1998 P Cr (PLP)

MUHAMMAD NASEEM CHAUDHRI, J.

This appeal is directed against judgment, dated 16-7-1995 passed by the Judge, Special Court, Suppression of Terrorist Activities, Faisalabad and Sargodha Division at Faisalabad whereby Ishtiaq Nazir, Iftikhar Hussain, Khair Muhammad and Ali Asghar appellants were convicted and sentenced to R.I. for a period of ten years each and to pay a fine of Rs. one lac each or in default of its payment to further 1 undergo R.I. for a period of one year each under section 392/411, Pakistan Penal Code.

2. The facts giving rise to this appeal are narrated in complaint Exh.P.A. got recorded on 23-4-1992 at 8-45 p.m. by Maqbool Ahmad complainant P.W.5 before Muhammad Aslam, Inspector/S.H.O. Police Station Peoples Colony, Faisalabad P.W.7 wherein he narrated that on 23-4-1992 at 7-50 p.m. he was a driver of Sh. Bashir Ahmad P.W.3 resident of Kothi No. 187 Saeed Colony, Faisalabad. On 23-4-1992 he had gone to a Hakeem alongwith Begum Sh. Bashir Ahmad in car No.FDO-9942 valuing Rs.4 lacs. He returned to the Kothi where four persons were standing. He blew the horn of the car and the gate of the residence was opened by Noor Muhammad Chowkidar. He entered in the residence when four persons, whose particulars are mentioned in complaint Exh.P.A. entered the same while they were armed with pistols and the remaining four persons were armed with .7 mm rifles. Muhammad Mustafa P.W.3 and Muhammad Abbas P.W. (given up) were present in the plot who were being served with dinner. Begum Sh. Bashir Ahmad was brought out of the car at pistol point and they all were taken to T.V. Lounge. One person stood to guard, them while the remaining persons made illegal search of the house. In the meanwhile Shoaib Bashir P.W.6 son of Sh. Bashir Ahmad was brought alongwith Ghulam Rasool Cook P.W. (not produced). Pistol valuing Rs.10,000 owned by Sh. Bashir Ahmad, his wrist watch valuing Rs.800, Rado wrist watch of Sh. Bashir Ahmad of the price of Rs.10,000 and twenty bangles weighing 30 Tolas, one locket weighing 2 Tolas and one pair of ear rings of the weight of 1-1/2 Tolas all made of gold valuing Rs.one lac were forcibly snatched. Thereafter, those persons took away .12 bore gun lying in the gate and drove away in car No.FDO-9942 owned by Sh. Bashir Ahmad. Exh.P.A. was sent to Police Station Peoples Colony, Faisalabad where Jaffar Ali, A.S.-I. P.W.1 prepared formal F.I.R. Exh.P.A./1. From the place of recording the statement Exh.P.A. of Maqbool Ahmad complainant, Muhammad Aslam, S.H.O. went to the place of occurrence and made the spot inspection. He prepared site plan Exh.P.D. of the place of occurrence. On 24-4-1992 Car No.FDO-9942 (P.1) was found parked near Moti Mosque Stiana Road, Faisalabad which was taken into possession by Muhammad Naeem S.-I. P.W.8 vide memo. Exh.P.D. attested by Muhammad Nawaz Constable P.W.2 and Faryad Ali, Constable P.W. (given up). He prepared site plan Exh.P.B./1 of this place of recovery.

3. Muhammad Sarwar, Inspector C.I.A. Lahore P.W.9 received a secret information about the presence of certain accused persons on Defence Road, Lahore where he reached alongwith the Police officials of Police Station Manga Mandi. The road was blocked by those persons with wood. These seven persons were armed with deadly weapons who were a rested. .12 bore gun P.2 removed from the place of occurrence was recovered from Khair Muhammad appellant while revolver P.3 removed from the place of occurrence was taken into possession from Ali Asghar. During the investigation the aforesaid arrested persons made the disclosure with respect to the possession of the case property. On 5-5-1992 he went to the house of Amer Rana situated in Kasurpura, Lahore. Iftikhar Hussain appellant led to the recovery of four bangles and one pair of Kantas made of gold which were secured vide memo. Exh.P.E. and Exh.P.F. He prepared site plan Exh.P.E./1 and Exh.P.F/1 of the respective place of recovery. Pervaiz Akhtar absconder accused led to the recovery of Rado watch which was taken into possession vide memo. Exh.P.G. He also led to the recovery of four bangles made of gold which were taken into possession vide memo. Exh.P.H. He prepared site plans Exh.P.U and Exh.P.H./1 respectively. Khair Muhammad appellant led to the recovery of four bangles P 1 made of gold which were taken into possession vide memo Exh.P.1 when the site plan Exh.P.1/1 of the place of recovery was prepared by him. A watch was also got recovered by Khair Muhammad appellant which was taken into possession vide memo. Exh.P.J. when its site plan Exh.P.J./I was prepared. Ishtiaq Nazir appellant led to the recovery of four pairs of bangles made of gold which were secured vide memo. EXh.P.K. and site plan Exh.P.K./1 was prepared. This appellant also led to the recovery of gold locket which was taken into possession vide memo. Exh.P.L. The site plan Exh.P.L./1 of this place of recovery was prepared. Ali Asghar appellant led to the recovery of four bangles made of gold which were secured vide memo. Exh.P.M. when site plan Exh.P.M./1 was prepared. Muhammad Farooq, S.-I. C.I.A. Lahore P.W.10 signed the aforesaid memos. Muhammad Sarwar Inspector P.W.9 handed over the aforesaid recovered case property to Muhammad Hussain Moharrir, C.I.A., Lahore P.W.12 on 16-5-1992 who later on delivered the aforesaid case property to Muhammad Naeem, S.-I. P.W.8 vide memo. Exh.P.C. which was identified by Maqbool Ahmad complainant P.W.5.

4. Muhammad Naeem, S.-I. P.W.8 moved Mr. Tariq Zaman judicial Magistrate, Lahore for holding the identification parade of Ishtiaq Nazir, Iftikhar Hussain, Khair Muhammad and Ali Asghar appellants. Sh. Bashir Ahmad P.W.3, Syed Muhammad Mustafa P.W.4, Maqbool Ahmad P.W.5 and Shoaib Bashir P.W.6 participated the proceedings of the identification parade conducted in Camp Jail, Lahore on 2-6-1992 and identified the appellants. The said Judicial Magistrate (P.W.12) prepared his report Exh.P.N./1 on which he gave his certificate Exh.P.N./2.

5. After completion of the investigation the challan was submitted before the Trial Court. All the four-appellants and Pervaiz Ahmad absconding accused were charged under section 392, Pakistan Penal Code. Except Pervaiz Ahmad the appellants who were present at that time did not plead guilty thereto and claimed to be tried. At the trial the aforesaid P.Ws. stood in the witness-box and supported the prosecution case. Sh. Bashir Ahmad P.W.3 stated that he identified Iftikhar Hussain and Khair Muhammad appellants as well as Pervaiz Ahmad (absconder). Syed Muhammad Mustafa P.W.4 stated that he identified Ali Asghar, Khair Muhammad and Ishtiaq Nazir appellants as well as Pervaiz Akhtar absconder, Maqbool Ahmad complainant P.W.5 stated in his cross-examination that he joined the identification parade but he could not identify any of the accused persons. In his examination-in-chief he did not touch this part of the prosecution evidence. Shoaib Bashir P.W.6 stated that he identified Khair Muhammad appellant in the identification parade.

6. When examined under section 342 of the Code of Criminal Procedure all the four appellant claimed to be innocent and stated about their non participation in the occurrence. They termed the aforesaid recovery of the case property as false and did not claim the same. They did not appear in their own defence under section 340(2), Cr.P.C. on oath. They did not produce the defence evidence. Learned Trial Court gave the weight to the evidence produced by the prosecution and convicted the aforesaid four appellants as narrated above who have preferred this appeal which has been resisted by the State.

7. We have heard the learned counsel for the appellants as well as the learned State Counsel and gone through the record before us. We are in full agreement with the learned counsel for the appellants who canvassed before us that the prosecution has failed to establish the charge framed against the appellants beyond reasonable doubt. It would be proper to touch the identification parade proceedings Exh.P.N./1 first of all. Maqbool Ahmad complainant P.W.5 who is the star-witness, did not touch the point of identification parade in the examination-in-chief. In the cross-examination he particularly stated that he could not identify any of the accused at the time of the identification parade. Sh. Bashir Ahmad appeared as P.W.3 who did not name Ishtiaq Nazir and Ali Asghar appellants with respect to the identification made by him during the identification parade. Shoaib Bashir appeared as P.W.6 and stated that he could identify only Khair Muhammad appellant. Thus, their statements are contradictory qua each other as well as the identification parade proceedings Exh.P.N./1. In this view of the matter the contention of the learned counsel for the State that in the identification parade the appellants were correctly identified has no legal force. Consequently, we hold that the reliance cannot be placed on the identification parade proceedings Exh.P.N./1.

8. With respect to the alleged recovery of the case property on 4-5-1992 at the instance of the appellants we have to agree with their learned counsel who laid the emphasis that the place of recovery was the house of one Amer Rana which was neither owned by appellants nor under their possession. In such a state of affairs the benefit of Article 40 of the Qanun-e-Shahdat Order. 198 cannot be derived by the prosecution. It can well be expressed and held that the respective recovered articles were not within the exclusive possession of each of the appellants and the possession of the same was not within their exclusive knowledge. We place the reliance on Arif Ali v. Muhammad Ramzan alias Janan and 4 others 1991 SCMR 331 wherein it has been held that the recovery made from a place accessible to every one in the house could not be used as a proof of the said fact. With the material produced by the prosecution in the matter of recovery, the appellants cannot be held liable. On this ground the mere assertion of the learned counsel for the State that the respective recovery of the respective case property attributed to each of the appellants has the force need not be given the legal weight.

9. We, therefore, hold that the prosecution has failed to prove the guilt of the appellants who are entitled to be acquitted We, therefore, accept this appeal, set aside the impugned judgment and acquit all the four appellants name l" Ishtiaq Nazir. Iftikhar Hussain, Khair Muhammad and Ali Asghar. They are said to be detained in jail undergoing the sentence and they shall be set at liberty forthwith, if not required to be detained in any other case. H. B. T. /I-54/L Appeal accepted.