The State Vs Ihsanullah

EFORE TIIEHO URA HAWAR URTMIN ,t).

DAR.IJL OAZA ITWAT q ..r'.1, 1,.

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Versus \ ,

lhsanullah sro Gul Akbar rlo Qondog Afghanistan pres enty tesiding Refugee Camp liayar Teh Samarbagh DisHct DIr (AccusedlRecpondent) CASE FIR NO. 188 DATED bt-Oe-ZOte urs 41914681471 PPC 14 FA P.S mAYAR,

DIR LOWER.

APPEAL INST ACOUITTA urs 4l7rll cR.Pc AGAINST THE JU t) TENT DATED: 2A1ilm16 O F THE LEARNED :l s I ITAF' 2t AT LOWER IN OVE MENTI CASE.

RESPE ULL Y

A brief fact of the prosecution case is that local police of P.S Mayar during routine gasht stopped a private passenger Pick up Datsun and de boarded accused for his identification. He was searched and during search the local police recovered from his possession CNIC No. 15303-9422983-5. As he was identified as Afghan Refugee hence the subject case was registered. He was arrested, interrogated and after completion of investigation case vras challaned to the Court of ludicial Magistrate/Illaqa Qazi Samarbagh for trial. He was charge sheeted to which he did not pleaded guilty and claimed trial. The learned trial court recorded statements of five (5) PWs and thereafter recorded statement of accused U/S 342Cr.PC and was convicted and sentenced for l8 Months imprisonment and fine of Rs: 500fi)/- and in default of payment to further undergo six months imprisonment' Being aggrieved by the said order the accused/respondent filed appeal against the order of Iudicial Magistrate/Illaqa Qazi samarbagh who vide order dated: 2211212016 accepted his appeal and acquitted him ofthe charges.

Being aggrieved by the impugned judgrnent daled:22t1212016-of the Additional session JudgeflZQ Samarbagh 0re state begs to submit this appeal inter alia on the FLEDTOgIAf following grounds'

?2F

GROT]NDS FORAPPEAL..

l. That the judgrnent /ordef of ttre leirmed Additional session J Samarbagh is against taw, facts and cgmplete misreading/nin-reading of ttre rtll ,:,1.1

fu Sheet

PESHA R HIG COURT, GORA B cH/ DAR UL QAA s T

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\[email protected] A.A.GI bv ML Ralla A Asll: cati Ge'nerul.

Resoonderyl: fihsanul lah) v Mr. mulloh an. Advocote.

TOHAM MAD IBFNH KI{AN J-. Here is 'the impugned judgment of acquittal dated ' Lz.n.zoto rendererl by the learned Additional , Sessions Judge/Izafr Zila Qazi Samarbagh Dir

tLo*er, whereby the accused/Respondent Ihsanullah was acquitted under sections 419,468,471PPC and 14 Foreign Act in case FIR ; No. 168 dated 0 I .06,201 6 being charged under the f c above-referred sections of law at Police Station ' Mayar DiPtrict Dir Lower'

2.' Th" prosecution version as deciphered ' frorn th. contents of 'Murasila' followed by /lrrEFIrft t ,','/taJ,;'\ g ench

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lodging of First Information Report is that during mobile Ghast, the local police halted the passenger$ pickup coming from Maskanai side' Out of which a young lad was de-boarded on account of suspicion, who disclosed his name as Ihsanullah son of Gul Akbar resident of ,Afghanistan. During his personal search, out of his front pocket the police recovered Pakistani National Identity Card bearing No' 15303- 9422983-5 on the name of Aminullah son of Abdul Jatrbar Khan, upon which picture of the said Ihsanullah was hitched on. Thus, the ,brd FIR was lodged againet him at Police Station concemed.

3.Upon crlmpletion of investigation, complete challan aqainst the accused/Respondent

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i was submitted before the learned Trial Court' ,)- Charge was framed against the f accused/Respondent, on 10.9'2016, who,pleaded home not guilty and claimed trial. ln order to bring charges, the prosecution examined Abdul Ghaffar ArrESy4 (S.B.) Hm'bL Mr' hlri.r M.rlr|tlrd tbtnill XIE t.,,."t/.,,r1 Po,.6 ,. " 'ri Ge nch nri',.',,' '' "j ' ::"/Ji'

Khan ari PW-I, Muhammad Naveedullah Constable as PW-2, rVuhammad Afzal Khan SI as PW-3, thc complainant Muambar Khan SHO as PW-4, Muhammad Zahid ASI as PW-5 and statement of one Ihsanullah son Buzarg Ahmad Superintendent NAI)RA office Samarbagh was ' recorded as CW-l.

4.Upon c()nclusion of evidence of prosecution, statement of the accused/Respondent was recorded under section 342 of the Code of Criminal Procedurq, wherein he denied the charges posed innocr:nce and stated to have falsely been implicated in the case. :

5.After hearing leamed oounsel for the accused/Respondent and leamed State counsel, the leamed Judicial MagisnateAllaqa Qazi Samarbagh was impressed with the evidence put-forward by the prosecution and vide his judgment dated f 24.11.2016 convicted and sentenced the accused/Respondent in the following manner:- {;r n si,>t r'- tr'/, / .t lobsew ariont U' t)l I t * " t

lot l-=t L/J-,i 1Nv1,L.lcne*irg i4 ) I 76 < [\TTFSTBh.

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t-r rrr,(orl Pesitl., t, :' ,l.i\irri Bench i,4irrlj. r. ,i., -ri-..).,2--.

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6 Next olf feeling aggrieved, the accused/Respondent taken up the matter before the Court of learned Additional Sessions ludgellzafr Zila Qazi:Samarbagh Dir Lower through Criminal Appeal No. l7l10 of 2016, wherein on accePtance of appeal vide impugrred judgment of acquittal t

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dated 22.12.2016 accused/Respondent was acquitted of the charges. The concluding Para of the said jr.rdgment is reproduced as under for ready reference:-

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7 The State is dissatisfred with the findings contained in the judgment of acquittal dated22.12.2016 passed by the leamed appellate Court. Thenceforward this appeal within the

(l)of the Code of rneaning of Seotiorr 417

Criminal Procedure against acquittal of the accusedlRespondent with the following Prayer:- " Keeping ln vlcw lhe above cogenl teosons, it iS humbly prayed that lhe ordq dalal 22.12.2016 ol the leaned Courl ol Addltlonal Sesslons :,Iudge/Iwlt'llla Qazi Samarbagh moy ktndly he reslored and thc accused/RcsPondcnl moY be Lommtacd lo Judlclal lock uP and rtis etpel to Alghanlstan lrom Pa*lslan ln order lo meet thc ends ol jusllce."

8.Argur:nent$ of learned As$: Advocate ' General appearing on behalf of the State and leamed counsel for hcquitted accused/Respondent r ld, were heard with veltemence and dYailable record gone through with tteir valuable assistance' g.

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As per asservations levelled by the prosecutif;n through 'Murasita' 'follorved by

ATTESTE

) (S.8.) tlonth Mr. Juric. Moh.olmd lb.i'Ir Kn n i:- rr!r j,rel Rc rr ch Pesltr"' ll..:i] r.lin!1. ,

lodging of the First [nformation Report, the local police have recoverr:d forged Pakistani National Identity Card from personal possession of the accusedlRespondent Ihsanullah being an Afghan National residing in Pakistan and more so at the relevant time he could not produce any identity card of the status of an Afghan Refugee living in Pakistan, therefore, the ibid FIR was lodged against him at Police Station Mayar District Dir Lower under sections of law as referred to above' A bare look of the charge framed against the accused/Respondent would divulge that the leamed Trial Court in a very slipshod manner charge-sheeted the accused/Respondent without defining lhe offence being committed under each and every section of law. Out of the levied sections against ther accused/Respondent, section 419 along with section 416 PPC reads:

f, Chealine bv lEryonatlon. A person ls stld ld "cheat by personallon" lf he cheats by pretendlng to be some other petson, or by knowlngly subs:lilullng one puson lor t anolher, or represenling that he or ony tu"rrtr*w t ' -''/'t''l' t{tw$ (S-B ) Horah },L i.{o}.!',Dtd lki'h Knro 'l'i '1\'l l'\'li':rl s 1:i'.';');" , , ,".' '.r''' '' "'

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olhei person is o, person olher lhan he or such olher persoh rcqlly is. The puni.rhment of this offence hos been delined under se,:tlon 419 PPC,',

Keeping in sight the theme AS

envisaged in above quoted section of law, the evidence rlf proseculion is silent to the effect that the accusr:d/Respond.ent has ever used this forged Identity (--ard for the purpose of personation pretending to be son,eone else, rather he disclosed his real id,rntifr to bt: an Afghan National living in Pakistan and durirg his personal search the Pakistani,National identity Card was recovered from his front por:ket. Thus, the element of " chea tins bv oersone fiion" is missing in this case.

Likewise, section 468 of the Pakistan Penal Cocie opines:-

Foruerv for olttoose of cheatlns

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llhc'ever commits lorgery, intending lhot lly'-- f, the do'cumenls ,forged shall be userl lor lhe PatPose of chealing'"

ln the sarne analogY "fugd'has been defined under secti'rn 463 PPC in the tbllowing manner:-

ATT

'*JP frffireg)H".t-i;EI di!. MthrEm.d lbohin Khan F.: ,1ni,,Ir' P,:: i .. : 'ir C r\ ri. i tnch . 'i:;''-; S

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"Eg!lg&, t' lfhoever makes any lalse docament ot porl ol a docununl, wlth inlent lo coase damage or lnjury lo lhe. public or lo auy p€rcon ot to supporl any. clalm or t le, or lo cause any pe$on lo pafl with property, ot to entfi into any exprcss or lmplled contraat, or wilh lnlenl to commll froud or lhot lraud moy be comm ted, commlls forgery,tl Again the evidence of prosecution is dormant about this element that whether this Identity Card was ever used to cause damage or injury to the general public or due to this act ofthe accused/Respondent,anY harm has been caused to anyone. '['hus, the basic theme of referred section i.e. " r e ati " is not

coming to surface frtlm the evidence so adduced by i the prosecution. Similarly, applicability of section 471 PPC: to the extent of accusedlRespondent is l

also under cloud ar; he nOver used this Identity r Id_ Card as gbnuine document, In this regard, reliance lt

ihas been placed or, b 2001 re 767

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N.wJ, (sI) llortlo l'& rr ,k Mdl.lrF.d lb.rhio Kh.d

ALI, S,I/F.I.A.. BAD oth I

wherein ttie relevant citation speaks of:- $A171-.Forgery-Possesslon ol -Ss. t loryed documen,ls flol an otfence-Mere possesslon of lotgcd documenls by t:lsetf ls not an olfence unless lhe some are used lor lhe purpose ol cheailng or Iraudalently used as genuine.

10.Apart from above, the allpged Pakistani National Identity Card on the basis of which the accusedlRespondent has been convicted' by the leamed Trial Court and subsequently acquitted by the leamed Appellate Court has not been exhibited during the trial proceedings coupled with the fact that it was expired. So, there is no evidentiary value ofthis piece ol'evidence in respect ofguilt of the accusedlRespondent, which has rightly been disbelieved by the* learned Additional Sessions Judge concerned.

f, 11. The prosecution also levied section 14 Foreign Act against accused/Respondent because a

he could not produce any valid document at the time of his arrest. But the prosecution badly failed ArrEsyiP- rfiwd (S.8.) ltubl. Mr' J',rt Md'sod lb.rlim Khl, 6 o""l"tl., r"n,n Pcslt " ,1 _r.,ri, S$iit.

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to bring <ln record irny dooumentary evidence to ,i the effect.that the accused/Respondent is living as an Afghan Refugee illegally in Pakistzur, rather during the course of mguments learned counsel for the accusrd/Respondent produced a card wherein accused/Respondent Ihsanullah has been shown as an Afghan Citizen, placed on record.

12.Even otherwise, it is the duty of the t prosecution to prove: its case beyond any shadow of doubt and now it has been settled by the Hon'ble apex Court that a single circumstance creating reasonabl: doubt is sufficient for acquittal of the accused and if any single and slightest doubt is created, i1s benefit nrust go to the accusecl, so, the trial court has rightll' extended the benefit ofdoubt to the accused on valid and cogent reasons based py'-. on proper aPpreciation of evidence and the acquittal of respondent does not call for any interference by this Court' Moreover, criterion of appraisal ofevidence in an appeal against acquittal is quite differpnt than an appeal against conviction'

ATTESM

|,hwir (s.B.) Hoo'bl. M,, Jsrk MohEttud lbrhin K E ' -,tfri)t11, r.nn,r ' ' l, - s';l' 'i'

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because in case ofacquittal double piesumption of innocence lies in favour of the accused. Even if another view is possible, the view favourable to the accused is to be prei.'ened. Reliance in this regard can be placed on the case of Muha Iobal vs.

Abid Hussain o lias Mithu and 6 othe , 1991 1928. Learned Astt: Advocate General failed to l)oint-out any misreading or non-reading of the eviCence on record and on the contrary the evidence was appreciated and assessed on the settled principles of law by the learned appellate Court.

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13.For what has been discussed above, this criminal appeal being shorn of merits stands dismissed.

Announced.

18.0t.2013

Certifietl tc be true cap.

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JUDGE

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Pcsliar,iar lii;,ls 1, ..,, '

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//r/e'// |hwrb (S.8.) Hdlh Mr. I !ic.rl'lohrmm.. Ib.thin Xl..n