MUHAMMAD RAMZAN Versus State
ABDUL HAMEED BALOCH, J.--- This judgment is directed against the judgment dated 20th October, 2020 (impugned judgment), passed by learned Additional Sessions Judge-II, Sariab Quetta (trial court), whereby the appellant was convicted under Section 394 Pakistan Penal Code (P.P.C.) and sentenced to suffer seven (07) years rigorous imprisonment and to pay fine of Rs. 100,000/- (Rupees one hundred thousand) and in default thereof to further undergo six (06) months simple imprison-ment with benefit of section 382-B, Cr.P.C.
2. The prosecution case as gleaned from the Fard-e-Biyan (Ex.P/1-A) submitted by PW-1 Muhammad Yousaf that the complainant along with his uncle Muhammad Aslam in their vehicle No. CX-223 went to Meezan Bank Hazar Ganji Branch for depositing cash amount of Rs. 1,000,000/- (Rupees one million), but the bank authorities did not deposit the amount as the bank has no limit to deposit such amount. It was alleged that at about 12:30 p.m. when he and his uncle reached near Post Office Hazar Ganji suddenly three persons on motorcycle duly armed with pistols came in front of them and signaled them to stop, but them did not stop, on which one of them fired which hit vehicle and due to fear the complainant stopped the vehicle and alighted. One of the accused made fire which hit his uncle due to which he sustained injury on his right foot. It was alleged that the accused persons took Rs.1000,000/- from the dash board of the vehicle and escaped. The complainant alleged that he can recognize the accused persons if brought before him. With these allegations FIR No. 63 of 2018 under sections 394, 34, P.P.C. was registered with Police Station Shalkot, Quetta.
3. After registration of FIR convict/ appellant was arrested and subjected to investigation and on completion of investigation challan was submitted before the trial court.
4. After codal formalities and full dress trial, the learned trial court vide impugned judgment dated 20th October, 2020 convicted the appellant in the manner as mentioned in para-1 above, hence appellant is before this court.
5. Heard and perused the record. The prosecution in order to prove accusation examined seven witnesses. On written application Ex: P/1-A of complainant (PW-1) FIR Ex: P/7-E was registered. The investigation was entrusted to PW-7, who proceeded to the place of occurrence, prepared site plan Ex: P/7-B, site plan of place of recovery Ex: P/7-C, site plan of recovery of motorcycle Ex; P/7-D. The witness produced FIR as Ex: P/7-E and report of FSL as Ex: P/7-A.
6. The prosecution examined PW-1 Muhammad Yousaf (complainant) who stated that on 18th July, 2018 he along with his uncle Muhammad Aslam went to Meezan Bank Hazar Ganji Branch for depositing Rs. 1,000,000/-, but the bank officer refused to deposit such huge amount. They came out from the bank and when reached near Post Office Hazar Ganji suddenly three persons appeared on motorcycle, signaled to stop, but they did not stop, on which one of the accused fired which hit on right foot of his uncle, due to which he fell on the ground. They stopped the vehicle. The persons searched the vehicle and from dash board took rupees one million. They proceeded to police station for registration of FIR. The police personnel took the injured to hospital. The witness in cross-examination stated that he did not know the denomination of currency. After registration of FIR they returned back to home.
7. PW-2 Muhammad Yousaf ASI deposed that on information he along with Abdul Fateh ASI reached at Sona Khan Chowk. Three persons on seeing police party tried to escape but apprehended Muhammad Ramzan, while other succeeded to flew away. On search of accused from a plastic bag rupees one million were recovered. On further search pistol along with five live cartridges were recovered. Recovery memo. was prepared vide Ex: P/2-A. The witness in cross-examination stated that they reached at Sona Khan Chowk at 4:00 p.m. All the police personnel jointly apprehended the accused. The witness admitted that in recovery memo. no detail of currency has been mentioned.
8. PW-3 Muhammad Aslam injured witness deposed that on 18th July, 2018 they went for depositing amount to Meezan Bank Hazar Ganji Branch, but they refused to deposit the amount on the ground that the amount is exceeded to their limit. They returned back, three persons on motorcycle signaled them stop but they did not stop due to which they fired upon them, one bullet hit his leg. The accused persons took rupees one million from switch board of vehicle. The police came at the place of occurrence within five or ten minutes and took him to hospital. The witness in cross-examination stated that he along with complainant Muhammad Yousaf proceeded with the police. He remained admitted in hospital for twenty days. The police recorded his statement at hospital.
9. PW-4 Dr. Moula Bakhsh Sihal examined the injured. He produced MLC as Ex: P/4-A. The witness also examined the accused Muhammad Ramzan and produced MLC as Ex: P/4-B. The witness in cross-examination stated that the entrance wound was at 90 angles.
10. PW-5 Ayesha Kakar Judicial Magistrate is the witness who supervised the process of identification parade of accused. The witness produced memo. of parade as Ex: P/5-A and Ex; P/5-B. The witness in cross-examination stated that she do not remember whether the photo of accused were on police misl (record). She did not remember that the dummies were private or officials. The dummies were same in two identification parades. She did not remember that who prepared Ex: P5-A and Ex: P/5-B.
11. PW-6 Mehboob Ali ASI is the witness of disclosure memo, recovery of two empties and memo. of sleeper, memo. of pointation of place of occurrence vide Ex: P/6-A, Ex: P/6-B and Ex: P/6-C. The witness in cross-examination stated that no proof was collected in respect of house from where motorcycle was recovered.
12. PW-7 Abdul Fateh SI/Investigat-ing Officer in cross-examination stated that he did not record statement of bank official. He took into possession the vehicle, sleeper and two empties from the place of occurrence. He admitted that at the time of arrest the accused Muhammad Ramzan was in injured condition. The witness admitted that two empties secured from the site were not sent to FSL. He has taken remand of accused for five times but his face was opened.
13. The above referred statements are not in line with each other. PW-1 stated that after occurrence they proceeded to the police station, while PW-3 injured has not supported the contention of the complainant and stated that the police immediately reached at the site, took him to hospital. PW-1 and PW-3 are alleged to be eye-witnesses and seemed to be together at the time of occurrence but narrated story differently. The statements of the prosecution witnesses are contradictory to each other. Such contradictions cannot be unattended. It seems that the witnesses were not accompanied each other. Even it cannot be believable that the bank official refused to deposit rupees one million. The contradictions of the witnesses cannot be lightly ignored.
PW-1 and PW-3 stated that bullet hit finger of right foot. PW-7 took into possession sleeper which was not stained with blood. As per prosecution the accused made firing from short distance, while PW-4 stated that the wound was at 90 angles. Reliance is placed on case Muhammad Jabran v. The State 2020 SCMR 1493, wherein it was held:
"6. In their court statements, complainant Muhammad Afzal (PW2) and Zulfiqar Ali (PW3) claimed that on 22.07.2016, they were present in the police station, when Muhammad Nadeem ASI (PW6) received a telephonic call and the caller informed him about weeping voice of a child from a deserted room in Ashiana Housing Scheme at Rathian. They further claimed that they along with police in official vehicle went there, where the abductee Muhammad Bilal was recovered and petitioners were arrested. However, Investigating Officer Muhammad Nadeem ASI (PW6) stated in his cross-examination that he went to recover abductee Muhammad Bilal after receiving call from a spy informer and the complainant Muhammad Afzal was called later on at the place of recovery. He further stated that the complainant came at the spot of recovery after fifteen minutes; that he first arrested the petitioners, prepared site plan and then the complainant came at the spot and identified his abducted son. He further stated that the petitioners were arrested from the courtyard of the house whereas it was the claim of the complainant Muhammad Afzal (PW2) and Zulfiqar Ali (PW3) that petitioners were apprehended by the police while they were running from the place of recovery. He (PW6) further clarified in his cross-examination that he did not call any other person except the complainant at the place of recovery."
14. Another piece of evidence against the appellant is pointation of the place of occurrence and recovery of motorcycle. The prosecution has neither recorded the statement of neighbour in order to confirm whether the house was owned by the accused, nor sought report from the revenue department in regard of ownership of the house. Mere recovery on the pointation of accused could not fulfill the requirement of Article 40 of the Qanun-e-Shahadat Order, 1984 (Order, 1984). The prosecution must prove the recovery independently. Article 40 of Order 1984 reads as under:
Article-40: - How much of information received from accused may be proved. When any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved,"
15. The prosecution cannot get benefit from pointation of place of occurrence by accused which was already known to the Investigating Officer. Under Article 38 of the Order, 1984 the admission before police is not admissible in evidence.
16. So far medical evidence is concerned. The medical evidence may confirm ocular account with regard to seat of injuries, kind of weapon used in commission of offence, nature of injuries, but it cannot connect the accused with the commission of crime. Reliance is placed on the case Abdul Rashid v. The State 2019 PCr.LJ 1456. It was held therein:
"10. The medical evidence in this case has been furnished by PW-4 Dr. Naseer Ahmed Tareen, Medical Officer, who has confirmed the unnatural death of deceased. However, the fact remains that medical evidence is only used for confirmation of ocular evidence regarding seat of injury, time of occurrence and weapon of offence used, etc. but medical evidence itself does not constitute any corroboration qua the identity of accused person to prove their culpability. Reliance in this regard can be place on the case of Muhammad Sharif and another v. The State (1997 SCMR 866)."
17. Now adverting to positive report of FSL Ex: P/7-A in respect of alleged recovered pistol. This evidence cannot benefit the prosecution on two counts, firstly the prosecution has not sent the fired bullet secured from the place of occurrence to FSL. Ex: P/7-A reveals that "30 bore pistol is presently in working condition/order. Secondly the alleged pistol was received to FSL on 9th August, 2018, meaning thereby that after twenty days, without explanation that in intervening period the weapon was in whose possession. The prosecution was under legal obligation to prove safe custody. Reliance is placed on Ali Sher v. The State 2008 SCMR 707, wherein it was held:
"11. The crime-empties having been allegedly found at the place of occurrence and having been retained for so long the police station and having been sent to the F.S.L. along with the crime weapons and that also 12 days after the alleged weapons of offence had been allegedly recovered destroys and evidentiary value of the said piece of evidence. These recoveries, therefore, cannot offer any corroboration to the ocular testimony."
18. The trial court has disbelieved the statement of ocular witness in regard of accused Sanaullah and acquitted him of the charge. When the statement of a witness was disbelieved in respect of co-accused then the conviction could not sustain alone on the basis of statement of such witness unless they are corro-borated by corroborative evidence which came from independent source and unimpeachable nature. Reliance is also placed on Akhtar Ali's case 2008 SCMR 6 and also on Muhammad Asif's case 2017 SCMR 486. The Honorable Supreme Court of Pakistan in Notice to police constable Khizar Hayat son of Hidayatullah, on account of his false statement, reported in PLD 2019 SC 527. It was held therein:
"21. We may observe in the end that a judicial system which permits deliberate falsehood is doomed to fail and a society which tolerates it is destined to self-destruct. Truth is the foundation of justice and justice is the core and bedrock of a civilized society and, thus, any compromise on truth amounts to a compromise on a society's future as a just, fair and civilized society. Our judicial system has suffered a lot as a consequence of the above mentioned permissible deviation from the truth and it is about time that such a colossal wrong may be rectified in all earnestness. Therefore, in light of the discussion made above, we declare that the rule falsus in uno, falsus in omnibus shall henceforth be an integral part of our jurisprudence in criminal cases and the same shall be given effect to, followed and applied by all the courts in the country in its letter and spirit. It is also directed that a witness found by a court to have resorted to a deliberate falsehood on a material aspect shall, without any latitude, invariably be proceeded against for committing perjury."
19. The learned trial court has already disbelieved the identification parade. The identification parade was not conducted on the principle laid down by Honorable Supreme Court. PW-4 admitted that the dummies were same for separate identification. Reliance is placed on Kanwar Anwaar Ali PLD 2019 SC 488, it was held therein:
"23. Although there is no law, which prescribes any such precautions yet the necessary guidelines are available in the form of executive instructions and judicial pronouncements. Some of them are summarised as under:---
(a) Memories fade and visions get blurred with passage of time. Thus, an identification test, where an unexplained and unreasonably long period has intervened between the occurrence and the identification proceedings, should be viewed with suspicion. Therefore, an identification parade, to inspire confidence, must be held at the earliest possible opportunity after the occurrence;
(b) a test identification, where the possibility of the witness having seen the accused persons after their arrest cannot be ruled out, is worth nothing at all. It is, therefore, imperative to eliminate all such possibilities. It should be ensured that, after their arrest, the suspects are put to identification tests as early as possible. Such suspects should preferably, not be remanded to police custody in the first instance and should be kept in judicial custody till the identification proceedings are held. This is to avoid the possibility of overzealous I.Os. showing the suspects to the witnesses while they are in police custody. Even when these accused persons are, of necessity, to be taken to Courts for remand etc. they must be warned to cover their faces if they so choose so that no witness could see them;
(c) identification parades should never be held at police stations;
(d) the Magistrate, supervising the identification proceedings, must verify the period, if any, for which the accused persons have remained in police custody after their arrest and before the test identification and must incorporate this fact in his report about the proceedings;
(e) in order to guard against the possibility of a witness identifying an accused person by chance, the number of persons (dummies) to be intermingled with the accused persons should be as much as possible. But then there is also the need to ensure that the number of such persons is not increased to an extent which could have the effect of confusing the identifying witness. The superior Courts have, through their wisdom and long experience, prescribed that ordinarily the ratio between the accused persons and the dummies should be 1 to 9 or 10. This ratio must be followed unless there are some special justifiable circumstances warranting a deviation from it;
(f) if there are more accused persons than one who have to be subjected to test identification, then the rule of prudence laid down by the superior Courts is that separate identification parades should ordinarily be held in respect of each accused person;
(g) it must be ensured that before a witness has participated in the identification proceedings, he is stationed at a place from where he cannot observe the proceedings and that after his participation he is lodged at a place from where it is not possible for him to communicate with those who have yet to take their turn. It also has to be ensured that no one who is witnessing the proceedings, such as the members of the jail staff etc., is able to communicate with the identifying witnesses;
(h) the Magistrate conducting the proceedings must take an intelli-gent interest in the proceedings and not be just a silent spectator of the same bearing in mind at all times that the life and liberty of some one depends only upon his vigilance and caution;
(i) the Magistrate is obliged to prepare a list of all the persons (dummies) who form part of the line-up at the parade along with their parentage, occupation and addresses;
(j) the Magistrate must faithfully record all the objections and statements, if any, made either by the accused persons or by the identifying witnesses before, during or after the proceedings;
(k) where a witness correctly identifies an accused person, the Magistrate must ask the witness about the connection in which the witness has identified that person i.e. as a friend, as a foe or as a culprit of an offence etc. and then incorporate this statement in his report;
(l) and where a witness identifies a person wrongly, the Magistrate must so record in his report and should also state the number of persons wrongly picked by the witness;
(m) the Magistrate is required to record in his report all the precautions taken by him for a fair conduct of the proceedings and
(n) the Magistrate has to give a certificate at the end of his report in the form prescribed by CH.II.C. of Vol. III of Lahore High Court Rules and Orders."
20. The requirement of criminal law is that the persecution is duty bound to prove its case beyond reasonable doubt and if any single and slightest doubt is created the benefit of same must go to the accused. It would be sufficient to disbelieve the prosecution story and acquitted the accused. It is settled law that the conviction must be found on unimpeachable, trustworthy and reliable evidence and certainty of guilt. Reliance is placed on the case of Safdar Baloch alias Ali v. The State 2019 SCMR 1412. It was held:
"---Criminal liability is to be essentially settled on evidentiary certainty and not on moral satisfaction or factualities incompatible with the evidence based upon truth. Prosecution's case against the appellants cannot be viewed as beyond reasonable doubt and thus conviction cannot be maintained without potential risk of error. Resultantly, criminal appeals are allowed, impugned judgment is set aside. The appellants shall be released forthwith, if not required in any other case."
In view of the above discussion, the instant appeal is allowed. The judgment dated 20th October, 2020 passed by learned Additional Sessions Judge-II, Sariab Division Quetta is set aside. The appellant Muhammad Ramzan son of Hussain Bakhsh is acquitted of the charge in case FIR No. 63 of 2018, under sections 394, 34, P.P.C. Police Station Shalkot, Quetta. He is in custody be released forthwith if not required in any other case.
JK/70/Bal. Appeal allowed.