1995 PLP 1680 (MLD)

4. The prosecution examined 8 witnesses during the trial of the appellant. The main evidence of the prosecution has been tendered by P.W.2, A.S.I. Muhammad Hayat and P.W.4 Head Constable Muhammad Riaz. They were members of the police party who had stopped the Mazda Truck. According to these two witnesses, the appellant was driving the truck and on his search his identity card was found on his person, which was taken into custody and a memo prepared in that regard.

5. Statement of the appellant was recorded under section 342, Cr.P.C. in which he pleaded ignorance about the stoppage of the truck by the police and recovery of 750 K.G. of Charas from its secret cavities. According to him, his identity card had been lost earlier and he reported the matter to the police and he produced photostat of the report. The incident is of 5‑7‑1991 whereas, according to the appellant's case, a month earlier on 7‑6‑1991 he had made a report (non‑cognizable) at Police Station, Satellite Town, Quetta, that his identity card had been lost. The appellant also gave evidence on oath under section 340(2), Cr.P.C. in which he reiterated his plea that he was not the person who was driving the truck on 7‑5‑1991 and, as regards the identity card, he relied upon his report dated 7‑6‑1991 made at Police Station, Satellite Town, Quetta, about its loss. According to the appellant, he has been falsely implicated by the police after releasing the real culprit and placing the entire blame on the appellant solely on the basis of the identity card of the appellant, which had been lost a month earlier to the incident.

6. Mr. Syed Ayyaz Zahoor, learned counsel foi the appellant, has argued this appeal only on the ground that the appellant was falsely implicated submitting that the culprit was somebody else and the appellant made accused in this case on the basis of his identity card, Learned counsel for the appellant did not challenge the prosecution case about the stoppage of the Mazda Truck and recovery of 750 K.G. of Charas from its secret cavities but, as observed, his contention was that the appellant was not the driver of the truck and. had no concern with the recovery of the Charas from its secret cavities. According to learned counsel, merely on the basis of the national identity card of the appellant, which might have been found by the police, the appellant cannot be saddled with responsibility of transporting the said Charas as appellant's identity card had been lost a month earlier and evidence of such loss is supplied by the report dated 7‑6‑1991. Learned counsel also referred to what he described as unbelievable version of the police that custody of the culprit' was handed over to the levies from where he escaped. According to learned counsel, the factum of handing over custody by the police to the levies itself is doubtful as no reason has been given why the custody had been transferred by the police to levies and, secondly, it was submitted that, in any case, evidence about the escape of the culprit should have been given by Dafadar Yar Muhammad of the levies, who was not examined by the prosecution. According to Mr. Syed Ayyaz Zahoor, the prosecution had failed to establish its case against the appellant, who was entitled to acquittal. In the alternative, it was submitted by learned counsel for the appellant that if there was any doubt about the veracity of the copy of the report dated 7‑6‑1991 made. by the appellant at Satellite Town Police Station, Quetta, the case may be remanded to the trial Court for recording further evidence to establish genuineness or otherwise of the said report.

7. Mr. Yakub Khan Eusufzai, learned Advocate‑General, Balochistan, on the other hand argued that the prosecution had established its case beyond reasonable doubt against the appellant. According to the learned A.‑G., the plea of false implication is based solely on the copy of the report which cannot be relied upon and the trial Court has not committed any error in accepting the prosecution case that it was appellant Muhammad Arif who was the driver of the Mazda Truck when it was intercepted on 5‑7‑1991. According to the learned Advocate‑General, no case for interference has been made out.

8. As no challenge has been made to the prosecution case to the extent that the said Mazda Truck was stopped on 5‑7‑1991 and, later on, from its secret cavities 750 K.G. of Charas was recovered, the only contention that has been advanced on behalf of the appellant in the present appeal and which requires consideration is whether the culprit was the appellant. It may be repeated that, according to the appellant, he was not driving the truck and had not been arrested on 5‑7‑1991. The main reliance as regards the plea of false implication depends on the report dated 7‑6‑1991 alleged to have been made by the appellant at Police Station, Satellite Town, Quetta, regarding loss of his identity card. The date of report is a month earlier to the date of incident i.e.. 5‑7‑1991. In further support of the plea of false implication doubt was expressed regarding the transfer of custody of the appellant to the levies and the escape of the culprit on the same night and‑failure to examine Dafadar Yar Muhammad of levies to establish that the culprit had escaped.

9. Evidence regarding the identity of the culprit, who was driving the Mazda Truck on 5‑7‑1991 when it was intercepted by the police, is supplied by P.W.2, A.S.I. Muhammad Hayat and P.W.4 Head Constable Muhammad Riaz. Muhammad Hayat has stated in his examination‑in‑chief that when the Truck was checked there was smell of Charas and the accused present in the Court, namely, Muhammad Arif, was the driver of the truck. He further stated that he made personal search of the accused on which his identity card was recovered from his pocket which he produced as Exh.P/1 and that he handed over the accused to Dafadar Yar Muhammad of the levies and that he also informed his 'officers. The witness was cross‑examined regarding the identity of the culprit and his replies are as follows:‑‑‑ "It is incorrect that the I.D. Card Article P/1 was not recovered from accused and it was found by me from some place. It is incorrect that actual accused‑was released and accused Arif was not seen by me before today. It is incorrect that the accused has no connection with the truck." ' P.W. 4 Head Constable Muhammad Riaz has stated in his examination‑in-?chief that the truck was stopped on 5‑7‑1991 and the driver of the truck was made to come down and from the personal search of the driver identity card was recovered and the driver was handed over to the levies personnel who were also present there. He further stated that accused Muhammad Arif, present in the Court, was the driver of the truck. He also identified the I.D. card Article P/1 as the same that was recovered from the search of the appellant. This witness was cross‑examined regarding the identity of the culprit and the cross‑examination in that regard is as follows:‑‑‑ "It is incorrect that no I.D. card was recovered from the accused. It is incorrect that Hayat did not search the accused. It is incorrect that I made false statement today."

10. The evidence of P.W.2 and P.W.4 about the identity of the culprit has been believed by the trial Court. Relevant parts of the evidence of the two witnesses regarding the identity of the accused, including their cross?-examination, have been referred. There is no allegation of enmity against the two police officials or the police against the appellant. Finding of the trial Court that the evidence of the P.W.2 and P.W.4 establishes the identity of the culprit as the appellant does not suffer from any infirmities to raise any doubt and call for interference. However, the main emphasis of Mr. Syed Ayyaz Zahoor, learned counsel for the appellant, about the false implication of the appellant on the report made on 7‑6‑1991 by the appellant at Police Station, Satellite Town, Quetta and the copy of the Roznamcha. (Mark‑1) was relied upon by the appellant when his statement under section 342, Cr.P.C. was being recorded. It was argued on behalf of the appellant that the said report, even if not believed, at least causes a doubt about the identity of the culprit and before reaching a just decision of the case it is necessary that the case be remanded to the trial Court for recording further evidence to establish the genuineness or otherwise of the said report. Reference was made to the powers of the Court under section 540, Cr.P.C.

11. The incident is of 5‑7‑1991. According to the prosecution, the appellant had escaped from the custody of the levies. The argument that escape of the culprit from the custody of the levies and non‑examination of Dafadar levies Yar Muhammad throw a doubt about the identity of the culprit, has not impressed me. If an accused escapes from custody, the escape itself will not be fatal to the prosecution case even, if the prosecution fails to bring out on record the circumstances which led to the escape of the accused. Non? examination of Dafadar levies Yar Muhammad is also not fatal to the prosecution case. As observed, P.W.2 Muhammad Hayat and P.W. 4 Muhammad Riaz have given straightforward and convincing evidence about the identity of the culprit and their cross‑examination had not created any doubt about the identity of the appellant. As regards the copy of the Roznamcha of 7‑6‑1991 of Police Station Satellite Town, Quetta, about the report made by the appellant of the loss, of his. identity card, it may first be mentioned that an uncertified/unattested photostat copy has been produced. No explanation on behalf of the appellant is given for not producing the certified copy. Even the photostat copy shows that it is not initialled or signed by any police official although there is an impression of rubber stamp of the police station. Then the appellant had been arrested in the present case in 1993 i.e. after two years of the date of incident. He was in custody at District Jail, Quetta in another case and, on information being received that appellant Muhammad Arif was accused in another case, his custody was obtained in the present case with permission of the concerned authorities. Evidence of P.W.2 Muhammad Hayat was recorded on 2‑11‑1993 and that of P.W.4 on 27‑12‑1993. In the cross‑examination of these two witnesses, no reference was made to the said report dated 7‑6‑1991 about the loss of the identity card. If the case of the appellant was that his identity card had been lost and a report had been made at a police station as far as back on 7-6‑1991 about the loss of the identity card, in the cross‑examination of the witnesses of the prosecution, some reference should have been made about the same, which was admittedly not done. A bail application had also been moved by the appellant in which bail application also no reference was made about the loss of his identity card by the appellant and report dated 7‑6‑1991. The bail application was rejected by the trial Court by order, dated 3‑1‑1994. The appellant filed a revision application before this Court being Criminal Revision No.10‑Q of 1994. In the memo of the said revision application also no reference was made' about the loss of the identity card and the report dated 7‑6‑1991. The bail application was disposed of by this Court on 26‑5‑1993. For the first time, the appellant takes up the said plea when his statement under section 342, Cr.P.C. was recorded and that is on 26‑3‑1995. It has already been noted that only an unsigned photostat copy of the Roznamcha of 7‑6‑1991 of the Police Station, Satellite Town, Quetta, was produced. For a period of about two years during his trial prior to 26‑3‑1993, neither in the trial nor in the bail application and in the said revision petition, any reference was made to such report about the loss of the identity card.

12. For the facts and reasons mentioned hereina6ove earlier, I am of the view that no error has been committed by the trial Court believing the prosecution evidence about the identity of the appellant as the culprit and not relying upon the plea of false implication on the basis of the unsigned photostat copy of the report dated 7‑6‑1991. For the reasons mentioned above, I am also of the view that no case is made out for recording further evidence by exercising powers under section 540, Cr.P.C.

13. As a result, Criminal Appeal No.1l‑Q of .1995 is dismissed. The appellant is on bail from this Court. His bail bonds are cancelled. He is ordered to be taken into custody to serve out his sentence. N.H.Q./984/FSC???????????????????????????????????????????????????????????????????????????????? Appal dismissed.