Muhammad Ibrahim vs The State
This criminal appeal challenges the judgment of the trial court convicting the appellant under section 395 of the Pakistan Penal Code 1860 for dacoity and sentencing him to four years rigorous imprisonment. The core legal question revolves around whether the conviction could be sustained based on an identification parade and subsequent recovery of the snatched vehicle, given that the culprits' faces were masked during a night-time occurrence and the complainant failed to identify the accused during the trial. The Balochistan High Court held that the ocular account was not confidence-inspiring and that the identification parade was rendered doubtful due to the masked nature of the offense and the dark of night, causing corroborative circumstances to collapse. The court laid down the principle that once the primary ocular account is discarded, supporting circumstantial evidence naturally falls away, and the benefit of doubt must be extended to the accused, leading to the setting aside of the conviction and the appellant's acquittal.
- Can a conviction for dacoity be sustained on an identification parade when the culprits' faces were masked during a night-time occurrence?
- What is the legal effect on corroborative circumstances when the primary ocular account is ruled out of consideration?
- Does the failure of a complainant to identify the accused during the trial create sufficient doubt to warrant an acquittal?
- Section 395, Pakistan Penal Code 1860
- Section 382-B, Code of Criminal Procedure 1898
- Section 392, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 342, Code of Criminal Procedure 1898
ABDULLAH BALOCH, J. This judgment disposes of Criminal (Jail) Appeal No.09 of 2021 filed by the appellant Muhammad Ibrahim son of Bari Dad through Superintendent Central Prison Mach, against the judgment dated 23rd October 2021 ("the impugned judgment") passed by learned Additional Sessions Judge, Pishin ("the trial Court"), whereby the appellant was convicted under section 395, P.P.C. and sentenced to suffer four (04) years R.I. with fine of Rs. 10,000/- or in default thereof to further suffer S.I. one (01) month with the benefit of section 382-B, Cr.P.C.
2. Facts of the case are that on 4th February 2021, the complainant Hakeemullah son of Badam Khan lodged FIR No.06/2021 at Levies Headquarter, District Pishin, under sections 392, 34, P.P.C., with the averments that on the day of occurrence at about 07.30 p.m. he on his tractor was going from Pishin Bazar towards his house situated at Killi Malezai and when at about 08:00 p.m. he reached to Batte Nika Killi Malezai Road, a silver colour fielder Car came over there, from which five muffled face armed persons were alighted, who forcibly stopped him and boarded him in the Fielder Car and taken him towards unknown place and in the meantime, the accused persons also snatched his Tractor, cash amount of Rs.22,000/-, a Nokia Mobile Phone and one wrist watch, while after twenty minutes the culprits again brought and left him at the place of occurrence, thereafter he informed the Levies Chowki Malezai.
3. After registration of FIR, the appellant was arrested, who was investigated and on completion thereof, he was challaned before the trial Court i.e. Additional Sessions Judge, Pishin, which indicated the charge and after denial, the prosecution produced Six witnesses. Thereafter, the appellant was examined under section 342, Cr.P.C. However, he neither recorded his statement on oath nor produced ally- witness in his defence. On conclusion of trial and after hearing arguments, the trial Court convicted and sentenced the appellant as mentioned above, whereafter he, filed the instant jail appeal through Superintendent Central Prison Mach.
4. Heard learned counsel for parties and perused the available record. The prosecution in order to establish the charge has, produced the evidence of Six (06) witnesses, but the same are not solid and concrete to make basis for awarding conviction to the appellant. The complainant of the case Hakeemullah appeared as PW-1, who mostly reiterated the contents of his fard-e-bayan Ex.P/1-A.
The statement of PW-1 transpires that he was intercepted by five unknown muffled face persons and snatched his Tractor, cash amount, mobile phone and a wrist watch, but however, the fact remains that the contents of fard-e-bayan and the statement of this witness recorded by the trial Court are silent with regard to physique, structure and complexion of the culprits. Both the statements are silent with regard to role played by each accused individually or severally. PW-1 stated nothing in the trial Court that either he identifies the appellant as one of the culprits or otherwise.
5. The perusal of record further transpires that during investigation the identification parade of the appellant was carried out under the supervision of PW-5 Muhammad Asad Khan, Judicial Magistrate-IV Pishin and astonishingly the complainant/PW-1 also identified the appellant during identification parade as one of the culprits, who had snatched his tractor and other valuables, while to the contrary it has already been discussed and even is also evident from the record that at the time of commission of crime, all the accused persons were masked their faces, thus question arises in a prudent mind that if all the culprits were muffled faces and more particularly the occurrence had taken place in the dark of night then as to how the complainant could identify the appellant as one of the culprits. The identification of the appellant during the trial Court and keeping mum whilst recording his Court statement creates sufficient doubts in a prudent mind.
6. The only evidence 'remains in the field against the appellant is that he was caught red handed whilst driving the snatched Tractor, but however, the fact remains that the prosecution had failed to bring any single iota of evidence to connect the appellant with the commission of committing robbery or snatching the Tractor of complainant. Even otherwise, the statement of sole eye-witness i.e. PW-1 is not confidence inspiring, thus the A ocular account furnished by him was ruled out of consideration. After ruling out of the ocular account the other circumstances of the case providing corroboration or support to the ocular account had automatically collapsed. Reliance, in this regard is placed to the case of Faqeer Muhammad v. Shehbaz Ali 2016 SCMR 1441, whereby the Hon'ble Supreme Court has upheld the acquittal order of the High Court by holding that after ruling out the ocular account the other circumstances of the case providing corroboration or support to the ocular account had automatically collapsed. The relevant portion of above referred judgment is reproduced herein below: "...the eye-witnesses produced by the prosecution before the trial court were actually not present with the deceased at the time of occurrence and, thus, the ocular account furnished by them was ruled out of consideration. After ruling out of the ocular account the other circumstances of the case providing corroboration or support to the ocular account had automatically collapsed. In these circumstances the High Court had extended the benefit of doubt to respondent No. 1 and had acquitted him of the charge. Upon our own independent evaluation of the evidence we have not been able to take any legitimate exception to the said conclusion reached by the High Court.
This petition is, therefore, dismissed and leave to appeal is refused."
7. The reappraisal of entire evidence establishes that the prosecution has absolutely failed to establish the charge through consistent and confidence inspiring evidence. Even otherwise, under the peculiar facts and circumstances of the case, the charged offences are not attracting against the appellant, but while delivering the impugned, judgment the learned trial Court has failed to consider this important aspect of the case and has come to a conclusion, which is perverse and contrary to material available on record.
For the above reasons, the appeal is allowed. The impugned judgment dated 23rd October 2021 passed by learned Additional Sessions Judge, Pishin is set aside and while extending the benefit of doubt, the appellant Muhammad Ibrahim son of Bari Dad is acquitted of the charge. The appellant, being in custody, shall be released forthwith if not required in any other case.