P L D 1967 Supreme Court 451 (PLP)

CORNELIUS, C. J.‑These are two Criminal Appeals No. 70 of 1966 by Muhammad Hanif and No. 71 of 1966 by Khadim Hussain and Parvez, each of whom stands convicted under section 394, P. P. C. and sentenced to imprisonment and fine. Leave was given by an order in which a series of doubts affecting the entire evidence in the case were enumerated, the general purport being that there was a possibility that the entire case was fabricated. After hearing the learned counsel in the two appeal and a reply by Mr. M. A. Bajwa for the State, we have come to the conclusion that in this case the Courts below have proceeded to reach a finding of guilty on the basis of consideration of separate items in the evidence, excusing clear defects appearing in each of these items, but have ignored the clear possibility that the whole case was a mere fabriction. In a number of question put to different witnesses in cross‑examination, that possibility had clearly been suggested. The crime alleged may be briefly described as follows. The principal witness Muhammad Riaz, P. W. 1, a goldsmith of Gujranwala, son of Muhammad Hussain, P. W. 8, was walking down the Bazaar Sarafan in Gujrat carrying in the pockets of an inner waist‑coat, a nugget of gold weighing 39 tolas, 6 mashas, and 6 rattis and a sum of Rs. 2,000 in 100‑rupee currency notes, when he was pounced upon by the three appellants and one Ashiq Hussain, who was acquitted at the trial. He was given a blow in the face by Khadim Hussain. Ashiq Hussain urged him not to incur any further beating, but to give up what he had. It was, however, Khadim Hussain who drew out the gold and the money from Muhammad Riaz's pocket. The time was between I and 2 p.m. The bazaar was open and all the shopkeepers were busy with customers. Muhammad Riaz does not say that he raised any alarm, and that might explain why he received no help from persons in large number who were in the immediate vicinity. He was fortunate however in another respect. There happened to be passing by at that time two persons, who were known to him named Muhammad Hussain, P. W. 4 and Budha, P. W. 5, both shop‑keepers of Gujrat. These persons were so close that one of them Muhammad Hussain, P. W. 4 actually heard Ashiq urging Muhammad Riaz to hand over the "gold", but neither of them intervened or called ,upon the culprits to desist, although both of them said that they knew all the four men. They showed their sympathy by telling Muhammad Riaz that they knew the men and by making a pretence of running in pursuit for a short distance: They accompanied Muhammad Riaz to the shop of Muhammad Idrees, P. W. 2, . which is some 75 karams from the spot and left him there, and themselves went in search of the culprits, as they say. The Thana is only out a furlong from the spot, but no report was recorded until 6‑10 p m. that day, although one would have expected that knowing Muhammad Riaz as they did and having seen him being robbed by four men whom they personally knew, Muhammad Hussain, P. W. 4 and Budha would have lost no time in taking Muhammad Riaz to the Thana and making a report. The excuses given for the long delay in reporting are evidently lame. In the report, it was put down that the time of the occurrence was 5 p. m., which would be some three hours after the time which is deducible from the statements of the witnesses. But what is remarkable is that in this report purporting to be made by Muhammad Riaz whose acquaintance in Gujrat was confined to some goldsmiths with whom he had been doing business previously, the full names of the culprits with aliases in two cases, parentage in all cases, tribe in two cases and residence in all cases, were furnished. It was said that these names had been given to the reporter by the aforesaid Muhammad Hussain, P. W. 4 and Budha, who were described as eye‑witnesses. These two said that they gave the names to Riaz not immediately on the spot, nor at the shop of the aforesaid Muhammad Idris, but later when they were coming back after their unsuccessful chase of the culprits, they met 1dris and Riaz near a certain doctor's clinic, and there communicated the names. This place was even nearer the Thana than the spot and there, was nothing to prevent these two persons going along to the Thana with Muhammad Riaz and Muhammad Idris. This was particulary natural, for both of them are closely connected with Muhammad Idris. Muhammad Hussain P. W. 4 is a partner in business with Jamshed, brother to Muhammad Idris, and also a goldsmith. Muhammad Hussain denied the partnership, but it was admitted by Budha to be a fact. Muhammad Hussain however admitted that Jamshed had once been challaned for being in possession of foreign gold. As for Budha, he admitted that he actually worked with Muhammad Idris, who was the son of his mother's own sister. Yet, both these witnesses say that they did not go to the Tbana with Muhammad Riaz and Muhammad Idris, but waited until they were sent for by the Police, when they went to the Thana together. Muhammad Hussain, P. W. 4 said that when he was at the Thana at about 6 p. m. Muhammad Riaz and Muhammad Idris were still there, but the initial report was not recorded in his presence. Budha, however, said that when he reached the Thana Muhammad Idris and Muhammad Riaz had already left. It seems quite plain that the details of the culprits that are contained in the initial report could not have been passed on mere information given by Muhammad Hussain, P. W. 4 and Budba in the manner alleged. A remarkable fact is that each of these witnesses in his police statement gave the exact weight of the gold nugget, of which they could at the most have had a fleeting glimpse. Quite evidently, they were closely involved in the effort which led to the drawing up of the much belated initial report in this case. The connection of Muhammad Idris with the matter may now be mentioned. The statement of Muhammad Hussain, P. W. 8, father of Muhammad Riaz shows that he had bought this very nugget of gold that very day from a goldsmith of Gujranwala named Muhammad Yunus, P. W.

9. As Muhammad Riaz says that he arrived in Gujrat at about 10 a.m. on the morning in question, that is the 10th October 1963, this transaction involving a sum of Rs. 4,500 would appear to have taken place extremely early in the morning, for the distance between Gujranwala and Gujrat is some 30 miles. The noticeable thing is that Muhammad Hussain, P. W. 8, lost no time at all in sending off the gold to be disposed of in another town. That is not, however, the way in which gold acquired bona fide is ordinarily dealt with. On the other hand, "hot" gold, that is, gold acquired by some under hand means, e.g from robbers or smugglers, is never kept in possession for any length of time. Safety compels that it should be got rid of as quickly as possible, and there is no doubt that something of that kind was practised in relation to this particular gold. Muhammad Riaz on arrival in Gujrat first went to the shop of Muhammad ldris, who was an acquaintance of his and offered him the gold. Muhammad Idris refused saying that the market was low, an excuse which does not seem valid, if the inference be accepted that Muhammad Riaz had a strong reason for wishing to get rid of the gold quickly. Accordingly Muhammad Idris asked Muhammad Riaz to try elsewhere in the Sarafa. Muhammad Riaz had another mission to perform and that was to obtain froth Muhammad Idris payment of a sum of Rs. 2,000, which was owing from him to Muhammad Hussain, P. W.

8. Muhammad Idris said he would pay this amount on Muhammad Riaz's return from his visit to the rest of the bazaar. Muhammad Riaz only visited one other shop, that of a goldsmith named Bawa who also refused to buy the gold, and he accor dingly returned to Muhammad Idris's shop. This time he took payment of his debt. He did not say how long he was away from Idris's shop, but the latter said that Riaz came back about 1 or 2 p.m. and asked for his money, which was duly paid and ldris also gave him a ruqqa, Exh. P. B. in which he noted the fact of the payment. While he was making this payment according to Muhammad Riaz, he noticed two passersby in the street staring at him, whom he identified as Khadim Hussain and Hanif (in his evidence). He mentioned this to Idris, who however said that this was no cause for worry. After a stay of half an hour, Muhammad Riaz left and a little later he returned saying that he had been robbed, whereupon Idris advised him to report at the. Thana. Idris did not say that Riaz was brought to him by Muhammad Hussain, P. W. 4 and Budha, but that he came alone. On this point, doubt is created by the statements of these two witnesses, who as has been seen were persons who were most likely to have given all possible assistance to Muhammad Riaz. Muhammad Hussain, P. W. 4 said that they took Riaz to Idris's shop, and so did Budha. Muhammad Hussain P. W. 4 said that he first made an attempt to pursue the culprits and then coming back took Riaz to Idris's shop, but Budha said that they took him directly to the shop, and thereafter went in search of the culprits. These statements must be taken in relation to the facts already mentioned, namely, that these two persons were previously acquaintance with Muhammad Riaz and were close associates of Idris, and that being in possession already of particulars as to the identity of the culprits, it was quite unnecessary for them to have gone in pursuit. If in fact there had been a robbery, the proper thing for all the four men to have done was to have gone directly to the Thana to make a report. The story of their going in pursuit appears then to be a mere device for filling up time in order to make up for the delay in the filing of the report. Having full details of the culprits in their possession a natural expectation would be that the police would immediately go to their houses to make a search for them, and would attempt also to search their houses. The Thanedar, Muhammad Salim, P. W. 13, admitted that he never went to the houses of any of tile accused persons and never searched any of their houses. He waited until they could be arrested. Hanif and Ashiq were arrested on the 12th October 1963, Parvez on the 17th October 1963 and Khadim Hussain on the 18th October 1963, according to his statement. His further testimony related to recoveries from two of the accused persons both allegedly made on the 22nd October 1963, On that day, Parvez according to his evidence led the Police party to a grave in a cemetry close to his house and from under the head‑stone produced a tin to which were found Rs. 1,000 in 100‑rupee currency notes along with the aforesaid ruqqa, Exh. P. B. given by Idris to Riaz. The same afternoon, the Police party went by bus to a village Ghakkar situated about midway between Guirat and Gujranwala taking with them the accused Khadim Hussain, who led them to the shop of one Taj Din, P. W. 6, a goldsmith and Taj Din produced the stolen nugget weighing 39 tolas 6 mashas and 6 ruttis, as well as a behi in which was entered a transaction of the date 16th October 1963 showing the purchase by Taj Din from Khadim Hussain of the gold for a sum of Rs. 4,

826. It was brought out in evidence that this entry was made on the very last page of the behi. It was written by Taj Din himself, and thumb‑marked in the name Khadim Hussain. There was no attesting witness. It was brought out further that this particular thumb‑impression was the only one in Taj Din's book, which was taken in ink such as is used in inkpads, that is copying ink. Every other thumb‑impression was taken with ordinary writing ink. The suggestion was advanced that in fact this document was fabricated by the Police, and the thumb‑impression of Khadim Hussain was taken with the aid of a pad belonging to the Police. This was of course denied by the prosecution witnesses concerned. But as to these recoveries, a major doubt appears at once from the evidence of Muhammad Riaz himself. This man is no mere ordinary illiterate villager. He is a goldsmith by caste and profession, and it is well‑known that such persons are among the shrewdest in any community. Muhammad Riaz said in his statement not once, but twice, that he was sent for by the police on the third day after the occurrence, which would be the 12th October and at the Thana, they showed him his gold and currency notes, to the value of not Rs. 1,000, but of Rs. 2,

000. He said also in answer to a Court question that on the third day, he attended an identification parade in the jail and there he identified only Hanif and Parvez. In the intervening period, he had not returned to Gujrat. These statements were not challenged by the prosecution in the course of the examination of this witness. They are 'sufficient to give the lie wholly to the Police version of the recoveries, viz., that they took place on the 22nd October 1963, 12 days after the occurrence. They are sufficient also, it seems, to falsify the statement of the Thanedar that there was so much delay in securing the arrest of the accused persons. The earliest arrest as seen above was said to be on the 12th October 1963, nine days after the occurrence and Parvez, who allegedly made a recovery was not arrested until the 17th October 1963, and Khadim Hussain not until the 18th October 1963. When these allegations are taken along with the candid admissions that no attempt was made to go to the houses of any of the four culprits, although they were known from the very outset, and that their houses were never searched at all, a very grave doubt develops as to whether there was any delay at all in the Police getting possession of the gold and the money. Muhammad Riaz returned to Gujranwala the same day, that is the 10th October 1963, and his statement that he next came to Gujrat whets he was sent for by the Police and that was two days after the occurrence, seems perfectly natural. Not the slightest reason appears for disbelieving his statement that on the 12th October 1963, his nugget of gold and the sum of Rs. 2,000 were already in the possession of the Police. When so grave a doubt appears, it becomes evident that nothing in the case can be accepted with any confidence. As to the recoveries, further doubts are patent on the record. That allegedly made at the instance of Parvez was recorded in a memorandum which was attested by one Muhammad Shafi, who when he appeared in evidence denied that anything was recovered in his presence. The alleged sale by Khadim Hussain of the gold nugget to Taj Din was according to the latter witnessed by one Jamal Din Butt, who was sent for specially in order to witness the transaction, although he did not attest the receipt. Jamal Din Butt was cited as a witness in the case, but was later given up on the ground that he had colluded with the opposite‑party. Another reason for defection by all these witnesses seems much more natural, namely that whatever part they took earlier in the investigation, they were not prepared to give false evidence when it came to a criminal trial. Muhammad Riaz himself threw doubts upon the truth of his own evidence by his failure to pick out Khadim Hussain and Ashiq at the test parade, held by a Magistrate on the 19th October 1963, according to the record, i.e., the 9th day after the occurrence. Yet, Muhammad Riaz said this was only on the third day, i.e., the 12th October, and he was not challenged on the point. His statement cannot be a mere lapse of memory on his part. The discrepancy points to some deliberate irregularity. It is noteworthy that the Thanedar admitted that Muhammad Riaz had come to the Thana on a date prior to the 19th October, but he refused to refer to the Ziminis of the case to discover this date. Khadim Hussain was described in the initial report as a pehlwan, and presumably had a distinctive physique. He is one of the two men whom Muhammad Riaz allegedly noticed staring at him, when he was receiving money from Muhammad Idris in the latter's shop. He is also the man, who allegedly gave a blow to Muhammad Riaz on the face. Not only that, he is the man who extracted the gold and the currency notes from Muhammad Riaz's pocket. All this happened in broad day‑light. No excuse whatsoever can be put forward for the failure of Muhammad Riaz to pick out Khadim Hussain at the test parade. His failure to do so is sufficient to cast a serious doubt on the truth of his statement that Khadim Hussain took a principal part in the assault on him. As has been seen, he failed also to pick out Ashiq Hussain at the parade and this is the man, who is alleged to have spoken to him and urged him to hand over the goods and not run the risk of further beating. There is every reason why he should have identified Ashiq at the parade. These failures indicated more than a mere lapse of memory. They go to the basic truth or falsity of the case. Muhammad Riaz too seems to have chosen to introduce defects into his testimony, and only one reason can be inferred, viz., that he could not make himself responsible for a false conviction, It remains to mention another very strong feature of doubt affecting the whole case. As has been seen, Muhammad Hussain, P. W. 4 and Budha, the alleged eye‑witnesses are closely associ ated with Idris and they had every reason to help him and his business associate Muhammad Riaz. There is also no reason whatsoever why these two persons should, being eye‑witnesses of the same incident and being associates of each other, allows any difference to appear between their statements. They admitted going to the Thana together and being together in all they did for the help of Muhammad Riaz. Therefore, when Budha deliberately says that the assailants of Muhammad Riaz numbered not four, but three and that he did not see Hanif there, a reason must be found. The omission is clearly deliberate. No motive is shown for him to exclude Hanif from the number of the culprits. He evidently did so with the deliberate intention of introducing a fundamental weakness into the prosecution case, and in the absence of any personal reason of favour or disfavour in respect of any of the accused persons, the conclusion must be that at the stage of the trial he felt that he could not allow the case to succeed. That could only be if it was to his knowledge an untrue case. In order to secure some measure of belief for the story which the prosecution were putting forward, it was necessary to show by some evidence, however slight, that there was some form of association between the four accused persons. The record shows that no two of them belong to the same caste. Khadim Hussain is a Kashmiri, Parvez is a Jat, Ashiq is a Mirasi, Hanif is a Sheikh. There is no similarity of profession either. Khadim Hussain is a motor driver. Parvez is a clerk. Ashiq gave his profession as manja sazi, that is making string for flying kites with. Hanif is a shop‑keeper. There is nothing to show that these persons are men of criminal tendency or loose behaviour, although perhaps the stringency of the Evidence Act, may have prevented bringing of such evidence on record. There could at least be evidence to show that they were moving about together but there was nothing of the kind. Yet, the story is that within a few minutes of Khadim Hussain and Hanif, having watched Muhammad Riaz at Muhammad Idris's shop, they joined up with the other two accused persons, and made the attack on Muhammad Riaz which is alleged. The strong possibility is that they were joined together in the accusation for reasons unconnected with the alleged robbery which may or may not, have taken place, and that these reasons are known only to the prosecuting agency, and perhaps, to Muhammad Idris. The whole of the prosecution case is streaked with falsehood. The major likelihood is that the discovery was made that Muhammad Riaz was trying to dispose of "hot" gold in the Sarafa at Gujrat at the shop of Idris, a goldsmith, whose own brother Jamshed was known to the Police as a gold smuggler. There was thus every reason for Muhammad Riaz to be relieved of the gold. As for the money, the case for the prosecution might have been somewhat strengthened, if Muhammad Hussain P. W. 8, had been able to produce something by way of proof to show that this large amount was owing to him from Muhammad Idris. Nothing of the kind was forthcoming. The ruqqa, Exh. P. B. allegedly given by Muhammad Idris cannot serve the same purpose. It was obviously procured to connect the money with the alleged robbery. It is a matter of surprise that when burying the stolen money, the thief should also include with it this ruqqa, which was useless for his own purpose and could only serve to identify the money in some context, that could only bring harm to him. Taking all these circumstances into account, we are fully satisfied that the case against the appellants was a mere fabrica tion, and we accordingly allow these appeals and acquit the appellants. A. H. Appeals allowed.