant of appeals on the ground that appellants were rightly picked out by the PWs during Identification Parade, besides robbed amount was also recovered from their possession. He further submitted that no mala fide or enmity has been alleged for their false implication, hence the prosecution evidence could not be discarded merely on the basis of certain discrepancies which are minor in nature. He, therefore, submitted that by dismissing the appeals, impugned judgment may be maintained. 15. Complainant as well as his counsel inspite of notice, have chosen to remain absent; however, Mr. Om Parkash advocate holding brief for Mr. Afzal Karim, advocate for the complainant, opposed the appeals and submitted that prosecution had adduced sufficient material evidence connecting the appellants with the commission of alleged crime, hence appeals merit no consideration, therefore, same may be dismissed. 16. From perusal of the evidence adduced by the prosecution witnesses, it seems that they have made certain glaring and material admissions. Complainant Ahmed Ali in his cross-examination has admitted that though it is mentioned in the FIR that accused had made straight firing but it is not mentioned as to who and how many fires were made. He had further admitted that accused Dilbar was not known to him before registration of the case. He further admitted that though the CCTV cameras were installed at their shop; however, due to power shortage, no video was recorded. He further went on to say that though the place of incident (shop) was surrounded by many houses as well as shops yet none from the surrounding was arrayed as a witness even he did not produce blood stained clothes of the injured. He had also admitted that one accused Soomar Chachar was arrested but later was released by the police being suspicious. PW Niaz Muhammad, who was serving as watchman at the shop of Seth Ghulam Fareed Memon, had deposed in his examination-in-chief that on 03.12.2020 he came to Kunri town for his personal work, meanwhile found three…

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