Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Official Citation: 2024 SHC 1875
Court / Jurisdiction: Sindh High Court
Petitioner: Cr.J.A 123/2024 (S.B.) Sindh High Court, Bench at Sukkur - Hakim Ali Alias Hako Solangi (Appellant)
Ruling Summary: This decision was rendered by the Sindh High Court, officially reported as 2024 SHC 1875. In this matter between Cr.J.A 123/2024 (S.B.) Sindh High Court, Bench at Sukkur - Hakim Ali Alias Hako Solangi (Appellant) and the Respondent, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
COURT: Sindh High Court CASE NO: Cr.J.A 123/2024 (S.B.) Sindh High Court, Bench at Sukkur CITATION: 2025 SHC SUK 1875 PARTIES: Hakim Ali Alias Hako Solangi (Appellant) ORDER DATE: 07-JUL-25 BENCH: Hon'ble Mr. Justice Ali Haider 'Ada'(Author) A.F.R: Yes ------------------------------------------------------------ IN THE HIGH COURT OF SINDH BENCH AT SUKKUR
Criminal Appeal No. S-101 of 2024 & Criminal Jail Appeal No. S-123 of 2024
Appellant: 1.Rafiq, through Mr. Arif Ali Abbasi, Advocate.
2.Hakim Ali alias Hakoo through Mr. Rukhsar Ahmed Junejo, Advocate.
The State: Through Mr. Muhammad Raza Katohar, Deputy Prosecutor General. Date of Hearing: 16.06.2025. Date of Short Order: 16.06.2025. Date of Reason: 07.07.2025. JUDGMENT Ali Haider ‘Ada’,J; - By this single judgment, I propose to dispose of the above-captioned Criminal Appeals, as both arise out of the same crime and common trial proceedings. The appellants, namely Rafiq and Hakim Ali alias Hakoo, were booked in Crime No. 62 of 2022 , registered at Police Station Naushahro Feroze, for offences punishable under sections 392 and 34, Pakistan Penal Code . Appellant Rafiq filed his Criminal Appeal through his learned counsel, whereas appellant Hakim Ali alias Hakoo initially preferred a Criminal Jail A ppeal, and subsequently, his counsel filed vakalatnama on his behalf. Through the instant criminal appeals, the appellants have challenged the j udgment dated 10.09.2024, passed by the learned Additional Sessions Judge-III, Naushahro Feroze (hereinafter referred to as the "Trial Court") in Sessions Case No. 75 of 2022 , titled The State vs. Hakim Ali alias Hakoo and others. In the said judgment, the appellants were convicted for the offence punishable under section 392 read with Section 34 PPC , and sentenced to rigorous imprisonment for three years , along with a fine of Rs. 30,000/- (thirty thousand rupees) each. In case of default in payment of fine , they were directed to undergo simple imprisonment for a further period of three months . However, the benefit of Section 382-B, Cr.P.C. was extended to both appellants. 2. The case of the prosecution is that the First Information Report bearing Crime No. 62 of 2022 , was registered at Police Station Naushahro Feroze on 04.03.2022 at 08:00 p.m. , upon the complaint of PW-1 Akram, who runs a spare parts shop where CCTV cameras are installed. According to the complainant,
2
on 21.02.2022 at about 17:20 hours , while he was present at his shop along with his employee Shahzado and nephew Sain Bux, three unknown persons arrived on a motorcycle (Honda 125). Two of them were wearing face masks, and one had his face muffled. All three entered the shop and pointed pis tols at the complainant and others present. One of the masked culprits forcibly took Rs. 250,000/- along with the original CNIC from the complainant's pocket, while the muffled accused looted Rs. 350,000/- from the shop’s cash counter. During the robbery, Mukhtiar Ali (PW-3), a customer who had arrived in his car to purchase grease, entered the shop and was also threatened at gunpoint and robbed of Rs. 65,000/ -. As the culprits exited the shop and the complainant's party began pursuing them, Mir Zafarullah , a business partner of the complainant, arrived at the scene and tried to resist. During this confrontation, the masks and muffled covering of the accused came off, and the complainant’s party was able to clearly recognize and identify the assailants. The accused then assaulted them with the butts of their weapons and fled the scene on their motorcycle. Thereafter, the complainant and others reviewed the CCTV footage and attempted to trace the culprits, eventually leading to the registration of the FIR. 3. On 13.03.2022, the complainant’s further statement was recorded, wherein he stated that he and his witnesses, Shahzado and Sain Bux, had again seen the accused persons while having tea at Bhorti shop, Tharushah. Upon being spotted, the accused fled. During local inquiries, the complainant came to know that the assailants were identified as Hakim Ali alias Hakoo , Rafiq, and Mujahid. During the i nvestigation Accused Hakim Ali alias Hakoo was arrested on 16.03.2022 in possession of a TT pistol and a motorcycle. On 20.03.2022, during interrogation, he led the Investigating Officer to the recovery of Rs. 100,000/- from a location he pointed out and accused Rafiq was arrested on 29.03.2022, and on 05.04.2022, led the IO to the recovery of Rs. 20,000/- from the pointed -out location. The third accused, Mujahid, was shown as an absconder in the charge sheet. After the completion of the investigation, the challan was submitted before the trial Court against the arrested accused. 4. Copies of the requisite doc uments were supplied to the accused, and charge was framed on 19.07.2022, to which both accused pleaded not guilty and claimed trial. The prosecution was then directed to lead its evidence, and the witnesses were examined: PW-1 Akram (complainant): Deposed regarding the
3
incident and produced the FIR and his further statement. PW-2 Shahzado , Eyewitness and mashir of the site inspection memo; exhibited the relevant documents. PW-3 Mukhtiar Ali , Eyewitness and victim of robbery. PW-4 Aijaz Ali (Police official), author of FIR, mashir of arrest/recovery of accused Hakim Ali, mashir of arrest of accused Rafiq, and mashir of recovery of cash fr om Rafiq, e xhibited relevant memos. PW-5 Muhammad Ishaq ue (Investigating Officer), produced roznamcha ent ries and the recovery memo of Rs. 100,000/- from accused Hakim Ali. PW-6 Muhammad Saleem (Police official), Mashir of the recovery memo regarding the cash recovered from accused Hakim Ali. 5. After completion of the examination of witnesses, the learned St ate Counsel closed the prosecution’s evidence through a statement. Subsequently, the learned trial Court recorded the statement of the accused under Section 342, Cr.P.C., wherein the appellants denied the allegations, professed innocence and prayed for acquittal. They neither opted to examine themselves on oath under Section 340(2), Cr.P.C. , nor produced any evidence in their defense. After hearing the arguments advanced by learned counsel for appellants, counsel for complainant and state counsel passed the impugned judgment , whereby the appellants were s convicted, while the case against absconder accused Mujahid alias Mujhoo was kept on dormant till his arrest. The appellants have now filed the present Criminal Appeals, challenging the legality and propriety of the said judgments. 6. Both the Learned counsel for the appellants argued that the entire case of the prosecution hinges on the identification of the accused through CCTV footage, yet the prosecution failed to pro duce or exhibit the CCTV recording during trial. The learned counsel further submitted that there was an unexplained delay of approximately ten (10) days in lodging the FIR, despite the complainant having prior access to the police and means of communicati on. It was pointed out that the complainant himself admitted during cross-examination that he did not approach the police station immediately after the incident, which suggests deliberation and afterthought . Additionally, t he appellants’ counsel challenged the credibility of the subsequent identification of the accused persons. It was argued that while the complainant claimed to have heard the names of the accused through an informer, neither the informer was cited as a witn ess, nor Investigation Officer record the statement of such informer. This, according to counsel, created serious doubt as to the source of
4
knowledge leading to the nomination of the appellants. In light of these submissions, the learned counsel prayed for the acquittal of the appellants on the ground that the prosecution had failed to prove its case beyond reasonable doubt. 7. On the other hand, the learned State Counsel opposed the appeals and supported the impugned judgment. He contended that recovery of robbed cash was affected from both appellants during the course of investigation, pursuant to disclosure and pointation by the accused persons themselves, which constitutes a strong piece of cor roborative evidence. He emphasized that the appellants were subsequently nominated in the complainant’s further statement, and the prosecution had no motive to falsely implicate them. The learned State Counsel further submitted that the prosecution success fully established the guilt of the accused through cogent oral and documentary evidence, and that the learned trial Court had rightly appreciated the evidence while convicting the appellants. 8. It is also worth noting that on 06.01.2025, the complainant Akram Dangraj appeared before this Court during the pendency of the appeals and submitted that he would not engage private counsel, as he had full confidence upon State Counsel to represent his interests. 9. Heard the arguments advanced by the learned couns el for the appellants as well as the learned State Counsel and also carefully perused the material available on the record and conducted a thorough and analytical appreciation of the evidence, both oral and documentary, placed before the Court. 10. The prosecution’s case rests on the assertion that the incident took place on 21.02.2022, whereas the FIR was registered on 04.03.2022, after an unexplained delay of 10 days . The complainant, during his cross -examination, admitted that immediately after th e incident , he had informed the police via mobile phone, and within 15 minutes, 5 to 8 police officials arrived at the scene. Yet, despite such swift police response and the presence of CCTV footage , which, according to the FIR itself, was reviewed by the complainant, the FIR was not registered promptly. The complainant further admitted that from the date of the incident till the registration of the FIR, he did not visit the police station, nor he provide d any material such as CCTV footage to aid in the investigation or identification of the culprits. No explanation, let alone a
5
plausible justification, was offered for this inordinate delay. This conduct casts serious doubt on the authenticity of the FIR, and suggests deliberation and consultation before nom inating the accused persons. It is a well -established principle of law that prompt registration of FIR is of great significance in criminal cases, as it rules out fabrication, manipulation, or false implication. In the present case, the delayed FIR, despite early police arrival and availability of electronic evidence , raises serious concerns regarding the reliability of the prosecution story. The Hon’ble Supreme Court has time and again held that delayed registration of FIR without justification adversely a ffects the prosecution's case and creates doubt regarding the truthfulness of the allegations. In this regard, reliance is placed on the judgments: Zafar Ali Abbasi and another vs. Zafar Ali Abbasi and others (2024 SCMR 1773) , Muhammad Jahangir and another vs. The State and others (2024 SCMR 1741) Khial Muhammad vs. The State (2024 SCMR 1490). 11. Another important aspect that casts doubt on the credibility of the prosecution’s version is the delayed recording of statements under Section 161, Cr.P.C. The record reflects that the witnesses recorded their statement on 05.03.2022, i.e., one day after the registration of the FIR . No plausible explanation was offered by the Investigating Officer as to why their statements were not recorded on the same day, particularly when the incident had already occurred ten days earlier , and the FIR was lodged after considerable delay. Furthermore, prosecution witness Mukhtiar (PW -3) deposed that his earlier version was recorded by the police via mobile call , which is neither reflected in the prosecution record nor substantiated by any offici al entry or acknowledgment. This vague and uncorroborated assertion weakens the evidentiary value of his testimony and casts doubt on whether his statement was ever formally recorded before the investigation took a definitive direction. In this Context reliance is placed upon the case of Khial Muhammad vs The State (2024 SCMR 1490 ), wherein it was held that : This court has time and again ruled that recording the statement of witnesses under section 161 Cr.P.C at a belated stage casts serious doubts on the version of prosecution. Reference may be made to the case of Muhammad Khan v. Maula Baksh and another [1998 SCMR 570] wherein it has been held that: - "It is a settled law tha t credibility of a witness is looked with serious suspicion if his statement under section 161, Cr.P.C. is recorded with delay without offering any plausible explanation
6
12. This legal view is further fortified by the judgment reported as Muhammad Asif vs The State (2017 SCMR 486), wherein it was held that: There is a long line of authorities/precedents of this court and the High Courts that even one or two days unexplained delay in recording the statement of eye -witnesses would be fatal and testimony of su ch witnesses cannot be safely relied upon. 13. It is further observed that the complainant recorded his further statement on 13.03.2022 , wherein he nominated the accused persons by name and parentage, claiming that he, along with his witnesses, saw them at a tea hotel and identified them as the culprits involved in the robbery. However, in the statement or in examination-in-chief, neither the complainant nor any of the eyewitnesses disclose from whom they obtained the names and particulars of the accused persons . The prosecution failed to explain how the complainant came to know the identity, names, or parentage of accused who were initiall y described as previously unknown. It is noteworthy that the so-called source of this knowledge, the informer or third party was neither cited as a witness nor produced before the Court. The Investigating Officer also did not record any statement under Sec tion 161, Cr.P.C. from such person, nor was any documentary or oral evidence brought on record to corroborate the complainant’s claim of having recognized and named the accused at a later stage. In this context, support is drawn from the case of Liaquat Al i alias Liaquat and 4 others vs The State (2024 MLD 670). 14. The prosecution examined PW-3 Mukhtiar , who deposed that at the relevant time he arrived at the complainant’s shop to purchase grease and was also robbed by the accused. He claimed to have seen the culprits durin g the commission of the offence. However, a crucial fa ct emerges upon closer scrutiny is that PW-3 was not present at the tea hotel , where the complainant and other witnesses later allegedly saw and identified the accused persons, as narrated in the complainant's further statement dated 13.03.2022 . PW-3, during his deposition, made no reference to having seen the accused persons after the incident or ever identifying them at any other place or occasion prior to trial. He also did not mention having heard their names or parentage , and his statement under Section 161, Cr.P.C. was not shown to contain any such claim. In these circumstances, it was incumbent upon the Investigation Officer to have arranged a proper Test of Identification Parade before a Magistrate after the arrest of the accused, so that PW-3 could identify the accused persons through a
7
neutral, fair, and legally admissible procedure. This step was all the more essential since the accused were previously unknown . The failure to conduct Identification parade in respect of PW -3, and instead relying solely on a dock identification during trial, renders his testimony unsafe and untrustworthy. For ready reference, it is pertinent to cite Rule 26.32 of the Police Rules, 1934, which provide mandatory guidelines regarding the conduct of identification parades by the police during investigation. The Rule reads as follows: 26.32 Identification of suspects – (1) The following rules shall be strictly observed in confronting arrested suspects with witnesses who claim to be able to identify them. (a) The suspects, who are to be subjected to an identification parade, shall be informed about it at the time of their arrest to enable them to take necessary precautions by way of keeping their faces covered and a request shall be made to the Magistrate to record a note in the remand papers regarding such precautions having been taken by them so as to eliminate any subsequent objection by the suspects that they had been shown to the witnesses before the identification parade was held. The proceedings shall be conducted by a Magistrate or, if no Magistrate is available and the case is of great urgency then, by Sarpanch who may summon one or two independent and literate, if possible, persons of reliable character, not interested in the case to assist him and to certify that the identification has been conducted under conditions precluding collusion. Such proceedings shall not be conducted by a Police Officer. The Police Officer concerned before inviting a Sarpanch to conduct the proceedings must ensure that the Sarpanch is not biased or intrested in or against the accused or suspect and that he understands the rules of the proceedings. Every effort should be made to secure the presence of a Magistrate and services of Sarpanch only secured when absolutely necessary. In the absence of a Sarpanch, a Lambardar may be invited to do the needful. (b) Arrangements shall be made, whether the proceedings are being held inside a jail or elsewhere, to ensure that the identifying witnesses shall be kept separate from each other and at such a distance from the place of identification as shall render it impossible for them to see the suspects or any of the persons concerned in the proceedings, until they are called up to make their identification. (c) Identification shall be carried out as soon as possible after the arrest of the suspects. (d) The suspects shall be placed among other persons similarly dressed and of the same religion and social status, in the proportion of 8 or 9 such persons to one suspect. Each witness shall then be br ought up separately to attempt his identification. Care shall be taken that the remaining witnesses are still kept out of sight and hearing and that no opportunity is permitted for communications to pass between witnesses who have been called up and those who have not. It is desired, through fear of revenge or for other adequate reasons, that witnesses shall not be seen by the suspects, arrangements shall be made for the former, when called up to stand behind a screen or be otherwise placed so that they can see clearly without being seen.
8
The results of the tests shall be recorded by the Magistrate or other persons conducting the test in Form 26.32(1)(c) as each witness views the suspect. On conclusion, the Magistrate or the Sarpanch or the Lambardar and the witnesses, if any, shall sign the form and certify that the test has been carried out correctly and that no collusion between the police and witnesses or among the witnesses themselves was possible. It is advisable that, whenever possible, an independent and reliable person, un-connected with the Police, should be present throughout the proceedings at he place where the witnesses are kept, and should be required to devote his attention to the prevention of collusion. It is important that once the arrangeme nts for the proceedings have been undertaken, no police officer whatsoever shall have shall have access whatever either to the suspects or to the witnesses. (2) Proceedings of the nature described above are extra -judicial. It is not the duty of the officer conducting them or of the independent witnesses to record statements or cross -examine either suspects or identifying witnesses, but they should be requested to question the latter as to the circumstances in which they saw the suspects whom they claim to identify, and to record the answer in column 4 of the form. While every precaution shall be taken to prevent collusion, the identifying witnesses must be given a fair chance, and conditions must not be imposed, which would make it impossible for a person honestly capable of making an identification to do so. In this connection attention is invited to paragraph 814 of the Punjab Jail Mail, which strictly prohibits the alternation in any way to he personal appearance of unconvicted prisoners, so as to make it difficult to recognise. 15. This legal principle finds full support in the judgment of the Hon’ble Supreme Court in case of Syed Fida Hussain Shah vs The State and another (2024 SCMR 1622), Likewise, in case of Muhammad Riaz vs Khurram Shehzad and anoth er (2024 SCMR 51), the Apex Court had held that: No identification parade was conducted for determining the involvement of the accused persons and the evidentiary value of identification at a belated stage had little value in the eyes of the law, more particularly when the lineaments and physiognomy of the accused were not mentioned anywhere by the complainant or the eye - witnesses 16. A vital aspect in the prosecution’s case is the presence and collaboration of independent witnesses to support the compl ainant’s version . The prosecution’s own evidence reveals that immediately after the incident, the complainant narrated the occurrence to other shopkeepers and neighbors in the vicinity, who were attracted to the place of occurrence. Their testimony could have greatly aided in corroborating the material facts of the case. More significantly, the prosecution’s challan mentions a crucial witness named Mir Zafar, the business partner of the complainant, who is alleged to have made resistance during the robbery and caused the accused persons’ masks and mufflers to be removed, enabling identification by the complainant party.
9
Despite the evident importance of this witness, the prosecution withheld Mir Zafar’s testimony , failing to produce him before the trial Court without any justification or explanation. The non-production of such a vital and independent witness , who was present during the incident and who could independently identify the accused, casts serious doubts on the reality of the prosecution’s case. This omission amounts to an adverse inference against the prosecution, Reliance in this regard is placed u pon the cases of Ghulam Hussain vs The State (2024 YLR 197 -DB), Noorullah vs The State and another (2023 YLR 1039 -DB), Samiullah vs The State (2022 YLR 1439 -DB), Muhammad Imran vs The State (2021 PCRLJ 804 -DB), Shahzado Khan vs The State (2020 YLR 1048 -DB). Further dependence upon the case s of Muhammad Ramzan vs The State (2025 SCMR 762), as it was held that: At the trial, the prosecution has not produced Matloob Hussain, the owner of the house as witness. An adverse inference is drawn u nder Article 129(g) of the Qanun -e-Shahadat Order, 1984 to the effect that had the above witness been produced by the prosecution at the trial, they would not have supported the version of the prosecution. Reliance in this regard is placed on the case of " Mst Saima Noreen v. The State" (2024 SCMR 1310).
17. Further reliance is placed upon the case of Muhammad Nasir Butt and 2 others v s The State and others (2025 SCM R 662 ), wherein it was held that: 10. At the trial, the prosecution has not produced the injured passerby Shehbaz and Abdul Jabbar who was mentioned to be an eye -witness of the occurrence by the complainant. An adverse inference is drawn under Article 129(g) of the Qanun -e-Shahadat Order, 1984 to the effect that had the above two witnesses been produced by the prosecution at the trial, they would not have supported the version of the prosecution. Reliance in this regard is placed on the case of "Mst. Saima Noreen v. The State". 18. An important aspect of the prosecution’s case is t he claim that the robbery was captured on CCTV cameras installed at the complainant’s shop , which was explicitly mentioned in the FIR as well as in the complaint’s version. According to the prosecution’s narrative, the complainant and his party viewed the CCTV footage following the incident to identify the accused persons. However, neither the prosecution produce the CCTV footage as evidence during the trial , nor the recording collected or preserved by the Investigating Officer. This glaring omission raises serious doubts about the truthfulness and completeness of the…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.