NOOR ISLAM vs GHANI UR REHMAN and another

DOST MUHAMMAD KHAN, J. Through this appeal with the leave of the Court dated, 22.08.2014, the appellant has impugned the judgment of the Peshawar High Court dated 30.06.2014 whereby the judgment of the Trial Court, convicting the appellant to 10 years' R.I. under section 392, P.P.C. with fine of Rs.20,000/-, three years' S.I. under sections 419/420, P.P.C. with fine of Rs.10,000/- and one year's S.I. under section 170, .P.P.C. with fine of Rs.5000/-, with benefit of section 382-B, Cr.P.C., was upheld. All the substantive sentences were directed to run concurrently .

We have heard Mr. Altaf Samad, learned ASC for the appellant and Mr. Muham mad Asif, learned ASC for the complainant as well as Mr. Muhammad Aslam Ghumman, learned ASC for. A.G. KPK and have gone through the record.

2. Ghani-ur-Rehman, the complainant alleged in his written report, recorded in Daily Diary No.9 dated 24.05.2012 that he was travelling in Car No.2568 in Peshawar and when he reached "Khajoor " stop, another motorcar brought to halt their car, in which other passengers were travelling. A person introduced himself as FIA official and deceitfully made him to sit in his car, in which two other persons were already present. They took him to Amankot Nowshera and after snatching an amount of SR.2,52,000/- (KSA Riyals), he was thrown out from the car .

3. The incident took place on 17.05.2012, while the above report was made on 22.05.2012; no description or feature of the appellant and his accomplices were given in the report; probably the police suspected the genuineness of report therefore, did not register a case however , in the meanwhile, the complainant approached the Justice of Peace/ASJ, on whose directions, case FIR No.1190 dated 16.12.2012 was registered against the appellant under sections 392/384/419/170/171, P.P.C. by Police Station Paharipura, Peshawar , almost after seven months.

4. In this case, the police arrested severa l suspects and the only piece of evidenc e on which the two foras below relied, is the identification parade, conducted in the Central Jail where the appellant was identified however , beside being the weakest piece of evidence it loses its judicial efficacy because the face feature complexion etc. were not given in the report and more particularly the complainant admitted at the trial that some accused were arrested by the police and he was called to the Police Station however , he denied that they were shown to him in the Police Station. If there was no occasion to show the suspects to the complainant then, for what purpose he was called there, is a big question mark for which the prosecution has no answer , much less plausible, to give. Again, the identification parade has not been conducted according to the requirements of law on the subject because the dummies and the appellant were not produced in uniform as at the time of inciden t, the appellant was allegedly in uniform of FIA. The complainant further disclosed that he came to know about the name of the accused, facing trial from the police at the time of identificatio n parade. He has failed to produce any document about the collection of such huge amount of foreign currency; who were the two accomplices of the appellant, is still a mystery . The appellant remained in police custody for sufficient time however , not a single K.S.A Riyal was recovered from him nor the uniform of FIA official. His duty roaster was not taken into possession because the appellant was a serving ASI in the police and was attached to a Police Station therefore, Daily Diary or the Police-Line register would c have proved as to whether at the relevant time he was present on duty or was absent there from.

5. None of the person from whom the complainant collected the amount, was produced much less the co- passengers of the car, in which he was travelling, nor the driver of the taxi car. Moreover , identification parade was held almost after one year. Neither the car, in which the appellant was travelling along with two accomplices nor the taxi car in which the complainant was travelling, were taken into possession or traced out by the police. No record was produced by the complainant, showing the details of the money , he had collected from different peoples E of the area, nor the purpose was disclosed that why he was bringing such huge amount without any escort or guard from Bajor Agency , a tribal area to Pesha war. The entire route is highly dangerous and no prudent man would opt to carry such huge amount all alone without the support of the armed guard. Why he delayed reporting the matter for five days, has not been explained. Not only picking up an accused in an identification parade by itself is not sufficient for conviction but also when it suffers from several infirmities, highlighted above then, it is absolutely unsafe to base conviction thereon, as has been done by the two Courts below . The entire case of the prosecution is bereft of convincing and reliable evidence thus, we are of the considered view that the conviction and the sentences awarded to the appellant by the trial Court and upheld by the High Cour t has occasioned miscarriage of justice as the same are not sustainable under the law .

6. Accordingly , this appeal is allowed and the appellant is acquitted of all the charges levelled against him.