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Petitioner: Waseem Haroon and two others VS Respondent: The State, etc
Court Name: Islamabad High Court Judge(s): Mohsin Akhtar Kayani Title: Waseem Haroon and two others vs The State, etc Case No.: Criminal Appeal No.56/2017 Date of Judgment:2017-06-14 Reported As: 2017 IHC 147 Result: N/A
Judgment MOHSIN AKHTAR KAYANI, J:- The appellants through the instant criminal appeal, have assailed the judgment dated 06.04.2017 whereby appellants, in case FIR No.296/2011 dated 23.06.2011, U/S 395/412 PPC, Sec.17 Harabah Offences against Property (Enforcement of Hudood) Ordinance, 1979, P.S. Sabzi Mandi, Islamabad, have been convicted and sentenced U/S 395 PPC to seven (07) years rigorous imprisonment and fined Rs.15,000/- each, whereas the appellants have also been convicted and sentenced U/S 412 PPC to three (03) years rigorous imprisonment and fined Rs.15,000/- each. Benefit of Section 382(b) Cr.P.C. has been extended to the appellants and the sentences awarded to the appellants shall run concurrently. 2. Brief facts of the instant appeal are that, PW-8 Mudassar Munir , Branch Manager lodged the ibid FIR regarding the incident of robbery in the Bank Alfalah, Sabzi Mandi Branch, Islamabad, whereby three armed gunmen robbed Rs.3,820,000/- from the cash counter and fled away on Mehran car and motorcycle, parked outside the bank. 3. After registration and investigation of the criminal case, the police arrested the appellants and submitted report U/S 173 Cr.P.C. before the learned Trial Court, whereupon the appellants were convicted in the abovementioned case. Hence, instant criminal appeal. 4. Learned counsel for the appellants contended that, neither any witness has deposed against the appellants nor even any witness identified them, therefore, the conviction is not sustainable in the eyes of law; that the learned Trial Court based the conviction of appellants on account of inadmissible evidence, rather convicted them on the basis of their statements got recorded before the police, which is unacceptable in the eyes of law; that the judgment is based on conjectures resulting into miscarriage of justice; that neither charge U/S 395/412 PPC was ever framed against the appellants nor the charge was ever amended; that there are material contradictions in the statements of PWs on the point of alleged recoveries and the same have not been proved in accordance with law . 5. Conversely , learned State Counsel has opposed the instant criminal appeal on the ground that, the prosecution has successfully proved the case in accordance with law, fully established the recoveries and identification of the
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appellants, even recovery of amount of Rs.400,000/- proves the case against the appellants. 6. Arguments heard, record perused. 7. From the perusal of record it has been observed that case FIR No.296/201 1 dated 23.06.201 1, U/S 395/412 PPC r/w Sec.17 Harabah Offences against Property (Enforcement of Hudood) Ordinance, 1979, P.S. Sabzi Mandi, Islamabad was registered on the complaint (Exh.PF) of PW-8 Ch. Mudassar Munir , Branch Manager Bank Alfalah. The contents of the same are reproduced as under: {{URDU TEXT}} 8. After the registration of the criminal case, PW-3 Abdul Razaq/SI investigated the matter , and took into possession CCTV footage, 12 bore repeater gun, an iron rod, two cloth bags and cycle lock along with the finger prints from spot and recorded statements of witnesses U/S 161 Cr.P.C., where after the investigation was transferred to PW-12 Asjad Mehmood/SI, who took over the vehicle LOD-2783 during the course of investigation, which was involved in another criminal case FIR No.305/201 1, registered U/S 4/5 Explosive Substances Act, 1908 and arrested Waseem Haroon/appellant who was already in judicial lockup in case FIR No.25/2012, U/S 399/402 PPC, P.S. Sabzi Mandi, Islamabad, whereupon he disclosed that other co-accused are involved in the said case, where after all the accused were arrested on his pointation, and an amount of Rs.350,000 was recovered on different occasions. Later on, arrested accused were sent to judicial lockup for the purposes of identification parade. The witnesses identified the appe llants on 31.01.2012 in presence of Hussain Bahadaur/Magistrate, where after physical remand of accused persons was obtained from the concerned Court and finally , Investigation Officer submitted his report U/S 173 Cr.P.C. Similarly , Attiq-ur-Rehman/appellant, who was already under custody in another case, disclosed his involvement in the instant case, where after he was also sent to judicial lockup for identification parade and he was identified by the witnesses and separate Challan was also submitted against the said appellant. 9. The prosecution produced 11 witnesses in order to prove the charge of dacoity against the appellants, whereby the charge U/S 17 of Offences against Property (Enforcement of Hudood) Ordinance, 1979, has been framed on 28.11.2012 by the Court of Raja Khurram Ali Khan, ASJ-IV (West) Islamabad, against Raza Khan and Waseem Haroon/appellants, to which they pleaded not guilty . 10. The case was subsequently transferred to the Court of Ms. Rakhshanda Shaheen, ASJ (West) Islamabad, who after hearing the defence side and the State, passed order dated 03.10.2013, whereby Sec.17 of Offences against Property (Enforcement of Hudood) Ordinance, 1979 was deleted and matter was sent back to the Court of concerned Judicial Magistrate Sec.30 (W est) Islamabad. 11. I have gone through the entire record but could not find any order through which a specific charge U/S 395/412 PPC was framed, although the case was being transferred from one Court to another but the learned Trial Court who finally passed the judgment of conviction, has not considered this aspect that no charge was framed, even I could not find any such order in the entire record. 12. From the perusal of record, it has been observed that the only available charge is of Sec.17 of Offences against Property (Enforcement of Hudood) Ordinance, 1979 against the appellants Waseem Haroon and Raza Khan, whereas no specific or separate charge was ever framed against Attiq-ur-Rehman/accused, however the purpose of framing charge is to state the offences with which the accused has been charged, by way of mentioning the specific name of offence and sufficient description along with the Section of PPC, for the purposes of clarity and in order to achieve the very object of the prosecution as the said statement of charge must hold every legal condition required by the law to constitute the offence charged along with the full particulars as required in Sec.221 Cr.P.C. Even, it was the duty of the Court to reframe the charge when order dated 03.10.2013 was passed by Ms. Rakhshanda Shaheen ASJ (West), Islamabad whereby Sec.17 of Offences against Property (Enforcement of Hudood) Ordinance, 1979 was deleted. It was also incumbent on the transferee Court to go through the entire record before proceedings further, as if charge has not been framed properly or the same is defective, it will cause prejudice to the accused. 13. Most astonishing factor , which is prima facie appearing from record is that the entire proceedings do not disclose constitution of any offence in terms of Sec.395/412 PPC and separate charge has not been framed for
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every distinct offence allegedly committed by the accused. In order to take proper description of the charge, I am fortified with the view given in PLD 2017 Pesh 55 (Akhtar Muhammad vs. The State) wherein it is held that: "11. It is well settled principle of law that charge against accused shall be specific, fair and clear in all respects to provide an opportunity to the accused to defend himself/herself in due course of trial. The charge shall be clear and by no means, confused to prejudice the accused. Charge is a precise formulation of specific accusations made against an accused person, who is entitled to know its nature at the early stage. Its aim is to explain to the accused as correctly and precisely as well as concisely as possible the allegations with which the accused is to be confronted. The charge must convey to the accused with sufficient transparency and in clear terms what the prosecution intends to prove against the accused. It shall contain all essential details as to time, place as well as specific manner of the alleged offence, the manner in which the offence was comm itted with full description of the accusation so as to afford the accused an opportunity to explain the accusations with which he is confronted. The prime object and the principle of framing charge shall be, to make aware the accused, of the substantive accusations which are to be proved by the prosecution with clear intention and with unambiguous description of the offence so as to enable the accused to de fend himself." 14. The prosecution produced complainant Mudassar Munir/Branch Manager , as the star witness, who recorded his statement as PW-8, whereby he narrated the entire incident of armed robbery occurred on 23.06.201 1 at 2:15 pm, and stated that 3/4 armed persons entered into Bank, whereas one person was holding an iron rod in his hand, through which he started beating people in the bank, whereas three of the them robbed the bank cash and finally locked the bank door from outside through a cycle lock. After the said incident and calculation, it revealed that appellants had robbed Rs.3,820,000. PW-8 further described the details of all the accused and handed over CCTV footage to the police and on his complaint Exh.PF , FIR No.296/201 1 dated 23.06.201 1, U/S 395/412 PPC, r/w Sec.17 of Offences against Property (Enforcement of Hudood) Ordinance, 1979, P.S. Sabzi Mandi, Islamabad was got lodged. However , PW-8 also joined the identification parade, however he has not identified any of the accused in the jail or in the Court. 15. During the course of cross-examinatio n, PW-8 admitted before the Court that, he has not noted the registration number of the vehicle or motorcycle, on which the accused fled away . However , the said witness has explicitly admitted in his statement that:- {{URDU TEXT}} 16.The prosecution has produced PW-10 Muhammad Asim Ibrar, Account Officer of Bank Alfalah, Sabzi Mandi Branch, who narrated the incident in his statement that, on 23.06.201 1 at Zuhr time, approximately between 02:00 to 2:30 pm, when he was present on his seat, three persons appeared on counter , while two of them had pistols in their hand and thereafter , three more persons entered into the bank, who disarmed the bank security guards and hands upped the bank staf f as well as customers. He further stated that they were making conversation in Pashto and they robbed away Rs.3,820,000/- from the counter and stated that the entire incident took place in one or one and half minu te. PW-10 Further stated in his statement that, he had not seen the accused due to his seating angle in the bank, though accused had not muffled their faces. However , during the course of cross-examination, the only statement came on record from PW-10 is as under:- {{URDU TEXT}} 17. The prosecution has produced PW-11 Muhammad Wasif, who was working in the bank as Internee, stated before the Court that, on 23.06.201 1 at about 2 to 2:15 pm, when he was on a lunch break, all of sudden he heard of outcry and commotion, whereupon he came out from his room, consequently he was put in line along with other bank staff who were hands upped behind a Photostat machine. PW-11 has not stated in his examination-in-chief that he had seen the accused rather he stated that, the entire episode had completed within 1 and half or 2 minutes, where after police came to the spot and collected the evidences as well as fingerprints and got signed the same from the entire staff of the bank. He further stated that, one of them had muffled his face and therefore his face was not visible, even he did not know the total number of the dacoits. During the course of cross-examination, he only stated the following words:-
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{{URDU TEXT}} 18. The prosecution has produced PW-9 Hussain Bahadur/Magistrate, who had supervised the identification parade carried out in Adyala Jail, Rawalpindi. PW-9 stated that total three witnesses were asked to join the identification parade, whereas two witnesses identified two accused only while the remaining one had not identified any of the accused. In this respect, PW-9 produced the complete identification parade report as Exh.PP dated 20.01.2012. However , during the course of cross-examination, he admitted the following facts:- {{URDU TEXT}} 19. From the statements of above referred four witnesses i.e. PW-8 Mudassar Munir/Branch Manager/complainant, PW-10 Muhammad Asim Ibrar/Account Officer, PW-11 Muhammad Wasif/Internee and PW-9 Hussain Bahadur/Magistrate, who have given entire details regarding identification parade, it has been observed that, the three persons, who are eyewitness of the entire incident of armed dacoity, have not identified the accused/appellants before the Court, rather they have denied the identification of the accused. It has further been observed from the record that, PW-9 Hussain Bahadur/Magistrate has not observed the principles of identification parade as referred in the Police Rules, 1934 which are as follow: "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 proceedings shall be conducted in the presence of a magistrate or gazetted police officer, or, if the case is of great urgency and no such officer is available, in the presence of two or more respectable witnesses not interested in the case, who should be asked to satisfy themselves that the identification has been conducted under conditions precluding collusion. b) Arrangement shall be made, whether the proceeding are being held inside a jail or elsewhere, to ensure that the identifying witnesses shall be kept separa te 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 brought 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 witnesse s who have been called up, and those who have not. If 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. e) The results of the test shall be recorded by the senior police officer present in Form 26.32 (1) (e) as each witness views the suspect. On conclusio n, the magistrate, or other independent witness or witnesses, shall be requested to 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 unconnected with the police should be present throughout the proceedings at the place where the witnesses are kept, and should be required to devote attention entirely to the prevention of collusion. It is important that, once the arrangement for the proceedings have been undertaken, the officer investigating the case and any police officer assisting him in that investigation should have no access whatever either to the suspects or to the suspects or to the witnesses. Formal identification proceedings should not, if it can be avoided, be arranged without the orders of an officer of or above the rank of inspector , and such officer should always be present and arrange the conduct of the proceedings himself if possible. The value of tests arranged by the investigating officer or his subordinates is inevitably liable to be called in question by the defence. (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 suspect whom they claim to identify , and to record the answer in column 4 of
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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 Manual, which strictly prohibits the alteration in any way of the personal appearance of unconvicted prisoners, so as to make it difficult to recognize them." 20. I have gone through the cross-examination of PW-9, who in his statement has not confirmed the original report Exh.PP rather he stated before the Court that, the original report is not available on record and the copy has been referred as Exh.PT . At this stage, I have perused the entire record with the able assistance of learned counsels for the appellants and State, and observed: i. That, the record contains photocopies of two identification parade reports dated 22.03.2013 and 20.01.2012, subsequently attested by the Magistrate 1st Class Islamabad, without referring to any name of the authority who attested the same. ii. That, Attiq-ur-Rehman/accused stated that, his photographs have been taken on his arrest and he met different people in the police station. iii. That, witness Irfan Maqbool s/o Muhammad Maqbol has identified Attiq-ur-Rehman. iv. That, signature and thumb mark of witness Irfan Maqbool has not been identified in the said report. v. That, the second report dated 20.01.2012 is also a photocopy and has not been exhibited by the Court during the evidence. vi. That, accused objected before the Magistrate that their photographs have been taken and different people have seen them in the police station. vii. That, witness Irfan Maqbol s/o Maqbol Rehman identified W aseem Haroon and Raza Khan. viii. That, witness Syed Hassan Irfan s/o Syed Ijaz Hassan, cashier of the bank, has identified Waseem Haroon and Raza Khan. ix. That, witness Mudassar Munir/Branch Manager has not identified any of the accused in the identification parade. 21. The evidentiary value of the documents referred above, has to be seen in the light of Qanun-e-Shahadat Order, 1984, whereas Sec.75 imposed the duty upon the Court to exhibit those documents, which are primary and in case when the original documents are not available during the trial, the documentary evidence should be tendered through secondary mode after getting permission from Court, failing which, the document has no evidentiary value in the eyes of law. PW-9 Hussain Bahadur/Magistrate has conceded in his cross-examination that, the original documents were not available at the time of recording of his evidence, therefore, it was the duty of the Court to requisition the original record, even the prosecution had not insisted to demand the same. Although, PW-9 Hussain Bahadaur/Magistrate stated that, he has observed the requirements of the identification parade carried out in Adyala Jail, but during the evidence he has not referred his signature as exhibit rather the prosecution has not marked the signatures separately in order to confirm the report that the same was executed by PW-9 Hussain Bahadur/Magistrate. 22. While putting credence on the Article 73 of the Qanun-e-Shahadat Order, 1984, it is observed that, primary evidence, means the document itself must be produced for inspection of the Court and it is the requirement of Article 75 of the Qanun- e-Shahadat Order, 1984 that the document must be proved except in the cases, in which secondary evidence may be given, thus, it is settled proposition that any document produced, must be proved in accordance with law, else it will not bear any legal effect. Reliance in this regard is placed upon on 1999 PCr.LJ 1955 (Alam Zaib vs. The State) wherein it is held that: "It appears that despite clear directions original identification parade memo was not produced before the trial Court and the case was decided on the basis of the evidence already available on record . It may be observed here that in order to prove a document a particular mode has to be adopted under the law. Reference in this regard, may be made to Articles 73 to 76 of the Qanun-e-Shahadat Order , 1984 wherein it has been clearly provided that except in the cases covered by Article 76 of the Qanun-e-Shahadat Order , 1984 all documents must be proved by primary evidence. Needless to point out that Article 73 of the Qanun-e-Shahadat Order , provides that primary evidence means document itself produced for the inspection of the Court. Thus, to my mind the learned Trial Court was not
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justified to take on record photo copy of the document in question and that too, without making a comparison with the original. Such casual approach is not appreciable." In view of above referred authoritative judgment, it can safely be concluded that, the documents tendered in evidence and admitted as exhibits, were not in accordance with the provisions of Qanoon-e-Shahadat Order , 1984, therefore, documents, whose contents have not been proved by way of its author , executor or witnesses of the contents and executions, are not admiss ible and no reliance, for the purposes of conviction, can be placed on Photostat copies of the documents. Therefore, entire documentary evidence regarding identification parade is inadmissible and cannot be relied upon for the purpose of conviction or to form any opinion. 23. The Apex Court has laid down certain principles regarding the identification parade in different judgments, which are reproduced herein below: 2011 SCMR 769 (Muhammad Ayaz and others vs. The State) "28. Part "C:' of the Chapter "11" of Volume III of the Rules and Orders of the Lahore High Court carries some commandments in the matter of identification parades which are in the following terms:-- (1) List of all persons included in the parade should be prepared. ---The Magistrate incharge of an identification parade should prepare a list of all persons, including the accused, who form part of the parade. This list should contain the parentage, address and occupation of each member of the parade. (2) Note about identification by witnesses.---When any witness identifies a member of the parade, the Magistrate should note in what connection he is identified. (3) Objection or statements by accused or identification witnesses to be recorded and power of Magistrate to decide objections.---Should the accused make any complaint or statement it should be recorded by the Magistrate. If from his personal knowledge the Magistrate is able to decide beyond doubt that the complaint is false or futile, a note to this effect should be made. (4) Duty of Magistrate to record precautions taken and to note other points.- - (a)..................... (b) whether the person to be identified is handcuffed or is wearing fetters; and if so, whether or not other persons taking part in the parade are handcuffed or are wearing fetters, and also whether or not they are inmates of the Jail. (5) 1. 2. 3. As an identification parade is a test of the identifying witness's ability to recognise the culprit by what he appeared to be at the time of the commission of the offence, it is fair both to the prosecution and the accused that the members of the parade should be presented in a normal state and, if possible, the dress of the parade should have resemblance to the accused as he appeared to the witness at the time of the commission of the offence. It should, therefore, be impressed upon the Magistrates in all districts to ensure, while conducting identification parades, that the members of the parade including the accused are not allowed "make up", are presented in a normal state and if possible the parade be dressed as the accused was reported to be by the witness at the time of the commission of the offence." 31. Likewise the absence of complete description of the dummies at the test identification parade without their addresses, their occupation and without any clue whether they were fellow prisoners or outsiders; the admitted dissimilarities in height, physique, features, complexion,…
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