MUHAMMAD SHAHID Versus State Ali Gohar Soomro

1. SYED MEHMOOD ALAM RIZVI, J .--- This appeal is directed against the judgment dated 27-6-2002 passed by learned 1st Additional Sessions Judge. Karachi West by which the learned Judge convicted the appellants for the offence punishable under section 392 P.P.C. (Pakistan Penal Code), sentenced to suffer R.I. for four years and fine of Rs.25,000 or in default thereof to suffer for three months S.-I. with benefit of section 382-B Cr.P.C.

2. The brief facts giving rise to the present appeal are that prosecution alleged that the appellants on 4-1-1998 at about 2330 hours, when the complainant Abdul Malik was going at his motorcycle and reached at street near Gulshan-e-Behar Marriage Hall, Orangi Town, Karachi the appellants on the pointation of pistol snatched the motorcycle and cash of Rs.2939 and a wrist watch Seiko 5 and hence committed offence punishable under sections 392/397/34, P.P.C.

3. At the trial prosecution examined six witnesses and closed the side while the appellants recorded their statement under section 342 Cr. P. C as well on oath. "The learned trial Court convicted the appellants viz. Muhammad Shahid and Munawar @ Babo while acquitted Jahangir alias Chutto.

4. Heard both the counsel Mr. Ali Gohar Soomro for appellant and Ms. Koki Rawat learned State counsel and perused the record.

5. The learned counsel for appellants argued that it is an admitted position that the mashirnama of arrest and recovery was prepared and signed at police station, it is admitted that the articles were handed over by the complainant to the police, nothing was recovered from the physical possession of the appellants. Both the appellants were empty-handed and no injury was sustained by the prosecution witnesses, it is admitted position that no proper cross-examination was conducted by the accused persons. Neither the Presiding Officer has put any question nor the prosecution witnesses. However the complainant Abdul Malik who recorded his evidence as P.W.1 also appeared in Court as P. W.7 without any application from either side hence, entire conviction is bad in the eves of law.

6. He further argued that the alleged cash amount is missing from the mashirnama of arrest and recovery with regard to description of cash amount with numbers and even the alleged wrist watch is also not transpired in the memo. of recovery. Nothing was recovered from the possession of the appellants, there are series of contradictions between the evidence of the prosecution witnesses and the learned trial Court has misread the evidence and failed to appreciate the evidence on record. He further argued that no role has been assigned to appellants. The time of incident and date are contradicted with the memo. of arrest and F.I.R.

7. That full opportunity was not given to appellants to defend their case. That the complainant stated that the accused were arrested after some distance i.e. one kilometer by police while two made their escape good. The complainant deposed in Court that only one boy was arrested while two others were arrested subsequently that no alleged cash amount was produced in the Court, complainant deposed that he along with others took Munawar and Shahid to police station, that in the F.I.R. it is submitted that on his hue and cry the people present near the marriage hall at the place of incident hold the motor-cycle and a person made his escape good while Shahid and Mansoor were arrested by those people, that the time of incident disclosed by the complainant between 11 to 11-30 p,m. while in the second subsequent statement recorded on 7-2-2007 in the Court the complainant stated as under:--

8. ...It was Iftari time. The accused who was apprehended were kept in a house. I went to my house for Iftar... and even in the second statement complainant miserably failed to disclose the role as which of accused had pistol which of accused drove the motorcycle and which of accused sat behind and even in the second statement of the complainant the witness was not cross-examined as there was no defence counsel and it was the right of the appellants to defend their case as per their choice and in absence of any lawyer this was the duty of the Court to provide him an advocate on the State cost. The learned counsel pointed out the second important witness as P.W. Pervaiz Ahmed and this witness also contradicted regarding the time and date of incident and stated that the date of incident was June 8, 1998 at 12-15 a.m. at night and he further stated that the police caught the appellants and co-accused at the spot. Even no opportunity was given to cross examined through a lawyer. In such circumstances, no corroboration is made out in their statements before the Court and in such circumstances trial Court had to juxtapose the evidence came on oath and should have relied their statements.

9. Ms. Koki Rawat learned State counsel argued that the prosecution has proved its case beyond any reasonable doubt and identified the accused persons in Court and there was no enmity between the complainant and the accused but she admitted that the learned Sessions Court should have provided the appellants at least and advocate to defend their case.

10. No doubt apparently the prosecution case looks very clear that a motorcycle was snatched by 3 persons and after chasing the accused persons two were arrested by the people and one made his escape good and subsequently, third one was also arrested and both were identified in the Court. The case linger on for the years and primarily due to agony of prolong trial the third accused who was said to have arrested later pleaded guilty and had been convicted by the trial Court while the appellants pleaded their case and the trial Court never tried to provide them a lawyer on State expenses and the trial Court should have directed the President/Secretary Karachi Bar Association to provide advocate for pauper accused from the list of lawyers prepared by the Bar Association as this was the right of the appellants to defend their case. Nevertheless witnesses, failed to corroborate on the material points, as only the complainant and P.W. Pervaiz Ahmed were eye-witnesses and they have not supported each other on material points as pointed out by the learned defence counsel. That entire case hinges upon the evidence of above prosecution witnesses but as they have not supported each other regarding the date, time, place, arrival and departure of police and production in the P.S. etc., thus a doubt has been created with regard to the involvement of the appellants.

11. It is well-settled principle of law that every doubt is required to be resolve in favour of the accused.

12. In the light of what has been discussed above I am of the considered view that the prosecution has failed to prove the case against the appellants beyond any reasonable doubt, therefore the appellants are entitled to such benefit. Therefore I set aside the conviction recorded by the trial Court and allow the appeal. The accused are on bail. Their bail bond stand discharged.

13. Announced in open Court on 12-11-2007.

14. N.H.Q./M-162/K Appeal allowed.